In Sutton the appellant was charged on the same Information with various counts of rape in relation to three different women at different times. The Court was primarily concerned with whether the groups of charges relating to each woman should have been tried separately, however Brennan J also considered the question of joinder and held that the various counts were properly joined as there was a sufficient connection among the alleged offences to treat them as a series. He accepted the observations of Lord Pearson in Ludlow to which I have referred that both the law and the facts must be taken into account. Although the offences involved different women on different occasions, they related to three sets of sexual offences against those young women in a particular area of suburban Adelaide by use of force and without consent of the victims. There was sufficient connection between them to treat them as a series and they were clearly offences of the same character.

The question of permissible joinder was considered by the High Court in De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1. The appellant was charged with unlawfully detaining a woman against her will on a particular date and also with raping her on that date. He was also charged with depriving another woman of her liberty on another date and with indecently assaulting and raping her on that other date. The appellant met each of the victims at the same nightclub. All charges were laid on the same indictment pursuant to s 585 of the Criminal Code (WA) which is in almost identical terms with s 278(1). At the trial the appellant conceded that the charges were correctly joined and it was accepted that the concession had properly been made: see Gibbs CJ at 5. However Dawson J made some observations about joinder of the charges in the same Information. Of particular significance to the issues in the present case he said at 9:

"However, for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold's Criminal Pleading Evidence & Practice, 42nd ed. at par. 1-77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape."

The Full Court of this Court considered the question of permissible joinder in Armstrong. The appellant was charged with five counts of housebreaking and larceny and two counts of attempted housebreaking and larceny with intent to steal. The offences occurred at different houses in the same general area over a period of a little over eight months. The house breaking offences were of the same character and the attempted housebreaking offences were of similar character to them. Cox J, with whom the other members of the Court agreed, discussed these cases and said that as the offences were committed in the same area within a period of a few months in much the same circumstances, including the use of a white motor car in each case, they were a series of offences of the same or of a similar character and the joinder was authorised by s 278(1).

The following propositions relevant to the present case may be discerned from these cases. Offences, including sexual offences, may be of a similar character, although they are different types of offences. Offences may form, or be part of, a series even though they involve different victims and occurred at different places or at different times. Cross-admissibility of evidence would be a sufficient nexus but is not essential. Similar views were expressed by Perry J in R v Smith (1998) 71 SASR 543 at 549.

In my view, the charges of the sexual offences were correctly joined in the Information. I think it is beyond argument that they are offences of a similar character. The circumstances of each of the offences clearly establishes that there is a nexus between them and that they should be regarded as a series of offences.

I now turn to whether Count 16 could be joined in the same Information. The offence is alleged to have occurred 16 years after some of the sexual offences were said to have occurred. It is clearly not of the same or a similar character as the sexual offences. Count 16 could only be joined if it was founded on the same facts as the sexual offences.

This question was considered in R v Barrell & Wilson (1979) 69 CrAppR 250. The appellants had attacked the manager and an attendant at a discotheque and injured them. They were charged with offences arising out of that conduct and were released on bail. About two months later, and before trial, one of them visited the manager and, by offering money, tried to induce him to modify his evidence. That appellant was also charged on the same indictment with attempting to pervert the course of justice. At the trial the Trial Judge refused to sever that charge from the indictment. On appeal it was contended that joinder was impermissible because the charge of attempting to pervert the course of justice derived from a new and different set of facts which was not only different in its nature but separated by a substantial interval of time from the facts giving rise to the other charges. Shaw LJ, who gave the judgment of the Court of Appeal, said at 252-253:

"This contention rests on too narrow a construction of the language of the statute and the relevant rule. The phrase 'founded on the same facts' does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment."

The sexual offences and the offence charged in Count 16 do have a common factual origin. Whilst it is true that by the time of the events forming the basis of Count 16, W, R and Y had not made allegations against the appellant, on the prosecution case there had been offending by the appellant involving all of the complainants. If D denied the offending and told the police that despite his friendship with the appellant over the relevant years, no such offences revealed to the police by that time had occurred, and no other sexual conduct and association had occurred, the police may have been deflected in their enquiries at that stage. However, if D revealed what had occurred to him and to the others, of which he had knowledge, the police enquiry would very likely have widened and included the other victims. Furthermore, the appellant would have known at the time that D was a key witness to his behaviour with respect to all of the boys and the neutralizing of him and his evidence would have been of considerable benefit to him. Even if D did say that no such offences had occurred and the police continued with the investigation, a denial by D who had been present in the group for the total period of the offending would have been important evidence to support the appellant in his defence of all charges involving sexual conduct.

It was for the jury to say what they made of the evidence, but it was capable of establishing a consciousness of guilt by the appellant of all of his conduct with all five boys, including all fifteen charges of sexual offences.

On the prosecution case, the offence was not committed only to buy the silence, or a favourable story, about the appellant's offending relating to D but to C and very likely the others. For that reason the facts which gave rise to the fifteen charges of sexual offences also gave rise to the facts which are the basis of Count 16 and in that sense all sixteen counts have their origin in the same facts and could legitimately be joined in the same Information. The learned Trial Judge was correct in her ruling to that effect and this aspect of the appeal fails.

It is well established that where an accused is charged with a number of sexual offences, the charges should not be tried together unless the evidence on each count is admissible on the other counts: Boardman, Sutton, De Jesus and Hoch. The application for separate trials was based upon the contention that the counts were impermissibly joined, the evidence on each count was not cross-admissible and there was a risk of concoction and contamination of the accounts of the complainants. All of these grounds were rejected by the learned Trial Judge and, as has been mentioned, correctly so.

I reject the contention that the issues arising with respect to each count are complex and distinct from each other. They are no more complex than is to be found in many cases of this nature. They are not distinct from each other as may be seen from the bases of cross-admissibility of evidence which have been mentioned.

As the evidence on each count was cross-admissible, there was no basis to exercise the discretion in s 278(2) to order separate trials. Furthermore, there was no basis to order separate trials in the exercise of the general fairness discretion or the discretion as discussed in Perry v The Queen (1982) 150 CLR 580 at 585, Sutton at 534 and Hoch at 301. As has been mentioned, the evidence was cross-admissible and was strongly probative of facts in issue. Any prejudicial effect of the evidence is because it is strongly probative and there was no reason to exclude the evidence in the exercise of discretion.

The learned Trial Judge was correct in her decision not to order separate trials of the various charges or the groups of charges.

It is convenient at this stage to consider the appellant's submission that the different verdicts are inconsistent. It was contended that there are various consequences if the verdicts are inconsistent in the relevant sense, including that all of the verdicts of guilty must be set aside.

It was submitted that the acquittals on counts 1, 4 and 6 were returned on the basis of the jury's disbelief of W, and as a result the verdicts of acquittal were inconsistent with the verdicts of guilty on counts 2, 3, 5 and 7. It must be considered whether the verdicts on counts 1 to 7 all involving the complainant W, are repugnant and illogical. It was then contended that as the jury were invited to use the evidence of W on all other counts all verdicts of guilty must be set aside. It was also submitted that the verdicts of acquittal on counts 8 and 12 were based on the jury's disbelief of the complainants C and D and that as a result all verdicts of guilty that relied on C and D's credibility were inconsistent. By this process of reasoning it was said that all verdicts of guilty returned by the jury were unsafe and unsatisfactory.

In MacKenzie v The Queen (1996) 190 CLR 348 the High Court enunciated guiding principles on the issue of inconsistent verdicts. Gaudron, Gummow and Kirby JJ identified conflicting objectives. First, they identified the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. Secondly, they drew attention to the sense of injustice that may result from a series of verdicts that cannot logically stand together. Their Honours accepted that the interests of justice remain paramount at all times. If in a particular case doubt is cast upon a verdict the appellate court must decide whether a conviction based upon the verdict which is impugned is unsafe and unsatisfactory.

Their Honours reviewed the cases and concluded that a number of general propositions can be stated. They have been conveniently and concisely summarised by Beazley JA in Regina v James [1999] NSW CCA 191 as follows at para 3:

"A question arose on the appeal as to whether the verdicts were inconsistent, resulting in convictions which were unsafe and unsatisfactory. Gaudron, Gummow and Kirby JJ considered that six general propositions governing the question whether verdicts were inconsistent could be discerned from the authorities. I will attempt to summarise them but regard should be had to the propositions as fully explained at 366-368 of the judgment.

(i) There is a distinction between legal and factual inconsistency, the former usually being easier to resolve because '[o]n the face of the court's record there will be two verdicts which, in law, cannot stand together' (at 366).

(ii) Factual inconsistencies can be both as between different verdicts affecting the same accused (as in the present case) and different verdicts affecting co-accused.

(iii) Where the inconsistency arises upon different counts 'the test is one of logic and reasonableness' (at 366).

(iv) Given the general respect given to juries and jury verdicts, an appellate court will generally be reluctant to find verdicts to be inconsistent and will not do so if they may properly be reconciled.

(v) If however, different verdicts 'represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty', an appellate court will interfere 'to prevent a possible injustice' (at 365).

[This passage of the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie is to be found at 368.]

(vi) The obligation to make good the submission that verdicts are inconsistent is upon the person making the submission."

In MacKenzie their Honours, in relation to the proposition (iii) approved the test articulated by Devlin J in R v Stone (unreported, CCA (Eng),13 December 1954) at 366:

"[The defendant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

Gaudron, Gummow and Kirby JJ went on to say at 367:

"Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted (R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (Hayes v The Queen (1973) 47 ALJR 603 at 604-605). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40). Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries (R v Hunt [1968] 2 QB 433 at 436)."

As to the jury having taken a "merciful" view, the following observations of King CJ in R v Kirkman (1987) 44 SASR 591 at 593 were cited with approval:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

What their Honours said with respect to proposition (v) was at 368:

"Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'"

In Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 the High Court considered, inter alia, whether the conviction of one accused was inconsistent with the failure of the jury to reach a verdict with respect to the other accused. McHugh J said at 357-358:

"When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts (R v Durante (1972) 56 Cr App R 708 at 714; R v Bacash [1981] VicRp 86; [1981] VR 923 at 929; R v Nanette [1982] VicRp 8; [1982] VR 81 at 83. This may include cases which suggest a compromise: MacKenzie v The Queen (1996) 190 CLR 348 at 368). In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory (Jones v The Queen (1997) 191 CLR 439 at 455; R v Hunt [1968] 2 QB 433 at 438; R v Cicio (1968) 87 WN (NSW) (Pt 1) 449 at 453; R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118 at 126; [1972] 1 All ER 65 at 71-72; R v Bacash [1981] VicRp 86; [1981] VR 923 at 929; R v Nanette [1982] VicRp 8; [1982] VR 81 at 83; Sweetman v Industries and Commerce Department [1970] NZLR 139 at 149).

In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. In a case where the accused claimed that his conviction should be set aside because of the inconsistency of verdicts, McGarvie J said '[i]n considering this question it is vital to consider the way in which the trial Judge charged the jury' (R v Bacash at 929. This statement was applied in R v Vollmer [1996] VicRp 9; [1996] 1 VR 95 at 170)."

The appellant's submissions must be considered in accordance with these principles.

As has been seen, these counts relate to W and the appellant was acquitted of counts 1, 4 and 6 and found guilty of the other charges. The particulars of each of these counts have been mentioned, however, it is necessary to mention some features of the evidence in support of each charge.

With respect to the incident which is the subject of Count 1, during cross-examination, W said that it occurred at the beach opposite where boys were jumping into the river and that it lasted a few minutes. In his statement to the police W described where the incident had occurred. Before he gave evidence, the Court went on a view to that location and saw the general area where the incident was alleged to have occurred. On the day before W gave evidence a police officer associated with the case took W to that general area. When he gave evidence, W said that there was now nowhere near as much sand at the location as when the incident occurred. He described other differences in features of the location. He said that the incident occurred in front of sand dunes and there were small scrub-like trees which he said are usually in sand dunes but they were no longer present. He said there was about 20 metres of flat sand before reaching the sand hills and the dunes were now nowhere near where the incident occurred but had been in that area.

W was cross-examined about the time of the year when the incident occurred. In evidence-in-chief he said that not many other persons were present. In cross-examination he acknowledged that he had said in evidence at the preliminary hearing that the incident occurred during school holidays after Christmas. He said that the nearby Southport Surf Lifesaving Club was not "out in full force" at the time the incident occurred which would have been so if it happened during the school holidays. If it had been open, he expected the appellant would have taken the group to that club. He said that the incident may not have been the first time he was at that location and that he might be wrong about the occasion.

It was suggested by counsel for the appellant that the evidence of W was unreliable as to the extent to which the location was readily viewable by the public. An aerial photograph taken in 1985 provided some confirmation on this point. There was evidence before the jury from which they may have concluded that the police officer may have influenced the evidence of W with respect to these matters.

With respect to Count 4, it became apparent in cross-examination of W that he was not sure about a number of peripheral aspects of the incident. He said that he could not remember whether he was wearing his clothes. He said, "well, this is generally how it happened". He admitted that he was confused whether what he was describing was the first occasion he had been to the location. There were some other inconsistencies in his evidence. He said he could not remember whether he was wearing clothes or was sitting down. The aerial photograph of the location where these offences are said to have occurred showed different features of the location than as described by W. It was submitted that the same police officer could have influenced his evidence.

Ms Abraham QC, who appeared with Ms Boord for the respondent, submitted that there are obvious reasons why the jury may have returned verdicts of not guilty on these two counts. They are the only two incidents in respect of which W was taken back to the location. He remembered the location differently from what the evidence disclosed and the jury saw. There was uncertainty in his recollection, including as to when the incidents occurred. The jury had been directed to consider each count separately and the evidence in relation to each count.

I think there is force in those submissions. There were uncertainties and some inconsistencies in the evidence of W in relation to these two incidents and as to features of the two locations which may have caused the jury to be cautious about his evidence. For these reasons the jury may not have been satisfied beyond reasonable doubt about the accuracy of his evidence with regard to these two incidents. They may simply have given the benefit of a doubt to the appellant. It does not follow that they had a doubt about W's credibility and reliability. In the circumstances of this case, I think the verdicts of guilty on the other counts relating to W indicate that the jury did accept him as an honest and reliable witness, but not an accurate witness as to features of the evidence regarding some matters relevant to these two counts.

However, there was no inconsistency or lack of recollection of the sexual conduct which is the basis of these two counts.

The jury may have had some doubt about Count 6. It is not possible to be certain of the reason for the not guilty verdict. The fact that the incident is alleged to have occurred in the Magistrate's Chambers with the appellant's clerk and police officers nearby does not suggest that the allegation is a fabrication. The incident would very likely have occupied a brief period of time. No clothes were removed. W was standing next to the appellant who was sitting behind a desk. There is no reason to suppose that even if someone did enter the room unexpectedly during the course of the sexual conduct, it would have been detected.

Mr Marsh, a police prosecutor, said that the appellant had an open door policy and he could speak to him at any convenient time. He said he did not go into the appellant's chambers every day but would do so if he required a signature. Sometimes they had lunch together. Mr Lloyd was a sergeant of police at Glenelg at relevant times. He gave evidence about various matters. He said that the appellant had a friendly relationship with the court staff at Glenelg and there was never an occasion when he went to speak to the appellant in the Magistrate's Chambers and found the door locked. Mr O'Sullivan was a police prosecutor at Glenelg at relevant times. He said that he had regular contact with the appellant. He also said that the appellant had an open relationship with staff and that his door was always open. Mr Roberts was also a police officer stationed at Glenelg at relevant times. He worked as a court orderly and cell guard and at police station duties. He said that he went to the appellant's chambers from time to time when documents had to be signed. He said he did not have any qualm about going there and the door was always open.

The evidence is not clear as to what the witnesses meant when they said that the appellant's door was always open or some similar expression. None of these witnesses were asked about whether they knocked on the door or waited for an invitation before entering the chambers. It is not clear whether the expression "the door was always open" was used literally or figuratively.

It was established at the trial that the appellant had two clerks at relevant times. One lived overseas and the other could not be located. It may be accepted that neither could give evidence. W told the jury that the appellant had antique pistols in his chambers and that he took one of them out of the room, pointed it at the appellant's clerk and told her to "stick it up" as a joke. It is not known what evidence the clerk at the time could have given, but if she could not recall ever having seen W in the Chambers, or any other matters which might cast doubt on his evidence, such as the door always being open with her having a clear view into the room and of the appellant sitting at his desk, her evidence may have been important in the defence case. It is possible that the jury may have had regard to that matter when considering whether the charge had been proved beyond reasonable doubt.

It may well be that the jury applied the process of reasoning referred to in Kirkman. The jury may have considered that although all counts alleged had been technically proved, justice was sufficiently met by convicting the appellant of less than the full number of counts. Whilst such an approach makes reconciliation difficult as a matter of strict logic, it does not follow that verdicts are inconsistent. However, as has been discussed, there are more likely reasons for the verdicts of not guilty.

There are other, more subtle factual differences between the events said to give rise to the counts concerning W. The earlier recitation of particular facts identifies some but not all differences. However, the matters identified are sufficient to dispose of the submission that the verdicts with respect to W were inconsistent and as such called for the verdicts of guilty to be set aside on the ground they are unsafe and unsatisfactory.

For all of these reasons, I do not accept that the verdicts of not guilty on these three counts mean that the jury were not satisfied as to the credibility of W and, in particular, as to his truthfulness and reliability. It is possible that the jury were satisfied about these matters generally, as may be seen from the verdicts of guilty on the other counts relating to W. With respect to Counts 1 and 4, it is possible that the jury accepted that W had a faulty recollection about the location of the incidents and decided that was sufficient reason to give the benefit of a doubt to the appellant. The same may be said about Count 6. The jury may have considered that W could have been mistaken about the time of the day when the incident occurred or about some other feature of his evidence or that the inability to call the clerk may render a finding of guilty unsafe. After all, the jury had been given a Longman direction (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) which required them to take into account the significance of the substantial delay between the alleged offences and the complaints being made.

The different verdicts returned by the jury with respect to the counts concerning W were not an unacceptable "affront to logic and commonsense." The different verdicts do not suggest a compromise by the jury of the performance of their duty. The different verdicts do not suggest confusion of the jury, or a misunderstanding of their function, or an uncertainty about the legal differentiation between the offences or a lack of clarity in their judicial instruction on the applicable law.

The appellant has failed to demonstrate that the different verdicts cannot stand together. A reasonable jury applying their minds properly to the facts in the case could have arrived at the verdicts which were given. The verdicts are not inconsistent and they can be reconciled. To apply the test discussed by Devlin J in Stone, the appellant has failed to establish that no reasonable jury who applied their mind properly to the facts relevant to the counts involving W could have arrived at the verdicts returned.

As has been seen the learned Trial Judge found that there was no case to answer with respect to Count 13. Count 8 was the only charged act of sexual conduct relating to C, although he gave evidence about uncharged acts. As has been mentioned, the incident which is the subject of this charge is alleged to have occurred on the night of the Glenelg riots on 22nd January 1984. Count 12 involved D and, as has been mentioned, was alleged to have occurred on the same occasion even though the allegation in the Information is that the incident occurred between 1st October 1983 and 30th March 1984.

C's evidence was that he and D stayed overnight on this occasion because of the riots. The appellant told him that it would probably be the safest thing to do. He said that he could distinctly remember this occasion during the riots. He told the jury that he telephoned his parents from the appellant's chambers. He said that he saw D sitting on the appellant's lap and the appellant stroking D's penis. He could not remember if that occurred outside D's clothing. D told the jury that he could not remember this particular incident and the only evidence in support of Count 12 was the evidence of C. However, D did give evidence of similar sexual conduct towards him on other occasions. He also said that he did recall being at the Glenelg Courthouse on the night of the riots. C said that this incident occurred on the same occasion as the incident involving him, which is the subject of Count 8.

The appellant denied those allegations. He produced a receipt and an attachment which he said indicated that he had been in Queensland with the State team during the weekend prior to the night of the Glenelg riots. He told the jury that as he had been away that week, it would be unlikely that he would have spent the next weekend at the Courthouse. He said he made enquiries for telephone records to prove the absence of telephone calls from the Courthouse but, he said, the records of Telstra did not go back beyond 1984. He could not obtain other records such as credit card accounts which may have indicated where he had been on the night of the riots. He could not obtain records from the police about whom may have been present at the Glenelg Police Station on that night.

However, Mr Zuvich, a retired Chief Inspector of Police, was located. He was on duty at Glenelg at the time of the Glenelg riots. He prepared a report of the events of that night which was located and he was able to refresh his memory from that report. It is unnecessary to set out his evidence as to the events of that night in any detail. A brief summary will suffice. There were about 15,000 people at Glenelg at a concert in Colley Reserve near the Police Station when he arrived at about 6.30 pm. An hour or so later there were many police officers and vehicles in the area. A large group began to threaten police officers and they withdrew. They went to the Police Station at about 8.15 pm. A crowd of about 400 or so followed to within 30 to 40 metres of the Police Station which was in the vicinity of the car park area at the rear. There were about 40 police officers present. Later riot police arrived. There were three attacks at different times by some of the group who threw bottles at the police at different times. Mr Zuvich was injured at about 8.30 pm and was relieved from duty at about 8.50 pm. He said that he did not see any non-police person or vehicle in the yard during that evening.

The purpose of this evidence was to support the evidence of the appellant that he was not at the Glenelg Station that night and consequently to establish that the evidence of C and D was untruthful, or at least, unreliable.

Having perused the transcript of his evidence, it does not appear that Mr Zuvich could say that the appellant or his van were not at the Police Station on that night. All he said was that he did not see a non-police person or vehicle in the rear yard. It was not established if he would have seen the appellant and the boys if they had been present in the Courthouse. He did not give evidence of what observations, if any, he made about those matters. He was injured and involved in an extremely threatening situation. However, the jury clearly had a doubt about an aspect of the charges which led to the verdicts of acquittal.

It is clear enough why the jury returned verdicts of not guilty on these two counts. At some stage on the day the jury retired to consider their verdicts but shortly before the summing up had been completed, they sent a note to the learned Trial Judge in the following terms:

"Counts 8 & 12; can a guilty verdict for these counts be found if the jury is satisfied beyond reasonable doubt, that the offence did occur but not on the night of the riots?"

The learned Trial Judge took the view that as the evidence had unfolded the occasion of the Glenelg riots had become an essential particular of those charges and instructed the jury accordingly. She said that the answer to their question was "no" and went on to say:

"The Crown case is specifically pinned on the night of the Glenelg riots. That is how the case proceeded. That is the case, as I told you, that the accused came to court to answer. To find the accused guilty of either of those counts you would have to be satisfied that the respective incidents occurred on the night of the riots."

It seems clear that the jury did accept the evidence of C that the two incidents which are the subject of Counts 8 and 12 did occur as alleged, but were not satisfied beyond reasonable doubt that they occurred on the night of the Glenelg riots. The appellant had made a direct challenge to the credibility of C and D at the trial and it was submitted that the evidence of Mr Zuvich was critical to that challenge.

Mention has been made of the reason for the learned Trial Judge ruling that there was no case for the appellant to answer on Count 13. D's evidence that he could not remember if any sexual conduct occurred on that first occasion affords a known reason for the verdict of not guilty.

The verdicts of not guilty and guilty are not inconsistent. The reasons for the differences in the verdicts may be easily understood. The verdicts of not guilty do not require the verdicts of guilty to be set aside. There is no reason to apprehend that they are unsafe or unsatisfactory by reason of the verdicts of not guilty and that the jury did not perform their function as required. The different verdicts accord with logic and reasonableness. The verdicts are not inconsistent in the relevant sense. Furthermore, the evidence of W, C and D was corroborated by the evidence of each other and other complainants.

It was submitted that the verdicts of not guilty indicate that the jury may have used evidence in support of those counts when considering other counts which is impermissible unless the charge or charges had been found proved. Together with this submission is the contention that the jury should not have heard the evidence relating to charges which they did not find proved. For these reasons, it was submitted that all of the verdicts of guilty must be set aside. These submissions must be rejected.

It is plain from the different verdicts and the likely reasons for the verdicts of not guilty that the jury followed the extensive directions of the learned Trial Judge that they must consider each charge separately upon the evidence which they found acceptable in relation to that charge, including other charged acts and uncharged acts, and that they must not adopt propensity reasoning.

Furthermore the learned Trial Judge made it clear to the jury that they could not use the evidence in that way. Later I refer extensively to passages of the summing up which include the following:

"If, however, in the course of this process you, for any reason, were not satisfied beyond reasonable doubt as to the truth of a particular allegation, then that particular matter would be completely discarded by you."

It was submitted that the jury should have been directed that if they had a doubt about the credibility of C, then his evidence of the commission of the uncharged acts should not be used in the consideration of any other count regarding any of the other boys. It was submitted that all of the verdicts of guilty on all counts should be set aside for this reason because the jury may have used the evidence of C in relation to allegations of uncharged acts when considering the other charges.

I reject that submission. The verdicts of acquittal on Counts 8 and 12 do not mean that the jury doubted the credibility of C. On the contrary, the question of the jury suggests that they did find C to be a credible witness and were satisfied that his evidence as to sexual conduct involving him and D as he described in the two incidents did occur but for some reason were not satisfied that they occurred on the night of the Glenelg riots. It is not known why the jury did not accept that part of his evidence beyond reasonable doubt. Perhaps it was because of the evidence of Mr Zuvich although that evidence did lack precision. It may have been because D did not recall any incident involving him on the night of the Glenelg riots. It may have been due to the stated inability of the appellant to obtain telephone records which may have established that C did not telephone his parents from the Glenelg Courthouse on that night. Whatever the reason, there is no basis for a conclusion that the jury were not satisfied about the credibility or reliability of C, only, possibly, the accuracy of his evidence about one matter.

A similar submission was made that the verdict of acquittal on Count 12 reflects that the jury were not satisfied as to the credibility of D. It was submitted that the learned Trial Judge should have directed the jury that if they had a doubt about his credibility, they could not convict the appellant on any other count relating to D or, alternatively, that it would be dangerous to do so. Furthermore, for that reason, the jury should have been directed that the evidence of D as to the acts which are the subject of Counts 12-16 inclusive and as to uncharged acts should not be used in the consideration of any other charge relating to any other boy. As no such directions were given, it is submitted that all verdicts of guilty cannot stand.

Those submissions are rejected. As has been mentioned, the verdict of not guilty on Count 12 does not mean that the jury found that D was not a credible and reliable witness. I refer to the observations about the submission in relation to C which was also made on the basis of the evidence of Mr Zuvich and to the other reasons which may have led to the verdict of acquittal which apply equally to Count 12. Furthermore, the jury found the appellant guilty of Counts 14 and 15 which indicates that they were satisfied about D's credibility and reliability. Having seen likely explanations for the verdict of acquittal on Count 12 and the reason for the direction of a not guilty verdict on Count 13, the verdicts on the counts relating to D are not inconsistent. In my view, there was no basis for the learned Trial Judge to have given the directions which the appellant contends should have been given.

There is a further matter raised by the appellant in consequence of the verdicts of acquittal on Counts 8 and 12. It was submitted that there should have been a direction, as requested by the appellant's counsel at the trial, that if C and D had lied about the same matter, eg the presence of the appellant at the Glenelg Courthouse on the night of the Glenelg riots, that is a positive indication of concoction or contamination of evidence between the complainants. Further, it was submitted that such a finding should impact not only upon the evidence of C and D but it may also lessen any apparent strength that the prosecution case derived from any similarity of account as between any of the complainants because it is a finding inconsistent with the central thesis of the prosecution that there was no concoction or contamination as between the boys.

I reject those submissions. As has been seen, the reason for the verdicts of not guilty are readily understandable. There is no reason to suppose that C and D had told lies let alone about the same matter. Indeed, if they had agreed to concoct the story, it might have been expected that D would have confirmed C's evidence that the appellant had indecently assaulted him on the occasion of the Glenelg riots. There was simply no basis for the learned Trial Judge to have given the direction sought by the appellant.

It was submitted by the appellant that in view of the challenge to the credibility of W, the jury should have been directed that if they had a doubt as to his credibility in relation to one count, or more than one count, they must not convict on any other count relating to him or, alternatively, that it would be dangerous to convict on any other of such counts. Also, it was submitted that the jury should have been directed that the evidence of W, both as to the charged incidents relating to him and the uncharged acts should not be used in consideration of any other count relating to any of the other boys. As such directions were not given, all verdicts of guilty should be set aside because the jury may have used their findings of guilt on Counts 2, 3, 5 and 7 on the evidence of W in support of findings of guilt on other charges. Also, the jury may have used W's evidence as to the commission of uncharged acts and used findings based upon his evidence when considering other charges.

