Regina v Bell

15 On 30 May 2000 the Victims Compensation Tribunal issued two provisional orders for restitution against the applicant, one for $50,000 in respect of M and one for $42,785 in respect of BB. These were the amounts of compensation which had been awarded to them. The provisional orders stated that the applicant had 28 days to file a notice objecting to such orders. A notation of the applicant on each provisional order (beside the paragraph reading "Notice of objection to the Order must be filed in the Office of the Director, Victims Compensation Tribunal …" states "Notice given on grounds of appeal dated 22-6-00". On the bottom of the provisional order as to M this further notation appears "I am appealing all convictions relating to [M]". The service of the orders may have been the catalyst for the present appeals. Apparently, the applicant did not realise that the Victims Compensation Tribunal could seek reimbursement from him.

16 By letter of 22 August 2000 the applicant's solicitor forwarded a Notice of Appeal and Application for Leave to Appeal and Notice of Application for Extension of Time, both dated 24 July 2000 and signed by him. Some legal aid was granted to the applicant probably about early October 2000. Thereafter, the trial transcripts were sought. The advice of Senior Counsel was sought. By letter of 27 April 2001 the applicant's solicitor advised the Court that he ceased to act for the applicant.

17 In his written submissions the applicant has submitted that since his abandonment of his appeal fresh evidence has emerged which goes to the heart of the Crown case against him and that if the jury had known of that evidence they may well have acquitted him of all the counts on which he was found guilty. This was the principal ground advanced in support of his applications for leave to withdraw his Notice of Abandonment and an extension of time within which to appeal against conviction and sentence. The applicant contends that the fresh evidence emerged from the release of a report of the Wood Royal Commission into the NSW Police Service. This had been withheld from the public pending the finalisation of all proceedings against the applicant so as not to prejudice the fair conduct of his trial. The original report was made in August 1997.

18 By letter of 12 May 1999 the Police Integrity Commission advised that as the proceedings against the applicant had concluded the Royal Commission report could be made public. This occurred during May 1999.

19 That revealed that the witness A7, then aged 13, met the applicant when swimming with two boys in the heated swimming pool of the apartment block in which A7 lived with his mother. The applicant who also lived in that block, invited the boys up to his apartment. When A7 and the other two boys went to the applicant's apartment he talked them into masturbating with him.

20 In his evidence before the Royal Commission A7 explained that at that stage he did not have a lot of contact with his father. The applicant encouraged A7 to telephone his father. A7 did and they regained contact from there. In late 1983-early 1984 A7 was boarding at a school in Orange. A7 said that during the school holidays (December 1983-January 1984) and mainly at weekends he spent most of his time with the applicant. He went out about 10-12 times on the applicant's boat and that he had further sexual encounters with the applicant which included masturbation. A7 said that about Easter 1984 (when A7 was on holidays from boarding school) the applicant took him to the applicant's farm at Yarrahapinni (Kempsey-Macksville District) and that the applicant masturbated A7 at his Darling Point apartment, his Whale Beach house and his farm.

21 The acts of the applicant towards A7 formed the basis of a number of charges preferred against the applicant which were to be the subject of a separate trial starting in early 1999. That did not take place because of the applicant's plea of guilty. The indictment presented on 5 February 1999 and to which the applicant pleaded guilty contained two counts (9 and 10) relating to A7, one charging an act of indecency towards A7 and one an indecent assault on A7, both alleging that A7 was under 16 and both occurring between 13 March 1983 and 8 May 1984. Three offences involving A7 were taken into account, namely two counts of indecent assault between 1 December 1983 and 8 May 1984 at Whale Beach and Darling Point respectively and one of incite person under 16 to an act of indecency at Yarrahapinni between 1 April 1984 and 8 May 1984.

22 In his further written submissions of 17 July 2001 the applicant said that when he was convicted on most of the M counts, it was proven to him that the Crown could secure convictions on evidence that was uncorroborated, contaminated, contradictory and inconsistent and which he knew to be fabricated. He said that he signed the notice of abandonment realising that he would need fresh evidence to resurrect the appeal and prove that M's story was indeed fabricated. He did not find that fresh evidence until after the publication of the Royal Commission Special Report. He became aware of its terms in late July 1999. He spent much of the year 2000 trying to arrange legal representation but he had no money. Ultimately he decided to represent himself. The applicant claimed that this explained the time delay. These submissions are erroneous. The applicant was fully aware of the position as to A7 and the other boys. Not only had he lived through the events but he was aware of the Crown material. He had a mastery of all the detail.

23 The applicant sought an order quashing all his trial convictions and an order that if the DPP proceeded with fresh trials, three fresh trials be held, one as to M alone, one as to BB, JL and DC and one as to CA. The applicant stated that there was no appeal relating to any charge to which he pleaded guilty in February 1999.

24 At the sentencing hearing in February 1999 the Crown handed to the Court a Statement of Facts relating to the offences against A7. It was one of a number of statements of facts extending over 18 pages given to the sentencing judge. These statements were agreed between the Crown and the applicant (and his legal advisers) over a number of days. The statement relating to A7 was signed by the applicant. It states that A7 first met the applicant in the summer of 1983/84 while A7 was with two other boys, that the applicant introduced himself to them and that thereafter A7 began to spend a lot of time in the applicant's company in his apartment, on his boat, at his house at Whale Beach and once at his farm at Yarrahapinni. Often A7 was in the company of two friends. The applicant took them water skiing, bought them food and gave them presents. The relationship ended in late 1984. Over this time the applicant indecently assaulted A7 between 20 and 50 times at the farm, at Whale Beach and at Darling Point usually involving masturbation sessions with other boys in front of pornographic videos.

25 This brief summary shows that in February 1999 the applicant was well aware of the facts relating to A7 and the period during which it was said that the activity involving A7 took place. There is a specific reference to their meeting in the summer of 1983/84. Trips on boats were likely to have taken place in the summer school holidays before A7 returned to boarding school in the country. The applicant must have known that A7 would be able to give evidence as to their association in the summer of 1983/84 and at Easter 1984. The release of the Royal Commission material only confirmed what the applicant knew.

26 When the police brief was served on the Legal Aid Commission on 6 May 1997 it included a folder containing statements of the complainants, A7 and his two friends (B36 and A6). An index was located in the front of that folder setting out its contents. The index referred to an electronically recorded interview with A7 on 11 January 1996 and that he had been involved in numerous masturbation sessions with the applicant and others at Darling Point, Whale Beach and Yarrahapinni. There are references in the index to statements by B36 and A6 to the same effect. The reference in the index to the interview with A6 refers to the initial meeting at the pool at the Darling Point apartments and to going out on the boat.

27 The applicant asserted that while he was in custody awaiting trial he only had the files relating to his first trial in his cell. That did not include the folder as to A7, B36 and A6. It was in store in another part of the prison. Two comments should be made. The applicant must have known what he had placed in storage. Further, he would have been well aware of what each of A7, B36 and A6 could say. The applicant and they had lived through memorable events.

28 The materials establish that for many years the applicant was aware of the evidence that A7, B36 and A6 could give. His relationship with them lasted for the best part of a year and was quite intense. He was reminded again of that evidence when the police brief was served. He became aware of the allegations which were to be and were in fact the subject of his first trial. He sought and failed to have separate trials of some of these counts. He knew that the counts involving A7, B36 and A6 and some others were to be the subject of his second trial listed to start in February 1999. That fixture was cancelled on 30 November 1998. At his first trial the applicant objected to coincidence evidence being given by two witnesses who were not complainants in that trial. The applicant was anxious to confine the evidence against him. If A7, B36 and A6 had been called in the first trial by the Crown this would have had markedly adverse effects on the applicant's case for acquittals and would have been very damaging to the applicant's overall case.

29 Rule 27 of the Criminal Appeal Rules provides that upon a notice of abandonment being forwarded by an appellant to the Registrar the appeal or application shall be deemed to have been dismissed or refused by the Court. In the joint judgment of Hunt and Badgery-Parker JJ in R v Cartwright [1989] 17 NSWLR 243 it was held that where a Notice of Abandonment had been filed the Court could hear an appeal against conviction and an application for leave to appeal against sentence as no appeal on the merits had been heard and the Court had inherent jurisdiction to go behind r.27 to ensure that a miscarriage of justice did not go unremedied. The joint judgment continued at 246: "For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences: R v Griffith (1969) 90 WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 78; 92 WN 9NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315)."

30 In R v Jeffery NSWCCA 16 December 1993, unreported, Badgery-Parker J said: "The power of the court to grant leave to withdraw a notice of abandonment is a discretionary power. The circumstances in which it should be exercised are the subject of authority. In Regina v Stubbs (1970) 92 WN 9NSW) 768 it was held that leave should be granted only if it appears on the face of the application that some ground exists for supposing that there may have been fraud or at least bad advice given by a legal adviser which has resulted in an unintended and ill-considered decision to abandon the appeal. The present did not appear on the face of it to be such a case for the applicant had made a considered decision upon advice from senior counsel which advice does not appear to have been fraudulent, ill-considered, incompetent or obviously mistaken. However, the court retains an inherent jurisdiction to go behind a notice of abandonment in a case where it appeared likely that there had been a miscarriage of justice which would go uncorrected if the notice of abandonment were allowed to stand: R v Bell (1987) 8 NSWLR 311, 314. Consequently, in such a case as the present, a decision as to whether the notice of abandonment should be set aside and the applicant allowed to proceed with his appeal is inextricably entwined with the question whether the appeal has real merit - ibid at 314."

31 In R v Brandy, unreported, CCA 28 October 1996 Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, reiterated that even if the explanation proffered for the abandonment was weak that would not necessarily stand in the way of the grant of leave to withdraw the abandonment if it be seen that there would be a miscarriage of justice if leave were refused. That involved an assessment of the applicant's prospects of success if the appeal were permitted to proceed.

32 In R v Combe, unreported CCA, 24 April 1997 Hunt CJ at CL, with the agreement of the other members of the Court, affirmed the views expressed by himself and Badgery-Parker J in Cartwright.

33 In R v Young [1999] NSWCCA 275 I said with the concurrence of Studdert and Dunford JJ: "The cases make it clear that both in relation to an extension of time and leave to withdraw a notice of abandonment the question of a miscarriage of justice is important if there is not an adequate or reasonable explanation for the delay or for lodging the notice of abandonment. It is not the only consideration but a miscarriage is of itself often sufficient. In sentence applications there will often be no prejudice to the Crown … [in granting leave] Conviction appeals may involve different considerations. For example, witnesses may no longer be available or willing to give evidence. After the trial they may have tried to put the events out of their mind. After a substantial delay witnesses in identification cases may not be able to recall precisely what and whom they saw. No relevant objections to the summing-up may have been taken. On the other hand fresh or new evidence may emerge which puts an entirely new light on the case. As is obvious, much depends on all the circumstances of the particular application."

34 This case has some special features. It was after the appeal was abandoned that the Director of Public Prosecutions decided not to prosecute the remaining 95 charges. With head sentences totalling 14 years and minimum terms totalling 10½ years there was not a lot of point in proceeding with the remaining charges. That would involve further civilian witnesses having to recall painful events long past, much utilisation of police and prosecution resources and great expense.

35 The applicant had also been very fortunate that the judge had imposed light sentences on so many of the charges of the first indictment and made the sentences on other than counts 31, 6 and 18 and the counts in Indictment 2 concurrent, that is commencing on 30 May 1997 when some at least could well have been cumulative. It is not easy to understand why the sentences on the counts in the second indictment were not, at least in part, cumulative. It is not surprising that there was no appeal against the sentences imposed in respect of the counts in the second indictment. As earlier mentioned these serious offences stretched over a period of more than 10 years and involved 18 boys under the age of 16 years. The criminality involved is massive.

36 The main ground said to justify allowing the Notice of Abandonment to be withdrawn, namely, the publication of the Royal Commission report is without substance. The applicant did not seek to withdraw his notice of abandonment until after he had served all sentences except those imposed on Counts 31, 6 and 18 of the first indictment. Practically (if not theoretically) he was no longer at any risk from any Crown appeal that the sentences he had received were inadequate. Further, the applications for leave to withdraw his Notice of Abandonment and to appeal against sentence out of time were filed within a short period of his being served with the Provisional Orders for Compensation. His ground for opposing the confirmation of those orders was his proposed appeal.

37 All of the alleged offences occurred many years before the trial.. The trial took place in 1998. The appeal was abandoned in March 1999 in circumstances where the applicant appears to have received lenient sentences. The victims, their families and their witnesses were entitled to proceed on the basis that a long and sorry chapter had been finalised. It would be too much to have the victims and the witnesses re-visit these matters.

38 From the applicant's address to this Court it became apparent that he was highly intelligent, tactically astute, and possessed an agile mind and speedy thought processes. He represented himself with much skill.

39 The special features mentioned above, without more, compel the refusal of leave to the applicant to withdraw his notice of abandonment. However, because the authorities rightly attach much importance to the issue whether there has been a miscarriage of justice I propose to deal with that issue and the various grounds of appeal raised by the applicant.

40 Issue 1 -The early Offences against M - Counts 2, 3 and 4

I turn to the early offences involving M, born on 26 October 1970, and particularly counts 2 to 4 on the first indictment. M lived at Stuart's Point until about late March early April 1984 when he moved to Sydney. Stuart's Point is about 2.5 km from Yarrahapinni. He said that his parents separated when he was 7 and that he lived with his mother. There are two aspects of M's evidence, firstly, the substance of what occurred and secondly the approximate dates of their occurrence. The evidence demonstrates that he had some difficulty in pinpointing the dates of their occurrence. His description of the incidents is reasonably clear. The earlier ones occurred at the applicant's farm. As to count 1, M said that he was an enthusiastic surfer and spent a lot of time surfing at nearby Grassy Head. He rode his bike there and back balancing his surfboard under one arm. The applicant talked to him in the surf and then helped him by placing his surfboard in the back of the applicant's utility. He bought M items at the beach shop and was very friendly. The applicant surfed with M. M said that within a month of first meeting the applicant he went to the applicant's farm. M said that at the farm he went horse riding, motorbike riding, played pool and table tennis. The applicant had a boat and took M water skiing on the river in the vicinity of Stuart's Point. Sometimes there would be others including boys, young men and older men. The activities were great fun.

41 In his initial evidence in chief M thought the first sexual incident happened when he was aged 12 and in Year 7 at high school. It was about a month after he first met the applicant. It was towards the end of the year. He had gone with the applicant to the farm after surfing. The applicant asked M to sit beside the applicant on the lounge as he wanted M to look at something and when he did so put his arm around M and fondled M's penis. The applicant was acquitted of count 1. The judge in his remarks on sentence noted that senior counsel for the Crown in his address to the jury conceded that the jury might well return a verdict of not guilty on this count on the basis that they might have a reasonable doubt whether the Crown had established that the offence was committed within the range of dates alleged, time being an essential element of the charges in the particular circumstances. In his summing-up (SU20 of 19/11/98) the judge said that the Crown conceded that M may have been wrong when he talked of incidents occurring in 1981 or 1982 and that the events the subject of count 1 might have happened in 1983.

42 In the charge as initially preferred the Crown alleged that the events the subject of count 1 occurred between 26 October 1982 and 1 January 1983. On 22 September 1998 when a draft indictment was handed up in Court to enable the preliminary issues to be resolved the period specified was 26 October 1981 to 1 January 1983.

43 M explained that he went back to the farm because of all the activity available there and not otherwise available to him. Further, lots of boys hung around the farm and there was friendship with them as well.

44 M, early in his evidence, stated that a couple of weeks after the first incident he went back to the farm. After having a bath M stood by the fire. The applicant called M over to sit beside him so he could show him something. The applicant put his arms around M, cuddled him, touched him and slid his hands down the front of his pants and fondled M's penis to the point of ejaculation. M found the Penthouse magazines which the applicant had provided very arousing. There was no charge in respect of this evidence.

45 M estimated that the next incident, the third incident, occurred within about two months of the first incident. He was at the farm. After a bath M was standing beside the fire. The applicant called him over and then slid his arms down M's pants and fondled M's penis. When he tried to push the applicant away he held M tighter and put his mouth on M's penis. The oral sex constituted the second count.

46 M said that at this stage he would go to the farm on average about three weekends a month. There were weekends when M was not at the farm.

47 M stated that in 1982 or 1983 when he was 12 or 13 MG and A10, who were respectively one and two years older than him were usually at the farm. There was an incident involving M, MG, A10 and the applicant. They were watching a pornographic film. The boys became excited. The other two boys masturbated themselves. The applicant masturbated M and himself. There was no charge in respect of this incident.

48 M said that there was another incident when he was about 14. M and the applicant were watching a pornographic film. The applicant fondled and masturbated M. Next the applicant grabbed M's hand and put it on the applicant's penis and held it there and tried to make M masturbate the applicant. The applicant was quite forceful about it. The applicant put his mouth over M's penis and sucked and slid on it. This is the third count. M said that the incident happened before he moved to Sydney. Thus the applicant could not have been 14. He was probably 13.

49 M said that prior to moving to Sydney and when he was about 14 o 14.5 years the applicant flew M to Sydney from Kempsey. He had never been in a plane before and was very excited. He stayed in Sydney over a long weekend. The applicant met M and took him to a house at Whale Beach. They viewed a video called "Electric Blue". The applicant slid his hands down the front of M' pants, fondled his penis, then pulled his pants down and placed his (the applicant's) mouth over M's penis. At the same time the applicant forcefully put M's hand onto the applicant's penis. Both of them ejaculated. M said that the same sexual acts occurred over the entire weekend. M estimated that this incident happened about six months before his family moved to Sydney. He said that he was late 14. This incident was the subject of count 4.

50 M said that there was a further incident at the farm before he moved to Sydney. M and the applicant were sitting on the lounge. The applicant fondled and masturbated M. The applicant rolled M over and forcefully positioned him on his hands and knees and tried to penetrate M's anus with his penis. M said that he tried to push the applicant away but the applicant poked his penis around the anal area of M. This was the subject of count 5. On this count the applicant was found not guilty.

51 In his remarks upon sentence the judge stated that there was an evidentiary basis for the jury to come to the conclusion that they had a reasonable doubt whether the offence alleged had been committed within the range of dates pleaded (26 October 1983 to 30 April 1984). M had estimated it took place about six months after the incident the subject of count 4 (the Whale Beach long weekend). The applicant was overseas from 2 March 1984 to 3 April 1984 and M was in Sydney from at least 2 April 1984 and possibly from late March 1984. The dates were of some importance because they were part of the particulars supplied and also because of the frequent amendments to the Crimes Act recasting the provisions dealing with sexual offences. Of course, this does not mean that the offence was not committed at some time.

52 The records of Kempsey High School show that M left that school on 8 or 9 March 1984. He was in Year 8.

53 The records of Belmore High School show that M enrolled at that High School on 2 April 1984 from Kempsey High School and transferred to Maroubra Bay High School on 6 July 1984. He enrolled at that school on 9 July 1984. The evidence established that on moving to Sydney M's family lived at Belmore and, after a few months, moved to Maroubra Road, Maroubra. M left Maroubra Boys High School on 12 December 1985 and returned to Kempsey High School at the start of the school year in 1986.

54 As a result of M becoming acquainted with the terms of the school records, which he accepted, he corrected his earlier evidence and said that he was not 14, 14½ years old when the applicant flew him to Sydney, but 13, 13½. M also corrected his earlier evidence as to his age when the applicant at the farm rolled him over on his hands and knees and poked his penis in M's anal area. He said that he would have been "13, late 13, turning 14". These corrections took place at the end of the applicant's evidence in chief.

55 M was aged 27 when he gave his evidence in mid October 1998. He was speaking of events that happened over 14 years previously. Further, about two months after M moved to Maroubra the applicant located him and further incidents allegedly occurred.

56 The applicant complained that between the time when the charges were preferred and 22 September 1998 there were these changes in the dates: Count Original Date s Dates Alleged on 22/9/98

57 The Court is not concerned with counts 1 and 5 in view of the verdicts of not guilty except to the extent that they bear upon M's credibility. With the lapse of time and the many alleged incidents which had a broad similarity it is to be expected that there would be some difficulty with dates. While various interlocutory applications were heard from 22 September 1998 the parties were not in court every day. The trial before the jury did not start until 12 October 1998. The applicant cannot make any valid complaint about the amendments. He was entitled to rely upon them as reflecting upon M's credibility. The jury may not have regarded the amendments as doing so. It is a pity that M was not shown the school records at an earlier point of time as they helped in setting the time frame not only for M but also for the Crown. It was a matter for the jury whether they attached importance to the Crown thinking that M had moved from Stuart's Point to Sydney in December 1984. I would not regard that matter as being of consequence.

58 In his directions to the jury (SU 26 of 20/11/98) the judge adopted the approach of the Crown as to dates, namely, that if they were satisfied beyond reasonable doubt that the offence alleged in the charge was committed within the range of dates alleged that sufficed as the Crown did not have to prove that the offence was committed on any particular day. The jury were further told that as to all charges except counts 24 to 29 the Crown had to prove that the complainant was under 16 at the time of the events the subject of the count. As to counts 24 to 29 the Crown had to prove that the complainant was under 14. This approach was required because of the provisions of the Crimes Act 1900.

59 This Court has to focus on the events the subject of count 2 being allegedly committed between 26 October 1983 and 20 October 1984 and those the subject of counts 3 and 4 being allegedly committed between 26 October 1983 and 30 April 1984. In view of the applicant's absence overseas and M's move to Sydney, that reduces the time period to 26 October 1983-1 March 1984.

60 The applicant contended that the incident the subject of counts 2, 3 and 4 could not be fitted into the period 26 October 1983-1 March 1984. He relied on the following matters: (a) M described brown carpets in the games cottage when he started going to the farm but they were not laid until July 1984. (M visited the farm after April 1984. The jury may well have thought, as I do, that after so many years a mistake about the brown carpets did not matter)

(b) SG denied that there was a mutual masturbation session involving M and the applicant and MG and SG (T1339: 27-33 and T1374: 1-20). (This was not the subject of any count due, no doubt to the differences in recollection)

(c) M's mother had no recollection of her son having flown to Sydney for a long weekend with the applicant before they moved to live in Sydney (T578: 15-21). (However, she did say that when they arrived he seemed familiar with parts of Sydney)

(d) The applicant's evidence that he first met M in late 1983 or early 1984.

(e) Mr AH and Mrs SAH renting the farm from September 1981 to September 1983. (It does seem that the applicant was able to use parts of that farm during that period.)

(f) The first visits of A10 to the farm were about late 1983 and he met A7 and B36 there. 61 The applicant submitted that when regard was had to the sequence of events given by M and especially the estimated periods between those events and the applicant's sustained involvement with A7 and others apart from M during the school holidays, the incidents alleged by M could not have taken place in the four months from late October 1983 to early March 1984, M said that the events took place before he moved to Sydney with his mother to live. The jury must have accepted this and regarded M's estimate of the intervals between events as mistakes of no consequence. That view was reasonably open.

62 In his evidence the applicant agreed that he met M at Grassy Head and that he gave M a lift home with his surfboard. The applicant said that his first meeting with M occurred just after Mrs SAH had left the farm. That was in September 1983.

63 The applicant confirmed that M's recollection of their first meeting at Grassy Head was correct and that during the summer of 1983/1984 on a number of occasions he gave M a lift back to Stuart's Point. The applicant denied that he had a farm ski boat in 1983 and that M enjoyed water skiing activity at that time. He denied that he had ever made arrangements for M to fly from Kempsey to Sydney and certainly not prior to when he moved house in 1984.