The same submission is made regarding the verdict of not guilty on Count 8 in that the jury should have been directed that the evidence in support of that charge could not be used when considering any other charge. This submission has already been considered. As has been seen, a clear direction to that effect was given by the learned Trial Judge regarding all of the charges. Also, it was submitted that the evidence of C as to uncharged acts could not be used when considering other charges. The same submissions were made about the verdicts of not guilty on Counts 12 and 13 and the evidence of D.

The consequence, on this submission, is that it is not possible to say which route the jury took in arriving at findings of guilt and the verdicts must be set aside as the route taken may have been in consequence of directions which were inadequate. It was submitted that once a misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded and it is impossible to say that the accused did not lose a reasonable opportunity of acquittal: Prasad v The Queen [1994] HCA 2; (1994) 68 ALJR 194.

These submissions must also be rejected. They proceed on the basis that the verdicts of not guilty reflect upon the credibility and reliability of W, C and D which I reject. The verdicts of not guilty simply reflect the consideration of each charge separately upon the evidence relevant to that charge in accordance with the clear directions of the learned Trial Judge.

The last submission of the appellant based upon the different verdicts is that the learned Trial Judge failed to give essential directions to the jury with the consequence that the verdicts of guilty must be set aside.

The principal basis of these submissions is said to be the decision of the High Court in Jones v The Queen (1997) 191 CLR 439 and how that decision has been interpreted and applied in subsequent decisions.

In Jones the appellant was a gymnasium instructor and was charged with three acts of sexual intercourse with a female child whom he was instructing. She was aged 11 years during the periods mentioned in the first two counts and 12 years during the period mentioned in the third count. The trial took place five years after the period mentioned in the first count. The child made no complaint for about four years from the first act of alleged intercourse. A feature of her allegations is that no-one else was present when the acts were said to have occurred. The first two acts of intercourse allegedly occurred at the gymnasium and the third act at the appellant's house. The appellant was convicted on Counts 1 and 3 and acquitted on Count 2. There had been no direction to the jury as to it being dangerous to convict on the evidence of the child alone after such a long delay in accordance with the decision in Longman. Brennan J held that the verdicts on the first and third count were unsafe and unsatisfactory due to the absence of the Longman direction, the acquittal on the second count, the delay in the prosecution and the evidence of a normal relationship between the child and the appellant and his wife after the alleged offending. He said, at 443:

"Sometimes an inconsistency in verdicts on the counts in an indictment or a conviction where the inculpatory evidence has been demonstrated to be unreliable may show a verdict to be unsafe and unsatisfactory. But these are relatively rare cases."

"Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal."

Gaudron, McHugh and Gummow JJ reached the same result. They said at 453:

"The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence in particular, the absence of any medical evidence."

"Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person's right to defend him or herself. An innocent person's ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is 'a matter of considerable importance to the person accused', and has the effect of relegating the accused from giving an account of what actually happened to 'what must have happened' (our emphasis).

As a result of the long delay in this case, the appellant's opportunity to obtain evidence refuting the circumstances of each alleged offence was significantly reduced. The appellant's and the complainant's movements on the day of the alleged incident concerning the third count were material facts. Proof of them would have gone far to support one or other of the opposing cases. Similarly, whether or not the appellant and the complainant were ever left alone after Saturday classes was a critical fact concerning the first count. Evidence that the appellant was left alone with the complainant would have been highly damning. But if the complaint had been made promptly and the appellant was innocent as he claimed to be, he may have been able to obtain evidence that, on each Saturday in February 1991, he had left the classes in the company of others. The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater."

They concluded that given the verdict of acquittal on the second count, it was not open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the other counts. They went on to say at 455:

"Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory."

Mr Peek made comprehensive submissions about the effect of Jones in the context of the present case, but it must be said that in Jones the Court was essentially concerned with whether the verdicts of guilty were unsafe and unsatisfactory given the verdict of not guilty in the particular circumstances of the case and the failure of the trial judge to give a Longman direction in the context of there being no corroboration of the complainant's evidence. The case is not authority for the proposition that in all cases where multiple counts are charged involving the same alleged victim and different verdicts are returned, the verdicts of guilty cannot stand. I adopt the observation of Winneke P in R v KET [1998] VSCA 73 at paragraphs 28-29 as to the decision in Jones case:

"[28] ....Jones's case, in my view, is a case which has to be looked at in the light of its own particular facts, as indeed all cases where this issue raised must be. In Jones's case three discrete acts of sexual penetration were alleged and the jury convicted the accused on two and acquitted on one, in circumstances where the acquittal, as the judgments made clear, must necessarily on the facts of that case have reflected upon the credibility of the complainant's evidence on the other two counts. Furthermore, it would seem from the judgments in Jones' case that special emphasis was laid on the prejudice flowing to the accused from the delay in complaint because it was apparent from the special facts of the case that there was a real risk that that delay had deprived the accused of what the majority judges had called 'a cast iron alibi'.

[29] However, in my view, it would be wrong to draw from the decision of Jones' case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury's acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted."

As the verdicts are not inconsistent and the evidence of W, C and D was corroborated, Jones does not have any application to the present case.

However, Mr Peek submitted that the law has developed since Jones and requires particular directions to be given in cases involving one alleged victim and multiple counts, which were not given in the present case. Also, as I understand the argument, the law should develop further so that particular directions now to be discussed should be given even where there is corroboration of the nature in the present case. It is because of that submission that it is necessary to consider the matter further.

We were referred to a number of cases said to be in support of the proposition that in cases involving multiple charges and one complainant, the jury should be told that if they find an accused not guilty of one charge or some charges, they should acquit on all charges. First, we were referred to R v Finch (1916) 12 CrAppR 77 and The King v Dean [1932] NZLR 753. It is unnecessary to discuss either of the cases in detail. They both involved the defence of alibi which was common to all counts in the indictment and, in my view, are authority for the obvious proposition that a trial judge is obliged to give such directions to the jury as to the use of evidence as is dictated by the circumstances of the particular case. For example, if the same evidence of alibi relates to all charges and is accepted by the jury in relation to some charges, it should apply to all charges in the absence of any distinguishing feature.

Next we were referred to some cases where the decision in Jones has been treated in a particular way. In R v RAT [2000] NSW CCA 77 the appellant had been charged with six counts of sexual offences involving the same girl who was his step-daughter. He was found guilty on three counts and not guilty on the others. On appeal Dunford J, with whom Burn J agreed, having considered Jones, and other cases, said at para 46:

"If I am correct in my understanding of the effect of Jones, then I believe consideration needs to be given to the directions regularly given to juries in such trials. Juries are constantly told that they should consider each count in the indictment separately and also that they may accept part of a witness' evidence and not accept other parts of the evidence of that same witness. But Jones appears to establish a qualification to these directions to the effect that in sexual cases, where the only direct evidence of the commission of the offences is that of the complainant, if they are for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that she (or he) is telling the truth in relation to any other count; and therefore in such cases (ie where there is no independent evidence of the commission of the offences) if they find an accused not guilty on one count, they must also find him not guilty on all counts. They should also be warned specifically that if they return different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside."

"I have said enough to explain why I am of the view that the appeal should be dismissed. However, it is appropriate that I say something about Dunford J's suggestion that the directions to juries in some sexual cases may need supplementing. I agree with his Honour that in some cases, a direction as contemplated by his Honour may be appropriate. However, it seems to me that before such a direction is required, not only would the complainant's evidence have to be the only direct evidence of the commission of the offences but there would have to be nothing else in the evidence bearing on her credibility or in the evidence of surrounding circumstances which leant support for one charge rather than another."

184. I have taken Dunford J to be referring to an issue of credibility when saying that if the jury has a reasonable doubt that the complainant is telling the truth and not an issue of accuracy of the evidence.

185. The question of whether the type of directions discussed by Dunford J must be given has been considered in a number of cases. It is unnecessary to discuss each of these cases in detail. In R v Robinson [2000] NSWCCA 59; (2000) 111 ACrimR 388, Fitzgerald JA of the New South Wales Court of Criminal Appeal acknowledged that such a direction might be required in the particular circumstances of the case. In Regina v ARD [2000] NSW CCA 443, the matter was again considered by the same, but a differently constituted, Court. All members of the Court held that there was nothing in the judgments in Jones requiring a direction in that form but that such a direction, save the reference to the jury being informed of consequences on appeal, may be appropriate in particular cases. In my view, an observation Adams J made is pertinent:

"Counsel for the appellant submitted that the jury should have been directed along the lines proposed by Dunford J in R v RAT [2000] NSW CCA 77, 24 March 2000, although no such direction was sought at the trial. It will often be the case that, acting reasonably, a jury which considers that a witness is or might be dishonest in respect of some of his or her evidence cannot be satisfied of his or her honesty in respect of any other part. Accordingly, if the case depends upon the jury accepting the witness' evidence as true beyond reasonable doubt in any particular respect, it might well be that a reasonable doubt about honesty as to any matter will mean that the jury should have a reasonable doubt about the crucial evidence. However, situations can vary widely and this will not always be the case. Much will depend on the nature of the jury's conclusion as to the witness' honesty: a doubt is one thing, a determination that the witness has lied is another. Accordingly, I do not think that a jury should be necessarily be instructed that a doubt about a witness' honesty as to part of his or her evidence must cast a doubt about their honesty as to the important part or parts. I do not consider, with every respect to Dunford J, that the evidence of a complainant in a sexual assault case should be treated any differently from that of any other witness whose evidence is essential to proof of the charge. There will, however, be some cases where a decision that a witness is lying or even of doubtful veracity might so affect their evidence as render necessary a strong direction concerning the consequences of an adverse finding as to credibility. Similar considerations affect the evaluation of the reliability of a witness' evidence. I cannot see anything in the judgments of their Honours in Jones v The Queen (1997) 191 CLR 439 which justifies a more rigid approach. Dunford J also suggested that juries should be warned that different verdicts where there is no material difference between the applicable evidence 'are liable to be regarded as a compromise and the guilty verdicts set aside'. Whilst I entirely agree that juries should, in appropriate cases, be warned in strong terms against compromise, I do not think, with respect, that the possible result of a potential appeal is an appropriate matter for the jury to consider."

With respect to those who take a different view, I agree with those observations.

186. The question of what directions should be given in such circumstances was considered by this Court in R v KWG [2000] SASC 398. Lander J observed that there was no rule of law or practice which required a trial judge to instruct a jury that if they are not satisfied beyond reasonable doubt that the complainant has been truthful in relation to any one count that they must acquit the accused on all counts: para 2. He went on to say at paras 7-8:

"Where the complainant's evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant's evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant.

Indeed, in some cases, it might be appropriate to warn the jury that 'there is nothing to distinguish the evidence of a complainant on one charge from her evidence on another charge'; R v ARD [2000] NSW CCA 443 paragraph 9 per Spigelman CJ."

Martin J, with whom Wicks J agreed, reviewed the authorities in some detail. He expressed the view that the directions suggested by Dunford J in RAT would have the effect of usurping the function of the jury and referred to The Queen v Prasad (1979) 23 SASR 161 per King CJ at 162 to the effect that to direct a jury to bring in a verdict of not guilty where there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. Prasad was approved by the High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. Martin J went on to say at para 82:

"For these reasons, assuming the circumstances contemplated in RAT, and assuming that there is evidence capable in law of supporting a verdict of guilty, in my opinion it is never appropriate to instruct a jury that if they find an accused not guilty on one count, they must also find the accused not guilty on all other counts. Juries should be warned that if they are not prepared to accept the evidence of a complainant (or of any other witness) with respect to a particular matter or count, their doubt in that regard should be taken into account in determining whether they are prepared to accept that person's evidence on other matters or counts. I agree with Adams J that in some cases the circumstances might require a strong direction concerning the consequences of an adverse finding as to the credibility of a complainant or any other witness."

187. In order to resolve the issues in the present case, it is not necessary to express an opinion about the observations of Lander J and Martin J as to whether directions contemplated by them should, or must, be given in appropriate cases. As the evidence of W, C and D was corroborated and the verdicts were not inconsistent, the question does not arise in the present case. In the recent case of Regina v Markuleski [2001] NSW CCA 290 the New South Wales Court of Criminal Appeal, comprised of five Judges, again considered the matter. The appellant was found guilty of five counts of sexual offences and not guilty of one count involving the same complainant. Spigelman CJ undertook an extensive review of the cases and gave the following summary at paras 79-80:

"Difficult issues arise when a reason for differentiating between the verdicts does exist but that reason relates to the credibility - whether in terms of veracity or reliability - of an uncorroborated complainant. The case law since Jones has frequently concluded that a jury was not obliged to have a reasonable doubt about the complainant's credibility in general, when it did not accept her (it usually is a 'her') version of events to the criminal standard in some respect or respects. The distinction has been variously expressed:

'accepted the complainant as truthful but admitted the possibility of faulty recollection in some cases' R v J (1994) 75 A Crim R 522 at 540 referred to with approval in R v J (No 2) [1998] 3 VR 602 at 628.

distinguish a case in which the jury 'rejected as unreliable the substance of the complainant's evidence' from a case in which it was 'cautious about some details' (R v Maddox (QCA, 4 December 1998, unreported) at [1] per McPherson JA) and 'doubts' about 'details' (per Thomas JA at [21] and White J at [2]).

'still accept the basic story at less than the full alleged detail' (R v Russell (QCA, 24 March 1999, unreported)).

'generally truthful, even if she might have been exaggerating in this part of her evidence' (R v ACK [2000] NSW CCA 180 at [53]).

whether the jury found the complainant's evidence 'dishonest rather than unpersuasive in the circumstances' (R v C [2000] QCA 385 at [47]).

'the jury did not disbelieve the complainant but they thought her evidence lacked the requisite particularity as to time, place or circumstance to justify conviction' (Duniam v R (TASSC, 22 September 1997, unreported)).

In a number of other cases, courts of criminal appeal have concluded that in the circumstances of the case, an acquittal contrary to the complainant's evidence did not necessarily mean that the complainant's general credit was undermined (see e.g. R v KET supra at [29]; R v Hilsley [1998] VCSA 143 at [78]; R v Maddox supra at [1]; R v R [2000] QCA 27 at [28]; R v AT [2000] NSW CCA 342 at [18]; R v AG & RJM [2000] NSW CCA 86 at [51]; Williams v R [2000] TASSC 182 at [4]; R v McNamara (QCA, 1 December 1998, unreported))."

"Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies 'as a general rule'. Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the 'general rule' does not apply 'where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness' (at 451).

It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the 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."

"The point at issue for this appeal concerns not this point, but rather, whether the RAT direction, or some variation of it, should have been given by the trial judge.

Caution needs to be exercised in giving any direction of that kind, lest the jury see it as an encouragement to a process of reasoning in the obverse way previously mentioned. For them to assume that a tendency or propensity to similar behaviour has been established by proof of some counts, which might then make it more likely that the accused offended similarly in relation to the remaining counts, would involve a prohibited line of reasoning.

On the other hand, there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts."

His Honour then referred to the passage of the judgment of Fitzgerald JA in Robinson as to the circumstances which might require such a direction to be given if the jury holds a reasonable doubt as to the reliability of the evidence of a complainant. He went on to say that he would not restrict consideration of giving a direction to reliability, but would include credibility or truthfulness. He then said at paras 261-263:

"Moreover, I see no reason to do more than bring to the attention of the jury the circumstance that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for them to take that into account when considering the evidence of the complainant or central witness upon the remaining counts.

This should, however, be kept in context, in that the jury should be reminded that it is but one of the circumstances that they can properly take into account, when evaluating the overall credibility and reliability of the complainant, as it impacts upon the remaining counts, including any other fact or circumstance which may provide an explanation for any question which may arise. It is, in my view, inappropriate for any direction, or comment, in this regard to become elevated, by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straight jacket for the jury.

In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything."

Grove J was in general agreement with Spigelman CJ and Wood CJ at CL and went on to say that whilst it may be prudent to give such a direction in some cases, he was apprehensive about such a direction being mandatory. He said at para 280:

"There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges."

Simpson J did not find it necessary to consider the matter and Carruthers AJ agreed with Spigelman CJ.

Having considered all of these decisions, I have not been able to discover any principle other than that a trial judge is obliged to give directions appropriate to the circumstances of the case. As Deane J observed in Longman at 95:

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury."

As these decisions demonstrate, there may be cases when one of the possible directions suggested by Spigelman CJ in Markuleski or by Lander J or Martin J in KWG could be required in order to ensure that the accused has a fair trial and that the jury are given the assistance to which they are entitled in order to use evidence properly and to reason in a permissible way. An obvious case would be where the same alibi defence related to all charges, but there is no rule of law or practice that requires such a direction to be given in all cases with multiple counts involving the same complainant. Furthermore, there is no special rule in such cases involving sexual offending. I reject the contention that the law has developed to the stage that a direction for which the appellant contends must be given in all cases where there is one alleged victim and multiple charges or that the law should now be taken to that stage.

Where there is evidence capable of supporting a conviction, it is for the jury to evaluate that evidence and decide if it establishes proof of the charge beyond reasonable doubt. To direct the jury that in such circumstances they cannot reach a verdict of guilty would be to usurp the function of the jury and, in effect, to direct an acquittal, which would not be a proper course. All directions must, of course, be fashioned to meet the circumstances of the case. It is not easy to envisage a situation where a strong direction as suggested in some of the cases may be required. It is to be expected that the jury will follow the usual directions to consider each charge separately upon the evidence relevant to that charge and not to reach a verdict of guilty unless satisfied that the evidence is reliable and accurate and that the charge has been proved beyond reasonable doubt. It is for the jury to decide what facts are proved and there should not be any interference with that function.

In an appropriate case, it may be in conformity with the responsibility of the trial judge to assist the jury by directing that if they are not satisfied as to the credibility and reliability of the alleged victim when considering one charge and other charges depend upon the uncorroborated evidence of that witness, that lack of satisfaction may carry over to the consideration of another charge. However, such cases would not occur frequently and I respectfully agree with Wood CJ at CL in Markuleski that there is a danger of the jury being encouraged to a process of reasoning which is the obverse to propensity reasoning and is equally impermissible.

At all events, there is nothing in the judgments in Jones which requires the direction suggested in RAT to be given. Jones is simply an example of a court of appeal considering whether apparently inconsistent verdicts, along with other matters, give rise to a conclusion that the verdicts of guilty are unsafe and unsatisfactory. In the present case the verdicts are not inconsistent and the evidence of all of the complainants, including W, C and D was corroborated.

Use of evidence on other counts and uncharged acts

Next the appellant submitted that the learned Trial Judge erred in the directions given to the jury as to the approach to be taken to each count and the evidence relevant to each count. The effect of the submission is that the learned Trial Judge did not adequately direct the jury as to the use of evidence of other charged acts and uncharged acts when considering each count. Early in the summing up, the learned Trial Judge told the jury that on the prosecution case there was ample evidence to support what each of the complainants had to say and, depending upon the jury's view of the matter, the evidence of each of the complainants was capable of supporting the evidence of the other complainants. A little later she said:

"On the Crown case, the conduct described by each of the complainants discloses an underlying unity or similar pattern or system of indecent dealing with respect to each of them, which makes them so inextricably linked that as a matter of commonsense and experience, it can only be explained by the truth of the allegations that the accused acted in the manner alleged by the prosecution. On that basis, the evidence of each complainant would be able to be used to support the others. You must not, however, reason impermissibly, prior to any analysis of the evidence that just because five people have come along to court and described sexual acts involving the accused, that the accused must be guilty of all of them, or that he is the sort of person to have committed all of these crimes. Such a process of reasoning would be quite wrong. The proper way to approach this matter is as follows:

You start off by considering the evidence with respect to one count. It is up to you where you start. It does not have to be the first count on the information. If, having considered one particular count, you were satisfied beyond reasonable doubt that the complainant has told the truth, then you would find the accused guilty of that count. Your finding as to that count would then become circumstantial evidence which you would be entitled to take into account when determining whether you are satisfied beyond reasonable doubt as to the other counts.

The relevance lies in the improbability of five witnesses giving accounts of events which disclose a similar pattern of behaviour unless those events occurred in the ways they described, but I must make it quite clear that before you can use the evidence in this way, you must be satisfied beyond reasonable doubt of at least one of the charges. Then, and only then, can you use that evidence as assistance to draw an inference of guilt as to the other charges.

Ladies and gentlemen, I have described this evidence as circumstantial evidence. Circumstantial evidence is to be distinguished from direct evidence. The direct evidence in this case is the evidence of each of the complainants as to the events which involved himself. Circumstantial evidence is evidence of the circumstances surrounding an alleged offence, from which the prosecution asks you to infer, beyond reasonable doubt, that the accused committed that particular offence. So in this case if, having borne in mind the warnings I have given you, you were satisfied as to the truth of the evidence of first one complainant, then two or more, as you work your way along the chain, the inference for which the Crown contends would strengthen. On the Crown case, at the end of it all, you would be left with the improbability of each of these boys having told separate lies. The evidence of each would therefore support the others, and the coincidence of accounts would lead to the conclusion that the accused was guilty of all of these charges.

Let me try to make it a little clearer by relating it to the facts of this case. Let us assume for the moment that you start by considering Count 11 first, that is the count relating to [R]. I should make it clear that I only use this count as the starting point, because as it happened, he was the first of these complainants to give evidence before you. If you are satisfied beyond reasonable doubt as to the incident which [R] says took place in the Glenelg Courthouse then, subject to what I told you about the date, you would find the accused guilty of that count. You would then be able to take that finding into account as you consider the other charges in whatever order you consider appropriate. If, however, in the course of this process you, for any reason, were not satisfied beyond reasonable doubt as to the truth of a particular allegation, then that particular matter would be completely discarded by you. You would not use it for any purpose whatsoever. So, for example, if you were satisfied as to the truth of the allegation made by [R], but you were not satisfied as to one or more of the [W] counts, then that particular count or counts would be disregarded completely. You would, however, still be entitled to go on and use your finding as to [R] or such of the W counts as you might have found proved beyond reasonable doubt, when considering whether or not the charge with respect to [C] has been proved, and so on.

I am, of course, not suggesting that you should reach any particular conclusion in this matter, or that you start or proceed in any particular order. I am simply trying to explain the process of reasoning which should be used by you.

The same process of reasoning will apply to your consideration of the uncharged acts. Let me return to the [R] example. If you are satisfied beyond a reasonable doubt that what [R] said occurred in the van was true, then you would be able to take that finding into account when you assess the evidence of each of the other complainants who described activities taking place in the van. I did, however, describe this evidence as circumstantial evidence. In the course of these remarks I have also referred to other items of evidence in this case as circumstantial. That therefore brings me to another very important matter which I must explain to you, and it is this.

The onus is always upon the prosecution to prove the offence against the accused beyond reasonable doubt. That means, to prove it by way of circumstantial evidence it is necessary for the evidence to exclude any reasonable hypothesis other than the guilt of the accused. In other words, before you can be satisfied that an accused person is guilty, you must be satisfied, not only that his guilt is a rational inference but that it is the only rational inference that the circumstances you find proved enables you to draw.

As you work your way through the evidence in this case and make your findings of fact, you may eventually conclude that the effect of the combined testimony of all or some of the complainants is such that it bears no reasonable explanation, other than the guilt of the accused. In that case, the evidence of each would support the others, although the weight to be given to the combined testimony of the complainants is a matter for you.

In the course of analysing the evidence in this way, you will also need to bear in mind the evidence of other witnesses in the case and in particular the evidence of witnesses [M] and [F], [V], [D] as well as Dr Luu which, on the defence case, establishes a contrary position which should leave you with a reasonable doubt about all of these matters. However, I need to explain that as the evidence which we have been discussing is circumstantial evidence, it only has probative value if it bears no reasonable explanation other than the guilt of the accused. If, for example, there was a possibility of joint concoction between the complainants, that would provide another rational view of the evidence which would be inconsistent both with the guilt of the accused and with the improbability of complainants having concocted similar lies. In that case, the probative value of the evidence would be destroyed.

On the Crown case, however, there has been no opportunity for these boys to have put their heads together to make up a story about the accused. Each of these boys went their separate ways once their association with the club came to an end. Apart from [D], none of them had any continuing relationship or contact with the accused, although [C] did mention that he had asked the accused for a reference to get into the Defence Force Academy as a pilot when he was in about Year 11."

The appellant contends that this passage of the summing up contains radical misdirections. I return to those contentions shortly.

Reference will be made to other aspects of this part of the summing up later but, for present purposes, it may be seen that the learned Trial Judge told the jury that they could commence deliberations with any count and if satisfied of the guilt of the appellant beyond reasonable doubt on that count, could use that finding in their deliberations on the next count which they chose to consider. It was submitted that the jury may have commenced with considerations of the evidence of W, he was the first complainant referred to in the Information, and having found the appellant guilty on Counts 2, 3, 5 and 7, used those findings to more readily convict on Counts 9, 10, 11, 14, 15 and 16 which relate to other complainants. As, it was submitted, the appellant should not have been convicted on Counts 2, 3, 5 and 7 because of the verdicts of acquittal on Counts 1, 4 and 6, the process of reasoning mentioned in the summing up was fatally flawed and all verdicts of guilty should be set aside. The same submission is made with respect to the evidence of C as to Counts 8 and 12 and D as to Counts 12 and 13.

This submission is rejected. As has been mentioned, there is no reason to suppose that the jury rejected the credibility and reliability of any of these complainants. Indeed, as has been shown, the verdicts of guilty and the question from the jury as to Counts 8 and 12, suggest to the contrary. Even if the jury did commence their deliberations with a count and ultimately returned a verdict of not guilty on that count, it does not mean that they used the evidence relevant to that count when considering another count.

The appellant next submitted that the substantial delay between the alleged offending and the making of the complaints is significant for a number of reasons. First, the jury should have been given the type of direction discussed in Markuleski and other cases just mentioned because delay may have affected the accuracy and reliability of the evidence of the various complainants and also because it may have prevented the appellant from obtaining exculpatory evidence with respect to the charges of which he was found guilty as, it was said, he had produced regarding the charges of which he was found not guilty.

Before considering these submissions, it is necessary to consider the directions given by the learned Trial Judge at the trial. She said:

"....... I want to touch on some of the problems which occur in a case like this when there is such a long delay. I propose to spend some time on this topic because it is very important.

The fact that these allegations go back so many years inevitably created a problem for all of the witnesses in this case in accurately recalling the precise dates and sequence of relevant events. However, the fact that no complaint was made about these matters in close proximity to their occurrence is a very important matter for you to bear in mind as you assess the credibility and reliability of the evidence of each of these complainants.

You will need to scrutinise the evidence of each of these complainants with very great care because the prosecution case depends upon you being satisfied that they are telling you the truth.

I must warn you, however, although I think it is plainly obvious that, just because there is a delay in making a complaint, it does not necessarily follow that the complaint is false."

She went on to say that there may be many reasons for delay or failure to complain particularly about matters of a sexual nature where a child is concerned and particularly if the child does not, at the time, think the sexual conduct was wrong. She then said:

"A long delay does, however, create particular problems for an accused person. You will appreciate that it is very difficult for an accused person to provide proper details and give evidence as to background events relating to matters which happened so long ago.

If events are alleged to have occurred in recent proximity to a complaint, an accused person is obviously in a better position to explain and give more specific detail as to surrounding events and, in an appropriate case, produce evidence of where he was, what he was doing or who he was with on a particular occasion. In a case like this, however, where there is delay amounting up to as much as 18 years, it is extremely difficult for the accused to do other than deny the allegations against him. In this case, the problem is compounded by the lack of precision as to the dates on which the specific offences are alleged to have occurred. As you know, the only specific date alleged in any of these counts is that of the Glenelg riots, which has been agreed as taking place on 22 January 1984.

I should perhaps just pause to explain that, subject to some issues which arise with respect to Counts 8 and 15, the actual date on which these offences are alleged to have occurred is not an element of the offence. That is why in the course of her opening remarks, Ms Kelly sought to identify the particular incident which is the subject of each of these charges by reference to such matters as the place or occasion on which it is alleged to have taken place. However, that does not necessarily alleviate the difficulty faced by the accused in endeavouring to obtain evidence which might assist in the presentation of his defence. For example, there has been evidence in this trial of a number of trips with these boys to a variety of places at which sexual misconduct is alleged to have occurred. You will recall, however, that the accused in evidence told you that during his time at the club, he had trained in excess of 2,000 boys and possibly up to 3,000 and had been on scores and scores of trips. In that situation, you might well understand his inability to recall all of the details of the outings which involved these particular complainants.

As you well know, in the course of the trial we accumulated a great number of exhibits, many of which are of a documentary nature. I am sure you will remember that from time to time, we had some delays while we tried to sort out some of those documents and it might have caused you to wonder at times whether they were all really necessary. They have been produced, however, ladies and gentlemen, in an endeavour to find some objective evidence which might assist in clarifying such matters as the dates on which various events might have occurred. That might not have been necessary if this trial had taken place closer to the relevant events. It would also have been easier to check and test the reliability of the evidence of the complainants by reference to such matters as the layout of the premises and furniture in places like the Victor Harbor Courthouse and the Glenelg Courthouse. As it happens, both of those structures remain. We do know, however, that there have been some alterations to Glenelg which include the demolition of the free-standing shower block which we heard was to the rear of the premises."

She then referred to delay depriving the appellant of the opportunity to locate other witnesses who might have been available to give some independent evidence of relevant matters and who might have assisted him in his endeavours to recollect precisely what he was doing on relevant dates. As an example, she referred to the night of the Glenelg riots and the lack of records which were available to assist in the resolution of facts in issue.

The learned Trial Judge completed this portion of her summing up with the following:

"Ladies and gentlemen, the degree of prejudice occasioned to the accused with respect to these various matters you might think to be of variable weight. I need, however, to point out to you that experience has shown that human recollection, and particularly the recollection of events occurring in childhood is frequently erroneous and liable to distortion by reason of various factors and the likelihood of error increases with delay. The inability of an accused person to test the evidence of a witness against independent contemporaneous evidence is therefore a significant matter.

As Ms Kelly acknowledged in her address, the prosecution case depends upon you being satisfied that these young men have told you the truth. The Crown says, however, that there is ample evidence to support what each of the complainants has had to say about these matters, and in particular, depending on your view of the matter, the evidence of each of these complainants is capable of supporting that of the others. I will, however, return to that aspect of the matter a little later.

I should, however, make it quite clear to you that you must not go about your task by simply deciding who is telling the better story or who is more likely to be telling the truth. As I have told you, the onus is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Even if you did not positively accept what the accused has had to say about these matters, you still could not find him guilty of any offence unless the Crown had discharged the onus placed upon it to prove his guilt beyond reasonable doubt."

Towards the end of the summing up the learned Trial Judge gave the following further directions regarding delay:

"Ladies and gentlemen, as this point I am going to simply go on and finish my remarks and then we will come back to sort out any problems you might have. When we finished yesterday, I had gone through the evidence of the accused and I had mentioned to you the problem he had in obtaining the records from Dr Magarey which might have assisted in clarifying the issue with respect to the accused's penis. You will also remember that he told you about his extensive efforts to locate other records to assist in the presentation of his defence, such as the records from the police stations, the Motels and telephone and financial records which might have enabled him to work out where he was at the relevant occasions.

As I previously explained to you, the accused might have been able to locate witnesses from the police stations, the Motels, other boys that had been on trips, as well as such other people as his secretary. He would thereby have had the opportunity to test the evidence of each of the complainants against the recollection of other witnesses. For example, if the Colonial Motel records had been made available it would have been possible to assess whether [D] was truthful in his assertion that he stayed there with the accused ten to 15 times as opposed to the evidence of the accused which was about three. It might also have been possible to check [D]'s claim about the accused telling people there that he was his son.

As I also mentioned earlier, the Telstra records would have resolved the issue as to whether [C] and his mother were accurate about the phone call from the Glenelg Courthouse on the night of the riots.

The inability of the accused to test the recollections of these complainants by reference to these matters places the accused at a great disadvantage in endeavouring to defend the charges which have been made against him.

The accused is also placed in the position of having to deal with complaints made by people who are now adults whose life experiences, character and possible motivations from the time they left the club would, apart from [D], be unknown to him.

In those circumstances, the accused is unable adequately to test the evidence of each of these complainants by means which are ordinarily available to an accused person when a complaint is made in reasonable proximity to an alleged event. I must warn you, therefore, of the danger of convicting the accused on the evidence of any of these complaints (sic) alone, without the very closest examination of the evidence of each of them. In conducting the very close scrutiny of the evidence as you are required to do, you should also bear in mind the inconsistencies which have arisen with respect to each of them." (my emphasis)

Clearly the learned Trial Judge was required to give an appropriate warning to the jury in view of the circumstances of the present case, namely the delay, the nature of the allegations, the ages of the boys at the times of the alleged incidents and, to some extent, the failure to make a complaint at an earlier time: see Longman per Brennan, Dawson and Toohey JJ at 90. There was no corroborative evidence in Longman and the delay was as long as 25 years with respect to one incident, their Honours said at 91:

"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] A.C., at p141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1988) 12 NSWLR 558) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

Deane J acknowledged that delay required a warning to be given to the jury and said at 100:

"The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences."

McHugh J also accepted that the delay and lack of specification of dates required a warning because of its impact upon the reliability and accuracy of the evidence of the complainant and the forensic disadvantage to the accused. He said that strong warning was required which, relevantly to the present case, should include that due to the extent of the delay, experience shows that recollection of events occurring in childhood is frequently erroneous and liable to distortion, the likelihood of error increases with delay and due to lack of specificity, the defence was unable to examine the circumstances of the alleged offences. He went on to say at 108-109:

"Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.

In Crampton v R [2000] HCA 60; (2000) 176 ALR 369 the High Court again had to consider directions given to the jury in a sexual case involving substantial delay. Gaudron, Gummow and Callinan JJ, having considered the directions given by the trial judge and the observations in Longman, to which reference has been made, held that what the direction under consideration given was to say "too little, too unemphatically and less than what Longman required to be said in the circumstances of the case". They said at 379:

"The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury."

Kirby J also considered that there should be a warning and not merely comment given to the jury in cases of this nature involving substantial delay. He said at 401-402:

"The warning required by Longman must be, in the words of the joint reasons in this case, 'unmistakable and firm'. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence."

"The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms."

Adams J (with whom Giles JA and Hulme J agreed) in Regina v Murre [2001] NSW CCA 286 accepted that there was a danger that the jury might mistakenly have thought that because there had been cross-examination, the prosecution evidence may have been fairly and adequately tested. Also, he accepted that delay may prejudice the defence because of the inability to present a positive defence. He said at para 27:

"Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions. With unfeigned respect for the learned trial judge, I consider that his Honour's directions fell significantly short of the warnings required by Longman and Crampton."

As has been seen, in the present case the appellant had been able to obtain some evidence which enabled him to present a positive defence to some extent in some respects. The aerial photographs which related to Counts 1 and 4 is an example. The evidence of the police officer at the Glenelg Police Station is another example. The appellant had been able to locate and call Mr Zuvich regarding the events of the night of the Glenelg riots. It was submitted that it was a matter of pure chance that this evidence was available with the consequence that the possibility of successfully defending the charges of which the appellant was found guilty also depended upon pure chance. The appellant may well have been denied the forensic weapons which would have been available to him if there had not been substantial delay.

At the outset it must be said that the learned Trial Judge directed the jury in accordance with the Longman principle and did so in strong terms. Her direction was appropriate and adequate in the circumstances of the case. The direction complied with the observations in Crampton. She drew to the attention of the jury the disadvantages suffered by the appellant due to the delay and mentioned particular examples. Also, it must be acknowledged that the evidence of each complainant was corroborated by the evidence of the others as has been discussed.

I do not think any further direction was necessary or desirable because of delay. It would not have been appropriate to direct the jury that if, because of the delay, they reached a verdict of not guilty on one or some counts, they should find the appellant not guilty of other, or all other, counts, for that reason or have given some other direction along the lines discussed in Markuleski and the other cases.

The next submission is that one of the effects of delay is that the evidence of the appellant became, or appeared, less substantial and impressive than it otherwise would have been because the delay had "the effect of relegating the appellant from giving an account of what happened to what must have happened": Jones at 454. Our attention was drawn to Regina v Hingst [1999] NSW CCA 335 but I do not think that case assists as the Court was concerned with the effect of delay when considering whether verdicts of guilty were unsafe and unsatisfactory.

Obviously there is no obligation upon a trial judge to give directions to a jury using the language of judgments of the Courts. The learned Trial Judge did not, in her summing up, specifically address the matter referred to in Jones. Perusal of the transcript of the appellant's evidence does not suggest that the impact of his evidence was diminished by having to relate what "must have happened" rather than what did happen. His evidence was clear and precise. He acknowledged the close relationship which he had with some of the complainants and other boys and the various outings and activities which have been mentioned, which he said were entirely innocent. He denied any form of sexual activity or talk with any of them, although he accepted that there may have been some innocent talk among the boys which has now been given a sinister meaning. The issues at the trial were clear and there was no occasion to direct the jury along the lines of this observation in Jones.

The third submission is that the delay meant that the means of defending the charges were dependant on pure chance. Mention has been made of evidence adduced by the appellant which could be obtained. It is contended that the aerial photograph and the evidence of Mr Zuvich illustrate this submission and reference has been made to the evidence which was not available. The learned Trial Judge drew the attention of the jury to this matter and gave appropriate directions.

In my view, the learned Trial Judge gave clear and appropriate directions to the jury about the effect of the delay upon the appellant and nothing further was required.

The next complaint was about the directions of the learned Trial Judge as to the finding of guilt on one count when considering another count.

It was submitted by the appellant that the learned Trial Judge failed to tell the jury what it is about a finding that one complainant is telling the truth that can be carried over to the next complainant on an enquiry as to whether he was telling the truth. Strictly speaking, that is not what the learned Trial Judge said to the jury. She said that if the jury was satisfied beyond reasonable doubt of at least one of the charges, then and only then, could "that finding" be used as assistance to draw an inference of guilt as to the other charges. As has been seen, she described that evidence of the other charged acts and the uncharged acts as circumstantial evidence in the context of other charges which is plainly correct, see Hoch. This direction was given immediately after a clear direction against propensity reasoning. The learned Trial Judge then went on to explain the relevance of the evidence upon which a finding of guilt on another charge had been based. I repeat part of that direction:

"The relevance lies in the improbability of five witnesses giving accounts of events which discloses a similar pattern of behaviour unless those events occurred in the way they described ....."

As has been seen, she gave similar directions about the use of findings beyond reasonable doubt about uncharged acts.

Those directions were given in the context of clear directions about the need to consider each charge separately, that a particular verdict on one charge did not mean that there should be the same verdict on another charge or charges, that when considering each charge, the verdict had to be based upon the evidence relating to that charge.

The appellant's submission was that the only conclusion that the jury could have drawn from those directions was that the fact of having determined guilt on one count, the appellant was a sex offender which made it more likely that he was guilty of the next count under consideration. Although it was acknowledged that the direction did not mean that upon finding the appellant guilty of one count, the jury must convict him of the subsequent charge, it did mean that it became easier to convict on the next count under consideration, than if the previous finding of guilt had not been made. It was submitted that this is the process of reasoning which is generally prohibited. Clearly in a case such as the present where similar fact evidence is admitted, the learned Trial Judge is under an obligation to give clear directions to the jury as to both the permissible and impermissible use of the evidence: see R v Dolan [1992] SASC 3638; (1992) 58 SASR 501. King CJ said at 503:

"In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them."

It was submitted by the appellant that adequate directions were not given and that the jury were left without sufficient guidance or protection against impermissible reasoning.

Those submissions are rejected. Consideration of the summing up as a whole, and indeed the passages which I have set out extensively, following as they do a clear direction against propensity reasoning, shows that the learned Trial Judge gave all appropriate directions. Early in her summing up, after giving directions about the significance of delay, she reminded the jury of the acknowledgement of the prosecutor that the prosecution case depended upon the jury being satisfied that the five complainants had told the truth. She then referred to the evidence of the uncharged acts in a general way. She then directed the jury that the appellant was not to be convicted on evidence of mere disposition or propensity to commit a crime based on prior unlawful conduct. She told the jury that she would explain in due course how that evidence was relevant in a number of ways. She then gave the jury directions as follows:

"In this case, the evidence of other acts of sexual misconduct which are not the subject of charges is relevant to your consideration in a number of ways which I shall explain to you in due course. But for the moment I just want to make it quite clear, that you may only convict the accused of any of the offences with which he is charged, that is, those matters which are set out on the information, if you are satisfied beyond reasonable doubt that the conduct identified as being the subject of a particular charge that you have under consideration did in fact occur.

You cannot find the accused guilty of any of the charges against him simply because you might be satisfied that other conduct which is not the subject of a charge has occurred. In other words, you must not reason from evidence of other sexual misconduct that the accused is the sort of person who might commit the crimes charged on the information. In other words, to return to the [R] example, if you were satisfied that there had been some sexual activity in the van as he described but you were not satisfied that the act of fellatio occurred in the corridor of the Glenelg Courthouse, the accused would not be guilty of any offence relating to [R].

I should also explain to you that if you are to rely at all on the evidence of any act or acts which are not the subject of charges, you can only do so if you are satisfied beyond a reasonable doubt that they did in fact occur. If you are not so satisfied, then in that case, those other matters would have no part at all to play in your deliberations and you would put them completely from your minds.

As you have been told, I keep repeating it because it is so important, the onus is upon the prosecution to prove the guilt of the accused and he is to be found not guilty unless and until the prosecution has satisfied you of his guilt beyond reasonable doubt with respect to each of the charges that you have before you. You must therefore carefully guard against convicting the accused upon the basis of other conduct which is not the subject of a charge when the conduct which is the subject of the charge has not been proved to the requisite degree. In considering whether you are satisfied that the other conduct took place you are not required to assess the evidence of each complainant in a vacuum. I will explain a little later how you may use the evidence of one complainant to support the evidence of another."

The learned Trial Judge then referred to each of the charges and the complainant relating to them. She reminded the jury of the evidence of the complainant as to the particular incident which was the subject of each charge and the evidence of the appellant. She also reminded the jury of the inconsistencies in the evidence of each complainant such as they existed.

After referring to Counts 1-7 regarding W, the learned Trial Judge directed the jury that they would need to scrutinize the evidence of W with particular care. She told the jury that if they were satisfied that there were inconsistencies and they relate to a "material matter", they were matters "which would undermine his credibility as a witness".

The jury were reminded in some detail of inconsistencies in W's evidence, the evidence of his past criminal offending and drug taking and of lies which he had told to the police. Also she reminded them of the motive which he may have had to assist the prosecution in order to receive favourable treatment in Queensland in the sentencing process for offences committed in that State.

The learned Trial Judge went on to say about W:

"Similarly when you assess his credibility you should take into account his admission that he has told lies to the police as well as his long criminal history with respect to offences of dishonesty which, as you know, seems to be ongoing. You will remember that in the course of evidence it emerged that he was facing even more charges as a result of criminal activities which are alleged to have been committed here in South Australia following his release from gaol in Queensland.

As you know, the defence suggest that this is not a man whose word can be trusted beyond reasonable doubt. On the defence case, he is a practised liar with a motive for giving evidence, that is, to avoid going back to Queensland to serve his sentence. They are of course all relevant matters which you must carefully take into account. It is obvious, however, that it does not follow, as a matter of course that just because [W] has a criminal history or has lied to the police or has been involved in drugs, that he is not telling you the truth about what happened between him and the accused. You will remember that Ms Kelly in her address asked that, in assessing his evidence, you have particular regard to his demeanour in the witness box, which of course you must do. She referred in particular to [W]'s reaction when the undertaking was produced to him. She suggested that you might think that he was quite genuinely surprised at the nature of the undertaking which he had clearly signed. Ms Kelly also suggested that if [W] was prepared to lie why did he not bolster up his evidence instead of having some doubt about such matters as to the extent of penetration in those counts which related to sexual intercourse. Ms Kelly suggested that at the end of the day, and notwithstanding the obvious infirmities which arise with respect to [W] that, in terms of detail, he gave you an account about what happened to him on each of those occasions which was completely truthful."

She also reminded the jury of the submission of the defence about W which, in brief terms, was that he was unreliable, untrustworthy and lacking credibility.

After reminding the jury of the evidence of C in relation to Counts 8 and 12, she reminded them of his evidence about uncharged acts in the van which she said was relevant to the shower incident being Count 8 as it may explain his lack of surprise or complaint about the shower incident. She directed them that the evidence of the uncharged acts was also evidence of a sexual interest that the accused displayed in D which was relevant to the charges relating to D. The learned Trial Judge then reminded the jury of C's evidence about the uncharged acts. She reminded them of inconsistencies in his evidence. At the preliminary hearing he said he had only stayed on one occasion at each of the Glenelg Courthouse and the Victor Harbor Courthouse. At the trial he told the jury that he had stayed at both courthouses on more than one occasion. Also she reminded them of the evidence of the appellant about these matters.

The learned Trial Judge directed the jury that the evidence of D supported the evidence of C in a material way and was evidence which could cause the jury to doubt the denial by the appellant. She reminded them of that evidence.

Directions were then given about Counts 9 and 10 involving Y. The learned Trial Judge reminded the jury of his evidence about the incidents relating to those counts, the evidence of the appellant and other evidence regarding the cells and whether they were locked. Also she reminded the jury of evidence which suggested that there was inconsistency in Y's evidence.

The jury were then reminded of the evidence of R in support of Count 11 and of his evidence about uncharged acts and of the sexual talk and behaviour in the group. The learned Trial Judge then directed the jury as to the permissible use of this evidence. She said:

"I have already explained to you that it is only the incident in which it is alleged that the accused put [R's] penis in his mouth, which is the subject of this charge. None of the other matters which raise issues of sexual misconduct are the subject of charges against the accused. If, however, you are satisfied beyond reasonable doubt that they occurred, then one of the ways in which this evidence can be taken into account is to explain the context in which the offence against [R] is alleged to have occurred. It is evidence which is relevant to show that the accused had a sexual interest in [R] and to explain [R's] lack of surprise as to what occurred in the corridor of the courthouse. It may also be evidence which is relevant to explain his lack of complaint about that matter."

She also reminded the jury of the evidence of the appellant and other evidence bearing upon that charge.

The learned Trial Judge then gave directions about Counts 12-16 inclusive regarding D. She reminded the jury of his evidence, including of uncharged acts and evidence which tended to confirm the allegations of others. During the course of this part of the summing up, she again gave a propensity direction. She said:

"Before I discuss the specific evidence relating to each of these counts, I propose to just remind you of some of the evidence of [D] leading up to the occasion at the Colonial Motel. I remind you once again, however, because it is very important, that you must not reason impermissibly that just because you might be satisfied that some of the other sexual misconduct described by [D] took place, that the accused was the sort of person who was likely to have committed the specific acts which are the subject of these two charges. Such a process of reasoning would be quite wrong.

This evidence is introduced to enable the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. In the absence of evidence of what had gone on previously, you might consider that [D]'s description of what he says occurred on this particular occasion to be quite extraordinary. If, however, you were satisfied beyond reasonable doubt that there had been a prior sexual relationship between [D] and the accused you might be prepared more readily to accept what [D] says occurred on the two occasions which are the subject of these charges.

I might add that the only relevance of the evidence as to what happened after the occasion which is the subject of charges is to explain the relationship which the accused had with [D] over subsequent years which is relevant to your consideration of what eventually took place in June 1999 and may also explain the lack of any complaint."

She reminded the jury of the evidence relating to each of the Counts and of evidence of alleged inconsistencies and omissions. She also reminded them of the evidence about uncharged acts and of the relationship between the appellant and the five boys and of evidence which tended to confirm, or not confirm, his evidence. The learned Trial Judge referred to the alleged incident which is the subject of Count 8 involving C. She said:

"There is, however, a further matter which I should make quite clear to you. The evidence of [D] as to having a shower alone with the accused at Glenelg is circumstantial evidence which, as I have told you, is capable of supporting the evidence of [C] if you were satisfied that [D] has told you the truth about that matter."

She reminded the jury of the evidence of the appellant as to Count 16 and went on to direct the jury as follows:

"I should, however, further explain that if you are satisfied that the accused paid money to D to stop him telling the police about these matters, then that evidence is also capable of showing a consciousness of guilt on the part of the accused as to sexually improper conduct in relation to [C] and [D] which would be relevant to your consideration of the [C] and [D] counts."

and then gave traditional directions as to drawing inferences of a consciousness of guilt.

Having given those directions, the learned Trial judge then reminded the jury of the evidence of the accused generally and in relation to each count. She then gave directions which I have earlier mentioned as to the disadvantage suffered by the appellant due to delay and the warning of the danger of convicting him on the evidence of the complainants. The learned Trial Judge reminded the jury of the defence case as to inconsistencies in the evidence of the complainants.

In my view, the jury were adequately and appropriately directed about the use of the evidence of the charged and uncharged acts and were given strong directions about impermissible use of the evidence.

It may be said that those directions could have been more extensive. The learned Trial Judge could have said that the evidence was capable of establishing that the appellant indoctrinated each of the boys and introduced them to sexual talk and play at a very young age when they could regard such behaviour as normal which could explain how he could commit sexual crimes upon them with little chance of detection. Directions along these lines would have been justified and would have further assisted the jury. However, the absence of such directions was favourable to the appellant and was not a misdirection. The learned Trial Judge could have given additional directions as to each of the uncharged acts and the relationship evidence. However, when considered in their entirety the directions were adequate and gave sufficient assistance to the jury to use the evidence permissibly.

Also the directions clearly warned the jury against impermissible use of the evidence. It is clear from the directions that the jury have been instructed to use the evidence of other acts of sexual conduct as found to be proved beyond reasonable doubt as circumstantial evidence when considering a particular charge for the purposes which she clearly defined and such directions accorded with the law and discharge the obligation as discussed in Dolan.

It was further submitted that because the learned Trial Judge told the jury that they could decide which count they considered first, they could have begun with Count 16 and then impermissibly used a finding of consciousness of guilt when considering each of the other charges. Consideration of the structure of the summing up does not suggest that there was any possibility of impermissible use of findings about Count 16 when considering each of the counts relating to sexual conduct. The directions about Counts 16 and the use to be made of relevant evidence were given after the directions about Counts 1-15. I do not think the jury would have been led to make findings about Count 16, conclude that the appellant acted out of a consciousness of guilt and then conclude, for that reason, that he was guilty of the sexual acts which are the subject of Counts 1-15. Such a process of reasoning would be contrary to the manner in which the directions were given.

Also, as has been seen, the learned Trial Judge concluded that the consciousness of guilt reasoning applied to Count 8, which related to C, and Counts 12-16, which related to D, and not to any other counts. She directed the jury accordingly. The jury found that the appellant was not guilty of Counts 8 and 12 which shows that they correctly considered the evidence in relation to those counts and the directions as to the significance of the occasion of the Glenelg riot. Furthermore, the verdicts of not guilty on Counts 1, 4 and 6, which related to W, showed, as has been seen, an appropriate reasoning process and not the use of a finding of consciousness of guilt as the basis for verdicts of guilty.

The next complaint was that the learned Trial Judge gave erroneous directions regarding uncharged acts.

As has been mentioned, she directed the jury that the same process of reasoning applied to the uncharged acts as to the charged acts. She went on to say:

"Let me return to the [R] example. If you are satisfied beyond a reasonable doubt that what [R] said occurred in the van was true, then you would be able to take that finding into account when you assess the evidence of each of the other complainants who described activities taking place in the van. I did, however, describe this evidence as circumstantial evidence. In the course of these remarks I have also referred to other items of evidence in this case as circumstantial. That therefore brings me to another very important matter which I must explain to you, and it is this.

The onus is always upon the prosecution to prove the offence against the accused beyond reasonable doubt. That means, to prove it by way of circumstantial evidence it is necessary for the evidence to exclude any reasonable hypothesis other than the guilt of the accused. In other words, before you can be satisfied that an accused person is guilty, you must be satisfied, not only that his guilt is a rational inference but that it is the only rational inference that the circumstances you find proved enables you to draw.

As you work your way through the evidence in this case and make your findings of fact, you may eventually conclude that the effect of the combined testimony of all or some of the complainants is such that it bears no reasonable explanation, other than the guilt of the accused. In that case, the evidence of each would support the others, although the weight to be given to the combined testimony of the complainants is a matter for you."

The complaint was that these directions invited the jury to use a broad range of evidence given by various complainants in whatever context they should choose which is a fatal defect in the summing up.

We were referred to my own observations in R v T [1999] SASC 242; (1999) 74 SASR 486 as to the obligation on the part of a trial judge to give adequate directions to the jury as to the permissible and impermissible use of evidence of uncharged acts. There is no need to repeat what I said in that case: see 504-505. The effect of it is that in cases where evidence of uncharged acts is admitted, careful directions as to the purpose of the evidence must be given so that impermissible reasoning will not be used. In R v T the Court was not concerned with multiple counts of sexual offences involving different complainants. No issue of cross-admissibility of evidence of different complainants about different offences arose as in the present case. The directions in R v T were inadequate to guard against propensity reasoning. Similar views were expressed in R v D [2001] QCA 256 and R v Rogers [1998] QCA 83.

The deficiencies in the directions in those cases are not to be seen in the summing up in the present case. The learned Trial Judge gave adequate and appropriate directions to the jury regarding the uncharged acts. She directed them against propensity reasoning. Her directions were specific even though she did not refer to every uncharged act. In the passage mentioned, she gave an adequate example which the jury could use when considering the evidence of each uncharged act. The directions were adequate with respect to the charged acts and they were equally so with respect to the uncharged acts.

It will be remembered that the learned Trial Judge held that the evidence in support of Count 16 was admissible as to Count 8, which involved C, and Counts 12, 13, 14 and 15 which involved D as capable of establishing a consciousness of guilt of the appellant of those charges. Her direction to the jury was as follows:

"I should, however, further explain that if you are satisfied that the accused paid money to [D] to stop him telling the police about these matters, then that evidence is also capable of showing a consciousness of guilt on the part of the accused as to sexually improper conduct in relation to [C] and [D] which would be relevant to your consideration of the [C] and [D] counts.

You will appreciate, however, that there are all sorts of reasons why people act in a certain way which are not necessarily the product of a guilty mind. Sometimes people act out of a sense of panic. Whatever the truth of the matter may be, you could well understand the position of the accused once he became aware that the police were investigating offences of this kind. You might well think that the accused would have said or done anything to keep [D] on side, in the genuine hope that [D] would assist him in clearing his name by giving a statement to his lawyer as to the truth.

Ladies and gentlemen, if you were to accept as a reasonable possibility that that was the case, then this evidence could not be used as proof of consciousness of guilt with respect to any of these charges. In other words, you can only use this evidence as consciousness of guilt if you are satisfied that the accused was in effect buying the silence of [D] in the knowledge that [D] would otherwise implicate him in the offence relating to [C] which was then under investigation by police and/or offences relating to himself. In other words, that he paid the money to [D] because of the realisation of his guilt and the fear of the police finding out the truth."

The first complaint was that any consciousness of guilt which could arise from the evidence in support of Count 16 would not necessarily relate to any of the particular charges in relation to D or C, let alone all of them. It was submitted that consciousness of guilt could relate to some wrongdoing short of any of the allegations found in these charges or to an uncharged act or to one charged act but not others. It was submitted that the principles applicable to consciousness of guilt reasoning in consequence of interference with a witness will, in the present circumstances, be the same as apply to the inference of a consciousness of guilt from telling a lie: see Harris v The Queen (1990) 55 SASR 321, Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.

It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused's credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.

There are other types of conduct of an accused person which may also constitute circumstantial evidence from which an adverse inference of guilt may be made subject to the same proviso: R v Dat Tran Nguyen [2001] VSCA 1. Examples are given in Lunn: Criminal Law in South Australia paragraph 120.5 and include absconding while on bail, flight and assuming a false name. The hiding of a weapon may amount to such conduct. Another example given is suborning a prosecution witness. That type of conduct was considered in Rex v Watt (1905) 20 Cox CC 852. In that case Phillimore J said that the principle was well established. He said at 853:

"It is this, that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him. The principle is well stated by Sir Alfred Wills ....... in his edition of his father's work upon circumstantial evidence:

'Amongst the most forcible of presumptive indications may be mentioned all attempts to pollute or disturb the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner, or his agents, are of a more prejudicial effect, as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it.'"

"Evidence must be given to connect the litigant with the witness as a suborner of his perjury, but if such evidence is given the presumption is strong but not conclusive."