64 The applicant denied that he had ever had a sexual relationship with M but conceded that he had a sexual relationship with other boys. The applicant said that he did have some pornographic material at some of his premises. He did not regard Penthouse magazine as pornographic. There were videos and Penthouse magazines at the farm, The video material he had was heterosexual because he found it more amusing. He had similar material at his Darling Point and Manly flats. He did buy KY gel and used it as a masturbation lubricant on himself and some four other youths. The applicant said that in respect of three of these youths there was mutual oral sex but he denied any anal sex or any anal penetration. He said "I don't like it". He said there was never a place called "Nightmare alley" as alleged by M, although he knew the area M was referring to: The phrase was used by M in some notes for the story M planned to sell to the media.

65 The applicant insisted that he was a hebophile not a paedophile. He dealt with what he said to Elizabeth Deegan, a journalist, in 1996. He had told her that hebophilic love is the reciprocal love of a man for a youth and that he, as a hebophile had loved and been loved by youths and more than one youth over many years.

66 When he had told Ms Deegan that he was not a paedophile in Europe but was in Australia he had been referring to the age of consent for homosexual activities in Switzerland being 16, whereas it was 18 in New South Wales. He said that when he told her "his weekends were spent preparing meals, sharing surfing adventures and the occasional late night dalliance with boys" he meant occasional late night dalliance with youths. By the word "boys" he had meant males over the age of 18. He did not mean children or anyone under 16.

67 The applicant stated that when M was with him in Europe (many years later) M had said that he could make $100,000 to $180,000 for the sale of a filthy story to 60 Minutes about the applicant. M said it would be easy to invent the sexual side of their relationship. There was great mirth about the prospect of the media paying $180,000 for a load of "rubbish filth".

68 The applicant said that the term "use by date" which was employed did not refer to his having used the boys to that point and discarded them but to the boys having decided that they had no further use for him or for "his wheels". It often referred to the point when a young man got his first driver's licence when he did not need the applicant to drive him to the beach and other places.

69 The applicant agreed that he also used the phrase "No. 1 boy" but denied that this had any sexual connotation. It did not refer to the most sexually compliant boy. It applied simply to someone who had done something particularly good and who would hence become "a No 1 boy". M was not "No. 1 boy" until he was 20.

70 The applicant denied that he had ever given to M any furniture from the house at Tweed Heads. M had taken it.

71 The applicant said that he was not afraid of any projected media coverage because he had had a gay sexual relationship with M. He agreed that he had put $4000 or $5000 into M's bank account. He said that he wanted to convince M not to go to the media.

72 I return to the evidence of A7 before the Royal Commission and the transcript of his record of interview with the police. A7's evidence and statements could be summarised thus:

(a) He met the applicant during his summer vacation of 1983/84 and during that vacation went out on the applicant's boat on Sydney Harbour in excess of 10 times. He commented "I'd spent all summer with him." On another occasion A7 said that most of the holidays were spent with the applicant. A7 thought that it was mainly weekends. A7 said that he went on the boat with A6 and B36.

(b) At Easter 1984 he went to the applicant's property at Stuart's Point with the applicant, B36 and A10. There were two other youths at the property aged about 17. (I interpolate that Easter in 1984 was late. Good Friday was on 20 April 1984 and Easter Monday on 23 April 1984. 25 April 1984 was Anzac Day - There was an extended holiday period). (c) He had a number of sexual encounters with the applicant in this period. 73 The evidence of A7 does not suggest that he spent every day in the applicant's company during the school vacation. Ten to twelve trips on the applicant's boat over a six to eight week period in about December-January indicates that while there was frequent contact that is as far as it goes. Further, the statement that he thought contact was mainly at weekends is also limiting. The evidence of A7 does not preclude extensive contact between M and the applicant over the period October 1983-early March 1984. Similarly while the potential evidence of B36 corroborates the evidence of A7 as to spending time with the applicant it does not preclude extensive contact between M and the applicant.

74 The applicant emphasised the conflicting evidence given by M as to when various events occurred. However, it was eventually made clear that the events the subject of counts 1 to 5 occurred prior to M moving to Sydney with his family in late March/early April 1984. He had turned 13 on 26 October 1983. There was confusion and mistakes as to dates and times in sections of his evidence but by the end of his evidence the time sequence and approximate periods when events happened could be determined. As to the counts on which the applicant was convicted the jury may not have attached much importance to discrepancies and mistakes in M's evidence, the events alleged having happened 14 years previously. These were matters for the jury to evaluate. They had to be satisfied that the events alleged happened within the time frames specified in the counts but not on particular days or weekends or in particular weeks.

75 The applicant contends that the judge erred in not discharging the jury after M corrected some of his earlier evidence when his attention was drawn to the school records. It was correct for the Crown to draw M's attention to the records. Counsel for the applicant protested claiming that he had been deprived of a potent line of cross-examination. He had been going to question M along the lines of why was he flying from Kempsey to Sydney when he lived in Sydney. Counsel sought the discharge of the jury. The object of a trial is to obtain evidence which is correct. It is not to maximise the impact of cross-examination. Apparent mistakes should be corrected at the earliest opportunity. The judge correctly rejected the application to discharge the jury.

76 The applicant submitted that he had been convicted on the uncorroborated evidence of M and in instances where other evidence either conflicted with M's evidence or did not support it. The applicant gave three illustrations. M described many people at the farm whom the applicant made disappear while he molested M. No such person gave evidence. This is not surprising after many years. There would normally be nothing memorable about being assigned to other activities. A10 denied that there was a mutual masturbation in which he and his brother were involved as alleged by M. However, there was evidence of masturbation sessions. The Royal Commission report refers to A10 telling the police of masturbation sessions involving the applicant, A10 and two other boys. Of course, this was not in evidence before the jury but there was evidence at the trial to the same effect. It was open to the jury to accept M's evidence. The applicant also relied on M's mother having no recollection of her son having flown to Sydney for a long weekend with the applicant before she and M moved to Sydney. However, she added "I just had a feeling that he had been to Sydney with Philip because for a young boy, that when we did move down to Sydney [M] seemed to know exactly where he was." The applicant's points do not render the verdicts open to a successful challenge.

77 There was evidence supporting that of M. For example, the evidence of SA as to the applicant seeking out M at Maroubra Beach in about 1984, his treatment of the group to which M belonged in taking them on outings and giving them gifts, his cuddling M and displays of affection towards M, and the day at Whale Beach, in which he made M sleep in his bed that evening, M's reactions and upset state the following morning and the applicant's effeminate conduct towards M. SA said that the applicant introduced himself as M's "Uncle Phil". There was also the evidence of A10 as to masturbation sessions at the farm involving the applicant, M, A7 and B36 and one incident at the applicant's Darling Point unit. This was in relation to count 12.

The applicant submitted that the judge was mistaken in supporting the Crown's contention that the evidence of Mrs SAH was inaccurate. The judge did not support that contention but rather he summarised it. The Crown did not contend that the whole of her evidence was inaccurate. The Crown accepted that she lived at the applicant's farm from September 1981 to September 1983 subject to certain periods when she was away, including from mid-December 1981 to about mid-January 1982 and from mid-December 1982 to about mid-January 1983 and the Easter period in 1983. She said that the applicant and she and her family had the use of the farm and that the applicant would ring and indicate when he wished to go there. She said that in late 1983 she and her family moved to an adjoining farm. In cross-examination she said that in 1981 and 1982 the applicant did not come to the farm except during the Christmas break. She said that she did not see him from mid-January 1983 to Easter in April 1983. She did not see a group of young people living at the farm during this period at weekends except for two named people who came up to the farm and stayed close to Easter. Mrs SAH stated that between Easter 1983 and September 1983 she did not see a group of young people coming to the farm on an almost weekly basis.

79 In cross-examination by the Crown she agreed that in her statement to the police she had said "During the times I lived at the farm or at the house I met several young boys who came to the farm with Philip or visited him. Usually this happened as a result of the boys riding motorcycles down our driveway and Norris' farm driveway which allowed a short cut to Philip's farm property." She agreed that she had named some of the boys in that statement. One was S and another one was M.

80 When asked if it was true that during the time that she had lived at the farm she met several young boys who came to the farm with Philip, she replied, "No it is not true when I lived at the farm. When I lived in the neighbouring farm." Ultimately, she said that she had made a mistake in her statement. The Crown contended that the evidence of Mrs SAH was inaccurate where it was inconsistent with her statement and the evidence of M's mother and that of A10. There is no substance in this complaint of error on the part of the judge.

"Appellant claims that M perjured himself on counts 1 to 5 and therefore cannot be believed in relation to counts 6 to 13."

In support of this contention the applicant relied on a variety of points which are briefly discussed.

The applicant submitted that the Crown offered no convincing corroboration for any of M's testimony, either before he moved to Sydney (counts 1 to 5) or after (counts 6 to 13). There was supporting evidence and it was outlined by the judge to the jury. In any event, supporting evidence is not necessary. The applicant pointed out that SA gave evidence about an event concerning M of which M gave no evidence. Having regard to the multitude of occasions on which there was sexual activity foisted on M by the applicant according to M's evidence this is not surprising. The applicant suggests that the judge made no mention of SA's evidence in his summing-up. He did (SU 20.11.98 at 66-68) and he specifically referred to SA's evidence of the incident at Whale Beach at SU20.11.98 at 66-67.

This related to an incident of homosexual intercourse at the applicant's Whale Beach house during the period that M lived at Maroubra. M did not mention anyone else staying overnight. It is correct that there was no direct corroboration of M's evidence.

84 Count 7 alleged another incident of homosexual intercourse at Whale Beach. There was no direct corroboration. M said that he spent the night at the applicant's Whale Beach house alone with him. In the indictment it was alleged that the incident occurred between 1 January 1985 and 25 October 1986. The applicant contended that the only time the incident could have occurred was prior to 25 May 1985 as the beach house was let from that date for five months and on 20 October 1985 the applicant had a serious motorcycle accident which left him incapacitated until well into 1986. In his final address the Crown Prosecutor put to the jury that the incident happened at Whale Beach in 1985, probably prior to May. In his evidence M stated that he could recall the applicant saying something about a proposal to introduce an "Australia Card". This enabled M to differentiate this incident from other instances of sexual activity with the applicant. He agreed in cross-examination that he did discuss the Australia Card with various friends at Whale Beach, although he could not recall if M was present and when the debate was going on. The applicant recalled that while M lived at Maroubra he (Bell) picked M up and took him to Whale Beach.

85 At the hearing of the appeal evidence was admitted, without objection, that the "Australia Card" issue was in the public domain since early 1985. As the Crown pointed out there would have been little to achieve by the Crown producing evidence at the trial as to the period in which this debate was topical. It continued over several years and did nothing, in the context of the evidence in this case to pinpoint when the event in count 7 occurred. The applicant mistakenly suggested that the debate occurred only in 1987.

86 Count 8 alleged that the applicant had homosexual intercourse with M at his Darling Point unit. It was a weekend and Michael Mahoney and his girl friend, Eve, were staying in the unit in another room. The applicant took M to the room in which Mahoney and his girl friend were staying and M saw the semi-naked form of Eve in bed with Mahoney. M found this very arousing. The applicant took M to his bedroom, placed his hands down M's shorts and masturbated M, then removed M's shorts and performed fellatio on M. The applicant then grabbed M's hand and placed it on his [Bell's] penis and made M masturbate him while he fellated M. Mahoney died many years prior to the trial.

87 The applicant pointed out that the Crown did not call Eve to corroborate whether she had stayed overnight at his unit at a time when M was there and called no corroborative evidence to support count 8. The applicant gave evidence that Eve was at his Darling Point unit on at least one occasion when M was also there and that, although he could not recall, he could not deny that M stayed overnight whilst she also stayed overnight. It is not to be supposed that Eve knew what the applicant was doing with M. She would probably have been preoccupied with Mahoney.