This type of conduct has been treated as an admission by conduct: R v Flanigan (1997) 190 LSJS 499 per Cox J at 504. Conduct of this nature is not confined to suborning a witness once a trial has commenced. The conduct may occur before the trial just as an inference that a lie was told due to a consciousness of guilt may be drawn from a lie told before the commencement of litigation.

This submission must be considered against the background established by the evidence and in the context of the issues at the trial. The prosecution case was that the appellant had committed the offence charged in Count 16 so as to assist him regarding allegations of sexual conduct by him. The appellant's case was that he paid the money to D to assist him because he wanted to marry and that he thought D was asking for a loan. Initially he was to pay $3,000 for that purpose but when he gave D the money, he asked for another $2,000. He did not pay the money for any other purpose.

It may be seen that the learned Trial Judge directed the jury that the drawing of an inference of consciousness of guilt did not arise unless the jury were satisfied that the accused paid the money to D to stop him telling the police about sexual conduct and that the appellant was buying the silence of D "in the knowledge that D would otherwise implicate him in the offence relating to D" (my emphasis). If the jury were not so satisfied, then the conduct could not amount to positive evidence of guilt. Consequently, there is no basis for the submission that the consciousness of guilt could relate to some wrongdoing short of the conduct which was the subject of the charges.

It will be remembered that at the time of the payment of the money, on the prosecution case the appellant knew that the allegation was masturbation with a young boy or boys which constituted a criminal offence. The consciousness of guilt could relate to some, but not all, charges but as D and C were alleged to be involved at that stage, C as the object of sexual conduct and D as the likely witness, the direction of the learned Trial Judge was not in error in confining the matter to the charges relating to them. Given the nature of the issue at the trial, once the jury concluded beyond reasonable doubt that the purpose of the payment of money was to buy the silence of D, in the sense meant by the learned Trial Judge, namely to prevent disclosure of wrongdoing which includes positive assertion that there was none, an inference that there was a consciousness of guilt as to sexual conduct with all of the complainants was reasonably open.

I do not think it is appropriate to consider all of the directions which must be given with respect to lies (see Reg v Lucas [1981] QB 720 at 724, Harris and Edwards) and then apply them to the drawing of an inference of a consciousness of guilt by conduct of the nature in the present case. What was necessary was that the jury be directed, as with any circumstantial evidence, that they could not draw an inference of guilt if there was a rational explanation to the contrary. It was necessary that this direction be tailored to the issues in, and the facts of, the case: see Dat Tran Nguyen per Winneke P at para 21. In my view, the learned Trial Judge discharged that obligation and her directions were sufficient.

These three grounds may be considered together. They raise the issues of certainty and particularity. In Ground 4 the appellant complains that the learned Trial Judge erred in ruling that there was a case to answer on Counts 2, 5, 6, 11, 12, 14, 15 and 16. In Ground 6 the appellant complains that the learned Trial Judge erred in directing the jury that it was not necessary to find that the alleged conduct constituting any count occurred within the range of dates particularised within that count. As has been seen, a direction given by the learned Trial Judge was as follows:

"I should perhaps pause to explain that, subject to some issues which arise with respect to Counts 8 and 15, the actual date upon which those offences are alleged to have occurred is not an element of the offence."

This direction was given in the context of difficulties occasioned by the long delay between the alleged incidents and the complaints coming to the attention of the appellant and the time of the trial. Reference has been made to the issue of delay and the directions given when a complaint about directions as to the significance of the delay was considered.

In Ground 7 it was asserted that the counts in the Information and the convictions founded thereon are bad for duplicity and, or, uncertainty, and, or, insufficient particularisation.

It is convenient to consider first the significance of the allegation of a date or range of dates in the particulars of charges alleged in the present case.

The submission of the appellant was that the prosecution must prove a date within the period particularised in the charge. It was contended that if the prosecution could not provide adequate particulars, the prosecution should not have proceeded. In brief terms the submission was that where the prosecution has alleged an occasion within a specified period of time, it must prove an occasion within that period. Furthermore, the prosecution must provide adequate particulars so that there is a fair trial.

The illustration given is the particularity provided with respect to Counts 14 and 15. The particulars as to when the alleged offences occurred are between 2nd May 1984 and 1st May 1985. Further particulars are that the incident occurred at the Motel. As has been mentioned, D gave evidence that the appellant had sexual intercourse with him on about 10 to 15 occasions at the Motel. The appellant, on occasions, passed D off to staff at the Motel as his son and they shared the same room and bed. D described what happened on those occasions by mentioning the conduct as masturbation, anal sexual intercourse and occasionally oral sexual intercourse and the use of a lubricant. D told the jury that there was one occasion which had a unique feature which did not occur on the other occasions, namely the use of a camera. As has been seen, that is the occasion which is the subject of Counts 14 and 15. D said that this incident occurred towards the end of his relationship with the appellant. He described this incident in detail. The appellant denied this incident, including the use of the camera.

It was submitted that the particularity of theses charges depends entirely on a subjective statement of the complainant and that such a process is entirely inadequate. The particularity must be by some objective circumstance which can be used as a reference point. An example in the present case is the night of the Glenelg riots. Otherwise, the charge is void for lack of particularity and duplicity.

It is well established that the dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence: Reg v Dossi (1918) 13 CrAppR 158, The Queen v Pfitzner (1976) 15 SASR 171, McDermott v The Queen (1987) 45 SASR 335, R v Jacobs (1993) 2 QdR 541, Hartley v R (unreported, SA CCA, S4754, 6th September 1994), G v R (unreported, SA CCA, S5019, 4th April 1995), R v H (1995) 184 LSJS 68 and R v McDonald (1995) 65 SASR 322. In Pfitzner Wells J said at 192:

"Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer."

In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Dixon J observed at 489:

"For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge."

However, there may be cases where even though the particulars of when an offence is alleged to have been committed is not an element of the offence, it may be material to the integrity of the criminal process: R v H at 76. I adhere to what I said in McDonald, at 330:

"However, as was acknowledged in Pfitzner, the circumstances of the case, including the forensic issues raised at the trial such as alibi or lack of opportunity, may make the date vital."

Similar observations were made by Gleeson CJ, with whom Handley JA and Studdert J agreed, in Regina v VHP (unreported, NSW CCA, 60733 of 1996, 7th July 1997). In that case the indictment alleged a range of dates but the complainant in evidence said that the offence occurred on a particular date. The evidence established that the offence could not have occurred on that date. The directions of the learned Trial Judge may have led the jury to think that they could convict the appellant if they found that the offence had occurred within the range of dates. Gleeson CJ said at 15-16:

"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.

The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R 158 at 159-160 in the following terms:

'From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence .... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.'

There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (eg The King v Dean [1932] NZLR 753, R v Kringle [1953] TASStRp 8; [1953] Tas SR 52, R v Pfitzner (1976) 15 SASR 171, R v Macdonald (1995) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353)."

It was, no doubt, the observations in these cases which led the learned Trial Judge to the view that the particularisation of specific occasions during the trial became essential with respect to Counts 8, 12 and 13.

There are three main reasons for adequate particularity. The first is so that the accused is able to prepare and present a defence so that there may be a fair trial. There is a clear obligation on the prosecution. As Dawson J said in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 275, "An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness". The second is so that the jury will all reach a decision with respect to the same incident: S v The Queen per Dawson J at 276, R v S (1992) 58 SASR 523 and KBT at 422. The third is so that a conviction is not bad for duplicity: R v S at 526.

In the present case the prosecution particularised the conduct in relation to each count. Earlier, reference has been made to the conduct which constituted each charge in the Information and the particulars of each charge. I need not repeat those particulars but it can be seen that each incident is particularised as to the place where it occurred, the nature of the conduct, some unique feature of the conduct and with respect to Counts 8, 12 and 16, the actual or appropriate date upon which it occurred.

The submission of the appellant was that at common law the appellant is entitled to a high degree of particularity of the charge and that proof that the alleged offence occurred on the date specified, or within the range of dates specified in the charge, is essential. It was submitted that this right is of particular importance in a case involving conduct many years ago in circumstances where various allegations of similar conduct are made. It was further submitted that if particulars are given alleging a date or a range of dates, that date or range of dates must be proven because it is only that particularisation that distinguishes the offence charged from other similar allegations.

This submission is contrary to the decisions in all of the cases which have been cited and is tantamount to making the date, or range of dates, an essential element of the offence which is contrary to those authorities. Reference was made to the observation of Atkin J in Dossi cited by Gleeson CJ in VHP. Dossi was approved but distinguished in The King v Dean, followed in R v Kringle [1953] TASStRp 8; [1953] Tas SR 52 and by Derrington J in Jacobs. It was submitted that some doubt was cast upon the proposition in Dossi in Jacobs but I do not think that is so.

In KRM the High Court was concerned with a statutory offence in Victoria known as a sexual relationship with a child under the age of 16 years. S 47A of the Crimes Act 1958 (Vic) provided, inter alia, that it is not necessary to prove the dates or the exact circumstances of the alleged occasions of sexual offending. McHugh J, when discussing the common law, said at para 15:

"S 47A operates in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear." (my emphasis)

His Honour then referred to the observation of Dixon J in Johnson v Miller and went on to say, "These particulars are recorded to ensure that the accused person has a fair opportunity to defend the charge." Kirby J made a similar observation. Having referred to those observations of Dixon J, he said at para 96:

"In harmony with this fundamental postulate, the rule established for criminal trials in Australia is ordinarily one which requires a high degree of specificity in the accusation, charges and evidence proffered by the prosecution." [footnotes excluded]

The need for adequate particularity so as to identify the precise acts which are to be considered by the jury was also stated in KBT at 423, 425. In S v The Queen Gaudron and McHugh JJ, in response to the argument that there were practical difficulties in particularising or identifying one or all of the offences charged said at 288:

"Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain."

"....... it is important for the courts to be fair to an accused person by insisting on identification of particular conduct which is the subject of a charge, and it is also necessary to be reasonable in the application of the law in the case of a child witness who will often have difficulty in distinguishing one incident from another during a long course of conduct." (my emphasis)

It may be seen that none of these cases support the proposition that a date or range of dates must be proved. What is required is "a high degree of particularity" which must be the best particulars which can be given. Particulars must be given of the conduct which is the subject of the charge and of the incident which will distinguish it from other similar conduct. On occasions that may be done by reference to a date or to a date and time and even a place where the conduct is alleged to have occurred. On occasions it may be done by reference to an external event, such as occurred in the present case by reference to the Glenelg riots with respect to Counts 8 and 12. In a case where it is alleged that there has been a long period of offending at the same location, and only a range of dates is possible, the need for specificity may be satisfied by the particular that it was the first occasion or the last occasion or some other occasion. It may be satisfied by reference to a feature of an incident which is distinguishable from all other incidents, such as in the present case by reference to the camera in relation to Counts 14 and 15.

There are many ways in which one incident may be distinguished from another or others depending upon the circumstances. Also, in cases such as the present involving sexual conduct with children, it is necessary to be reasonable in the application of these principles: R v S. If this approach is taken, the jury will focus upon the same incident when considering their verdict as to each count and there will be no uncertainty in any conviction. Whether the particulars will be adequate for the accused will depend upon the circumstances of the particular case.

In my view, there is no support in the cases for the contention that the particulars cannot depend upon a subjective statement of the complainant such as the only occasion when the camera was used. In many cases one incident is charged out of a long course of indecent conduct and such a technique may be appropriate in the circumstances so that the parties and the jury focus upon the same incident.

Also, it was not necessary for the prosecution to prove, in the present case, that an offence was committed on a particular date or within the range of dates as pleaded except with respect to those charges where a date or time was an element of the charge or had become an essential matter in the interests of fairness to the appellant. Shortly, I discuss each of these charges in this context and it will be seen that there was no unfairness to the appellant.

I now turn to the submission that particulars such as "the first occasion", or some other occasion, will never be adequate because where, as in the present case, the accused disputes any such offending, it is necessary to prove that there was an indeterminate number of offences of which there could be a first or second or other occasion. The dispute then becomes whether or not the accused committed any offences which is not the proper process in a criminal trial.

This submission may be appropriate in some cases. It cannot be said that the identification of the incident which is the subject of the charge as the first occasion will always be sufficient. In some cases it will be sufficient and in other cases it will not. In the circumstances of R v Rogers [1998] QCA 83, it was regarded as insufficient. I mention some observations of Dowsett J, with whom Davies JA agreed, at 19:

"In general, as a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence. I cannot see how there can be a trial in the absence of that degree of particularity. Of course, this requirement does not exclude multiple charges of substantially similar events, provided the evidence demonstrates separate, identifiable transactions which can be related to counts in the indictment. I do not imply that this minimal standard will always be sufficient. The nature of the offences in question and the circumstances of the complainant will be relevant in determining the extent to which further particulars should be required. In cases of the present kind it will, for instance, often be difficult for a very young complainant to give particulars of dates although, as this case demonstrates, particulars of place may not be so difficult. A specified period may be sufficient, although the longer the period, the less satisfactory is the degree of particularity so offered. The age of the complainant at the time of the alleged offence and at the time of trial may affect any decision as to the adequacy of the particulars. I mean by this only that a court will be more easily convinced that the Crown cannot further particularize a count where the complainant is a young child than in other cases. However the ultimate question will be whether the particulars are reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence. The less satisfactory the particulars, the more important will be an adequate direction as to the difficulties created for the accused in answering the charges and the need for care in scrutinizing the Crown case. As with so many other aspects of a criminal trial, the adequacy of particulars is very much a matter of judgment."

The particular was held to be inadequate mainly because of insufficiency in the evidence.

As has been mentioned, the incident charged must be particularised in such a way as to distinguish it from other similar conduct. The technique of particularising the incident charged, which is indistinguishable from other similar conduct and where a date cannot be specified, by identifying the occasion as the first, last or some other occasion has commonly been adopted. Brennan J did not disapprove of that technique in S v The Queen at 271 nor did King CJ in R v S at 525. It was approved by the Court of Criminal Appeal of the Supreme Court of Victoria in Director of Public Prosecutions v Lewis [1997] 1 VR 391 at 399-400, see also R v Best [1998] 4 VR 603 at 617-618.

In R v Baker; Ex Parte Attorney-General (Qld) [2001] QCA 59 the Queensland Court of Criminal Appeal considered the Attorney-General's reference question, "Can specifying an alleged act as the first occasion when conduct of a certain type was committed be sufficiently particular to identify the offence charged?" Mackenzie J, with whom the other members of the Court agreed, illustrated the need to consider the particular circumstances of the case. He said at 4:

"Whether the requirement that an act charged be sufficiently particularised can be satisfied by defining a count as 'the first occasion' when a series of essentially identical acts have occurred will depend on the circumstances. For example, if a complainant alleged that two offences occurred in a similar way in the same room of a house during a recent period while the complainant was staying with relatives for a short holiday, but was unable to identify specific dates, it could hardly be correct to deny that identification of one of the alleged acts as the first and one as the last provided sufficient particularisation.

In that example, the circumstance that the offences were recent minimises the risk that an accused person will have lost the means of testing the complainant's allegations adequately. On the other hand, where there has been a long delay, the period in which the particular offence is alleged to have occurred is lengthy and there are insufficient features in the evidence which would enable an accused person to identify a particular occasion upon which the act is alleged to have occurred an accused person will have no real means of testing the complainant's allegations."

"An accused person is entitled to be sufficiently apprised of the particular occasion referred to in a charge against him. When it is alleged that a series of acts of a similar character was committed, it is necessary to have regard to all relevant circumstances in deciding whether the accused person's right to be adequately apprised of the occasion to which the count relates has been satisfied. The utility of describing a charged act as the 'first occasion', when such particularisation is given as a step towards attempting to ensure that the accused's rights have been accorded to him, will depend on the particular circumstances of the case. In the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice."

It may be seen from these cases that particularisation of an incident forming the basis of a charge as the first, or some other occasion, is sufficient in an appropriate case but distinguishing features should be particularised. I do not think that the matter of delay mentioned by Mackenzie J renders any of the particulars in the present case as inadequate. Each of the charges particularised the conduct by other unique features such as location, the nature of the alleged conduct or some other contemporaneous event.

It is unnecessary in the circumstances of the present case to express any opinion about the observation of Mackenzie J in the context of delay. I reject the submission that, in an appropriate case, it is impermissible to particularise an incident by reference to the incident being the first occasion or some other occasion. In so far as Mackenzie J has expressed a view to the contrary in cases involving considerable delay, I respectfully disagree. Each case must be considered on its own circumstances.

I now turn to the counts raised in Ground 4. It is unnecessary to consider Count 12 because of the verdict of acquittal.

With respect to Count 2, it was submitted that W did not say when the offence occurred. He told the jury that this incident occurred at the Glenelg Courthouse during his first season at the Club. He joined the Club on 13th October 1983 at the age of 9 years. He said that the incident happened after he and other boys had visited a nearby attraction at Glenelg known as "Magic Mountain" which occurred not very long after the first stay at the Glenelg Courthouse. This evidence was capable of establishing that the incident occurred during his first season at the Club and therefore well within the range of dates which was pleaded. The learned Trial Judge was correct in rejecting the submission of no case to answer.

With respect to Count 5, W told the jury that this incident was the first time the appellant had unlawful sexual intercourse with him, and, as has been mentioned, it occurred in the shower at the Glenelg Courthouse. He said he did not know when the incident occurred but he told the jury that there were two occasions when the appellant had anal sexual intercourse with him. The second occasion was the incident which is the subject of Count 7 and which occurred in the showers at the Club. He said that he thought the second incident occurred during his last season at the Club which was the 1985/1986 season and that the first incident occurred in the same season but he could not be sure. As has been seen, the particulars in the Information alleged that the first incident occurred no later than the end of the previous season which was completed at the end of March 1985.

It was submitted that the evidence of W placed the incident outside the range of dates alleged in the Information. I do not think the evidence can be interpreted in that way. His evidence was not capable of proving that the incidents occurred within the range of dates pleaded. However, I do not think that is a matter which justified a conclusion that there was no case to answer. The best particulars available had been given which, at the trial, included the place of the alleged offence, the nature of the conduct, approximately when it occurred and that it was the first occasion when that type of conduct had occurred.

In my view, the particulars were adequate. As a matter of law, proof that the incident which is the subject of a charge fell outside a range of dates pleaded in the Information is not fatal to the charge and a conviction on that basis may be valid depending upon whether a difference in period of time proved from that alleged causes unfairness to the accused. In the present case, no such unfairness arose. The prejudice to the appellant due to delay which has been discussed was not increased by some difference in a range of dates of an incident which occurred many years ago. No circumstances were identified which could render such a difference unfair to the appellant.

No submission was made with respect to Count 6 other than the submission with respect to most of the other counts that there was insufficient particularity as to when the alleged offence occurred. It is unnecessary to say more than has been said in response to the submissions with respect to other counts and particularly as there was a verdict of not guilty. The particulars were the best which could be provided and were adequate in the circumstances.

The submission about Count 11, which relates to R, was that the evidence was incapable of proving that the alleged offence was not statute-barred.

The date upon which the incident which is the subject of Count 11 occurred became critical at the trial because prior to 1st December 1985 s 76A of the Criminal Law Consolidation Act 1935 limited the time within which an Information could be laid for various sexual offences, including this offence, to three years from the date of commission of the offence. That section was repealed which took effect on 1st December 1985. The repeal was not retrospective in its effect with respect to offences which were already statute-barred, that is offences which had been committed before 1st December 1982: R v Pinder (1989) 155 LSJS 65. Unless the prosecution could prove beyond reasonable doubt that the alleged offence occurred after 1st December 1982, the charge was statute-barred. It was submitted by the appellant that the lack of particularity as to the date of the alleged offence, the delay in the making of the complaint and the method of police investigation enabled the prosecution by the time of the trial to lead evidence from R that he was "pretty sure" the offence occurred during the second season he was at the Club, although in his statement to the police he was unable to distinguish between the two seasons he was at the Club.

R told the jury that he joined the Club in the summer of 1982 and 1983. He attained the age of 8 years in October 1982. Whilst a member of the Club, he engaged in competitions and won some medals and certificates. Certificates won during the seasons 1982/1983 and 1983/1984 were admitted into evidence.

He said that he thought that another boy, whom I refer to as V, had gone to New Zealand by this time. V told the jury that he left the Club in late 1982 when his parents moved to New Zealand. In cross-examination R said that when he made a statement to Detective Cunningham on 25th January 2000, he told her that he did not know when he stayed at the Glenelg Courthouse which is where the incident occurred. He told her that V had moved back to New Zealand and he remained at the Club for a short time after that. He told the police officer that he had grave difficulty in distinguishing one season from another. However, he went on to say that the incident which is the subject of Count 11 occurred in the second season because by that time he was better friends with D, the friendship having developed over time, and V had left the Club.

R told the jury that he left the Club after the 1983/1984 season when he changed schools. His mother told the jury that R changed schools at the commencement of Fifth Grade which would have been at the beginning of 1984.

It may be seen that the evidence of R was clear. The incident occurred in his second season of membership of the Club. The evidence of his mother is also clear. R left the Club at the commencement of Fifth Grade which was very likely to have been at the beginning of 1984 when he was aged 10 years.

D's brother told the jury that the group stayed at the Glenelg Courthouse within a month or two of his joining the Club which would have been in September or October 1982. It was submitted that this evidence supports the possibility that the incident alleged in Count 11 could have occurred before December 1982. I disagree. There is no reason to suppose that the evidence of D's brother was precise. He said he did not know exactly how long after joining the Club he stayed at the Courthouse but it was within "probably a month or so". He does not refer to R. Also, it was submitted that there were no video hire records or other records available to assist in fixing the occasion.

However, there was another piece of evidence capable of establishing that the alleged offence occurred after 1st December 1982. R told the jury that he was staying at the Glenelg Courthouse with the appellant and other boys because that was where the appellant was living. He said that as far as he knew, the appellant was selling, or had sold, his beach house at Port Noarlunga. It was an agreed fact that the beach house was sold on 7th July 1983. All of the evidence and the agreed fact were capable of proving beyond reasonable doubt that the alleged offence occurred after 1st December 1982 and therefore the charge was not statute-barred.

The submission concerning Counts 14 and 15 may be considered together even though there is another and separate issue regarding Count 15. The submission which was common to both counts, as I understand it, was that the incident which is the subject of both counts is not distinguishable from any other of the incidents.

It was submitted that the appellant should not have been called upon to meet allegations so imprecise as to when they occurred. That argument is rejected. The particulars given were the best particulars which could be given and the feature of the use of the camera enabled the jury and the appellant to focus upon one particular incident. The possibility that the incident could have occurred outside the range of dates in the circumstances does not mean that the two charges should not have been left to the jury, subject to a matter relating to Count 15 which I mention shortly. The case was presented on the basis that the alleged offences occurred at the Motel during the period of time that the appellant and D stayed there.

The second submission was that the evidence established that the incidents occurred outside the range of dates, between 2nd May 1984 and 1st May 1985, alleged in the Information. In her opening to the jury, the Crown Prosecutor said that all of the offences alleged against the appellant occurred sometime in the years between 1983 and 1986. She said that D left the Club when he was about 13 years. She did not give any further particulars as to when the incidents in Counts 14 and 15 occurred. Earlier the significance of particulars of dates or a range of dates, was discussed. In the circumstances of the present case, proof that the incident occurred outside the range of dates particularized in the Information did not give rise to the prosecution having failed to make out a case to answer. It did not give rise to procedural unfairness to the appellant, particularly in view of the opening of the prosecution. This submission is rejected.

The third submission relates only to Count 15. It is an essential element of this charge that the offence occurred before D attained the age of 12 years on 2nd May 1986. He was born on 2nd May 1974.

D told the jury that he thought the appellant first took him to the Motel when he was around 10 years old. Later he said it was when he was around 10 or 11 years old and occurred at about the middle of the period of his relationship with the appellant. According to D, the appellant took him to the Motel because he wanted to be alone with him. He told his parents they would be staying at the Victor Harbor Courthouse. D told the jury that the incidents occurred a long time after the first incident of sexual behaviour involving him at the Glenelg Courthouse which has been mentioned. He estimated that he stayed at the Motel with the appellant every three to four weeks over a period of a couple of seasons. D was asked when the incident referred to in Counts 14 and 15 occurred. He said:

"A That was the middle, towards the end of the relationship. So it wasn't the first, it wasn't half way through, it was closer towards the end of the relationship."

He told the jury that the appellant took him to Queensland on one occasion which was at about the middle of the relationship. The appellant told the jury that there were two occasions when he took D to Queensland but D's mother said there was only one occasion. A document was introduced into evidence which shows that the appellant and D were in Queensland on 24th January 1985. At that time D was aged 10 years. He told the jury that he was involved with the appellant sexually until he left the Club when he was aged 12 years to 13 years and that he stopped having regular contact with the appellant when he was almost 13 years of age.

It may be seen that if this evidence was accepted, the incidents charged in Counts 14 and 15 may have occurred when D was aged under 12 years, in 1985, or when he was aged 12 years in 1986 or 13 years in 1987. With respect to Count 14, it is possible that the offence occurred outside the range of dates pleaded in the Information.

I do not think that is a matter of importance in the circumstances of the present case. As has been seen, the occasion of the offence falling outside the range of dates particularised is not fatal to the charge. There was no particular prejudice to the appellant occasioned by the offence occurring later than particularised in the Information, beyond the prejudice occasioned by the delay.

However, in my view, this evidence, taken at its highest from the point of view of the prosecution, was not capable of proving beyond reasonable doubt that D was under the age of 12 years when the incident occurred. As that matter is an essential element of the charge, the submission of no case to answer on that ground should have been upheld.

The learned Trial Judge erred in concluding that there was a case to answer which is an error of law. She should have directed the jury to return a verdict of acquittal on this charge at the end of the prosecution case and the appellant should not have been obliged to answer it.

The position is put succinctly by King CJ in The Queen v Prasad at 162:

"The question whether there is a case to answer, which arises in a criminal trial at the close of the case for the prosecution, is a question whether on the evidence as it stands the accused could lawfully be convicted, that is to say, whether there is evidence with respect to every element of the offence charged which, if accepted, would prove that element: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, at p 658; Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433, per Kitto J at p442. It is a question of law and if a submission of no case is made it must be ruled upon by the trial Judge: R v George (1908) 25 TLR 66. An erroneous rejection of a submission of no case is an error of law. If there is no case to answer, the judge should direct the jury as a matter of law that there must be a verdict of not guilty and the jury is bound to accept and act on that direction."

See also Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395 and The Queen v Bilick and Starke (1984) 36 SASR 321 at 336-337. I think the law in this State is that upon such an error of law being established upon appeal, a verdict of guilty should be set aside: see The Queen v Johnson (1979) 22 SASR 161 at 182-183. I do not think it is appropriate to look to evidence in the defence case to see if it has made good any deficiency in the prosecution case but I recognise that there are cases where that approach has been adopted. They are set out in the judgment of Perry J in R v Ayles [1993] SASC 3987; (1993) 66 ACrimR 302. As no argument to the contrary was addressed to us, I do not think it is appropriate to depart from the decision in Johnson. I mention that this is the approach taken by the Court of Appeal, Criminal Division in England in R v Smith & Ors [2000] 1 All ER 263.

At all events, I do not think there was any evidence in the appellant's case which was capable of establishing beyond reasonable doubt that the incident occurred when D was under the age of 12 years.

The charge should not have been left to the jury. The verdict of guilty on this count should be set aside.

The learned Trial Judge left the charge to the jury and directed them in clear terms that if they were satisfied of all of the other elements of the offence beyond reasonable doubt but not the element of age, they must return a verdict of not guilty and consider the alternative charge of indecent assault. The verdict of guilty clearly indicates that the jury were satisfied beyond reasonable doubt that anal sexual intercourse occurred on this occasion and accepted the evidence of D. As will be seen, there is no reason to entertain a doubt about the credibility, reliability and accuracy of D's evidence as to the sexual conduct of the appellant towards him. The act of anal sexual intercourse clearly constitutes indecent assault. No argument was addressed to us that an alternative verdict of indecent assault was not available and no submission was made to the learned Trial Judge to the contrary. There is authority for leaving the alternative verdict to the jury: Hartley v R (unreported, SA CCA, S4754, 6th September 1994) applying s 75 of the Criminal Law Consolidation Act 1935 in its terms at that time which permitted an alternative verdict of indecent assault. It was not suggested that in its present terms, s 75 alters the position. On Count 15, there should be a verdict of guilty of indecent assault.

I turn now to Count 16. The Crown had to prove that the appellant gave the $5,000 to D, that D was a person who may be required to be a witness in judicial proceedings and that the money was paid as an inducement for D to withhold evidence or give false evidence at the proceedings. During cross-examination, the following questions were permitted and answers were given:

"Q When you received the money from Peter on the Friday, your understanding, based on what had passed between you, was that Peter was giving this money to you for the purposes of assisting you getting married.

Q And he was giving it to you specifically for the purposes of you buying a ring.

He told the jury that he did not recall any inappropriate incident involving C. Therefore, it was submitted that there was no suggestion of his giving false evidence about C. As to the giving of false evidence about D, it was submitted that there were no allegations by D at that stage relating to the appellant and prior to the topic of the ring being raised, on the prosecution case, D had already said that he would not say anything. Consequently, it was submitted, the evidence was not capable of proving that the money was given to D for the purpose of inducing him to give false evidence. It was further submitted that at the time the money was paid, no investigation had commenced in relation to any allegation by D and therefore it could not be suggested that D was a person who was required as a witness in judicial proceedings. Also, it was submitted that if the payment was to ensure that D did not come forward about what had happened to him rather than what had happened to C, the charge would be duplicitous as it could potentially relate to either D not giving evidence about C or not giving evidence about himself.

It is necessary to say a little more about the evidence in the prosecution case and, to put the allegations in context, I repeat some of the brief description earlier given when mentioning the allegations relating to Count 16. I have mentioned what occurred on the first and second occasions the appellant spoke to D. On about 9th June 1999 the appellant spoke to D by the telephone and said that he had some more information and wanted to meet him. When they met shortly thereafter the appellant told D that he had obtained more information. He said there were allegations by C of three-way masturbation involving the appellant. D said that he did not remember anything like that ever taking place and he did not remember ever doing anything with C. The appellant gave some other details to D about the alleged incident. There was other discussion. The appellant asked D if he should arrange for someone to contact D and take a statement from him. D declined but said he would not say anything anyway. He told the appellant to wait and see what happened.

D told the jury that during this conservation he told the appellant that he was thinking of getting married but he could not afford a ring. The appellant asked him how much he was thinking of spending and D told him $2,000 to $5,000. The appellant said that the amount was not even half of what he would have spent on a wedding present. D told him he did not have to do that. He told the jury that he was apprehensive but also excited at being able to marry his girlfriend and he accepted the offer. D said that the appellant handed him the money on the following Friday and not the Wednesday as was proved to be the case. D told the jury that the appellant told him that he should sit on the money for a time and not bank it because it would look suspicious if he banked $5,000.

In my view, the learned Trial Judge was correct in ruling that there was a case to answer on this charge. D's understanding of why the money was paid was not the issue. The issue was why the appellant made the payment and that was a question for the jury upon consideration of all of the evidence. By the time of the payment, a police investigation about serious crimes allegedly committed by the appellant was under way and it was irrelevant whether the investigation involved D, C or anyone else. The significant matter is that it was an investigation of the appellant. It is not to the point that D was not of interest to the police at the time of the payment. As can be seen, the particulars alleged that D was a person who may be required to be a witness in judicial proceedings and that the money was an inducement for D to withhold or give false evidence at the proceedings.

It was submitted that the topic of money was raised after D had agreed to assist the appellant. He had told the appellant that he did not recall any improper conduct in relation to C, he had not by that time made an allegation to anyone about the appellant and he had told the appellant that he did not intend to do so.

The learned Trial Judge had to decide whether there was evidence with respect to each element of the offence which, if accepted, could prove that element.

There was sufficient evidence to establish a case to answer. It was open to the jury to draw the inference from the facts which have been mentioned, that the purpose of the appellant in paying such a relatively large sum of money to D was to ensure that D would keep to his assurance not to tell anyone about the appellant's sexual conduct. Given the stage of the police investigation at that time, and the appellant's knowledge, on the prosecution case, of his offending involving D and others, D was likely to be required as a witness once he had been located and identified. It was open to the jury to conclude that the money was paid as the required inducement.

The offence charged was not duplicitous because there was no identification as to what kind of evidence he was induced to withhold. The prosecution case was that the payment of the money was for D to withhold evidence in judicial proceedings involving, and about, the appellant.

The evidence in the prosecution case, if accepted, was sufficient to prove each element of the charge. The learned Trial Judge was correct in ruling that there was a case to answer.

Except with regard to Count 15, this ground of appeal fails.

Grounds 8 and 9 of the appeal were abandoned.

The appellant claims that the verdicts of guilty are each unreasonable and/or cannot be supported having regard to the evidence and/or are unsafe and unsatisfactory and/or a miscarriage of justice has occurred in all of the circumstances. The function of the appeal court is succinctly described in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 by Mason CJ, Deane, Dawson and Toohey JJ at 492-493:

"Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe' (see Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, at p180), or 'dangerous or unsafe' (See Ratten v The Queen (1974) 131 CLR 510, at p 515). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (See Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346, at pp 350-351; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at pp 246, 250). Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (See Hayes v The Queen (1973) 47 ALJR 603, at p 604."

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." [footnotes omitted]

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, at pp 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen at pp 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

In Jones v The Queen Gaudron, McHugh and Gummow JJ accepted that the test formulated by the majority in M v The Queen must now be accepted as the appropriate test for determining whether a verdict is unsafe or satisfactory: see also Gipp per McHugh and Hayne JJ at 123 and Callinan J at 162-164.

The first ground is whether the appeal court, upon consideration of all of the evidence, entertains a reasonable doubt about the guilt of an accused. The second ground is whether the convictions are affected by a wrong decision on any question of law: see M v The Queen at 493; Jones v The Queen at 443 and 450; Gipp at 114. I accept that there is a third ground which is that a verdict of guilty should be set aside on any ground where there has been a miscarriage of justice.

I have used the expression "unsafe and unsatisfactory" because it is commonly used in the case law and I regard it as the same as "unreasonable" and cannot be supported having regard to the evidence: see s 353(1) of the Criminal Law Consolidation Act 1935. That section also provides that an appeal may be allowed if there has been a wrong decision on any question of law or on any ground if there has been a miscarriage of justice.

The first submission was that the jury should have had a reasonable doubt. A most detailed argument was submitted to us by Mrs Shaw which I shall attempt to summarise. She directed her submissions to each of the complainants in respect of whom the appellant had been found guilty of an offence or offences. It is fair to say that her technique was to identify each and every inconsistency and possible inconsistency in the evidence of each of the complainants and, where appropriate, to identify inconsistencies between the evidence of each of them. Written submissions as to this ground occupy in excess of 70 pages. All submissions have been considered. Some of the alleged inconsistencies and matters said to affect credibility are inconsequential but nevertheless I have attempted to cover them all as they are an important part of the appellant's case both at trial and on appeal.

Of course, in most cases inconsistencies occur and in a case such as the present, some inconsistencies are inevitable. Inconsistencies in the evidence of a particular witness may be explained by the substantial delay between the events in question and the time of the trial. Some inconsistencies between different witnesses about the same subject matter may suggest that the witnesses are credible and truthful rather than give rise to doubt.

Before embarking on the lengthy task of addressing the many submissions made by Mrs Shaw, I must say that having considered all of the evidence and the submissions of counsel, I do not entertain a reasonable doubt about the guilt of the appellant of any of the charges of which he was convicted. On the contrary, I regard the prosecution case as very strong and, indeed overwhelming. The jury obviously believed the five complainants and disbelieved the appellant which is a matter of considerable importance. Whilst I have not had the advantage of having seen and heard the witnesses, I have not detected anything in the transcript of the evidence of any of them, including the appellant, which has caused me to doubt the guilt of the appellant. The evidence of the complainants does not lack credibility and, as has been mentioned, was corroborated.

Furthermore, I have not found any incorrect decision on a matter of law which could have affected the jury's verdicts of guilty and there is no reason to apprehend that there has been a miscarriage of justice.

I first mention W. The prosecution case depended upon the credibility of W and there was no direct confirmation of the alleged sexual conduct involving him. In his evidence W said that on some occasions others were present when sexual conduct occurred relating to him but none of those who gave evidence said that they saw any such sexual conduct. That submission overlooks a number of important matters. All of the complainants gave evidence about sexual talk and behaviour in the appellant's van, in the Glenelg Courthouse in rooms and the showers, at Victor Harbor Courthouse, at various locations during surfing trips and at "Cock Rock". As has been seen, other complainants describe similar conduct towards themselves and to others. In view of the cross-admissibility of this evidence and its purpose, it is not correct to say that there was no support for W's evidence about the incidents involving him.

Submissions were made with respect to each count where there was a verdict of guilty.

The first submission was that there was no evidence by W to place this alleged offence within the range of dates particularised in the Information. The submission has been addressed earlier in these reasons in another context. In the present context the submission is also rejected for the same reasons.

It was further submitted that the appellant was prejudiced by the delay which impeded his ability to contradict W as to various matters. The first was the internal layout of the rooms of the Glenelg Courthouse. The point being made, as I understand it, was that if a complaint had been made by W shortly after the event, any inconsistency in the evidence of W and the appellant as to the layout of the rooms could have been easily resolved.

W gave evidence that four persons slept in the same room, there were at least three stretcher beds and that the appellant pulled W's bed near his bed. It was submitted that Mr Gray, a Registrar of the Magistrates Court at Glenelg at relevant times, said in evidence that the appellant had a fixed bed in the room. This is not what he said. His evidence is that there was a bed in another room, referred to as the exhibits room, but he did not know how the bed got there. It was the appellant who said in evidence that he slept in the exhibit room. However, in cross-examination he said that he did have a small nine inch collapsible bed for a period of time before the 1982 to 1983 summer and later moved a larger bed into the premises. Mr Lloyd also saw a camp bed in one of the rooms but did not recall seeing a fixed bed. The appellant said that he always slept in the exhibit room and initially a small collapsible bed was in that room. He said the fixed bed was much higher.

C gave evidence that when at the Glenelg Courthouse he, D and D's brother slept in the room near the courtroom and the appellant slept in the Magistrate's Chambers and at times in another room, but he did not sleep with those three boys. Later he said that D slept with the appellant. It was submitted that D's brother said in his evidence that the appellant usually slept in a separate room but that was not his evidence in its entirety. He went on to say that some boys slept in the same room as the appellant. There is no inconsistency between the evidence of W and D's brother as asserted by the appellant or at all. There was no evidence which established that the appellant could not have pulled his bed near W's bed as alleged by W.

It was submitted that W was inconsistent in his evidence as to what he wore to bed but no inconsistency is to be seen in the transcript of the evidence.

I do not regard any of this evidence as giving rise to a reasonable doubt about the credibility and truthfulness of W or the reliability or accuracy of his evidence as to the incident which is the subject of this charge. It is to be expected that the complainants would have different recollections about peripheral matters. There is nothing in the evidence which suggests that the incident described by W could not have occurred.

The range of dates particularised in this Count embrace the second half of the surf life saving season in early 1984. W said in evidence that the incident, the subject of this count, ceased when D sprayed W and the appellant with water. When D made a statement to police in June 1999, he said that he was the only person, as far as he was aware, whom the appellant had sexually assaulted. This matter is put forward as a lack of support for the evidence of W. According to W, C was also in the general vicinity at this time. C did not describe any incident involving W. He gave evidence about incidents on an island off Port Elliott involving the appellant, D, D's brother and himself but did not give directly confirmatory evidence of the incident described by W. However, he did describe conduct between those boys simulating anal sex in the presence of the appellant without intervention by him. D and C were not asked specifically about the incident described by W.

It was submitted that there was inconsistency in W's evidence about this incident because he did not tell the police that it occurred on the other side of the island. His explanation was that he was not asked about that matter. He agreed that he did not tell the police about a conversation with the appellant about suntan lotion which he described in his evidence.

None of these matters raise a reasonable doubt about whether this incident occurred. It is to be expected that after such a long delay some complainants will remember some events and not others.

The submissions about this Count fall into four categories. The first is the imprecision as to when the offence occurred, including that it occurred outside the range of dates pleaded. This submission has been considered and rejected in the context of Ground 4.

The second submission is the prejudice to the appellant by reason of delay. By the time of the trial the records at the Glenelg Police Station were no longer available which would have shown the movements of staff and who was on duty at particular times. It was submitted that these records may have permitted the appellant to identify when particular staff were on duty and could have led to establishing a positive defence that the shower incidents could not have occurred. By the time of the trial, the shower area had been demolished and no records were available as to when that occurred. If such records had been available, it may have been possible to show that the shower area was not in existence when the incident was alleged to have occurred.

The third submission is that there were police officers in the vicinity when this incident is said to have occurred with the consequence that it is unlikely that it did occur. Mr Marsh told the jury that police were on duty at the Glenelg Police Station and that they undertook foot patrols in the Glenelg area from the Station. There were two police officers on a shift from 6.00 pm to 2.30 am on Friday and Saturday nights but he did not say when those patrols commenced. He said that police officers could access the Glenelg Courthouse whenever they were on duty. Mr Roberts undertook afternoon shifts on some occasions which, according to another police officer, Mr Critchley, concluded at 1.00 am. Mr Critchley said he saw the appellant at the Glenelg Courthouse on weekends. Both Mr Roberts and Mr Critchley, on occasions, checked the security of the Glenelg Courthouse on weekends during the afternoon shifts both internally and externally. Mr Bird, another police officer, was stationed at Glenelg from 1984 until late 1986. He checked the security of the Glenelg Courthouse after hours during afternoon shifts on occasions. He saw the appellant's van at the premises during the week and on weekends regularly.

All of this evidence lacked precision as to what was done by these witnesses and at which part of the premises during the patrols and the checks they made of the Glenelg Courthouse. The evidence was given in general terms and suggests that apart from occasional checks of the premises externally, the police officers on afternoon shift at weekends were on patrol in the Glenelg area and mainly away from the Glenelg Courthouses and environs. There was no evidence that their patrols included checking of the Magistrate's Chambers, nearby rooms, cells or showers after hours or on weekends. No inference could be drawn that sexual conduct was unlikely to occur because of these patrols.

The fourth submission was that W had made inconsistent statements. He said that he was fairly sure that this incident occurred during a day trip but later said that it occurred during an overnight stay. In his statement to the police, he did not mention anything about the presence of motor bikes but did refer to them in his evidence.

Upon consideration of each of these submissions, none of these matters gives rise to a reasonable doubt about whether the alleged offence occurred. The alleged inconsistency as to whether the offence occurred during the day or at night may readily be explained by W recalling more and more about particular events as he gave more thought to them.

The same submission was made about lack of particularity in the date of this alleged offence. As has been seen, the evidence of W was that the incident occurred near the end of his relationship with the appellant. It was submitted that the appellant was unable to test the evidence by ascertaining if the Clubhouse was being used by others at the time, particularly as the showers were part of an open area to which there was unrestricted access by members of the Club.

This is a matter which must be considered and given due weight. Unless a complaint was made a short time after the incident occurred, it is unlikely that investigation by the appellant would have been of much assistance, but nevertheless it is a matter to take into account. However, I do not regard this matter as raising a reasonable doubt.

W was aged 26 years when he gave evidence at the trial. He had been addicted to heroin and other drugs since he was aged 16 years. He has a very long record of prior offending which is set out in a document of about eight pages. The offences include drug offences and crimes involving dishonesty. He has been in prison for most of his life since the middle of 1993. At the time of giving evidence, he had been on a methadone programme for about nine months. He has served sentences of imprisonment. At the trial he was cross-examined at length about his past offending.

He was arrested in May 1999 on various offences in Queensland and was sentenced in the District Court. He had been untruthful to the police when he said he had not committed the offences. He told the jury in the present case that he would have said anything to stay out of gaol. He denied, in evidence at the preliminary hearing, that he had been promised any favours or that he could help his position in relation to outstanding offences in Queensland if he gave evidence against the appellant. In his evidence at the trial, he said that he was not aware that he received any discount in his sentence for giving evidence in the present case. Also, he said that he did not sign an undertaking to co-operate with law enforcement agencies in the present proceedings, including giving evidence. In fact he did sign such an undertaking in which he acknowledged that if he did not co-operate with the prosecution in the present case, the Queensland authorities could apply to have the proceedings in that State re-opened for sentencing. That written undertaking was admitted into evidence. When the document was put to W, he said he did not remember it. He said that he thought that he was not to obtain a benefit for giving evidence but that what had been done to him as a child by the appellant could be used as an excuse for using drugs.

In the case in Queensland he was sentenced to imprisonment for a period of four years which sentence was suspended in part. The sentence was backdated by six months with the effect that W served nine months in prison. The period before the operation of the suspension of the sentence was reduced from eighteen months to nine months. Whilst the position is not entirely clear to me, I have proceeded on the basis that W did receive a substantial discount in his sentence on account of his co-operation with the police in relation to the present case and his preparedness to give evidence.

At that time W was on bail for offences which he committed in South Australia and was liable to be returned to prison in this State for breach of conditions of parole. He was also on parole for the offences committed in Queensland. When he returned to South Australia before giving evidence, he was granted bail on charges he committed in this State shortly before giving evidence at the preliminary hearing.

At the preliminary hearing W said that he was not on medication or taking drugs. At the trial he acknowledged that, at the time, he was taking methadone and he confirmed that he was not taking illegal drugs. After the preliminary hearing he was charged with other offences which had not been resolved by the time of the trial. He admitted having told lies to a medical practitioner a few days before the preliminary hearing in order to obtain prescription drugs and to police officers at various times in an attempt to avoid imprisonment. He told the jury in evidence at the trial that he told lies to police in order to avoid going to prison.

It was submitted that W first reported his allegations about the appellant to the police after publicity of the appellant's arrest and first gave a statement whilst in custody shortly before being dealt with by the court in Queensland. The implication is that W only acted out of self interest which, apart from the other reasons, renders him a highly suspect witness. However, it will be remembered that he first made a complaint to his mother around Christmas 1997 or 1998. His mother urged him in July 1999, after the appellant had been arrested, to come forward and say what had happened.

These matters about the background of W, his criminal and drug taking history, his admitted lies and the favourable treatment afforded to him upon sentence are matters of substantial importance when considering his credibility and reliability.

The learned Trial Judge gave appropriate directions about all of these matters and then reminded the jury of the submissions of the appellant's counsel.

Clearly the jury, who had the advantage of seeing and hearing W, accepted him as a credible and reliable witness which is a matter of significance for which appropriate allowance must be made when considering this ground. It must be acknowledged that many convictions in the criminal courts are based upon evidence of witnesses who are suspect for some reason. In the present case, W's evidence does not stand alone. His description of the conduct of the appellant towards him is similar to the conduct which other complainants describe. Having considered all of the evidence of W and the support it derives from the other complainants, I do not think that the matters which have been mentioned indicate that W lacks sufficient credibility or reliability for his evidence to be the foundation of the verdicts of guilty.

I now turn to specific matters concerning W's evidence at the trial. It was submitted that his account of sexual activities in the appellant's van was undermined by the evidence of the prosecution witnesses who probably accompanied him on trips during the relevant period but denied any improper conduct having occurred. D's brother went on surfing trips with D, the appellant and other boys for about two summers until the 1984/1985 season. It was submitted that he denied that any improper conduct occurred. That is not the evidence. D's brother acknowledged that he had made a statement to the police in which he had said that he had no memory of any improper conduct. Another witness said that when he went on the trips he did not see or hear anything which he regarded as sexually improper. Another witness said that the appellant did not do anything to him and he did not see him do anything to anyone else, which he regarded as sexually improper. Of course, this evidence must be put into perspective.

These witnesses were adults when they gave evidence. They were asked general questions of that nature about circumstances which had occurred many years ago. There was no suggestion that any of them had been sexually assaulted by the appellant. If that had been the case, they may have remembered it. Also, these witnesses were aged eight or nine years at the time of the alleged misconduct and it is by no means obvious that they would have recognised it as misconduct if they had seen it. Furthermore, the complainants who described sexual conduct in the van said that it occurred only at the front of the van whilst the appellant was driving. Some of them said that he had a towel around him or over his lap when the conduct occurred. The evidence of these witnesses must be taken into account and considered carefully but it does not suggest that the evidence of W must have been false or doubtful.

It was submitted that W said in evidence that D's brother was present at Moana and the Onkaparinga River when the appellant sexually assaulted him. In fact, his evidence was that he was not sure whether D's brother was at both places but he may have been. That evidence of W is of no significance.

It was also submitted that W gave inconsistent evidence about the sexual activity in the van on one occasion involving him. His evidence to the jury was consistent. He described an occasion when the appellant placed W's hand on his penis under his bathers. He said that the appellant did not get an erection. In a statement to the police, he said that the appellant did get an erection and that he had placed W's hand on the appellant's penis which he had taken out of his bathers. Given the nature of the evidence, W's age at the time, the delay and the nature of the inconsistency, these are not matters of significance. The submission is rejected.

Next, it was submitted that the President of the Club at relevant times undermined the suggestion of any improper relationship between the appellant and W and any of the complainants in so far as he spoke of his observations over 20 years. The basis of this submission was said to be in the following passage of evidence:

"Q Before I turn to some specific club members, would you accept as a fair assessment of Mr Liddy in relation to the people he trained over the years, that you observed training, that he generally appeared to have a pretty good relationship with all of the youngsters that he trained.

This evidence forms no basis for such a submission. There is no suggestion on the prosecution case that the appellant did not have a good relationship with the boys he trained. Indeed, on the prosecution case, it was that good relationship which enabled him to select boys for trips in the van, to stay overnight with him and to create the circumstances in which sexual conduct could occur.

The next matter is the delay in making the complaint which, it was submitted, precluded any forensic examination or collection of evidence. It must be accepted that if the appellant had penetrated the anus of W on either of the two occasions alleged and a timely complaint had been made, medical examination may have shown signs of penetration. The absence of such evidence and the collection of other evidence may have assisted the appellant. These are matters of importance and must be considered in the context of all of the evidence. However, in all the circumstances, they do not cause doubt about the verdicts of the jury.

By the time of the trial, it was proved that the appellant had an unusual physical feature on his penis. He called Dr Luu, a general medical practitioner in private practice, who saw the appellant on 5th August 1999. He observed that there was a vein which was visible on the dorsum of the penis. The vein ran along the shaft of the penis for about 3.5 cm. Dr Luu said that this feature was visible in his rooms from a distance of about 1 metre. He said that this condition would have existed for at least six to twelve months and would have come into existence "certainly within a few years of presentation". He went on to say that the condition would have been present "for years". He said he did not see the penis in an erect state. In his evidence, the appellant said that he was embarrassed about this feature which had existed all his adult life. He said that in 1980 he consulted a Dr Magarey at a medical clinic at Brighton about this condition. The appellant told the jury that when the allegations of sexual conduct were made against him, he instructed his solicitor to make enquiries of Dr Magarey but it was discovered that records of the consultation could not be located and Dr Magarey, who had retired, could not remember the consultation. None of the complainants spoke of this unusual feature. W said he did not notice it. No other evidence was called to confirm its existence at relevant times.

Whether the presence of this feature is a matter of significance depends on a number of matters. First, it depends upon the reliability of the evidence of the appellant that it existed in 1980 and thereafter. Secondly, it depends upon the likelihood of eight, nine and ten year old boys noticing the feature as abnormal given their inexperience. Thirdly, it depends upon their noticing it in the context of a sexual assault. This was a matter which is raised with respect to all of the complainants in the context of this ground of appeal. It is not a matter which causes doubt about the reliability of any of the verdicts of guilty upon consideration of all of the evidence.

The next matter is that W saw the same counsellor as D from March 2000 but the appellant was prevented from investigating that matter. It is not clear precisely what point the appellant sought to make of this matter. W had made a complaint well before that time. On 30th June 1999 he made a statement to police alleging sexual conduct by the appellant. The learned Trial Judge had preserved the confidentiality of records of the counsellor. Perhaps that is what is meant by the appellant being precluded from investigating the matter, but it is not clear what is the issue. If it is whether there was a possibility of concoction between D and W or W's evidence being contaminated by D, these matters were investigated and resolved by the learned Trial Judge when admissibility of the evidence was challenged and there is no reason to suppose that disclosure of the records would have thrown doubt upon the evidence of W or D.

It was submitted that W had issued civil proceedings for damages against the appellant relating to his conduct towards him and that he had done so before giving evidence at the trial. W's evidence does not disclose that such proceedings had been taken. He was asked about the matter in cross-examination and said that his solicitors had told him not to "go into it". However, even if proceedings had been instituted, that is not a matter which suggests that his evidence is unreliable or that he was lacking in credibility.

Three matters were submitted as indicators that the verdicts of guilty were unsafe and unsatisfactory but they do not have any bearing on that matter. They are that further delay will not achieve better particularisation, that the acquittals on various counts would impede cross-examination at a retrial and compromise cross-examination as to credit of complainants and also that W has had contact with other complainants and has spoken to the media which could affect his memory. I do not set out these submissions in any detail. They are relevant as to what orders should be made if the appeal succeeds and not as to whether the verdicts are unsafe and unsatisfactory.

The last matter in relation to W is the submission that the prosecution had challenged the credibility of the appellant in relation to his denials of W's allegations by suggesting to him that C gave evidence similar to W as to what he had observed at the Glenelg Courthouse. W had given evidence that he had seen D and the appellant sitting together at the courthouse and masturbating. C gave evidence that he had seen D sitting on the appellant's lap at the Glenelg Courthouse on the night of the Glenelg riots and the appellant touching D's penis. It was submitted that because the jury acquitted the appellant of the charge relating to C, the verdicts of guilty relating to W were unsafe and unsatisfactory. Mention has been made of the significance of the jury's verdicts of not guilty on Counts 8 and 12. That submission is rejected. There is no reason to conclude that the verdict of not guilty on Count 8 involving C has any bearing upon the verdicts of guilty on the counts involving W.

We were asked to consider the particular matters which had been put to the learned Trial Judge as inconsistencies in W's evidence and, or, his statements to police and I have done so. Mention is made of a few of these matters.

When giving evidence about the incident at Port Noarlunga, which is the subject of Count 4, of which the appellant was acquitted, it was submitted that W was inconsistent because he told the police that both he and the appellant were naked but he told the jury that he was wearing bathers and the appellant was wearing clothes. When cross-examined about the inconsistency, W said he gave his statement to the police over two days and he had time to go over each event. He went on to say that he could not remember if he and the appellant were wearing speedo bathers. I do not regard any inconsistency as a matter of significance.

Mention has been made of the alleged inconsistency about conduct in the van involving W. In his evidence as to events at the Glenelg Courthouse, W told the jury that he went to bed wearing his speedos but in his statement to police he said he was wearing shorts. We were referred to other alleged inconsistencies of similar significance which need not be repeated.

None of these so-called inconsistencies casts any doubt upon W's evidence or his credibility.

I have expressed conclusions about each of the matters with regard to W which, it was submitted, render the verdicts unsafe and unsatisfactory. I have reached the same conclusions upon considering all of the matters together and in the context of all of the other evidence in the case. There is no basis for concluding that there is a reasonable doubt about the verdicts of guilty on these counts.

It will be remembered that Count 11 charged the appellant with oral sexual intercourse with R by performing an act of fellatio upon him when he was aged eight or nine years. The incident was alleged to have occurred during the 1983 and 1984 season at the Glenelg Courthouse in a corridor whilst D and his brother waited in the appellant's van.

The first submission is that R was inconsistent in his evidence. The first matter is that he said in evidence at the trial that he was teased by the other boys after watching the video film "American Werewolf in London". In a statement to police he said that when he stayed at the Glenelg Courthouse, he saw a video film called "The Howling" and boys made fun of him because he was so scared. In cross-examination he was pressed about this matter. He said that it was mainly after staying at the appellant's beach house that he was teased and then said that he remembered being teased at the beach house. I do not think this evidence establishes any inconsistency. At all events, it is a matter of little consequence.

The second matter is that in his evidence at the trial R said that the appellant had asked him to wait back before the incident occurred, but R did not mention that matter to the police.

The next matter is that in his statement to the police he said that he was not sure whether or not the door to the car park was shut or ajar when the incident occurred. In his evidence, he said the door was open and then the appellant pushed it closed.

The last matter claimed to be an inconsistency is that R said in evidence for the first time that the appellant told him not to tell the other boys in the van what had happened following the incident which is the subject of this charge. In his statement he said that the appellant told him not to tell his parents, however it is not clear in the evidence that he was referring to this incident or conduct which occurred in the van.

None of these matters, whether considered separately or together, causes any doubt about the credibility or reliability of R. His evidence was consistent about the incident and differences about peripheral matters are insignificant and are adequately explained by lapse of time.