(a) The applicant was acquitted of count 9 but convicted of counts 10 and 11. All three counts alleged homosexual intercourse by the applicant with M between 1 January 1985 and 1 January 1986 at the applicant's farm. As to count 9 M said that the applicant requested him to use the bed on an enclosed verandah opposite the applicant' bedroom. M did so as he was feeling a little drunk and very tired. While M was in the bed the applicant came to it and according to M carried out a series of sexual acts constituting homosexual intercourse. M said that he and SB called the verandah area in which the bed was situated "nightmare alley".

(b) As to count 10, M said that the applicant and he were at the farm when the applicant's brother Geoffrey Bell, and his three children visited. They did not stay overnight. M said that the applicant asked him to sleep in the area he called nightmare alley and he did so. The applicant came to the bed in which M was sleeping, laid down beside M and carried out acts of homosexual intercourse including anal intercourse and felatio.

(c) As to count 11 M said that he was at the farm. The adult, Stephen Little was there. M said that during dinner both the applicant and Little treated him like a pet and like a toy, which he did not like. M went across to the games cottage and played pool that night on his own. About an hour later the applicant came across to the games cottage, dragged M into the side room and proceeded to have anal intercourse with him. The applicant did not use any KY gel so it hurt M. M said he screamed, cried and tried to push the applicant off. The applicant was drunk and just pushed himself on to M, M said that he remembered the night "really well because I kept sneaking inside the cottage to get back at him to what he did to me. I kept turning the music up full bore." The music was in the main cottage. M said that the applicant became very angry and screamed and shouted at him. He said the applicant hopped in his car and shone the lights of the car around the property trying to find M, that the applicant swore at him and threatened to run him down. M said that he was terrified and hid under the tank.

(d) The incident the subject of count 10 was recalled because it happened on the day of the visit of Geoffrey Bell and his three children. The incident the subject of count 11, was very memorable and one likely never to be forgotten.

(e) A reading of M's evidence tends to suggest that the incidents happened on different weekends. M said that about every month during 1985 there was an incident in which the applicant subjected him to sexual misbehaviour. There were four day weekends.

(f) While A10 and SB said they were not aware of the term "nightmare alley", DC gave evidence of the use of the term to refer to the verandah at the farm and of SB and another boy CG using it. The applicant's contention that the term was invented by M as part of a story he was planning to sell to 60 Minutes television programme was not supported by the evidence.

(g) The applicant submitted that the Crown offered no explanation as to how M managed to be at the farm so often in 1985 while living in Sydney. Whether these alleged events occurred on different visits to the farm is not completely clear but that does seem to be the evidence of M. It is possible that two or more of these events occurred during an extended visit. M's mother recalled one occasion in which the applicant and M travelled from Sydney to Stuart's Point and her son stayed there for a week. In cross-examination she said that that was the one occasion which stood out in her mind. She could not remember any other occasion. That does not mean that there was only one occasion.

(h) The applicant said in his evidence that M only visited the farm once in 1985. The applicant confirmed M's evidence as to count 9 about there being an occasion in 1985 when the late Graham Johnson came to the farm. The applicant also confirmed that there was an occasion in 1985 when his brother and his children came to the farm (count 10) and that there were occasions in 1985 when Stephen Little was staying at the farm. As the Crown pointed out it is difficult to envisage M having any recollection of such people coming to the farm in 1985 unless he was present.

(a) Shortly after Michael Mahoney's death M was at the applicant's Darling Point unit with A10. The applicant handed out items of the deceased's clothing to them. M said that at one point the applicant sent A10 down the street. M detailed acts by the applicant on him amounting to homosexual intercourse. The applicant submitted that A10 gave a different version.

(b) A10 said that on the day in question he went out "once for sure, maybe twice". He went out with M, two girls and another male. They went shopping and bought a number of items. A10 said that if he did go out another time it was probably to a shop "just around the corner from Darling Point."

(c) The applicant pointed out that M did not mention going shopping with A10 nor the others present on that day. The focus of M's evidence was different. It was directed to the conduct of the applicant. That was what he was being asked about.

(d) The applicant confirmed that there was an occasion on which the late Mr Mahoney's clothing was distributed. It is doubtful whether the evidence of M and A10 are inconsistent. There is a divergence as to the details each recalls but they are not matters of consequence, if there was a second occasion on which A10 left the applicant's unit. Further, the jury must have thought that M's recollection of the applicant subjecting him to homosexual intercourse on that day was correct.

(a) M alleged that the last occasion of sexual abuse by the applicant was around six months after the death of Michael Mahoney. M said that the applicant took him to a surf shop and purchased a wet suit for him. They returned to the applicant's Whale Beach house where the applicant performed homosexual acts on M. In cross-examination M was asked to give an estimate of the number of times the applicant had abused him in the six month period after 31 December 1985 and M gave the estimate of around twenty times. His estimate was that about 50 per cent of these instances were at Whale Beach. That would be about eight occasions. This was an approximate figure, being based on an approximate initial estimate.

(b) The applicant pointed out that in 1986 M was living at Stuart's Point and regularly attending Kempsey High School. M could not recall how many times he flew to Sydney. The applicant contended that this was inconsistent with and renders unbelievable M's assertion that he was sexually abused many times at Whale Beach in 1986 including count 13. Count 13 related to a specific incident. The type of cross-examination engaged in was unlikely to impress a judge or a jury; it was not useful. It involved setting up an "Aunt Sally" away from the real issue and then endeavouring to demolish the "Aunt Sally". It does not follow that because the complainant estimated eight episodes of sexual abuse there must have been the same number of trips to Sydney.

(c) The applicant complained that the Crown had produced no air tickets or reservations or other evidence to corroborate M's evidence that he frequently flew from Kempsey to Sydney in 1986. These would probably not exist in 1998. The High School records are unlikely to show M's flights or trips to Sydney. In the first half of 1986 school holidays would take up most of January. In addition there would be the Easter period with associated school holidays, the Anzac weekend, the Queen's Birthday weekend and other weekends.

(a) The applicant submitted that M was motivated to fabricate evidence against the applicant in the hope of making money from selling his story to the media and of obtaining compensation from the Victims Compensation Tribunal.

(b) In cross-examination M said that he contacted Mr Peter Wilkinson of the Channel 9 show, 60 Minutes, in about November 1994 about selling his story about the applicant. Figures of the order of $180,000 to $250,000 were discussed. This was prior to his record of interview with the police in April 1996. M said that he decided not to proceed with his venture with the 60 Minutes programme after leaving Saanen in Europe to come back to Australia. He returned to Australia in late November 1994. M agreed that he approached the Channel 7 network to sell his story. He spoke to a researcher attached to the Jana Wendt Witness Show but there was no discussion at that stage about money or the price of M's story. This was in about April 1996.

90 M said that after some initial conversations with the researcher, Channel 7 flew him and his girl friend to Sydney where he held discussions with the researcher and another employee of Channel 7. M said that they had many talks about the story and how things were to be done. He wanted the camera to have the angle of what happens from a child's point of view. He agreed that he told the researcher that he had a story to sell regarding the applicant and that he had entered into negotiations to sell his story to 60 Minutes. He denied that he told her that he was interested in a figure of $100,000 or more. He said that he did not indicate any amount of money. He said that he was told by Channel 7 that the network had a policy of not paying for stories.

91 M agreed that he went with the woman researcher to a storage facility outside Brisbane and showed her various articles and things which he claimed belonged to the applicant.

92 At the conclusion of M's cross-examination the Crown Prosecutor stated that the Crown wished to place on record the contents of some notes made by his instructing solicitor during the course of a conference with M: "Re 60 Minutes. Deal struck for five hundred K. I still got 5K. We have another deal. When it's all finished I will be paid some money. Not nearly as much as before."

93 M denied that he had made remarks to this effect. M said that the only money that had been paid was $4970 by the applicant. He had not been paid $5000 by any media entity and, in his discussions with Channel 9 the figure of $500,000 was never mentioned. M said that he had resolved not to sell his story.

94 Ms Youdale, the woman researcher at Channel 7, said that she had first met the applicant in 1977 at his Whale Beach residence. She was aged 13. She became a friend of the applicant. In 1988 she became a journalist and in the 1990's she obtained a job working with the Witness programme (Channel 7). She received a telephone call from M and thereafter had numerous telephone conversations with M. She was also in contact with the applicant, both overseas and later in Australia.

95 In cross-examination Ms Youdale said that when M telephoned he said that he had a story we might be interested in, that he had testified at the Wood Royal Commission and he had a story to sell. He said that he was having negotiations with 60 Minutes (Channel 9), they had not really committed to the story, they had not started filming and they had not decided a fee for his story. He was interested in what sort of fee he could get if Channel 7 committed to doing a story with him. He questioned whether Channel 7 would be able to pay him two amounts, $100,000 and $170,000.

96 She arranged for M and his girl friend to be flown to Sydney. She and a producer from Channel 7 met M. The issue of money was further discussed. She said that M said that he had stolen items from the applicant's safe and a desk. There were other items. During the interview M mentioned that A10 had received $25,000 from Current Affair (Channel 9) and $25,000 from the Victims Compensation Tribunal. M said he had been planning to contact the media with a story about the applicant for about a year and collecting items which might be useful. She went to Brisbane to view the items. She said that M never had a contract with the Witness programme. He was paid a small sum ($500 or less) for the time he had spent with Channel 7. M never suggested to her that he had a contract with the 60 Minutes programme or that he had been paid any money by it.

97 Mr Peter Wilkinson said that he was a journalist "currently producing with 60 Minutes" and was acting in a similar capacity when he spoke with M. Mr Wilkinson said that M stated that he first met the applicant when M was aged eight and that the applicant's molestation first started about six months later. Mr Wilkinson said that M stated that he first met the applicant at Grassy Head Beach, that he (M) had been surfing, that the applicant would give him a lift with his surfboard and that after a period he went to the applicant's farm and also went water skiing with him.

98 On the evidence taken as a whole it is improbable that M met the applicant when he was aged eight and shortly thereafter went water skiing with him. Surfboard riding for a boy aged eight is unusual. There is likely to have been some misunderstanding between M and Mr Wilkinson despite the latter having made written notes. This was a matter for assessment by the jury. They may have thought that even if the applicant incorrectly stated to Mr Wilkinson that he was aged eight when he first met the applicant, this was not a matter of consequence given the issues which they had to determine.

99 M's contact with the media and his desire to be paid for his story about the applicant was covered in much detail at the trial. He was subjected to an extended cross-examination which went over that ground several times. Ms Youdale gave evidence on that point and the Crown's note was read to the jury. By the time of the trial M had received nothing from the media except a paltry sum ($500 or less for his time) and had no prospect of obtaining any money. There was evidence that he had received $4970 and, on one view, more from the applicant and the inference was open that the payment and the overseas trip for M, funded by the applicant, were intended to encourage M not to go to the media. There were also the threatening letters (Exhibits 11-13) from the applicant to M in about July and September 1995. The suggestion that even at the date of the trial M may have had a deal with the media depended mainly on the note made by the Crown's instructing solicitor of M's statement. The other evidence was to the contrary and it was more cogent. It was not put to M that because he had tried to make a deal and failed and had been interviewed by the police and given a version of events he was locked into that version. This would not seem to be a powerful argument. On the evidence it would have been obvious to M during 1996 that neither Channel 9 nor Channel 7 intended to pay him substantial sums of money. Channel 9 would not commit itself and Channel 7 had told him that it did not pay for a story such as his.

100 It was open to the jury to take the view that the applicant was very keen to persuade M not to go to the media and that long before the trial M had been given to understand that no money from the media (except a small sum for his time) would be forthcoming. Nevertheless, shortly before the jury retired the judge correctly gave this direction (SU 14-15 of 244/11/98):

"As to the evidence of [M] you may recall that after his evidence was complete, learned counsel for the Crown made this statement in your presence. He told you that prior to entering the witness box, there had been a discussion during the course of a conference with the witness, at which his instructing solicitor was present and that instructing solicitor had made the following note of something which [M] had said and I quote 'Re 60 minutes deal struck for 500K. I still got 5K. We have another deal. When it's all finished, I will be paid some money not nearly as much as before.' That's the part of the note which the Crown read to you.