The second submission relates to the general credibility of R.

It was submitted that he was contradicted by V, who was his best friend, and by D's brother as to sexual activities occurring openly in the front seat of the van. R told the jury that he could not remember V being in the van but he accepted that he was there on occasions. R said he would imagine that V would have heard the sexual talk and seen sexual activity in the van if he had been sitting in the front seat but his evidence is not clear as to whether V would have sat in the front seat. It was submitted that V said that he heard no such talk, however, what V said in evidence was that he did not recall hearing such conversations and that he did not see any sexual behaviour. The evidence of these two witnesses is not necessarily inconsistent but even if it is inconsistent, it does not follow that R lacks credibility merely because his evidence is different from that of V. There could be all sorts of reasons for the inconsistency. V might simply not remember because of his young age at the time. The incidents might not have had any significance for him as he was not a victim. His attention may have been distracted by activities with other boys in the van at the time. It may be that R is a more accurate and reliable witness than V. Also, as has been mentioned, V left in late 1982 which was only a few months into his first season. Also, D's brother said that he did not see any sexual conduct in the van. The same observations are made about his evidence.

It was submitted that the evidence of R conflicted with the evidence of V in other respects. It was submitted that R said that when he stayed overnight at the appellant's beach house he crashed a motor bike. In fact, R did not say that he had crashed a motor bike. He said that during a changeover of a motor bike between two boys, of whom he was one, it careered off into the garden but was not damaged. He said he could not remember if V was present on that occasion. V told the jury that on an occasion of a day trip to the appellant's beach house R was riding a motor bike and had a crash. This conflict in the evidence of R and V, such as it is, is a matter of no significance.

As has been mentioned, R told the jury that when he stayed at the appellant's beach house, he watched the video film "An American Werewolf in London". V said he was not allowed to watch the same movie because he was too young. R is younger than V. The submission that this evidence undermines R's credibility is rejected. The evidence does not establish that R saw the video film on the occasion when V was not permitted to do so. R was a victim and V was not a victim. It may be that those boys whom the appellant proposed to abuse, or was abusing, were permitted to watch frightening video films as part of the appellant's conditioning of them so that he could abuse them.

The next submission is in relation to alleged misconduct in the van. Although R claimed that the appellant was fascinated with his penis being uncircumcised, V was also uncircumcised, received presents from the appellant and had a good relationship with the appellant but denied witnessing any impropriety by the appellant. It is a small matter but R did not say in evidence that the appellant was fascinated with his penis. He said he was interested in the fact that he was uncircumcised. These matters do not reflect upon the credibility of R. The evidence suggests that the appellant chose not to include V in his sexual conduct with boys. It is not evidence that he did not engage in sexual conduct with other boys. The evidence does not reveal whether the appellant knew that V was uncircumcised.

It was submitted that R told the jury that he sat in front of the van because he wanted to be liked by the appellant. In a statement to the police, he said that he sat in front of the van because he remembered thinking that it was "cool". He was not asked to explain if he intended any difference in these statements. He told the jury that he thought that D was sitting next to him during occasions of sexual activity in the van. R related an incident in the van when the appellant had shown interest in his penis. He said the appellant wanted to see if the skin rolled back from R's penis and R showed him how it did roll back. He said he thought D was sitting next to him. It was submitted that D denied knowing of any sexual behaviour occurring in the van in relation to any other boy. None of this evidence undermines the credibility of R. His evidence as to his reason for sitting in the front of the van may not be inconsistent. At all events, it is a matter of little consequence. Also, R did not say that D was sitting next to him in the van when R showed the appellant his penis.

I now refer to two further matters raised by the appellant. In his second statement to a police officer in February 2000, R referred to D by his nickname, but he had not done so before making the statement. He was not asked if he did use that nickname. If there is some suggestion of contamination of his evidence by a police officer, it was not put to him. It was submitted that R told the jury that D was in the front of the van when R said he showed the appellant his penis. At the preliminary hearing he said he could not recall whether it was D or D's brother. As has been mentioned, R did not say that D was in the front of the van at that time. These matters, even if considered together, do not reflect adversely upon the credibility or reliability of R.

R told the jury that when he made a statement to a police officer he told her that his memory was "very fragmented, just like freeze-frames" and that this was his own expression. When Y gave evidence-in-chief he was asked how he would describe his memory of the events generally and he said, "Fragmented, I would say. Only certain parts". It was submitted that this evidence of Y reflects upon the credibility of R because of the common use of the word "fragmented". That submission is rejected. Fragmented is a commonly used word and it is to be expected that more than one witness would use it. At all events, neither witness was asked if there was any reason for using the word. R explained what he meant by the use of the expression "freeze frames". Also this use of the word "fragmented" by both witnesses does not reflect upon the credibility of Y.

It was submitted that the failure of R to report any allegation to the police until January 2000 reflects upon his credibility. This matter does not reflect upon his credibility except in so far as the failure to make a recent complaint may have that consequence. All of the complainants were very young at the time the offending is said to have occurred. They do not seem to have had any appreciation that the conduct was wrong, except perhaps D who had that appreciation later and Y who was greatly distressed when he was sexually attacked in the cells at the Glenelg Police Station. It is to be expected that they would not consider complaining until they realised what had happened to them and felt the need to do something about it.

It was submitted that R was unaware of any disfigurement of the appellant's penis. In cross-examination he was asked if when he saw the appellant's penis in the shower after training he noticed whether or not there was any unusual discolouration, scarring or marks on the appellant's penis or in the groin area. His answer was, "No, I can't remember". I do not accept that this evidence reflects upon R's credibility. There was no reason for R to pay any particular attention to the appellant's penis. Furthermore, he was a young boy aged 8 or 9 years at the time and it is unlikely that he would be able to distinguish between usual and unusual features. Also, as has been mentioned, it was not established that the abnormality existed at that time unless the evidence of the appellant was accepted.

The last matter is that R told the jury that when he was aged about 12 or 13 years and V returned from New Zealand and was living in Adelaide again, D contacted R asking for V's telephone number. It was submitted that D said that he had no memory of such contact. That lack of memory is no basis to draw an adverse conclusion about the credibility and reliability of R.

All of these matters have been considered separately and also whether they, in combination, reflect adversely upon the credibility and reliability of R. They do not raise a concern about him or his evidence.

Next, it was submitted that the method of investigation by the police cast doubt upon the reliability of the evidence of R. He made his first report to the police about the appellant on 21st January 2000. He made a statement to the police on 25th January 2000. Detective Sherry interviewed R on 19th February 2000 at the direction of the Director of Public Prosecutions to ascertain whether the alleged offence was statute-barred. Initially Detective Sherry said that the purpose of the interview was not related to that matter but when reminded of correspondence from the Director of Public Prosecutions he acknowledged that that was the purpose. R lived in Sydney at that time. Detective Sherry had sought funding for another police officer to accompany him when interviewing R for the purpose of corroboration. That request was rejected. It was suggested to Detective Sherry that he should tape record the interview which would provide evidence of there having been "no leading" by police as to the time when the alleged offence occurred.

Detective Sherry did not tape record the interview, but arranged for a New South Wales police officer to be present. He told the jury that he interviewed R on other occasions and other complainants and he did not tape record any of the interviews.

It was submitted that there is a risk that the evidence of when the offence occurred could have been infected as a result of the conduct of Detective Sherry because he did not tape record the interview with R in accordance with the suggestion of his superior officers.

There is no basis for this submission. The evidence of R and his mother is clear. V's leaving the Club at the end of 1982 tends to confirm that the alleged offence occurred after 1st December 1982 and there is no reason to apprehend that the verdict of guilty on Count 11 is unsafe and unsatisfactory due to any conduct on the part of the police.

None of these matters give cause for concern about the credibility and reliability of R on his evidence. Having considered his evidence and the other evidence in the case, there is no reason to conclude that there is a reasonable doubt about the guilt of the appellant of Count 11.

It will be remembered that the incidents referred to in Counts 9 and 10 relate to Y and arise out of an alleged incident in a cell at the Glenelg Police Station on an occasion when the appellant and a group of boys stayed overnight at the Glenelg Courthouse.

There was a considerable body of evidence placed before the jury in an attempt to show that the incident could not have occurred as described by Y in a cell.

Y told the jury that he walked down a corridor with the appellant. He said that he remembered a cupboard with a door. He did not remember going to the toilet. The appellant asked him if he wanted to see the cells which he had not previously seen. He said that his next memory was being outside and underneath the verandah of the cells. He looked in a cell through a window in the door.

As has been mentioned, Y said that his memory of these events was fragmented. He could only remember certain parts of what occurred.

He said that his next memory was entering the cell with the appellant. What has already been mentioned about the incident need not be repeated, however I mention some additional matters. Y said that he has "a vivid picture" of the appellant's penis in his face in the centre of the cells before he was forced to lick it. He said that was when he was "bawling his eyes out" and it was like looking out of a "wet window". After that part of the incident, he said that he remembered that his head was in a sink, the appellant having manoeuvred him into that position. He described the sink as a porcelain sink and said that it was in a corner of the cell. He said that he was sobbing really hard and the second part of the incident then occurred. He said there was nothing else in the cells.

The evidence clearly established that the cells were in a block at the rear of, but separated from, the Courthouse and that the doors of the cells were solid with a small window as described by Y.

Y drew a plan of the cell block which showed three cells. There were in fact, three cells facing two other cells. When cross-examined, he said he could not remember exactly the number of cells. The plan he drew at the trial was different from the plan he drew at the preliminary hearing, although both plans showed only three cells.

I mention the contradictory evidence. There was no verandah at the cell block. Mr Marsh told the jury that although the individual cells were not locked, the main door to the exercise yard was locked which prevented access to the cells. He said that the appellant did not have a key to the cell complex. Mr Critchley told the jury that one of his jobs was to hose out the cells. He would have to unlock the complex. He would leave the cells open after cleaning and then would lock up again. Mr Roberts said that if he ever cleaned the cells, he would lock up when he left. When he left for the night, at the end of the afternoon shift, he would see that all buildings were locked, including the cells.

Mr Cabot was a Sheriff's Officer employed at the Magistrates Court at Glenelg from about April 1983 until September 1985. He told the jury of instructions given to him by Mr Lloyd that the cells and firearms were the responsibility of the police and no-one else was permitted to have a key to the cells. The appellant told the jury that he did not have a key to the cell block and he never attended the cells. It was established that there was no sink in any of the cells, only a wooden bed.

When Y made a statement to the police, he said that the appellant took him to where the cells were and went into a cell with him and locked the door. The evidence established that there was no handle or locking mechanism on the inside of the cell doors. However, Y told the jury that when he made that statement to the police and said "lock", he did not mean locking the door with a key, he just meant shutting the door. He said the appellant walked in and shut the door. He did not see the appellant with keys.

It was submitted that these matters render it unlikely that the incidents related by Y in the cells did occur.

However, there was other evidence. Although there was no verandah, the cell block and the attached two-storey building had a structure which is similar to a verandah. Each cell door had a small observation window. There was a lavatory in the complex with a stainless steel sink, but not in a cell. In that particular location, there was no bed. V told the jury that on occasions when he was at the Glenelg Courthouse, the appellant showed the boys the cells but he did not go inside the cells. He said he was terrified. D said that on one occasion when he was staying at the Glenelg Courthouse, the appellant showed him and other boys through the cells. He said that the appellant used to play games and threaten to lock the boys inside the cells. This evidence, if accepted, shows that the appellant did have access to the cells.

Mr Marsh told the jury that he could not say when the security gates at the cell block were installed except that it was during his period of service between 1979 and 1985. They were different gates than those in existence at the time of the trial. He said that the cells were only holding cells used until prisoners could be transferred to another facility. Prisoners were not held in the cells overnight. Mr Lloyd told the jury that after any prisoners had been taken away the cells were hosed out and the doors to the cells and the yard, which he described as a cell grille on the main door to the cell block, were left open at night to air them out. He said he was not present at weekends but assumed that the same practice was followed.

Mr Critchley also told the jury that the keys to the cells were kept in the front area of the police station and he had seen the appellant in that area on occasions talking to those present. The keys were left on a board with other keys. He said that he had seen the appellant remove the keys from that board on more than one occasion on a weekend when he was dressed in beachwear. Mr Roberts told the jury that the appellant stored surfing equipment in rooms above the cells but not in the cells. Mr Bird was a sergeant of police stationed at Glenelg from April 1984 until late 1986 and also at the time of the trial. He said that he saw the appellant's van at the Glenelg Courthouse and Police Station premises on many occasions and he also saw the appellant's surfing gear stored between the cell block and a boundary fence and also in the cell area in the vicinity of the toilet at the western end. In that area he saw a surf ski and wet suits on a weekend. Mr Bird also told the jury that the gate or grille was only kept locked if prisoners were in the cell block. The appellant told the jury that he had collected a key from the front office of the police station which he said was the key to the court. This evidence establishes that he had access to the key board. He denied that his surf ski was ever stored inside the cell block or that he took boys into the cells.

When this evidence is considered in its entirety, there is no reason to suppose that the incidents described by Y could not have occurred. His description of the sink may well be explained by an inaccurate memory about a peripheral matter. He may have been confused as to the location of a sink. He may have seen the stainless steel sink in the lavatory area and been confused because of his emotional state at the time. After all, if his evidence about the incidents is correct, he had endured a severe sexual attack which must have been horrifying and frightening for a person of such a young age who was away from the security of his family. The totality of the evidence, far from establishing that the incident could not have occurred in a cell, demonstrates to the contrary.

It was also submitted that Y's evidence is unreliable because he described the instrument upon which the movie was shown as a projector with reels. Every other witness described the instrument as a video player. If the transcript of his evidence is read a few lines further, it will be seen that he went on to say that he did not recall if it was as he described or a large screen television but he said he did remember playing with the projector. It is plain that his memory is not clear but this is a matter of such little significance that it need hardly be mentioned.

Much the same may be said about the submission that Y said that the colour of the appellant's van was blue with fading patches. In fact, it was white. What Y actually said was, "From my memory, it was a blue van with - I think it was fading - had white patches on it". He went on to say that all he could remember was a "fading paint job" which looked as though it had been sandblasted with white paint coming through.

It is difficult to see what point could be made of these minor discrepancies because there is no dispute that Y watched a video at the Glenelg Courthouse and rode in the appellant's van. If the point is that he has a defective memory about peripheral matters, his age at the time and the incident having occurred such a long time ago adequately explain inaccuracies in his recollection about such matters.

The next matter is Y's evidence that he did not notice whether there was any discolouration or mark or scarring on the appellant's penis. I regard that matter as of no significance for the reasons I have given earlier. Even if it is to be assumed that the unusual feature on the appellant's penis described by Dr Luu existed at the time of the alleged offence, it is highly unlikely that Y would have noticed it in his emotional state and, if he did, given his age and sexual inexperience, it is highly unlikely that he would have identified an abnormality.

It was submitted that Y had no memory of many matters which he could be expected to remember. He said he could not remember other boys at the Club but he was not referring to the boys he had mentioned such as D, D's brother and V. In cross-examination, he said he could not remember the number of instructors or other boys who were nippers in his group. He could not remember that the appellant was an instructor except on one occasion. Given the age of Y at the time and that his involvement in the Club was about 17 years ago, these matters do not give cause to doubt his evidence about the incidents which are the subject of the charges.

The next matter is that it was submitted that Y told the jury he only went back to the Club once or twice after the incidents at the Glenelg Courthouse involving him. His evidence does not have certainty. He said he thought he went back to the Club once or twice, but he did say that he did not want to go back. His mother said that Y only went back to the Club on one occasion after he had stayed overnight at the Glenelg Courthouse. She said she did not make him go back after that occasion. The limited records of the Club which are available indicate Y undertook a swim test at the Club on about 18th February 1984. It was submitted that this evidence suggests that he must have remained at the Club until the end of that season and, presumably, in an active capacity. This evidence does not establish that Y's memory was inaccurate as he could have participated in the test without having frequently attended at the Club after the incident at the Glenelg Courthouse. However, if he was uncertain about the extent of his subsequent attendance at the Club, that is not a matter which reflects adversely upon his credibility or his evidence about the incident which is the subject of the charge.

The same submission was made in relation to Y as was made regarding R about the use of the word "fragmented" when describing his memory. As has been mentioned, this is a matter of no significance. Any theory of concoction for this reason was not put to either witness.

The last specific matter said to reflect upon the reliability of Y's evidence is that when he first spoke to the police, on 14th July 1999, he made an allegation of oral sex. He subsequently spoke to another police officer in August 1999. I am not sure what the appellant seeks to make from this evidence. If the point is that on the first occasion Y did not complain about anal sexual intercourse, then I do not accept it for a number of reasons. The first and most important reason is that there is no evidential base for the submission. There is no evidence that Y complained only of oral sex on the first occasion. There is no evidence of what he said to the second police officer. Even if it was possible to draw an inference that he omitted a complaint of anal sexual intercourse on the first occasion, he was not asked to give any explanation. Even if there is an inconsistency, which is not established, it would not reflect upon the credibility and reliability of Y given his age at the time, the passage of time, the nature and circumstances of the sexual attack upon him, and his having to make disclosures of this nature to police.

There is nothing in this evidence which gives rise to a concern about the credibility, reliability or accuracy of Y's evidence about the incidents alleged in Counts 10 and 11. The evidence does not raise a reasonable doubt about his evidence.

In relation to Y, the appellant made much the same submissions as were made with respect to other complainants about lack of particularisation as to the date of the offences, the absence of recent complaint, and the difficulties for the appellant in the preparation and presentation of his defence by reason of those matters. Those difficulties may be real and must not be underestimated.

The lack of records to which reference has been made and any inability to gather evidence due to these matters are important and must be considered along with the totality of the evidence. The law permits the trial of charges involving incidents a long time ago. All of these matters have been considered, but they do not raise a reasonable doubt about the guilt of the appellant on Counts 10 and 11.

Mrs Shaw raised another matter in this context. I have mentioned, in brief terms, the evidence of the various police officers and the Sheriff's Officer who were stationed at the Glenelg Police Station and Courthouse at relevant times. It was submitted that the prosecution introduced some of these witnesses late in the day in an attempt to contradict the evidence of Mr Marsh as to the cells being inaccessible and at a time when there was no ability to cross-examine the complainants. Mrs Shaw objected to this evidence at trial. It seems to have been accepted by the learned Trial Judge and Mrs Shaw that the complainants could not be recalled for cross-examination about this matter.

I can see no reason why the evidence of these witnesses should not have been led. An issue had arisen during the course of the trial as to whether the appellant had access to the cells. Y , D and V said he did. The evidence of Mr Marsh has been mentioned. His evidence did not exclude that the appellant could have access to the cell area. It established, if accepted, that the appellant did not have a key to the cell block and that the grille would have been locked because exhibits and other items were kept in the cell block, but this evidence lacked the precision of the evidence of the later witnesses on this issue. The matter assumed considerable importance and the learned Trial Judge was correct, in my view, in allowing the subsequent evidence to be led.

It was submitted that there was unfairness to the appellant because the complainants had been cross-examined on this topic on the basis of the evidence of Mr Marsh and they could not be recalled. It seems that this complaint relates to W, C and R because Y and D had given evidence of being in the cells with the appellant. It is not clear why these complainants, or all of them for that matter, could not be recalled for further cross-examination unless they were unavailable for some reason. At the time of the trial W was living at Goolwa, C in Melbourne, R in the Greek Islands, and D in Adelaide. There was no evidence as to where Y was living. It might have been unrealistic to bring R back from overseas if he had left the country, but there is no apparent reason why the other complainants could not have been recalled if the appellant wanted to further cross-examine them. It is common in criminal trials for witnesses in the prosecution case to be recalled at the request of the defence when issues have arisen during the trial. There was no unfairness to the appellant and the recalling of the witnesses about the security in the cells late in the prosecution case is not a matter of significance when considering this ground of appeal.

The submission that the delay in making the complaint resulted in the lack of medical examination or forensic collection was also made in relation to Y and has been given due consideration. There are no additional matters than those considered in relation to other complainants. Also, it was submitted that Y's evidence could have been contaminated by contact with R and D because they were being represented by the same solicitor in relation to civil proceedings against the appellant and also from the media. If that submission is to have any force, there must be an evidential basis for it. It is true that there had been widespread media coverage of the arrest of the appellant, the preliminary hearing and of the trial, but without evidence there is no reason to conclude that the evidence of Y as to the alleged incidents in the Glenelg Courthouse and in the cell was influenced or contaminated by any extraneous matter. There was no cross-examination to that effect.

In considering these submissions, I have had regard to the appellant having denied the allegations on oath and as to what he said.

The remaining matter in relation to Counts 9 and 10 is the submission that the prosecution was unfair in the conduct of its case.

The first matter is that the prosecution opened as to Counts 9 and 10 on the basis that Y would say that the appellant took him into a cell and locked the door. What the prosecution said was that Y did not know how he came to be locked in a cell but that he would tell the jury that he was locked in a cell and was there alone with the appellant. The prosecution went on to say that the appellant told Y he would not let him out of the cell until he licked his penis. Y's evidence has been mentioned. In a statement to a police officer, Y said that the appellant locked the door. It may be seen that the prosecutor opened fairly. In his evidence-in-chief Y said that the appellant shut the door behind them and said that he would not let him out unless a sexual act occurred. In cross-examination a statement he made to the police officer was put to him. He admitted making the statement and said:

A Yes. When I said 'lock', I don't mean insert the key and lock the door, I just mean shut the door. Walked in, pulled the door shut. I never saw a set of keys on him."

He was not asked any further questions on this topic. The appellant's counsel cross-examined police officers called by the prosecution with a view to establishing that the cells were locked, could not be locked from the inside and the appellant did not have a key. The defence also sought to establish that there was no white porcelain sink in a cell but only a wooden bench and that the layout of the cells was different from the description given by Y.

It was submitted that the cross-examination of Y was focussed upon, and necessarily limited to, his account that the offending occurred in a cell in which he was trapped by a shut or locked door. It was further submitted that the entire defence case was conducted on the basis that this was the account which the appellant had to meet and he sought to raise a doubt as to the credibility and reliability of the prosecution case by comparing it with the remaining evidence available after such a long delay.

Having considered the evidence, the course of the trial and the submissions made to the learned Trial Judge, I do not think there can be any just criticism of the prosecution in the manner in which the case was presented. The defence chose to fight these charges relating to Y on the basis that has been indicated, even though, in my view, an inadequate evidential basis was established through Mr Marsh who was the first witness called at the trial. The defence was aware of the existence of other police officers who could give relevant evidence. Those police officers were available to the defence. As statements were taken from them, they were made available to the defence. The learned Trial Judge intimated that she would adjourn the trial, if requested by the defence, to enable instructions to be taken and enquiries made. The adjournments sought by the defence were granted. In my view, there was no unfairness and no basis, on this account, to conclude that the verdicts were unsafe and unsatisfactory.

The second matter of alleged unfairness is the submission that the prosecution introduced in the final address an alternative scenario to that given in evidence, namely that the appellant had taken Y to the lavatory area where there is the stainless steel sink. That is not what the prosecutor put to the jury. She put to them that they should not be concerned about whether Y was correct in his memory about peripheral details of the cell. I have mentioned Y's evidence as to his emotional state. The prosecutor then referred the jury to the photographs of the cell block and said that they might think that the incident occurred in the lavatory area in the cell block. Mrs Shaw objected, at the trial, to what she said, were new theories raised during the prosecution address, by referring to the stainless steel sink. Ms Kelly refuted this submission. She put to the learned Trial Judge that her address had been based upon the evidence. The area with the sink was within the cell block which was small. The jury had seen the photographs and the cell block including the sink during the view. The prosecution case was that the incidents occurred in the cell block and it was not a new theory to submit that if there was a sink, it was the one the jury saw.

The learned Trial Judge decided not to intervene and, in my view, she was correct. The prosecution had not introduced a new theory in the prosecution case to overcome a deficiency in the case which was unsupported by the evidence: R v Anderson (1991) 53 ACrimR 421. The prosecution was merely drawing the attention of the jury to evidence which they should consider when assessing the evidence of Y and what he had said about the presence of a sink. There was no unfairness to the appellant.

For all of these reasons, this ground fails with respect to Counts 9 and 10. Consideration of the cumulative effect of all of the matters raised in the submissions does not raise a reasonable doubt of the evidence of Y on his credibility and there is no other reason to apprehend that the verdicts are unsafe and unsatisfactory.

The submissions relate to Counts 14, 15 and 16. As has been seen, there were verdicts of not guilty on Counts 12 and 13.

The first matter is the imprecision in the particulars of when the incident forming the basis of Counts 14 and 15 occurred. I have addressed an aspect of this matter in the context of Ground 4. However, the point made under the ground now under consideration is that even if there was a case to answer, the appellant should not have been called upon to meet allegations which were so imprecise. That contention is rejected. As has been mentioned, the allegations were precise in every respect except as to date.

It was submitted that it is a relevant matter when considering whether the verdicts of guilty on Counts 14 and 15 are unsafe and unsatisfactory that they represent the only occasion of sexual conduct in respect of which the appellant was convicted in relation to D despite his purporting to describe repeated sexual acts during the period from 1982 until 1988 at the Motel where others also stayed and in Queensland. No other complainant alleged any occasion when he stayed overnight with the appellant or on his own. I am not sure that I understand the purpose of this submission. The jury could only give verdicts with respect to alleged offences which are the subject of charges. The prosecution selected four charges involving three occasions of alleged sexual conduct. I have mentioned the reason for verdicts of acquittal on Counts 12 and 13. The jury were clearly satisfied about sexual conduct with respect to Counts 14 and 15. They could not announce a decision about the uncharged acts. There can be no suggestion that the jury made findings adverse to the prosecution about those uncharged acts. Both W and C gave evidence of seeing sexual conduct between the appellant and D on occasions. Also, the appellant told the jury that he did take D to the Motel and stayed with him overnight. He said he did so only once or twice when he could not contact a police officer at Victor Harbor to arrange to use the courthouse. He said he stayed with two other boys on one occasion.

It is true that no other complainant gave evidence of having stayed overnight with the appellant alone. It was the prosecution case that D was the appellant's favourite among the boys and that his relationship with D was intensely sexual over a number of years. His relationship with the other boys was different. Whatever is the purpose of the submission, it does not cause me to doubt the verdict of guilty on Count 14 or the appropriateness of a verdict of indecent assault on Count 15.

The delay in making the complaint may well have deprived the appellant of access to financial and other records and witnesses from the Motel which may have thrown light on whether he did stay at the Motel with D on one or two occasions as he said in evidence or on the number of occasions asserted by D. As has been mentioned with respect to other complainants and generally, delay is a matter of significance and must be considered along with all of the evidence when deciding whether a charge has been proved beyond reasonable doubt.

I do not regard these matters as casting any doubt upon the verdict of guilty on Count 14 and a finding of sexual conduct relating to Count 15.

433. Earlier mention has been made, in brief terms, of the evidential basis of this charge. Submissions were made about the general credibility of D with a view to establishing a lack of credit giving rise to a reasonable doubt. I mention each of these matters in turn.

434. The first matter is that D admitted telling lies to the police when he made his first and second statements. He denied any sexual conduct by the appellant and thereby was protecting him. He told the jury why he made those statements and it appears that they accepted his explanation. Having considered this evidence, I do not think that it affects his credibility.

435. The next matter is the failure to complain until after June 1999. I do not regard that matter as reflecting upon his credibility. Substantial delay in matters of this nature is not uncommon and does not necessarily affect credibility. Often it is understandable as is the case here.

436. It was submitted that the acquittals on Counts 12 and 13 undermine the verdicts of guilty on Counts 14, 15 and 16. The basis of those verdicts of not guilty has been explained and this submission has been considered in the context of the submission that the verdicts are inconsistent. These verdicts do not undermine the verdicts of guilty or the credibility or reliability of D.

437. D told the jury of the presence of other boys in the van when sexual conduct occurred. It was submitted that some of these persons who gave evidence denied such misconduct. This submission in relation to other complainants has been discussed and there is no need to repeat what has been said in any detail. These persons did not deny the misconduct. The effect of their evidence is that they did not see it. This matter does not cause doubt about the credibility of D.

438. The same submission about "the disfigurement" on the appellant's penis was made regarding D and with emphasis because of D's evidence of a long sexual association with the appellant over some years. The evidence about this matter is very brief. When asked if he had noticed any mark or discolouration on the appellant's penis or genital area, he said, "Not that I recall". The alleged unusual feature of the penis was not put to him. The question was expressed in general terms and was not confined to the penis. There may be various reasons why D gave that answer. As has been mentioned earlier, the reasons could be that there was no unusual feature of the penis at that time. If there was, he did not notice it. If he did notice it, he did not regard it as unusual or noteworthy because of his lack of experience. I do not regard this matter as of significance.

439. D and the appellant maintained contact, initiated at times by D, after he left the Club up until he made a statement to the police implicating the appellant in sexual conduct. The submission that this contact undermined the veracity of D's allegations is rejected. According to D, the contact which he initiated was sporadic but it did involve personal contact with the appellant on some occasions and the appellant did give him gifts and allow him to use his van. He told D that he intended to leave his property to him. There is no reason to suppose that an abuser and his victim who share the sort of relationship described by D would not continue contact on a non-sexual basis after the sexual relationship came to an end. I see no reason to doubt the evidence of D simply because there had been subsequent contact.

440. D was aware, from previous experience, that victims of crime could claim compensation. It was submitted that he knew that he was important to the appellant as a witness. He seized the opportunity to request money to buy an engagement ring so that he could get married. He did not ask his long term girlfriend to marry him and spent some of the $5,000 on himself. It was submitted that whatever view is taken of the reason why D took the money from the appellant, his doing so does not reflect favourably on him. However, that is a matter to be considered with all of the evidence in the case. None of these matters is so damaging to his credit that there must be a reasonable doubt about the guilt of the appellant of the offences relating to D. It may be that D did think of marriage. It is possible that he was simply willing to accept the money offered to him. Whatever the explanation, the matter does not cause a reasonable doubt about the credibility of D upon consideration of all of the evidence.

441. The next matter proceeds on the assumption that the verdicts of acquittal on Counts 8 and 12 necessarily mean that the appellant was not at the Glenelg Courthouse on the night of the Glenelg riots. The question which the jury asked about these Counts, and the conclusion that it is likely that the jury was not satisfied beyond reasonable doubt that the offences occurred on that night have been mentioned. It was submitted that D, like C, said he was at the Glenelg Courthouse on the night of the riots. He denied that he knew R although R told the jury that he contacted D when R was aged 13 years. As has been mentioned, he attended the same counsellor as W in April 2000. It was submitted that all of these matters raise doubts about whether verdicts of guilty could be safely based upon D's evidence.

442. The verdicts of not guilty on Counts 8 and 12 do not necessarily mean that the jury concluded that C and D were not at the Glenelg Courthouse on the night of the Glenelg riots, although that is possible. It may be that they were not satisfied that sexual conduct occurred on the night because of the threatening disturbance outside the buildings. Having the same counsellor as W is not a reason to doubt the reliability of D's evidence about the sexual behaviour of the appellant towards him.

443. D did not deny that he knew R or that he contacted him. He gave the following evidence:

None of these matters render the verdicts of guilty unsafe and unsatisfactory.

444. Next, it was submitted that the only verdicts of guilty for offences involving D concerned one occasion at the Motel when only D stayed with the appellant but the prosecution case put to the appellant was that the offending was connected to groups of boys. That submission misunderstands the prosecution case which included that there was a small group of boys with whom the appellant had sexual contact but that context was as described. It was not a case of group sex but of sexual activity with individuals when the group was with the appellant. In relation to D, it was the prosecution case that the appellant also carried on a sexual relationship with him outside the group.

445. The date alleged by the prosecution with respect to Count 16 was shown to be wrong as to when the appellant paid the money as can be seen from banking records produced by the appellant. D said that the payment was made on the Friday and the appellant said the conversation before the payment and the payment was made on the Wednesday. This discrepancy or error does not in itself reflect adversely on the credit of D.

446. The evidence of Mr Knight in explaining some records of the Club established that D's brother was still a participating member of the Club in the 1985/1986 season. The two brothers joined the Club together in 1982. It is submitted that D told the jury that his brother did not stay long at the Club. What in fact he said was that he was not exactly sure how long his brother remained at the Club. He went on to say that the majority of the time that he was at the Club without his brother who was about two years older than him. He said that his brother lasted only a little while. D's brother told the jury that he joined the Club at the same time as D and he stayed at the Club for either two or three years but he could not remember exactly. He said that D stayed at the Club for about another two or three years after he left. D's brother also told the jury that after he found out that allegations had been made against the appellant, he asked D when it had happened and D said that it was after D's brother had left the Club. D denied that conversation.

447. The submission that the discrepancies or inconsistencies shown by this evidence reflect adversely upon the credibility of D is rejected. D had not professed to be certain about when his brother left the Club. The differences in their evidence about a peripheral matter do not reflect upon the credibility of either of them.

448. D did not disclose sexual conduct in the van until shortly before the preliminary hearing. He said that he did not tell the prosecutor before he gave evidence that there was a towel in the van. He said he had since remembered that matter. This is the towel the appellant had in the van. W gave evidence about the towel. The appellant denied that he even had a towel draped over him. D told the jury that he had remembered in recent times that the appellant had ejaculated in the van when D played with his penis having been requested to do so and the towel was used. Other boys were in the van but at the back.

449. None of these matters reflect adversely upon the credibility of D. It is reasonable to expect that a person in the position of D upon being asked to recall events which occurred many years ago would remember more and more as time went by.

450. The same observation may be made about criticism of D's evidence of when he remembered some details of what occurred at the Victor Harbor Courthouse as to the sleeping arrangements and the reason given to other boys as to why he slept with the appellant in a separate room. It was submitted that despite numerous statements and interviews, it was only in February 2001 that his evidence became consistent with that of his brother.

451. When questioned by the police and asked specifically about watching video films with the appellant in June 1999, he did not mention pornographic videos and he did not mention them until proofed by the prosecutor before the preliminary hearing. Later he said he could recall the name of one of the videos. D told the jury that he could remember an occasion when he went through the cells at the Glenelg Courthouse with the appellant but had not previously disclosed that matter in statements to the police in 1999 or to prosecutors before the preliminary hearing and before the trial. He was not asked why he had not mentioned that matter before giving evidence at the trial. However, during cross-examination he did say that he was remembering more since the "start of everything" and he said "Even to this day I'm still remembering things". In his statements to the police D did not mention that W was a member of the group of boys. He told the jury that that was "something he had remembered since".

452. None of these matters reflect adversely upon D or suggest that there is a reasonable doubt about the verdicts of guilty based upon his evidence.

453. I have set out in some detail the submissions regarding the complainants and their evidence about charged incidents in respect of which verdicts of guilty were returned. At times observations have been made about individual submissions which I have rejected. However, the submissions must be considered in their entirety. A particular matter considered alone may have no or little significance, but all matters must be considered together to see if their combined force reflects upon the credibility of any of the complainants and the reliability of their evidence.

454. Having considered all of the submissions and all of the evidence, I have not experienced a doubt about the guilt of the appellant on any of the charges of which he was found guilty. There is a strong probative force in all of the evidence which, in my view, leads to only one conclusion and which can be reached safely and with confidence and that is that the appellant is guilty of the charges upon which verdicts of guilty were returned by the jury.

455. In the present case appropriate allowance must be made for the fact that the complainants were being called upon to remember incidents, the memory of which was unpleasant, if not disturbing or painful for them. They were cross-examined as to considerable detail about relationships, events and observations which occurred a long time ago.

456. Having considered all of the evidence, there is an underlying unity about its essential features which points in only one direction, the guilt of the appellant.

457. Also, there is nothing about the conduct of the trial by the prosecution, the application of the law, or the directions given by the learned Trial Judge which renders any of the verdicts of guilty unsafe and unsatisfactory. There is no relevant inconsistency in the verdicts which gives cause to regard the verdicts of guilty as unsafe and unsatisfactory. There is no reason to conclude that there has been a miscarriage of justice.

I would allow the appeal for the limited purpose of setting aside the verdict of guilty on Count 15. On that count a verdict of guilty on the alternative charge of indecent assault should be entered. In all other respects, the appeal should be dismissed.

The appellant caused summonses to be issued to various newspapers and television and radio stations to compel the production to the Court of publications by the media about the trial and the appellant with a view to demonstrating that if the appeal was successful, we should substitute verdicts of acquittal because a re-trial could not be a fair trial.

Many sections of the media produced materials to the Court which have been marked for identification. The respondent opposed the materials being considered by us on the grounds of relevance.

The production of materials by some sections of the media has not been completed, it being asserted that to do so would be oppressive. There has not yet been argument about relevance or as to whether all materials sought by the appellant must be produced. I am aware that all members of the Court propose that the appeal be dismissed except for the limited purpose with respect to Count 15 which I have mentioned. Consequently, production of the materials and consideration of them by us is unnecessary. If, for some reason, it becomes necessary to consider them, we shall do so.

WILLIAMS J I agree that this appeal should be allowed for the purpose of substituting for the verdict of the jury upon count 15 a verdict of guilty of indecent assault (pursuant to s 354(2) and 75 of the Criminal Law Consolidation Act (SA) 1935); in all other respects the appeal against conviction should be dismissed.

I am generally in agreement with the views expressed by Mullighan J and Gray J respectively but subject to the points hereinafter mentioned.

Some of the arguments advanced on behalf of the appellant are premised upon a view of the facts which is not supportable. When recognition is given to the "underlying unity" between the circumstances of all the crimes, it becomes apparent how limited is the scope for the appellant to pursue his arguments on this appeal. In identifying this underlying unity, I would place a different emphasis from the other members of the Court upon aspects of the pattern of the appellant's scheme of seduction which is disclosed upon the Crown case and the way in which this ought to be accommodated within settled principle. I also place on record my reservations as to the way in which ground of appeal no 4 has been expressed.

The appellant was charged on information alleging 15 counts involving sexual offences concerning five boys when aged between 8 and 13 years; one further count (number 16 on the information) alleged the offering of a benefit to a potential witness (being one of the alleged victims). Upon a joint trial on all counts in the Supreme Court the jury on 5 June 2001 returned guilty verdicts involving four victims upon six counts of unlawful sexual intercourse with a person under 12, three counts of indecent assault and one count of offering a benefit. The jury returned not guilty verdicts upon 5 counts and the appellant was acquitted by direction upon a further count where the trial judge found that there was no case to answer.

The sexual offences were committed between about 1982 and 1986 when the appellant was a coach of the complainants as "little nippers" in the surf lifesaving movement.

There was a long delay before anyone first complained about the appellant's behaviour in a statement to police on 30 April 1999. In the knowledge of this complaint the appellant paid $5000 to one of the victims in June 1999 when the police investigation was in progress; this is the basis for the bribery charge.

A significant feature of this case is the ability of the complainants to come forward as mature men and to give a common account of the method employed by the appellant whereby he recruited them to his surf-lifesaving training group and caused them to become proselytes to indecent and unnatural practices designed to satisfy the appellant's sexual appetite. Standing alone and when viewed against the appellant's denials, the extraordinary story of any one boy as to the appellant's sexual routines would have to be seriously questioned; however the combined accounts of all the men is compelling - once it is established that the witnesses had no opportunity to collaborate. The memories of the victims as to their boyhood experiences with the appellant are fragmented; some of those who were involved with the appellant as children can barely even remember each other. However, the common description given by all victims as to the appellant's routine (in teaching the boys to accept the indecent as the norm) provides a foundation for assessing those parts of the evidence where, upon the prosecution case, only the appellant and one lone boy have been privy to the commission of an indecent or unnatural act.

The core prosecution evidence was that the appellant recruited children into the surf lifesaving movement. Then, in the course of providing "training" the appellant took selected boys on excursions in his van - sometimes collecting a boy from home. (The form of the appellant's letter to parents recited by Gray J helps to explain the circumstances in which boys were entrusted to him). As well as beach and aquatic activities the appellant organised motor bike rides, fireworks displays, fun park visits and video entertainment - sometimes with overnight stays at the Glenelg Court House and the Victor Harbor Court House to which the appellant had ready personal access as a Magistrate. Accompanying these activities there were persistent underlying sexual routines which were initiated or encouraged by the appellant. For example the seat alongside the appellant as driver of the van came to be treated by convention as the preferred position for his young passengers and the occupier of this seat was expected and encouraged by the appellant to engage in physical sexual activity with him as they drove along. The conversation during the excursions was heavily sexually oriented and the court house visits were used to display to the boys pornographic material and videos of a frightening nature. One display involving werewolves seems to have stuck in the memories of some victims even after all this time. (The significance of this evidence lies in the reaction which this type of display induced in terrified boys. It created the climate in which one boy was allegedly taken to the court house cells by the appellant and sodomised).

Upon the prosecution case, the van, the court houses and the beach during these fun outings as well as the surf club showers became the setting for the appellant to create opportunities to commit the various sexual offences. By virtue of the appellant's schooling (or grooming) of the young boys, they accepted this treatment.

The prosecution case is that the combined evidence of the boys discloses the appellant's inner circle of preferred juvenile companions. Some boys did not maintain an interest in surf lifesaving for more than about one season so that there was a changing membership of the appellant's group. However, not all of the group members were apparently the target of the appellant's sexual overtures.

The evidence as to the appellant's sexual instruction lies at the heart of the crown case. At trial the crown prosecutor put to the jury a case which concluded that the appellant was "grooming" juveniles to satisfy his appetite; the appellant on the other hand contended that his association with the boys was innocent. Having regard to the issue thus raised at trial, the trial judge's reference to a "system of indecent dealing" as describing the pattern of the experiences of the individual juveniles (which upon the crown case led to the matters of complaint) accurately identified the conclusion invited by the prosecutor.

The defence has sought to characterise this course of dealing as "similar fact evidence" but throughout the case the Prosecutor has eschewed any reliance upon any such evidentiary principle. The prosecution case (despite its prejudicial effect in disclosing the appellant's perverted propensity) relies upon the probative value of many victims giving substantially the same description as to how the appellant taught bad habits to a group of young boys; the probative value of this evidence "transcends the inevitable prejudice". The evidence discloses the system by which these bad habits were cultivated and it rebuts any possibility of innocent association. The Crown case does not rely upon some isolated examples of inappropriate behaviour. The prosecution case discloses a pervading sexual overtone to the appellant's relationship with the group which persisted over some years.

The habits of the individual members of a group may translate into the customs of the group; the customs of the group may disclose the disposition (or tendency) of individuals within the group. The way in which the boys were expected to massage Mr Liddy when travelling in his van is an example of such a custom. As habit involves semi-automatic conduct, such a pattern of behaviour on the part of individuals may not be capable of being further explained by those people in terms of design or reason.

The Prosecutor alleges that the appellant taught bad habits to a group of boys so that they learned to participate in indecent or unnatural acts without demur at the appellant's instigation. The boys received their instruction collectively as members of the group and their sexual interests were thereby stimulated. To some extent they learned by the appellant's example. (The victims W and C describe how in their presence the appellant engaged in sexual activity with victim D).

This is not a case where the boys were separately told a similar story or were given instruction apart from each other; the instruction given by the appellant was generally common to all who were present in the group (except to the extent for example that less mature boys might be excluded from viewing a particular video).

The membership of the group was not constant and it is in the nature of things that not all boys always attended each event. Proof of the habits of the appellant's group is not dependent upon the continuing presence of any particular individual (other than the appellant).

Wigmore on Evidence - 1983 (Vol 1A par 98.1) describes habit which is acquired through "socialisation and acculturation" and formed by reason of group influence. Wigmore notes how even in a voluntary organisation the habitual tendency of a person to act in a particular way may arise from the customs of the organisation which "instructs or expects" him to act in certain ways under specified circumstances; acceptance of those customs may be referable to a "need" on the part of the individual. (In the present case the needs of the little boys can be identified by reference to the exciting group activities provided by the appellant). Wigmore explains that "the probative force of habit is based principally upon the fact that habitual conduct is largely free from the complicating and confusing element of volition ...".

In other words, upon the Crown case the juvenile victims acted as they did because that is how they were trained by the appellant as a result of his insidious influence. One victim D gave evidence of his first individual sexual experience with the appellant when at the age of "almost 9 years" D touched the appellant in an indecent manner at the front door entrance to the Glenelg court house. That one so young should initiate this type of activity with a magistrate might be viewed with scepticism without some knowledge of the group training.

Undoubtedly this evidence discloses the disposition of a group and also the disposition of individuals within the group - including the appellant. That evidence reveals the criminal or discreditable propensities of Mr Liddy. (See Pfennig v R [1995] HCA 7; (1994-95) 182 CLR 461 at 512-513.) The evidence is therefore of a type which is highly prejudicial to the appellant and only to be admitted in evidence if its probative force is sufficient to outweigh the prejudice.

The pattern of behaviour which underlies the offences alleged by the Crown upon one view finds its "unity" in this evidence of custom and habit. However, in the present case the evidence of habit is common to all victims. It is evidence referable to the same common course of juvenile instruction rather than similar evidence. There is no relevant similarity between the actus reus of the individual offences but the reaction of all victims to the appellant's sexual advances is explicable by reference to the common informal sessions of sexual instruction which the boys received from the appellant or from his presentations. The evidence helps to explain why the complainants (on the occasions charged or any other occasion) did not rebuff the appellant and why they showed no distress or resentment (cf KRM v R [2001] HCA 11 per McHugh J at par 24). In my view despite its prejudicial effect the evidence of habit is admissible and provides an underlying unity between the evidence of each of the complainants.

The prosecution relies upon this evidence for two separate reasons:

(1) It explains why (in light of the appellant's teachings) each victim reacted as he did towards the appellant (as I have just discussed).

(2) The evidence of each complainant as to the happenings in the appellant's van, at court houses and on excursions is confirmatory of the evidence of each other of the complainants as to the "training" and methods of sexual instruction adopted by the appellant.

In the present case the confirmation or corroboration is provided by the complainants' description of common events; in this respect the case is to be distinguished from cases such as Griffith v R [1937] HCA 25; (1937) 58 CLR 185 where a plan or system is identifiable in the separate bogus advertisements and letters of the accused offering domestic employment so as to facilitate rape. Not dissimilar to Griffith in its facts and principle is the case of Moorov v HM Advocate [1930] JC 68. It seems to me that the "underlying unity" of a system of seduction may involve similar fact evidence to reveal the plan as described by various witnesses or the underlying unity may lie in the evidence of the various witnesses as to one common set of facts. In my opinion, the present case is an example of the latter type of case. The appellant dealt with the boys individually in recruiting them but from that point onward the boys were subjected to common instruction as members of a group as they all moved around together.

The fact that four men each claim to have participated in separate sexual encounters with the appellant at his instigation does not in itself help to establish guilt with respect to a fifth victim. However, a unity between those events will arise if it be proved that the sexual encounters were immediately preceded by a common course of sexual instruction by the accused in which the victims as children were encouraged to accept the unnatural and the indecent. In R v Kilbourne [1973] AC 729 at 751 Lord Reid (after noting "the valuable guidance to be obtained from Moorov) said:

"Where several children, between whom there can have been no collaboration in concocting a story, all tell similar stories it appears to me that the conclusion that each is telling the truth is likely to be inescapable and the corroboration is very strong. So I can see no ground at all for the law refusing to recognise the obvious. Once there are enough children to show a 'system' I can see no ground for refusing to recognise that they can corroborate each other."

Underlying the appellant's submissions on this appeal were two assumptions with respect to the prosecution case:

(1) That the allegations of indecent dealing were based on uncorroborated evidence of the individual complainants in circumstances where the appellant on his oath had denied any impropriety.

(2) That the prosecutor relied upon some distinguishing similarity in the features associated with the sexual offences.

These assumptions are not justified upon my analysis. As I have already said, the prosecution case is that the evidence of each complainant is confirmatory of each other complainant in describing a system of sexual seduction in which young boys were taught what was expected of them in terms of their personal behaviour towards the appellant.

Counsel for the appellant refers to "similar fact" evidence but the meaning attributed to this expression is not always consistent. In Pfennig v R [1995] HCA 7; (1994-95) 182 CLR 461 at 464-65 the majority says:

"There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term "similar fact" evidence is often used in a general but inaccurate sense."

The evidence as to the appellant's training of the complainants is tendered in order to prove a "subsidiary issue" namely the relationship of the complainants respectively with the appellant (cf Gipp v R (1998) 194 CLR 106 per Gaudron J at 112). The relevance of this evidence does not depend upon the assessment of a probability (or improbability) which is the distinguishing feature of a true similar fact case. In KRM v R [2001] HCA 11 at par 40 McHugh J identified "the true similar fact case":

"It is possible that, in some cases of similar fact evidence, as opposed to propensity evidence, a propensity warning or other warning may be required although the evidence is admissible in respect of all counts. In the true similar fact case, evidence is often admitted to prove that the accused has been associated with so many similar deaths, injuries or losses that it is highly improbable that there is any innocent explanation for the accused's involvement with the series of events. These cases depend on probability reasoning and not propensity reasoning, the propensity of the accused usually being established only by the verdict of guilty. The risk of prejudice, therefore, is not from propensity reasoning but from the danger that "[c]ommon assumptions about improbability of sequences are often wrong". It may be necessary to warn the jury about too readily making such assumptions rather than giving a propensity warning. In other similar fact cases, the facts of one or more events in the series may be admitted or be the subject of a conviction or convictions. If the evidence is admissible only as true similar fact evidence - evidence which relies on probability reasoning - it may be necessary to give a propensity warning in respect of the facts or convictions admitted or proved."

In my opinion evidence of the appellant's training of juveniles in "bad habits" necessarily disclosed a disposition or propensity on the part of the appellant which required a direction to the jury. However, the case is not one which involved "similar fact" evidence based on circumstantial evidence as to probability; the prosecution case through the evidence of the various victims provides a description of various facets of the common course of instruction to which the boys were subject and which was designed to develop bad habits in them.

There were ten grounds of appeal (but two were abandoned).

Although expressed in different ways there are in substance four matters of complaint upon which I wish to comment:

(1a) as to the prejudice arising from the joint trial of all 16 counts on the information and as to the cross admissibility of evidence (including uncharged acts) as between the counts as permitted by the trial Judge's directions to the jury.

(1b) as to the justification for joinder of the offer of inducement (count 16) with the counts alleging sexual offences and the trial Judge's directions as to the use of that evidence with respect to other counts.

(2) as to unsafe verdicts - particularly bearing in mind the absence of a direction of the nature discussed by the High Court in Jones v R (1997) 191 CLR 439 and by this Court in R v KWG [2000] SASC 398; the absence of such direction is claimed to be a misdirection; the appellant contends that there is apparent inconsistency between verdicts of conviction and acquittal which rely on the evidence of the same complainant.

(3) as to the absence of sufficient particularity in the various counts upon the information.

(4) as to the Trial Judge's rejection of a "no case" submission.

The appellant complains about the decision of the trial judge in refusing to sever the counts and to order separate trials with respect to the charges involving sexual offences concerning each of the five victims. This would have required six trials if the last count (No 16 on the information-offering an inducement to a witness) was dealt with alone. The critical issue upon the appeal is whether the procedure adopted has deprived the appellant of a fair trial.

It is well established that where an accused is charged with a number of sexual offences the charges should not be tried together if the evidence of one count is not admissible on another count (see Sutton v R [1984] HCA 5; (1982-83) 152 CLR 528 at 531 per Gibbs CJ and Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 295 and de Jesus v R [1986] HCA 65; (1986) 22 A Crim R 375 at 377-378). This is particularly the case (as the present) where there is evidence tending to disclose a paedophilic propensity. To prove that a man is attracted in this way to boys aged upwards of 8 years old is to demonstrate an unnatural inclination which is highly prejudicial (See R v T (1996) 86 A Crim R 293 at 299).

The prosecution case is that the appellant was the leader of group activity, one of the principal features of that activity being the systematic seduction of the young members of the group by its leader for his own sexual gratification. The appellant, by force of his influence over the boys, led these young boys to accept the leader's practices in terms of their sexual conduct and their responses to and relationship with the appellant. The conduct of the appellant and his victims is only explicable within the framework of the relationship which the appellant had forged with his victims and the example which was set for them in his dealings with each and every one of them. There is thus an underlying unity comprehending and governing the separate acts - see DPP v Boardman (1975) AC 421 at 440. The appellant engaged in a course of conduct designed to develop the prurient interests of juveniles and to teach them habits which would facilitate their sexual exploitation by the appellant.

This is not a case in which there was any real risk of collusive concoction between the boys. They had all separated and gone their own ways many years ago. It was on this basis that the Trial Judge allowed a joint trial of all counts on the information; nothing emerged during the course of trial itself which required the decision to be revised.

In this case proof of guilt on any one count against one victim does not establish proof of guilt with respect to another count involving a different victim. The case is not much different with respect to different counts concerning the same victim although in this latter case the appellant's relationship with the victim (or his guilty passion) may provide an evidentiary link between the evidence upon the different counts. The appellant's unnatural proclivities must not be used as evidence to prove the guilt of the accused in respect of a particular crime. The law does not allow the jury to take account of the fact that an accused has been shown to be the "the kind of man" who is likely to engage in unnatural acts. The jury must therefore be warned (as occurred in the present trial) that evidence which for one purpose has been admitted must only be used for that limited purpose and must otherwise be disregarded. This is particularly the case with respect to the uncharged sexual acts which provide evidence of the appellant's system and course of instruction of the youths.

In my opinion the exclusion of the sexual aspects of the appellant's encounter with one or more of his victims would render incomplete the history of participation of the young witnesses in the activities of the group and their relationship with their leader and with each other. An accurate picture could not be painted by any of them without reference to the whole story as known to that witness.

This is not a case involving similar fact evidence of the type dealt with in Sutton or Pfennig where probability is relied upon as a matter of circumstantial evidence; the present case requires the identification of a course of conduct or scheme. It is a case in which separate trials would create enormous difficulties and in my opinion the disadvantages of a single trial can here be dealt with by appropriate directions - bearing in mind the extent to which the evidence of all victims will be relevant to any one charge which might be brought forward alone.

The principle to be applied to cross admissibility of evidence is support of the various counts alleging sexual offences is to be found in Moorov v HM Advocate [1930] JC 68. In that case the information charged 17 charges of indecent assault, one count of attempt to ravish and one count of indecent assault with attempt to ravish. The offences (involving 19 women) were alleged to have occurred on specific occasions between 1923 and 1930. The prosecution case was that the accused put into place a scheme for procuring women into his employment as shop assistants by newspaper advertisement and gaining a domination over them for the purpose of compelling them to submit to his sexual advances. The question was whether the evidence upon each count could corroborate the evidence of the single witness on each other count. Lord Clyde said at 73:

"The test I think is whether the evidence of the single witnesses as a whole-although each of them speaks to a different charge - leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of each single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts - important as these factors are - will satisfy the test I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found - whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole."

"Another instance which has frequently occurred in recent years is provided by the case of lewdness practised on children by adults. It is now a settled point in the law of evidence in this country that if, in cases of this sort, one child after another speaks to separate acts committed on him or her, material for the corroboration of each child's statement may be found in the statements of the others. Conduct of this sort differs from that normally produced by human lust or passion; and, if it is a necessary inference from the repeated acts spoken to individually by a number of children that the accused has, during the period covered by the separate acts spoken to, made a practice of getting himself into privacy with them for no purpose that can reasonably be suggested except a sinister one, it becomes possible to find circumstantial corroboration of each child's statement, in the same way as before - that is to say, in the same way as if there had been independent evidence as to that effect. The peculiar and perverted character of the accused's conduct is an important element in this class of case; although no doubt the length of time elapsing between the separate acts spoken to may - especially if considerable - be of great importance against the corroborative effect of the separate statements."

The principle in Moorov v HM Advocate is noted with approval in R v Boardman [1975] AC 421 at 440 (per Lord Morris). The concept of an "underlying unity, system or pattern" was adopted in the Australian cases - see Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 294-295.

Boardman was itself an example of a case where a schoolmaster induced two school boy victims respectively to adopt an unusual role in acts of buggery. The similarity in the peculiar and unusual behaviour therefore provided the probative force to the accounts of the two victims - when the possibility of collusive connection had been eliminated. That is not the present case. There is nothing sufficiently out of the ordinary for the description of other offences committed on one victim to corroborate the evidence of another victim's description of his experience. Likewise, Sutton and Pfennig are different from the present case; in those cases the purpose of the evidence is to provide evidence of the identity of the perpetrator of two different crimes. The present case is more like Moorov where the victims' description of elements of the underlying scheme of seduction gives probative force to their testimony - in the absence of collusion. In the present case the probative link between the evidence of the victims is their ability to describe the common set of circumstances which led them each to know what was expected of him by the appellant in terms of indecent or unnatural behaviour.