You will remember of course, that [M] said in evidence that there was no mention of $500,000 which is what of course, 500K represents. He did not get, he said $5,000 but $500. There was no other deal he said. If, having regard to that concession however, made by the Crown, you come to the conclusion that there may have been another deal, in other words, once (sic) which is current at this time and of course, at the time that [M] gave his evidence then I warn you that his evidence may be unreliable. It may be unreliable because of exaggerations which he may have made and indeed more than exaggerations perhaps, for this purpose of enhancing media interest in what he had to say. I warn you also of the need therefore, for caution in determining whether to accept his evidence and the weight that you give to it, in light of that. You may remember that when Mr Wilkinson gave evidence before you, neither counsel, neither counsel for the accused nor for the Crown asked Mr Wilkinson whether there was any current deal with Channel 9."

101 The applicant also relied on M applying for victims compensation in 1996 relating to sexual abuse by the applicant and his application being pending at the trial. M was awarded $50,000 in November 1999. This specific matter was not before the jury. As such applications are commonplace in cases involving sexual offences and expected, inquiries could easily have been made and subpoenas issued. In his re-examination the applicant accused at least one of the boys of putting down his age so he could claim victims compensation (T1805-1806). The Crown objected. The judge commented that any citizen is entitled to make application for victims compensation. The jury were aware of its existence. In any event M's claim was unlikely to have made any significant difference especially in the light of the applicant's threats and payments. Raising victim's compensation can rebound on an accused. The lodging of a claim can be regarded as being consistent with the evidence of the complainant.

102 The applicant relied on a statement by his solicitor, David McIlwraith, on 29 May 2001 of a meeting by arrangement between Mr McIlwraith and SB at Gate Q of the Olympic Stadium on 1 October 2000. Mr McIlwraith said that he and SB talked for twenty minutes across a turnstile and discussed a number of matters. According to Mr McIlwraith, SB said that M had set the applicant up and had not to his knowledge ever had sex with the applicant. Further, SB said M had offered him half of what he would make if SB agreed to give evidence against the applicant. Mr McIlwraith said that SB mentioned other matters about the case and they agreed to meet again. Two meetings were arranged but did not take place, the first meeting being postponed and SB not attending the second planned meeting. Mr McIlwraith said that afterwards he received a telephone call from a Sergeant from Dee Why Police Station that SB was fearful of Mr McIlwraith contacting him and would seek a restraining order if Mr McIlwraith contacted him again. Neither Mr McIlwraith's statement nor what SB said to him amounts to admissible evidence. Nor is it material of value.

103 I do not accept that all verdicts after those on counts 2, 3 and 4 "because of contamination via 'similar fact' evidence" are suspect or unreasonable or not supported by the evidence. Nor do I accept that the allegedly unreliable evidence of M as to counts 1-5 affects all other verdicts.

104 The applicant next submitted that there were additional issues which reinforced and confirmed that the verdicts were unsafe and unsound. By that I take the applicant to mean that they were unreasonable and cannot be supported having regard to the evidence.

BB was born on 4 February 1970. He first met the applicant in about December 1984 at Palm Beach at a bus stop. The applicant offered BB, DD and a friend a lift home in his blue BMW. He asked them a lot of personal questions. They were guarded in their replies, suspecting that the applicant may be a police officer. They insisted that he let them off at a food shop. They walked home from there. The applicant mentioned that he needed someone to clean his boats. A few days later when BB was mowing the lawn at the front of his home the applicant pulled up in his car. He told BB he had been looking for him and asked BB if he could go and clean his boat. BB agreed and gave the applicant his telephone number. By arrangement with the applicant BB went to the Palm Beach Marina. BB and the applicant worked on the boat. They ran out of rags and the applicant suggested they go up to his home at Whale Beach to get some more rags. They did so in the applicant's BMW. The applicant opened the boot, which contained a pornographic movie. He suggested they watch it. He put on the movie in his bedroom, undressed and told BB to do likewise. He did. They were both lying naked on the bed. The applicant masturbated BB until he had an erection and then put his mouth over BB's penis and BB ejaculated. The applicant had some KY Gel and put it on his penis. He then placed BB's hand on his (the applicant's) penis and made BB grab it. This incident was the subject of count 14, homosexual intercourse, of which the applicant was convicted.

106 BB gave evidence of a series of outings on the applicant's boat, going water skiing and driving the boat while the applicant skied. There were other people on the boat from time to time. BB said that he also went to the applicant's house. Most times when he was alone there with the applicant, the latter masturbated him. This continued over one to two years. The applicant also had BB masturbate him. BB said he met other boys at the house and nominated them.

107 He said that on two occasions he was taken by the applicant to his farm at Yarrahapinni. Detailed evidence was given of what happened. On the first visit the applicant masturbated both BB and A10.

108 Evidence was given of a further incident at the Whale Beach house involving the applicant, BB and two other boys. The youths had all been smoking marihuana and drinking alcohol in the applicant's presence. It was alleged that the applicant offered BB and the two other youths money to masturbate themselves in front of him. This was the subject of count 15, incite act of indecency by a male under 16. The applicant was acquitted of this count.

109 The applicant noted that the police had approached BB and that BB had not approached them. The applicant complained that the police had held a discussion with BB at the Narrabeen Sands Hotel before his record of interview. BB said that he told the police in general terms what had happened. Later, in his interview, he covered the same matters in detail. The applicant contended that this earlier discussion at the hotel had compromised the integrity of BB's evidence on count 14. A general discussion prior to the record of interview does not have this effect. There is no basis for suggesting that the integrity of BB's evidence had been compromised. The recorded interview took place at Gosford Police Station on 27 May 1996.

110 The applicant further complained that Det Lewis mentioned the matter of victims compensation to BB prior to the interview. The evidence of BB is that he did not become aware of victims compensation prior to the interview (T659-660). BB said that Det Lewis mentioned it halfway through the interview. See also at T667 where it appears from BB's record of interview that the prospect of compensation had not been in his mind.

111 The applicant has written that it was not in dispute that BB had met him just before he turned 15 and that therefore no charge could be laid for mutual masturbation because of the limitation imposed by s.78 of the Crimes Act - prosecution to be commenced within 12 months. The applicant submitted that for a charge to be laid it was necessary for BB to allege oral or anal sex before he turned 16 and that this was also necessary for him to claim victims compensation. The applicant denied any oral sex. The applicant pointed out that in 1996 BB lodged a claim for victims compensation and that on 18 June 1999 he was awarded $42,785. The applicant contended that BB's evidence was contaminated. At T657 the Crown conceded that counsel for the applicant was entitled to cross-examine BB to attempt to exploit his application for victims compensation and when he had become aware that such an application could be made, and to call evidence in his own case on those topics. The judge stated that he would allow such cross-examination. BB was not cross-examined on these topics and there were sound tactical reasons for counsel not to do so.

112 Exercising a legal right to claim victims compensation does not of itself contaminate the evidence of a victim who is a witness. More is needed. In the present case there was material from BB in his record of interview which was adduced in evidence that his evidence was not motivated by the prospect of victims compensation.

The applicant contended the evidence of BB, JL and DC was inconsistent at key points and that the central issue was the date of the alleged incident. I turn to examine the evidence.

114 JL said that he first met the applicant through BB on an outing to a restaurant in the city at which the applicant paid for the boys' meals. After that he visited the applicant's Whale Beach house and his farm at Yarrahapinni. On one occasion while at the farm the applicant touched JL on the penis on the pretext of examining it to ascertain whether there was any injury following a motor bike incident. JL pushed the applicant away. This was not the subject of a charge.

115 Count 16 alleged that the applicant had homosexual intercourse with JL between 8 April 1985 and 31 December 1985. According to JL he went to the applicant's Whale Beach house with BB and DC a couple of weeks after Easter 1985, Easter Sunday falling on 7 April 1985.

116 In cross-examination he said that he doubted that it was in late 1985 but it could have been. The original dates in the indictment alleged that the offence occurred between 27 May 1985 and 31 December 1985. They were amended on trial day 25 to read 8 April 1985 to 31 December 1985.

117 JL said that BB, DC and he had dinner with the applicant at his Whale Beach house and consumed some alcoholic liquor. They watched some pornographic videos. JL became aroused. The applicant sat on the chair between DC and JL. BB was sitting on the floor. The applicant threw a blanket over the laps of DC, JL and himself. He unzipped the trousers of JL and masturbated him. It was the first time he had ejaculated. The applicant had his hand on DC's groin and used his foot to arouse BB. JL said that his skin had been cut and his penis was sore. JL said that he felt a bit sensitive, went into the bathroom and washed up some more in the shower. JL said that when he told the applicant that he thought he had cut himself the applicant said "Let me see if you are all right" and "sort of quickly placed his mouth over my penis". JL said his penis went into the applicant's mouth. It was there for a couple of seconds.

118 JL said that he may have been at the applicant's house on a previous day but he did not remember. He was not there more than twice. He said that after this incident he changed his friends and had nothing more to do with the applicant.

119 JL estimated that the incident occurred a couple of weeks after he returned to Sydney from the applicant's farm. JL said that he made but one visit to the farm and was pretty sure the farm visit was in the 1985 Easter holidays. He said that the incident occurred "probably about six months prior" to his family moving house to premises in George Street, North Avalon. His mother said that JL went to the applicant's farm in the Easter holidays 1985. She said that within weeks JL told her he was going to change his friends. His mother said the move to George Street, North Avalon was in December 1985.

120 BB described three boys masturbating while the applicant watched. He did not mention being touched or masturbated by the applicant nor a blanket being thrown over them. He placed the incident in late 1985 after he and JL returned from the applicant's farm.

121 Count 17 (as amended) alleged homosexual intercourse between the applicant and DC between 8 April 1985 and 31 December 1985. It was a companion count with count 16. DC was born on 15 July 1972.

122 DC described being on the couch with the applicant sitting between himself and JL, and BB being on the floor. DC said that the boys took off their board shorts, that the applicant performed oral sex on himself (DC) and, he thought, on JL and possibly on BB. He did not mention a blanket. DC placed this incident as occurring after a visit he made to the farm on his journey from Sydney to Tweed Heads, BB and JL being already there. DC's mother said that she had driven from Sydney to Tweed Heads in May 1985 and that they stopped at the farm so DC could see his friends, BB and JL.

123 As earlier mentioned the applicant's beach house was let from 25 May 1985 to 25 October 1995 and he was severely injured in a motor cycle accident on 20 October 1985. The incident could not have occurred between 25 May 1985 and 25 October 1985. During DC's evidence in chief on trial day 14 the Crown read on to the transcript (without objection) that he was enrolled at Tweed River High School from 7 June 1985 to 25 July 1985. DC had been dealt with by the Children's Court on 6 May 1985. The Crown prosecutor erred when he said to DC that the school records indicated that he was at Tweed River High School on 6 May 1985. DC said that he could not remember how he came to be in Sydney for the hearing on 6 May 1985. DC's mother said that she and DC returned from Tweed Heads to her home at Avalon about August 1985.

124 The applicant pointed out that the Crown, in support of its application to amend the indictment and in its closing address relied on an assertion that DC gave evidence that he was in Sydney in May 1985 for the hearing as to one of the convictions about which he was cross-examined. It was plain that DC was in Sydney on 6 May 1985 for the Court hearing. What was very doubtful, if not impossible, was that he went to Tweed Heads much before late May 1985.

125 In the Crown's closing address, the prosecutor relied on two photographs, one of BB and one of DC taken on the same day at the applicant's Whale Beach house. The applicant said they were taken before he let the house in May 1985. The Crown put the matter to the jury thus:

"In all probability counts 15, 16 and 17 happened … prior to the letting of Whale Beach in May 1985. It … happened after Easter 85 … in all probability it happened between 8 April 1985 and the date when the lease commenced which is some date in May … Looking at it realistically it is within a one and a half month period or so this incident happened."

126 JL stood apart from the other boys. Once he had been the object of homosexual intercourse by the applicant he ceased associating with him and the other boys. DC confirms this.

127 The jury was entitled to rely on the seemingly reliable evidence of JL and his mother as to when the incident occurred. Further, the evidence of DC and his mother, when correctly analysed, suggests that DC was in Sydney after the Easter holidays in April, on 6 May 1985 and possibly a little longer.

128 One further matter needs to be discussed. The applicant contended that the judge wrongly permitted the Crown to amend the starting date of the period mentioned in the indictment, that is from 25 July 1985 to 31 December 1985 to April 1995 to December 1995 Counsel for the applicant at the trial contended that he had cross-examined JL, BB and DC on the basis of an indictment which alleged an offence from the middle of 1985 until the end of 1985 and that he did not cross-examine going back to April 1985. Counsel complained that the amendment proposed would create an element of unfairness to the applicant. Counsel said that the gist of his cross-examination was to seek to place the events alleged further or later into 1985. The pre-mid year was not dealt with. Counsel said that his instructions were that the incidents alleged did not happen. Counsel explained that, to catch the three men out on lies, he tried to lead them into areas which could not be right. The Crown prosecutor pointed out that there were four times in the cross-examination of JL (T712-718) when counsel for the applicant ascertained that the incident was within a couple of weeks of Easter, that is in April 1985. Evidence to the same effect was given in JL's examination in chief. JL was doubtful if it could be late 1985. As the judge pointed out at T718-9 it was suggested to JL in cross-examination that the alleged offences (counts 15-17) were committed in late 1985, but JL did not resile from about mid-April 1985. Counsel for the applicant said that the differences in the accounts of the witnesses were being pointed out. BB also talked of going to the farm around Easter time.

129 The judge's decision to allow the amendment was correct. Following delivery of judgment the Crown Prosecutor enquired whether the applicant required any of the complainants to be recalled for further cross-examination as a result of the amendments to the indictment. Initially, counsel for the applicant said he wished to take his client's instructions and to consider his position overnight. A little later the applicant's counsel said:

"on further reflection … on the basis of the changes to the indictment, no application is made to recall any of the witnesses."

130 The complaints made as to counts 16 and 17 are rejected.

This count alleged homosexual intercourse with DC between 25 July 1985 and 19 November 1985. The Crown alleged that about six months after the sexual incident referred to in counts 16 and 17, DC and a friend entered the applicant's Whale Beach house and stole a video recorder and some stereo equipment. The applicant discovered that DC was responsible for the theft and said "there's two ways we can deal with this. We can go to the police or do it my way" or words to that effect. DC said the applicant stated that if he went to the police DC could end up in gaol or a boys' home. DC said that the applicant mentioned his brother who was in gaol at the time and said words to the effect "You wouldn't want to end up there, would you?" DC said that he was scared at the prospect of going to gaol. The applicant grabbed DC and took him into his bedroom. DC said the applicant took DC's clothes off and those of the applicant. Both of them were on the bed. The applicant inserted his penis into DC's anus. DC said he was about 13 at the time and if the applicant had not given him the two options mentioned he would not have permitted the applicant to penetrate his anus. DC said that over about two years the applicant used his penis to penetrate DC's anus on about five occasions. DC said that the applicant required DC to penetrate the applicant.

132 The applicant contended that the incident the subject of count 18 was impossible because of time constraints and improbable given all the other circumstances. As to the time constraints the applicant relied upon:

(a) his letting the beach house from 25 May-25 October 1985.

(b) his incapacity during the summer of 1985-86 and well into 1986.

(c) having the use of his beach house for three days at the end of January 1986 and the second and fourth quarters of 1986 and not otherwise.

(d) DC describing six months of regular boating, water skiing and surfing with the applicant soon after he returned from Tweed Heads to Sydney in about August 1985 and not long after the count 17 incident. The applicant contended that this could only refer to the summer of 1985-86 and was impossible because of the tenancy and the applicant's accident.

133 The applicant submitted that there was no period in 1985 or 1986 when DC's description of his many activities with the applicant could have occurred. Elsewhere in his submissions the applicant wrote:

"Bell spent some weeks in hospital [after his motor cycle accident], then about six months recuperating, some of this time at Whale Beach after Thomas vacated but before his Christmas tenants moved in."

134 The applicant asserted that he spent six months in a back brace. There was evidence from Mr Skudder that the applicant returned to work wearing the back brace. Mr Thomas gave evidence of being at the house at weekends from 26 May 1995 to 25 October 1985 and renting it for that period. There was some evidence that the lease went to 25 November 1985, but Mr Thomas' occupation seemed to end on 25 October 1985. His wife occasionally used the house mid-week. He also had friends there. Mr Thomas said that the applicant was not permitted to use the house during the lease. Mr Thomas leased the house again from about 25 January 1986 to 25 April 1986.

135 In reply the Crown submitted that the applicant was proceeding on the assumption that DC's recollection and estimation of the times when the various events occurred was precise and accurate. After such a long period of time this was an assumption of dubious validity. The count is framed in terms of a relatively wide period, 25 July 1985 (when DC left school at Tweed Heads) to 19 November 1986 (when DC's brother was released from prison). The incident itself was memorable. The actual dates when the events occurred are not so important provided they occurred in the period mentioned.

136 DC said the incident occurred somewhere around the time his family moved to Foamcrest Avenue, Newport because he was living at that address at the time of stealing the applicant's video and the act of anal intercourse occurred one to two weeks after that. DC's mother said that the move occurred in late 1985 and that they lived at the Newport address for "a bit over a year". DC estimated that he was aged 13½ years at the time of this first act of anal intercourse. On the evidence taken as a whole it might be estimated that the event occurred in the first half of 1986. There was evidence that at least by April 1986 the applicant had been swimming and that in April 1986 he intended to resume surfboard riding.

137 It was open to the jury to conclude that the events alleged in count 18 occurred during the 16 month period alleged. There was acceptable evidence that the events happened after 25 July 1985 and prior to 19 November 1986. It was also open to the jury to conclude that the events happened in the first half of 1986 and probably prior to the onset of winter.

138 In support of his contention that the evidence of DC was improbable the applicant submitted that DC's description of coerced anal sex is unbelievable in the context that DC's sexual relationship with the applicant, including oral sex was, on DC's evidence already well established by the time of the alleged anal sex incident. DC said the applicant used KY lubricant on him (DC) for masturbation but not for the count 18 incident. The applicant further submitted that DC, on his own evidence, remained a friend of the applicant after the count 18 incident, seemingly unfazed by what, if it were true, would have been a frightening and unpleasant experience. The applicant submitted that it was undisputed that DC used to contact the applicant and not vice versa and that when DC changed his address he wrote his new contact addresses and telephone numbers into the applicant's 1988 and 1989 diaries. The applicant relied on DC stating that he could not say whom of two of his friends was with him when he stole the video. The Crown did not produce the friend who was supposed to have been with DC.

139 The applicant's alleged demand for anal intercourse significantly escalated the sexual relationship between the applicant and DC. DC had committed a crime and was scared about the police being called and being sent to gaol or a home. DC felt he was bound to do what the applicant required and that this was his punishment. The maintenance of contact by DC with the applicant and keeping company with the applicant after the event may be explained by the charismatic nature of the applicant's personality (of which there was much evidence) and the material inducements he offered. The applicant set the ground rules.

140 The jury were entitled to take the view that the factors relied on by the applicant did not render the evidence of DC as to the occurrence of the incident improbable.

This alleged homosexual intercourse by the applicant with DC at Darling Point was said to have taken place between 15 July 1986 and 14 July 1988, when DC was 14 or 15 years of age. The evidence was that the applicant used subterfuges to contact DC because his parents disapproved of him having anything to do with the applicant. DC gave evidence that on one occasion when he was at the applicant's Darling Point unit and was at least 14, the applicant penetrated DC's anus. He could not recall the exact date. According to DC he had an extended relationship and contact with the applicant until he was 16. Then he stopped seeing him. By that time he claimed he had realised that he would not have gone to gaol for stealing a video and a piece of Hi-Fi equipment and what a bad person the applicant was. While DC was extensively cross-examined about the events the subject of count 18 and related matters and the truth of his evidence generally was challenged, there was no cross-examination generally about the events the subject of count 21. The cross-examination generally was aggressive, repetitive and provocative. DC became agitated, heated and belligerent. There were some torrid exchanges. The judge tried to calm everyone and kept a firm control over the proceedings.

142 The applicant complained that the charge should never have been permitted because of the lack of specificity as to date and content of the alleged incident. He relied on S v The Queen (1989) 168 CLR 266. The Crown was correct in its submission that there was sufficient precision in DC's evidence to sufficiently identify the event and to differentiate it from all other events. This was the only instance that the Crown alleged that the applicant had penetrated DC's anus at the applicant's Darling Point unit. The verdict was reasonable and supported by the evidence.

Counts 24 to 38 related to CA and covered the period from 24 August 1987 to 4 August 1989. The jury acquitted the applicant of counts 33 and 37, but convicted him of the remainder of the counts. These verdicts were not inconsistent for the reasons explained by the judge in his remarks on sentence. Omitting counts 33 and 37 there were nine counts of assault with an act of indecency and four counts of homosexual intercourse. CA was the fifth and last complainant at the trial. The applicant complained that by the time CA gave evidence the jury had heard a large amount of evidence much of which was perjured or tainted. He submitted that there was no way of knowing the degree to which the jury relied on "similar fact" evidence to reach their verdicts on CA. The applicant contended that all convictions relating to CA were unsafe.

144 CA was born on 25 June 1974. He grew up in Lilyfield with his mother, who had an illegal drug dependency, and with her boyfriend and his brother Z. His second brother was born in January 1990. His mother was on a pension and there was not much money in the house. He met the applicant through friends who were working at a house in Leichhardt, when CA was aged about thirteen. The applicant, who was using the name Philip Hill, was renovating the house. The applicant offered to take the boys out on his boat and did so within about a week. Thereafter he and they had many outings on the boat. About five to seven days after meeting the applicant, CA took him home to meet his mother as the applicant was looking for someone to make curtains. Nothing eventuated. Either on that occasion or a later occasion the applicant asked if he could take CA on a five day skiing trip to the Snowy Mountains. CA was very keen to go and eventually prevailed upon his mother to let him go.

145 Count 24 alleged an assault with an act of indecency on CA, aged thirteen between 24 August 1987 and 4 September 1987. On the first evening of the trip to the snowfields and in a hotel room, the applicant gave CA some expensive Swiss pyjamas to wear, got into bed with CA and masturbated him. This was the first time CA had ejaculated. The mother's note to his school and the school records supported the absence of CA at the Snowy Mountains. Evidence was given of entries in the register of a motel at Jindabyne showing that the applicant stayed there on the nights of 27 and 28 August 1987.

146 Count 25 alleged an assault with an act of indecency on CA between the dates last mentioned. On the third night of the trip the applicant again masturbated CA, He also grabbed CA's hand and caused CA to masturbate him.

147 Count 26 alleged an assault with an act of indecency on CA between 24 August 1987 and 30 September 1987. On the weekend following their return from the skiing trip the applicant collected CA from his home and took him to the Whale Beach house. He took CA surfing and out on his boat. He had CA sleep with him in his bed and masturbated CA.

148 Count 27 alleged an assault with an act of indecency on CA between the dates last mentioned. On the following weekend the applicant again took CA to Whale Beach. The applicant took CA out to dinner at Jonah's Restaurant where he had lobster. When they returned to the applicant's home the applicant masturbated CA and caused CA to masturbate him in the applicant's bed.

149 Count 28 alleged an assault with an act of indecency on CA between 1 September 1987 and 25 December 1987. Not long after the trip to the Snowy Mountains the applicant took CA to his farm at Yarrahapinni. During the weekend the applicant took CA into the bedroom of the guest cottage and masturbated him. He also made CA masturbate him.