In my opinion the sexual counts were properly heard together and the evidence upon the charges against the different victims was properly cross-admissible.

The Trial Judge directed the jury as follows:

"On the Crown case, the conduct described by each of the complainants discloses an underlying unity or similar pattern or system of indecent dealing with respect to each of them, which makes them so inextricably linked that as a matter of commonsense and experience, it can only be explained by the truth of the allegations that the accused acted in the manner alleged by the prosecution. On that basis, the evidence of each complainant would be able to be used to support the others. You must not, however, reason impermissibly, prior to any analysis of the evidence that just because five people have come along to court and described sexual acts involving the accused, that the accused must be guilty of all of them, or that he is the sort of person to have committed all of these crimes. Such a process of reasoning would be quite wrong. The proper way to approach this matters is as follows:

You start off by considering the evidence with respect to one count. It is up to you where you start. It does not have to be the first count on the information. If, having considered one particular count, you were satisfied beyond reasonable doubt that the complainant has told the truth, then you would find the accused guilty of that count. Your finding as to that count would then become circumstantial evidence which you would be entitled to take into account when determining whether you are satisfied beyond reasonable doubt as to the other counts.

The relevance lies in the improbability of five witnesses giving accounts of events which discloses a similar pattern of behaviour unless those events occurred in the way they described, but I must make it quite clear that before you can use the evidence in this way, you must be satisfied beyond reasonable doubt of at least one of the charges. Then, and only then, can you use that evidence as assistance to draw an inference of guilt as to the other charges."

In my view this direction is unduly favourable to the appellant. As Moorov shows the fact that each victim is able to describe the framework of the appellant's scheme in more or less the same terms is corroborative irrespective of whether the jury is "satisfied beyond reasonable doubt of at least one of the charges" (as required by the direction quoted above).

The sexual acts which give rise to the alleged offences are common place in the sense that there is no special similarity relating to the offences themselves which would make the evidence of one complainant cross admissible with respect to offences described by other witnesses. The significant feature of the case is that all five victims even after such a lapse of time give common evidence (sometimes fragmentary) of the customs and practices of a group of young persons who were taught by the appellant to accept as normal and participate in the appellant's own interest in indecent dealing.

(ii) The joinder of count 16 - offering a benefit

At a time when the police investigation was in progress the appellant sought out the victim D. The appellant had maintained a fleeting social relationship with this man over the years. The appellant discussed the progress of the police investigation as then known to the appellant. It appears that the police were then only in contact with a victim [C] who eventually became the subject of one count. The appellant paid this man D $5000 ostensibly to enable him to get married. However, it was the appellant's evidence that he knew of the allegation concerning C which was under investigation. There seems to be no doubt that the appellant wanted to secure D's evidence but claimed that he wanted to ensure that the police did not lead D to give evidence contrary to that discussed with the appellant.

In the event D did give a different story in evidence.

The Trial Judge refused to sever this count but directed the jury: (par370 summing up)

"I should, however, further explain that if you are satisfied that the accused paid money to [D] to stop him telling the police about these matters, then that evidence is also capable of showing a consciousness of guilt on the part of the accused as to sexually improper conduct in relation to [C] and [D] which would be relevant to your consideration of the [C] and [D] counts."

"...you can only use this evidence as consciousness of guilt if you are satisfied that the accused was in effect buying the silence of [D] in the knowledge that [D] would otherwise implicate him in the offence relating to [C] which was then under investigation by police and/or offences relating to himself. In other words, that he paid the money to [D] because of the realisation of his guilt and the fear of the police finding out the truth."

In my opinion this direction is unduly favourable to the appellant. It seems to me that the inference is open that the purpose of the payment was to secure D's evidence with respect to all and any matter which might emerge upon the police investigation which was within D's knowledge. The matter should have been left to the jury to use the evidence in this more general way. However, the appellant has not been disadvantaged by the Trial Judge's direction.

The appellant argues that the joinder of count 16 with the charges relating to the sexual offences could not be justified by s 178 of the Criminal Law Consolidation Act which reads as follows:

"(1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.

(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information."

Subsection (1) (without the opening words "subject to this Act") is in the same terms as the English Indictment Rule No. 9. Archbold Criminal Pleading Evidence and Practice (41st ed) at p 63 comments on this rule as follows:

"The question whether the charges were "founded on the same facts," as required by rule 9, should be tested by asking whether the charges had a common factual origin. If the "subsidiary" charge could not have been alleged but for the facts which gave rise to the "primary" charge, the charges were founded on the same facts for the purpose of rule 9, and could legitimately be joined in the same indictment: R v Barrell and Wilson (1979) 69 Cr App R 250, CA; [1979] Crim LR 663. A count of attempting to pervert the course of justice was held to be properly joined to counts of affray and assault occasioning actual bodily harm where the attempt to pervert the course of justice consisted of trying to bribe a witness for the prosecution on the two other charges. This decision is to be welcomed as the evidence on the charge of attempting to pervert the course of justice would clearly be admissible on the other two counts and vice versa."

In my opinion this reference is sufficient authority to justify the joinder of count 16.

In her directions to the jury the trial judge with respect to each count has identified where the evidence of the particular complainant otherwise finds support (or is met with contrary evidence). It is a painstaking exercise which places emphasis upon specific acts rather than upon the effect of the core evidence as a whole. In my opinion the directions were sufficient when one brings to account the direction (quoted above) as to how proof of guilt on one charge might then be further used.

5. The application of Jones v R (1997) 191 CLR 439

There were seven counts involving the same complainant upon which the jury returned not guilty verdicts upon three counts but guilty verdicts upon the remainder. There were four counts involving another complainant upon which the jury returned one not guilty verdict but guilty verdicts upon the remainder. As each of these counts depended upon the particular complainant's evidence (and the acceptance of his credit) the appellant now contends that the verdicts upon the multiple counts concerning the same complainant are inconsistent. It is implicit in this submission that the acquittals necessarily resulted from the jury's rejection of the evidence of the complainant as a satisfactory witness.

The appellant also contends that the jury were insufficiently instructed as to the way in which their dissatisfaction with a complainant's evidence upon one count ought to be reflected consistently in their verdicts upon other events which depended upon the evidence of that same complainant.

The appellant submits that with respect to the alleged sexual offences the jury should have been instructed in accordance with the statement of Dunford J in R v RAT [2000] NSWCCA 77; (2000) 111 A Crim R 360 at 361:

"Juries are constantly told that they should consider each count in the indictment separately and also that they may accept part of a witness's evidence and not accept other parts of the evidence of the same witness. But the High Court case of Jones (1997) 191 CLR 439; 98 A Crim R 107 appears to qualify these directions in sexual cases where the only direct evidence of the commission of the offences is that of the complainant. In such cases, if the jury is not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to any other count. If, in such circumstances, the jury finds an accused not guilty on one count, it must find the accused not guilty on all counts. The jury should also be warned specifically that if it returns different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside."

This was later paraphrased by Spigelman CJ in R v ARD [2000] NSWCCA 443 and subject to comment as follows:

"7. The Court was indicating that where the evidence of a witness in one respect is not accepted on a beyond reasonable doubt standard, there must be a question whether the other evidence by that witness should be accepted on the same standard. This is and remains a jury question and nothing the High Court said in Jones suggests otherwise."

"10. I do not understand Dunford J to have been proposing a direction which is mandatory in any sense. Rather, I understand his Honour to have been suggesting a course of prudence, indicated by the outcome in Jones itself, which involved a recurring situation in sexual assault cases where the only direct evidence is that of the complainant. I agree with Dunford J that it will often be prudent, and sometimes necessary, to assist the jury in this way."

In support of this submission the appellant relies on the High Court's reasons in Jones v R and the reasons given by Lander J in R v KWG [2000] SASC 398 where His Honour said:

"Where the complainant's evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant's evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant."

My response to this submission is as follows:

(a) Jones v R was a decision on its own particular facts which involved the application of principle identified in M v R [1994] HCA 63; (1994) 181 CLR 487. Jones did not establish any new principle - see per Martin J in R v KWG (par 77) with Lander J and Wicks J concurring.

(b) Despite its comprehensive and helpful review of the cases R v KWG did not itself establish any new principle.

(c) In his own summary of the position Lander J was referring to cases involving two conditions (i) where the complainant's evidence is uncorroborated and (ii) where the jury is not "satisfied" with the complainant's evidence on one count.

In the present case if accepted the "core evidence" to which I have referred from the various victims is corroborative (cf Moorov v HM Advocate cited above).

(d) I do not read the remarks of Lander J as doing more than providing guidance as to a prudent course for trial Judges to follow.

The principles applicable to the issue of inconsistent verdicts are discussed in MacKenzie v R (1996) 190 CLR 348 approving R v Kirkman (1986-87) 44 SASR 591 at 593. There is nothing in the present case which suggests to me that the jury's verdicts represent an affront to logic or commonsense. The various verdicts are reconcilable.

It is of the essence of the appellant's argument that in the case of the multiple counts concerning the same complainant the jury's not guilty verdicts reflect some "unsatisfactory" element in the evidence of the complainant as a witness which ought logically to be carried through into verdicts on other counts involving that complainant. There is no sufficient basis to apply this reasoning to the present case. The "core evidence" provided the jury with a foundation for testing the credibility of "the individual complainants". Notwithstanding the acceptance of the cogency of a complainant's story the criminal standard of proof with regard to a particular charge may have led to an acquittal if the jury were unable to be satisfied as to the reliability of the complainant's evidence on that count in light of the defence case on that topic. For example, if a complainant as relevant to one count is possibly mistaken in his identification of an occasion when he was sexually assaulted at the age of about 9, it does not follow that with respect to another count his description of his experiences at a court house or in the appellant's van is to be treated as "unsatisfactory" when the recollections of other witnesses is the same. Credibility should be distinguished from reliability.

I do not consider that any additional direction was required nor do I consider that any inconsistency in the verdicts has been demonstrated.

The Trial Judge directed the jury that (except with respect to counts 8 and 15) the actual date on which the offences are alleged to have occurred is not an element of the offence. The Prosecutor in the course of her opening identified the incident in each case by reference to the occasion. In my view the appellant and the jury were properly on notice of the case which the appellant had to meet and of the occasion in question in each case. The trial judge was at pains to direct the jury that they had to be satisfied of the facts particularised as the basis for the count before they could convict.

In my view the particularisation of the occasions were sufficiently identified for the purposes of trial. There was no uncertainty such as could have given rise to duplicity.

The trial judge over ruled the appellant's submission at the close of the Crown case that there was no case to answer upon various counts (including count 15) and the appellant then gave evidence. In ground 4 of the notice of appeal the appellant alleges that the trial judge erred in this ruling that there was a case for the appellant to answer upon these various counts.

There is a conflict of opinion as to the approach to be taken by a Court of Criminal Appeal when the trial judge's rejection of a "no case" submission is challenged on appeal. One view is that the appeal court considers only the evidence at the close of the Crown case and whether the ruling is wrong in law; the contrary view is that the question upon appeal is whether upon a consideration of the whole of the evidence (including any evidence called for the defence) the verdict is sustainable.

It seems that the position arguably may be different depending upon whether or not there was a joint trial or whether there was a trial of only one accused (see Abbott [1955] 39 Cr App R 141 at 150-152.)

The conflict in the authorities is noted in Halsbury's Laws of Australia Vol 9 par 130-13980 note 10 and par 130-13710 and is the subject of comment by Perry J in Ayles [1993] SASC 3987; (1993) 66 A Crim R 302 and by the Tasmanian Court of Criminal Appeal in Durovic v R [1994] TASSC 23; (1994-95) 4 Tas R 113 at 131-132. In Maric v R (1978) 20 ALR 513 at 520 Gibbs J (with whose judgment both Mason and Jacobs JJ concurred) held that where an accused has been convicted after an unsuccessful application for discharge the appeal is against conviction and not the refusal of the discharge; that citation was relied upon in Rowley (1986-87) 23 A Crim R 371 at 375 by the Victorian Court of Criminal Appeal where a special situation arises by reason of the operation of a Practice Note: [1950] VicLawRp 28; 1950 VLR 153.

In Fraser (1911) 7 Cr App R 99 (a case involving one accused) Lord Alverstone CJ said that when an accused unsuccessfully contends that there is no case at the close of the prosecution case but then calls evidence the appeal court is not bound to disregard the effect of that evidence. In R v Power [1919] 1 KB 572 this authority was applied to a case where there were two accused. This decision was criticised in Abbott (supra) at 148 where the significance is recognised of a joint trial of two or more accused.

Abbott (supra) stands for the proposition that at least in the case of joint trials of two accused if a judge wrongly over rules a no case submission by one accused and the other accused then gives evidence against the first leading to his conviction the court upon appeal will consider the case on the basis of the evidence as it stood at the conclusion of the Crown case without regard to the subsequent evidence; both Abbott and his co-accused gave evidence but the decision turns upon consequences of continuing with a trial in which the accused is "kept there by his fellow prisoner" so as to reverse the onus of proof. (The manner in which the proviso to s 4(1) of the Criminal Appeal Act 1907 should be applied in such circumstances is discussed - cf the proviso to s 353 of the Criminal Law Consolidation Act (SA) 1935.) In R v Johnson (1977) 22 SASR 161 at 183 a Full Court decided that "In the appropriate situation we think that this Court should follow Abbott"; Johnson was also a case where there were two accused. In R v Myall (1986) 43 SASR 258 - also a case involving two accused - the Court of Criminal Appeal upheld as a ground of appeal the rejection of the submission of no case which the appellant put forward both at the conclusion of the Crown case and again when all evidence had been received; Matheson J (with Jacobs J agreeing) applied Abbott and the subsequent English cases Aston and Handley (1971) 55 Cr App R 48 and Cockley (1984) 79 Cr App R 181 (each of which involved multiple accused). It does not appear whether Aston or Handley gave evidence. In Cockley the appellant did not give evidence and the Court of Appeal held that his rights could not be affected by the evidence called in defence of his co-accused. The possible distinction between an appeal following conviction upon a joint trial and upon the trial of a single accused has not been canvassed in Johnson or in Myall.

In Riseley v R [1969-70] Tas SR 41 at 61-62 (a case involving only one accused) Neasey J held that if a submission of no case is made unsuccessfully and the defence then calls evidence, the question whether the jury could reasonably convict will be considered on the whole of the evidence (citing Power); the other members of the Full Court in that case appear not to have addressed the point.

The situation in Victoria is complicated by the fact of the abovementioned practice direction issued in 1950 and dealing with no case submissions at joint trials. In R v Wood [1974] VicRp 16; [1974] VR 117 the Victorian Full Court approved the decision in Power and rejected Abbott by reason of the abovementioned practice in that State. Accordingly, Wood and Rowley (which applied Wood) may not be generally authoritative outside Victoria.

These points were not addressed at trial but the conflict need not now be resolved as the outcome in this case will be the same whichever be the correct approach to the complaint raised in appeal ground no 4. Except with respect to count 15 I am satisfied that at the conclusion of the Crown case there was a case to answer upon the counts mentioned in appeal ground no 4. However, with respect to count 15 it seems to me that having regard to the whole of the evidence there was not material upon which a jury properly instructed could be satisfied that the unlawful sexual intercourse between the appellant and D occurred before D's twelfth birthday. The trial judge's ruling with respect to count 15 was in error. The verdict is not sustainable but an alternative verdict as abovementioned should be substituted. To this extent appeal ground no 4 should be upheld.

GRAY J I have had the advantage of reading the reasons of Mullighan J.

The Crown case was that the appellant had subjected the complainants, five young boys, to sexual abuse many years earlier[1]. The boys were then aged between 8 and 13 years. The nature of the abuse differed. It ranged from indecent assault and procuring an act of gross indecency to unlawful sexual intercourse involving both fellatio and anal penetration. The appellant offered money to the complainant D as an inducement to withhold or give false evidence at proceedings in which he may have been required as a witness.

Each of the complainants gave detailed accounts of the incidents of abuse. The evidence is far too lengthy to recount in these reasons. Without addressing the evidence in detail it is impossible to convey the nature and extent of the abuse[2]. The conduct was of a most depraved[3] kind.

The evidence in its entirety disclosed a series of sexual offences of the same or similar character. A pattern of activity was revealed[4]. This pattern bore no reasonable explanation other than the inculpation of the appellant in the offences charged[5]. The appellant developed a scheme and system which enabled him to pursue his criminal purposes. An underlying unity of intent was apparent[6].

The sexual offences were committed in a specific context in which the appellant came to know the boys and formed a relationship with them by reason of his position as a coach of a local surf lifesaving club. The appellant introduced the complainants to a small group of boys. The group then engaged in a number of activities. The development of these relationships was part of his scheme and system.

The trust of each boy was gained within the context of the group. The offences were committed under the cover of that group. Many were associated with surf lifesaving and recreational activities instigated by the appellant. The conduct did not appear to the boys to be unusual or wrong as it was disguised with enticing, exciting and adventurous activities away from other adults. The activities were appealing to boys of the complainant's age.

Part of the appellant's modus operandi was to transport a select group of boys in his van to and from surf lifesaving and other activities. The appellant called at the boys' homes often speaking with their parents at the time of collection. Sexual discussion and some sexual activity took place whilst the boys were travelling in the van. This was all part of the appellant's scheme and system.[7]

The appellant used his position as a magistrate to instil respect and authority amongst the complainants. He used his judicial office for recruiting purposes and to engender trust and confidence in the complainants' parents. The conduct occurred in circumstances where the appellant represented himself as a person who could be trusted and where he was apparently viewed in that way by others. He chose locations designed to underscore his authority and made use of court facilities. Members of the group stayed overnight with him at the Glenelg and Victor Harbor courthouses.

The appellant wrote to parents on court letterhead.[8] This letter and evidence from the complainants' mothers provides an explanation as to why the complainants' parents trusted the appellant. It also shows why they relied upon him and were comforted in the belief that their young sons were being properly cared for.

The detailed evidence of each complainant confirmed and corroborated the evidence given by other complainants. Additionally there was evidence from other boys about their observations of the complainants and the appellant. The evidence established a particular and ascertainable unity of intent lying behind, related to, and connecting each of the separate counts. It provided the context within which the offences occurred and linked them to the appellant's scheme and system. The relationship between the appellant and the boys explains how the appellant was able to make the boys participate with him in his criminal behaviour. It provides an explanation for their delay in complaining.[9]

The appellant engaged in a course of conduct which amounted to an indoctrination[10] of young boys. That course of conduct led the complainants to believe that sexual talk and conduct was normal behaviour. The totality of the evidence provided the explanation for why it was that the appellant was able to conduct himself in the way that he did.[11]

The appellant put forward the defence of innocent association. It was said that he had a genuine and enthusiastic interest in surf lifesaving and the training of young boys. The appellant's conduct which included transporting the boys and providing them with extra training, fun activities and overnight stays was an innocent adjunct to his commitment, generosity and dedication to the teaching of surf lifesaving. These fun activities formed part of preparing and extending the boys in their surf lifesaving pursuits and personal development. The appellant agreed with much of the boys' evidence as to general arrangements, locations and activities but emphatically denied each charge and any impropriety whatsoever.

The Rejection of the Defence of Innocent Association

In R v Kilbourne[12] Lord Hailsham discussed the admission of evidence that contradicts any possibility of innocent association. He said:

"... the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question."

In refuting any possibility of innocent association, the Crown led from each complainant an account of the appellant's modus operandi. The complainants' evidence of the charged and uncharged acts of sexual abuse directly rebutted the defence of innocent association. It was relevant and cogent evidence to refute the appellant's assertions. It was properly admitted as relevant and probative.[13] Its probative value outweighed its prejudicial effect.[14] It was established that there was no collaboration between the complainants.[15] Appropriate directions including warnings against the use of propensity reasoning were given by the trial judge.[16] The jury was fully justified in rejecting the appellant's defence of innocent association.

The appellant complained about the trial judge's ruling with respect to the cross admissibility of evidence. The evidence of each count of sexual abuse was admitted with respect to every other count of sexual abuse. A ruling was made that evidence of what were described as "the uncharged acts" was also admissible with respect to each count of sexual abuse.

In Hoch v The Queen[17] Brennan and Dawson JJ observed:

"In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue? In cases of the present kind, evidence of the commission by an adult male of indecent acts with a number of boys has sometimes been held inadmissible on a count charging him with an indecent act committed with a particular boy. The ground on which such evidence has been admitted has been variously identified: the evidence has been held to be relevant to show 'a system' (Reg. v Kilbourne[18];Boardman[19]; R v Jeffries[20]; Reg v Witham[21]; R v Sims[22]) or to rebut a 'defence' of innocent association (Kilbourne[23]; Boardman[24]) or to confirm the truthfulness of the complainant's evidence in the particular case: Kilbourne[25]; Sims[26]. Thus in Kilbourne[27] Lord Hailsham of St Marylebone LC said:

'When a small boy relates a sexual incident implicating a given man he may be indulging in fantasy. If another small boy relates such an incident it may be a coincidence if the detail is insufficient. If a large number of small boys relate similar incidents in enough detail about the same person, if it is not conspiracy it may well be that the stories are true. Once there is a sufficient nexus it must be for the jury to say what weight is given to the combined testimony of a number of witnesses.'

Whichever ground has been assigned for admitting evidence of similar facts, the courts have denied that its probative force is to be found in the mere propensity of the accused to commit indecent acts with boys: see inter alia, Thompson v The King[28]; Boardman[29]; Jeffries[30]; Witham[31]. The distinction between mere propensity on the one hand and 'system' or non-innocent association on the other seems extremely fine. And there may be little distinction between evidence tending to prove the truthfulness of a complainant's evidence and evidence tending to show that the accused was likely to have committed the indecent act to which the complainant testifies. It is not necessary to dwell on these distinctions in this case, for it is not disputed that, if there were no real chance of a conspiracy among the complainant boys, their evidence would have been admissible on all counts. But it is clear that the possibility of a conspiracy is critical to the assessment of the force of each boy's evidence to prove a system or to rebut a defence of innocent association or to confirm the truthfulness of the evidence of another boy. Admissibility of evidence of this kind depends not only on similarity between the acts which the prosecution seeks to prove but, more importantly, on the non-existence of 'a cause common to the witnesses.'"

As earlier observed the appellant engineered an atmosphere in which it was accepted amongst the boys that sexual talk and conduct was normal behaviour within the group. This atmosphere created multiple opportunities for him to abuse the complainants in circumstances where he sought to eliminate or minimise the risk of complaint. The Crown demonstrated that it was in this context that each of the acts of abuse occurred. This context was the basis through which the appellant's scheme and system was effected. Without this context being before the jury there would remain an incomplete and artificial account.

Other grounds for cross admissibility have been addressed by Mullighan J[32]. Each is sufficient on its own, to justify the admission of the evidence of the charged and the uncharged acts of sexual abuse with respect to each other count of sexual abuse.

All of the evidence given in relation to the sexual abuse was also relevant to count 16, the allegation of offering money to a potential witness. On the Crown case the appellant was well aware of all of the sexual abuse inflicted. He was well aware that the account of the complainant D would be relevant with respect to any complaint that had or may be advanced. The trial judge viewed the relevance of this evidence too narrowly. However this operated in favour of the appellant.

Counsel for the appellant submitted that the jury had returned inconsistent and repugnant verdicts.

In my view the verdicts demonstrate careful attention by the jury to its duty. The verdicts suggest that close attention was given to the trial judge's repeated directions that each count must be considered separately and that the jury must be satisfied beyond reasonable doubt of each element of each count before returning a verdict of guilty.[33]

The differing verdicts are readily explicable because of the particular evidence led and the issues arising with respect to each count.[34] I am satisfied that applying the well established test[35], the verdicts were not inconsistent or repugnant.

Most, if not all of the appellant's complaints were "called in aid" to support the fundamental complaint that the verdicts of guilty were unsafe and unsatisfactory.

In addition to the directions earlier referred to the trial judge gave repeated warnings about the disadvantages suffered by the appellant as a result of delay.[36] Appropriate directions were also given as to the use of circumstantial evidence.[37]

I have reviewed the submissions advanced in support of this ground of appeal, the material referred to and the evidence led at the trial in its entirety.[38] On each count on which a verdict of guilty was returned the Crown case was overwhelming.[39] The verdicts were safe and satisfactory.[40]

I agree with the reasons and orders proposed by Mullighan J.

[1] A detailed review of the counts, the particulars and the Crown case are set out in the reasons of Mullighan J.

Selected but not exhaustive references to trial transcript by page and line

777.9 - 778.20; 778.33 - 780.26; 781.3 - 783.25; 785.26 - 787.36; 790.7 - 793.31;

795.32 - 799.12; 802.4 - 804.38; 806.5 - 808.2; 814.5 - 816.29

721.35 - 723.19; 724.1-.23; 726.14 - 727.15; 728.1-.8

1186.14 - 1188.12; 1189.4 - 1190.29; 1193.34 - 1198.3; 1199.27 - 1200.19;

[3] Deprave is used in the sense of "to make morally bad or worse; ... corrupt or perverted, especially morally; wicked" The Macquarie Dictionary (3rd ed).

[4] The Crown did not however seek to rely on any striking similarity between the sexual offences.

[5] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375, Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294, KRM v R (2001) 178 ALR 385 at [24]

[6] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294-295.

[7] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294, 301-302, Reg v Kilbourne [1973] AC 724 at 750.

Court of Summary Jurisdiction

GLENELG

Office hours Moseley Square

9.00a.m.-4.30p.m. Glenelg. SA. 5045

Ref: Telephone: 295 1033

(Darlington Courthouse: 2963381)

Dear Parent

I attended your son's school today, conducting recruiting for the [identifying name removed] Surf Lifesaving Club's Junior Division, of which I am one of the coaches.

Your son expressed interest in becoming a junior surf lifesaver, so I provide the following information:

(1) I live on your side of town and will personally give transport to any boys from [identifying suburb removed] directly from their homes to our club and return every Saturday.

(2) We commence training on 16. Oct. and train on Saturdays from 1.30 to 4 until March.

(3) Boys aged 7 - 13 are taught swimming, sprinting, surf boarding, lifesaving, etc. by competent senior surf lifesavers. Our senior club is the top club in S.A., having won the last [identifying features removed] state titles and the title [identifying features removed] last season.

(4) I am the magistrate at the Glenelg Courthouse and would be happy to have you telephone me for any additional information that you may require. If you would like your son to join, please contact me.

Yours sincerely,

(Signed)

PETER LIDDY

MAGISTRATE

[9] KRM v The Queen (2001) 178 ALR 385 at [24]

[10] Indoctrination is used in the sense of "to instruct (someone) in some particular teaching or doctrine .... to so instruct (someone) in a manner which leads to their total and uncritical acceptance of the teaching." The Macquarie Dictionary (3rd ed)

[11] KRM v The Queen (2001) 178 ALR 385 at [24]

[12] [1973] AC 729 at 741, see also R v Sims [1946] KB 531, Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 295

[13] Smith v The Queen [2001] HCA 50; (2001) 181 ALR 354 at [6-7]

[15] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 301, Mullighan J at [58-60]

[16] See for example summing up [64] [66-68] [257]

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Harriman v The Queen [1989] HCA 50; (1988-89) 167 CLR 590 at 630-631

Pfennig v The Queen [1995] HCA 7; (1994-95) 182 CLR 461

R v Hissey (1971) 6 SASR 280

R v Nieterink (1999-2000) 76 SASR 56

[17] [1988] HCA 50; (1988) 165 CLR 292 at 301

[18] [1973] AC 729 at 750-751

[19] [1975] AC 421 at 452

[20] [1946] NSWStRp 54; (1947) 47 SR (NSW) 284 at 298, 308

[21] [1962] Qd R 49 at 76

[22] [1946] KB 531 at 539

[28] [1918] AC 221 at 237

[31] [1962] QdR 49 at 76

[33] See for example summing up [5] [19-20] [62-70] [394] [442]

[34] Mullighan J addressed the evidence and issues at [130-174]

[35] MacKenzie v The Queen (1997) 190 CLR 348 at 365-368

R v Kirkman (1986-87) 44 SASR 591 at 593

[36] See for example summing up [42] [45-60] [375] [396-401]

Longman v The Queen [1989] HCA 60; (1989-1990) 168 CLR 79

Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369

[37] See for example summing up [418]

[38] Mullighan J has addressed the particular complaints in detail see [310-457]

[39] I exclude count 15. Although there was an overwhelming case with respect to the abuse, the subject of count 15, the age of the complainant was not proved beyond reasonable doubt

[40] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493