150 There were other incidents over that weekend in which the applicant masturbated CA but they were not charged.

151 There was another trip to the farm not long afterwards. On this second occasion CA was accompanied by his mother, his brother Z, and a friend. Mutual masturbation between the applicant and CA occurred in the applicant's bedroom at night while the others were asleep in the guest cottage. There were no charges in respect of this visit.

152 Not long after this trip the applicant took CA to Fraser Island, Queensland, in the company of another adult, Stephen Little, and A10. All four camped on the island for a couple of days. The applicant and CA shared one tent and the others shared a second tent. Immediately afterwards CA spent a couple of days at a nearby resort with the applicant. At each place CA slept with the applicant and mutual masturbation took place. The applicant's diaries showed the trip to Fraser Island in October 1987. A10 gave evidence of the applicant and CA sharing a tent at Fraser Island. A10 said that when the applicant and CA were not in the tent the applicant behaved in a way similar to the way he had behaved towards A10, such as patting on the knee or shoulder in an affectionate manner. The applicant did not dispute that he shared a tent with CA.

153 After the trip to Fraser Island CA spent a great deal of time in the applicant's company. Sexual contact between the applicant and CA occurred frequently.

154 Count 29 alleged an assault with an act of indecency on CA between 25 December 1987 and 1 February 1988. On 26 January 1988, the day of the Bicentennial celebrations in Sydney, the applicant held a party at his Darling Point unit. This party was attended by CA, his mother, Z and others. Later that evening CA's mother was sent home as she was inebriated. CA slept that night in the applicant's bedroom. Mutual masturbation occurred. There is no room to doubt on the evidence that CA spent the night at the applicant's unit.

155 Count 30 alleged homosexual intercourse by the applicant with CA between 25 December 1987 and 24 June 1988. Some time after the Bicentennial celebrations and before CA's fourteenth birthday on 25 June 1988 the applicant, CA and another youth SB were at the applicant's Whale Beach house. The three of them were watching a pornographic video. The applicant performed oral sex on CA for the first time, and masturbated SB.

156 Count 31 alleged homosexual intercourse by the applicant with CA between the last mentioned dates. CA and Stephen Little were staying with the applicant at the Whale Beach house. Some days after an incident involving Little, the applicant asked CA if he (the applicant) could perform anal sex on CA.. They were in the applicant's bedroom. CA refused but the applicant lifted CA's legs and performed anal sex on him.

157 Count 32 alleged homosexual intercourse by the applicant with CA between the last mentioned dates. The next night the applicant again had anal intercourse with CA in the applicant's bedroom at Whale Beach. The applicant did not seek permission. Prior to penetrating CA with his penis, the applicant performed oral sex on CA and also penetrated CA anally with two fingers. After this CA did not see the applicant for a few weeks.

158 Count 34 alleged an assault with an act of indecency on CA by a person in authority between 15 August 1988 and 15 September 1988. The applicant took CA and SB on a trip to the snowfields. School records were in evidence showing SB's absence from school. On the first night in Jindabyne in a motel room the applicant slept in a double bed between the two boys. The applicant masturbated CA and SB and they masturbated him. Sexual contact between the applicant and CA occurred on other occasions during this trip, but they were not the subject of charges. Evidence was given of entries in the motel register showing that a person using the name of Hill paid for a room for the nights of 28, 29 and 30 August 1988. The price charged indicated two to three people stayed in the motel room. SB also gave evidence confirming what CA said about the applicant masturbating both of them. Ms M Peters, who knew the applicant and lived in Jindabyne in 1988 said that during the 1988 skiing season she saw the applicant with CA and SB in Jindabyne. She went skiing with him one day and had dinner with them and he stayed in her house at Berridale on one night.

159 According to SB they spent the first night of this trip at Bumblegumbie, the second night at Berridale at Ms Peters' house and the third, fourth and fifth nights at the motel. SB confirmed that the applicant had masturbated him and CA and that there was a mutual masturbation session. SB said the applicant kept a bottle of KY gel in a brown dilly bag

160 Count 35 alleged an assault with an act of indecency on CA by a person in authority between 1 and 31 December 1988 at Darling Point. At this time CA was taking hard drugs. The applicant arranged for CA to go to Darwin at the end of 1988 to try and rid himself of his drug addiction. The applicant's diary notes showed that the trip occurred in mid-December 1988. One or two nights before CA left for Darwin he stayed the night at the applicant's Darling Point unit. Mutual masturbation occurred using a sexual lubricant. The applicant and CA also performed oral sex on each other.

161 Count 36 alleged an assault with an act of indecency on CA by a person in authority between 1 April and 31 July 1989 at Whale Beach. CA said that he spent about five months in Darwin and during that period got off drugs. He could not get them there. Upon his return to Sydney he contacted the applicant and spent the next weekend at the applicant's Whale Beach house. The first night that CA saw the applicant he stayed the night and mutual masturbation occurred.

162 Count 38 alleged homosexual intercourse by the applicant on CA between 1 and 30 June 1989 at Yarrahapinni. Some time after a boating trip in which the applicant's boat was moored off Mackerel Beach for the night, CA went to the applicant's farm, travelling with DC by train. It was around the time when there was a wedding at the farm and CA's fifteenth birthday. Both youths did paid work at the farm for the applicant. On the evening of CA's birthday there was a celebration attended by CA, the applicant and other youths from the area. Some of the youths stayed the night in the guest cottage. The applicant and CA stayed in the main house. That night, at the applicant's request CA went into the applicant's bedroom. The applicant had anal intercourse with him which caused CA to bleed from his anus.

163 CA subsequently stayed at the applicant's Tweed Head property and worked on it with another youth when he was aged about sixteen. Sexual contact with the applicant continued there, but no charges were laid. Soon afterwards CA decided not to see the applicant again.

164 There was evidence of the applicant giving CA sums of money over an extended period and other gifts, providing him with outings and treats and with accommodation and meals.

165 GP, a friend of CA and about four months older than CA gave evidence of an occasion when he was in the applicant's unit at Double Bay with CA, the applicant having driven them there from Lilyfield. It was common ground that the unit was at Darling Point. When it came to bedtime the applicant and CA went off together into the same room to sleep. GP did not see CA come out of that room. GP slept on the lounge. The applicant denied this evidence.

166 CA's mother had died prior to the trial. Her statement of 11 October 1996 was read on to the record. It provided substantial support for much of CA's evidence and provided details of his long and intense association with the applicant. It is unnecessary to rehearse all the details of that statement but there are some points that should be noted. She confronted the applicant and told him that she believed he was homosexual. He did not deny it. However, he told her that he would not do anything to hurt children and that he only wanted to help them. He introduced her to some of his older male friends and she concluded that he liked adult males and not young boys. Prior to going to the snowfields for the first time the applicant assured her that he would look after CA and treat him "like he's my own son." She said that after the first trip to the snowfields the applicant took over the role of "dad" and that CA was basically with him all the time. CA spent many weekends with the applicant.

167 CA's mother said that after he returned from Darwin CA started seeing the applicant a fair amount. This was also after a man she described as George had died. She said that CA was away from Sydney for weeks and months at a time and that this continued until about January 1990 when her youngest son was born. CA said that he lost the job he had had after an altercation with an employer and that that was why he returned at that time. He still went away but for shorter periods and generally spent more time at home than he did away.

168 The Crown relied on the evidence of SB that the applicant as well as using the name of Philip Hill, introduced CA to him, and on a subsequent occasion to SB's father when he was seeking to take SB out, as the applicant's son.

169 A10 said that he saw CA at the farm when they were both there. A10 said that he saw CA use two bedrooms, one of which was at the side of the house ("nightmare alley") and the applicant's bedroom once or twice. A10 asserted that on the occasion or occasions when CA went into the applicant's bedroom to sleep, the applicant also slept in that bedroom. The applicant disputed this evidence of A10.

170 SB corroborated the evidence of CA that on the way back to Sydney from the snowfields and about the Campbelltown region there was an incident of mutual masturbation involving the applicant, CA and SB. This was inconsistent with the applicant's evidence that his relationship with CA was not a sexual one. SB also corroborated that the applicant referred to CA and himself as "my number one boys". The evidence of CA and SB made it plain that this phrase had a sexual connotation. The applicant gave the phrase a different and non-sexual meaning. The jury were entitled to give no weight to the applicant's evidence on this point.

171 CA's credit was severely attacked in cross-examination. He was cross-examined at some length about his previous convictions for offences of dishonesty and he admitted stealing a gold watch. Ultimately the attack did not have much impact. It did not seem to assist the applicant in resisting charges involving serious sexual offences. In cross-examination of CA it was suggested by the applicant's counsel that there was a real possibility that the applicant had saved CA's life by sending him to Darwin and thereby preventing him from taking a drug overdose.

172 Apart from counts 33 and 37 the Crown case against the applicant in respect of CA was a very strong one given all the supporting evidence. That was summarised by the judge at pp 8-19 of the summing-up of 23 November 1998. Indeed the applicant's conviction on the counts on which he was found guilty was inevitable. His case was not credible. He denied that he had any sexual relationship with CA at any time.

173 A detailed study of the evidence reveals that the convictions were not unsafe. They were reasonable and amply supported by the evidence. Indeed, the evidence against the applicant in respect of the counts involving CA on which he was convicted was of such strength that the support of "similar fact" evidence was unnecessary. With that evidence the Crown case was overwhelming.

174 Issue 8 - Tendency or "Similar Fact" Evidence Issue 9 - Multiple Trials

These issues overlap and should be considered in conjunction.

The applicant submitted that it was impossible to establish the degree to which the jury relied on "similar fact" evidence. The applicant contended that with the benefit of hindsight the defence at his trial should have applied to reject such evidence. The applicant said that four young men who were called by the prosecution confirmed that while they had met with him they had no sexual encounter with him. He wrote that two named young men, who were not called as witnesses, had given statements to the police that they knew the applicant but had never had a sexual encounter with him. He also stated that many of these had done odd jobs for him at his farm or other properties and some of them had a friendship with him lasting many years. The applicant submitted that a proven or admitted sexual encounter between the applicant and one young man cannot lead to any inference or conclusion that the applicant had a sexual relationship with any other named young man.

175 The applicant contended that the concept of "similar fact" evidence is questionable in a case such as his and that the admission of such evidence contributed in some degree to the verdicts described by him as unsafe.

176 The applicant submitted that the judge erred in refusing a separate trial in respect of each complainant and that the trial was unfair because of its length and complexity. The trial before the jury commenced on 12 October 1998. The evidence concluded on 16 November 1998. Addresses took place on 17, 18 and 19 November 1998. The summing-up commenced after the luncheon adjournment on 19 November 1998 and continued on 20 and 23 November 1998. It concluded early on 24 November 1998 with the jury retiring at 11.10 am on that day to consider its verdict. The jury deliberated on 24, 25, 26, 27 and 30 November 1998 returning its verdicts from 2.55pm on the last mentioned day. The applicant pointed out that the trial transcript exceeded 2000 pages. The applicant submitted that as it was an "age of consent" trial, dates were the key to a just outcome. He submitted that there were literally hundreds of relevant dates and stressed that there were several changes to key dates even during the trial.

177 The applicant contended that no jury could, or should, have been expected to follow, analyse and understand all the detail because of the sheer volume of evidence, particularly dates, and that without a firm grasp of all the dates, it was impossible for them to arrive at the truth and a just outcome.

178 The Crown pointed out that in the course of dealing with the application for separate trials the judge considered the admissibility of the "similar fact" evidence. That matter had been canvassed in argument. The Crown in opposing the application for separate trials submitted to the judge that pursuant to s.97 and/or s.98 of the Evidence Act 1995, even if there were separate trials, a jury would be entitled to consider the evidence of each of the five complainants involved in the 38 charges in relation to all of the charges involving the four other complainants. The Crown also proposed to call two other persons to give evidence of a coincidence and/or tendency nature. Counsel for the applicant at the trial opposed the admission of evidence of a coincidence and/or tendency nature.

179 Sections 97 and 98, 100(1) and (2) and 101(1) and (2) provide:

"97 (1) Evidence of the character or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party."

"98 (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and

(b) the circumstances in which they occurred are substantially similar (3) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party." "100 (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.

(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98. " … "101 (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

180 The judge gave these rulings: "In my view the evidence in relation to other counts in the indictment would be admissible in relation to any one count as is the evidence proposed to be called from the 2 witnesses in respect of whom no charges are laid, as tendency evidence pursuant to S97 of the Evidence Act. It is evidence of conduct which shows that the accused had a tendency to act in a particular way, it has probative value within the meaning of S55 of the Act in that it could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceeding ie whether the accused did the act alleged in respect of any particular count. The probative value is 'significant' as being important or of consequence. It provides a pattern of conduct within which the jury may more readily come to the conclusion that the allegation in relation to a particular act relied upon in respect of a particular count has been made out. Whilst of course there is always a risk that a jury may use evidence on a basis logically unconnected with this issue in the case and hence be prejudicial to the accused, this would involve their ignoring directions which I would give in relation to the limited way in which they might use such evidence and the legal presumption is that they would not do so. Hence in my view the probative value of this evidence substantially outweighs any prejudicial affect (sic) it may have on the accused pursuant to S101(2) of the Evidence Act. In my view the evidence would also be admissible pursuant to S98 as coincidence evidence. The evidence established 2 or more related events which because of the improbability of the events occurring coincidentally could rationally affect the assessment of the probability of the existence of a fact in issue in relation to a particular count, namely, whether the accused did the particular act alleged. I am satisfied that the events are "related events" within the meaning of S98(2) because they are substantially and relevantly similar although I am not entirely convinced that all of the incidents of similarity relied upon by the Crown are relevant to this issue. I am satisfied that the circumstances in which they occurred are substantially similar. Again I am satisfied that the probative value of the evidence considered as coincidence evidence substantially outweighs any prejudicial affect (sic) it may have on the accused and that within the meaning of S98(1)(b) it has 'significant' probative value. The Crown however, has not served notice in writing of any intention to rely on this evidence as coincidence evidence. S100(2) gives me discretion to admit the evidence as coincidence evidence notwithstanding failure to give notice pursuant to S98. Although during the course of argument, I did express the view that having regard to the Crown's reliance on the 'substantial similarity' of the acts in question, the evidence seemed to be more appropriately considered as S98 evidence rather than S97 only, nevertheless in light of the fact that the Crown has elected to service (sic) notice pursuant to S97, my present intention would be to admit the evidence pursuant to that Section and not S98. However, no final determination of this need be made at this point in the proceedings."

181 In Pfennig v The Queen (1995) 182 CLR 461 the majority (Mason CJ, Deane and Dawson JJ) said at 464-5: "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."

After an extensive review of the authorities and applying what had earlier been said in Hoch v The Queen (1988) 165 CLR 292 at 294-6 the Justices continued at 482-483: "Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect."

At 484 the Justices said: "… the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed."

182 In R v Lock (1997) 91 A Crim R 356 it was held that the test for admissibility under the Evidence Act 1995 was identical with that at common law.

183 The judge was alert to these principles. Thus he held that the admissibility of tendency/coincidence evidence - "depends upon my assessment of the material placed before me and on a finding that there is no reasonable hypothesis that the circumstantial evidence in the form of tendency/co-incidence material is explicable on the basis of either concoction or infection."

184 The judge in posing this test was mindful of the observations of Mason CJ, Wilson and Gaudron JJ in Hoch at 296 that in cases where there is a possibility of joint concoction there is another rational view of the evidence which is inconsistent with the guilt of the accused. The practical reasons for that view were expressed at 302: "If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof. That consideration is of special importance in cases where the fact to be proved is inferred not from similar facts which have been clearly established but from the concatenation of the testimony of a number of witnesses who depose to the occurrence of similar facts. The credibility of that testimony bears directly on the probative force of the evidence. Several witnesses all giving evidence to a similar effect are generally easier to believe than one witness. But if the witnesses have put their heads together that is not the case."

185 The judge after reviewing the materials placed before him concluded that collusion or infection would not be a basis for excluding the tendency/coincidence evidence. That decision was correct as were the reasons given by the judge. This Court has had the benefit of much fuller material and the extensive evidence subsequently given before the judge at the trial. From those materials and that evidence, this was not a case where there was a reasonable possibility of collusion, concoction or infection. The boys came from various places and backgrounds and were selected by the applicant. While some of them were together with the applicant at times and some were friends, they ended up going their separate ways and having little or nothing to do with each other. The events happened over an extended period starting in 1983 (or possibly earlier) and ending in 1989. The police investigation started in about 1995 or 1996 with the police contacting most complainants and witnesses. If it had not been for the police seeking out the evidence most of it would not have emerged. During the trial counsel for the applicant asked questions of various witnesses seeking to establish whether there had been collusion. The answers given rebutted any suggestion of collusion, concoction or infection. There was no basis for any claim along those lines.

186 The judge rejected the applicant's submission that he should exercise the discretion given to him by s.135 of the Evidence Act 1995 to exclude the tendency/coincidence evidence on the basis that its probative value would be substantially outweighed by the danger of the evidence being misleading or confusing.

187 The judge acknowledged that the jury would face a difficult task in dealing with 38 counts and the statutory provisions under which the counts were variously laid. However, the difficulties were not insuperable. The judge held: "Notwithstanding the difficulties which the jury may have I accept the submission of the Crown that the case which it proposes to make, limited as it is to the evidence of 5 complainants, is likely to be no more complex for a jury than some fraud charges or drug charges which juries commonly are called upon to determine. As I have indicated the evidence in relation to each of the counts is substantially probative in relation to the others and I am not persuaded that the probative value of such evidence would be substantially outweighed by the danger that the evidence might be misleading or confusing to the jury. Accordingly I reject this as a basis for ordering separate trials of any of the counts in the indictment. The evidence being admissible pursuant to S97 of the Evidence Act and being satisfied that there is no reasonable explanation consistent with innocence either on the basis of collusion or otherwise for rejecting the evidence, I am of the view that the application to sever the counts in the indictment fails and is rejected. I am also of the view that the evidence of the 2 witnesses, [G] and [S] is admissible pursuant to S.97."

188 The judge was correct. It should not be overlooked that even if there had been separate trials the Crown would have been entitled to call on the trial of one complainant the tendency/coincidence evidence of the other complainants.

189 The judge's refusal of separate trials was the subject of an appeal. On 8 October 1998 this Court (Spigelman CJ with whom Abadee and Ireland JJ agreed) found no error in the judge's decision to admit the tendency/coincidence evidence which led to his decision to refuse separate trials.

190 In his judgment of 30 October 1998 as to the admissibility of similar facts aspects of the evidence of A10 the judge held that his evidence was admissible under s.98 of the Evidence Act. The judge after referring to his earlier judgment refusing separate trials and to his view that the probative value of the evidence substantially outweighed any prejudicial effect said: "Having now heard each of the complainants in evidence and subjected to cross-examination I am reinforced in those views."

A study of the transcript established that this observation was correct.

191 By at least 2 November 1998 (T1250) it seems that the judge thought that the evidence of the boys, now young men, was more appropriately admitted under s.98 of the Evidence Act 1995.

192 The judge gave these extensive directions as to the proper use of tendency and/or coincidence evidence at SU46-49 of 20/11/98: "I now turn to consider with you the extent to which you may have regard to evidence of other complainants and of the witnesses [A10] and [SB] in determining whether in respect of any other complainant and in respect of any of the charges, the Crown has established its case. Again, you may not use this evidence as indicating that does the accused (sic) had a tendency or propensity to act in a particular way and I will come to the limited way in which you may have regard to this evidence in a moment. As I have explained to you, you are obliged to approach the task of coming to a verdict in respect of each of the charges separately and on the basis of the evidence which is relevant and admitted in respect of that particular charge. As I have said before, it would be wrong to conclude that because you have found that the Crown has established its case in relation to only one charge, therefore it has necessarily established its case in respect of any other and I have also told you that it would not be proper for you or correct to conclude that because the Crown had established its case of only one charge, in relation to one complainant, it had therefore established its case in respect of any other charge in respect of another complainant. I have also tried to emphasise the vital evidence for the Crown in respect of each of these charges is the evidence of the complainants. In some circumstances nevertheless, the law does permit the evidence of other acts similar to those the subject of a particular charge to be taken into consideration in determining whether the Crown has proved that particular charge. For the purposes of this case this may arise where there is other evidence which is so strikingly and relevantly similar to the evidence given by the complainant in respect of a particular charge, as to indicate to you a pattern of conduct of the accused of which you form the view that the particular charge in question forms a part. There will be such a pattern of conduct where the evidence of the complainant in relation to the particular charge under consideration, bears such a striking and relevant similarity to the conduct of the accused, disclosed by the evidence of other complainants in the case, and/or the evidence of other witnesses such as [A10] and/or[SB] that such a pattern develops and emerges in your view, beyond reasonable doubt. The Crown relies on a number of such circumstances of striking and relevant similarity in this case. Among the matters of similarity on which it relies is for instance that the accused would approach boys who were either sub teenagers or in the very early teens. He would entertain them or excite their interest by introducing them to activities which they would not in their own personal circumstances be likely to be able to enjoy otherwise. He would employ as part of his technique of seduction, so says the Crown, video films with explicit hetero-sexual features likely to interest and sexually arouse boys of that age. He would permit or even in some cases, supply alcohol to be taken by people, who are according to our usual standards, too young to be allowed to consume alcohol. In some cases he would give them money or permit them to obtain goods on his charge account or give them presents or take them to places at his expense. There would be, so argues the Crown, a progression of seriousness in the sexual conduct which the accused would indulge in with these boys, starting with touching or patting then on to masturbation, mutual or joint, then oral sex and in some cases to anal intercourse. In addition there was such things as making available Penthouse magazines and the use of KY gel for the purposes of masturbation or in some cases anal intercourse. If you come to the conclusion beyond reasonable doubt, that the evidence does disclose such strikingly and relevantly similar features, as to reveal a pattern and to which any one of the particular acts charged falls and which you have under your consideration, then it would be open to you to have regard to that pattern as circumstances in determining whether that particular act relied on by the Crown occurred as the act of the accused. In order to do so however, you must be satisfied beyond reasonable doubt that there was such a pattern of conduct based on relevantly and strikingly similar circumstances and that there is no other explanation consistent with the innocence of the accused to account for such a pattern of conduct on his part towards these complainants and also to [A10] and[ SB]."

193 The judge gave a similar direction during the trial at T1230-1231. The jury was correctly directed.

194 Inherent in the applicant's submissions is the contention that as the evidence disclosed that he did not engage in sexual activity with every boy he spoke to and had either a working or social relationship, the tendency or coincidence evidence of sexual encounters with one or more boys could not be used to support a conclusion that the applicant had a sexual relationship with a particular complainant or particular complainants. This contention misses the point. Of course, the applicant may decide with which boy or boys he will have a sexual encounter. He may have had selection criteria. It is an offence if he has sexual activity with any under-age boys. The admissibility of the evidence in the present case depended upon striking similarities and the pattern which emerged from a number of instances of the applicant's sexual activities with a number of boys.

195 As the Crown pointed out the coincidence evidence in the present case was of a similar style to that accepted as admissible in R v M J White [1999] NSWCCA 336.

196 There is no substance in the contention that the evidence in question was wrongly admitted.

197 As to the complaints of the multiple trial and complexity, the jury were given a schedule entitled "Details of Charges and Allegations". That listed each charge, the name of the complainant, the dates and place of each alleged offence, the type of offence and the details of the alleged act. The trial transcript reveals that the jury were given this document during the Crown Prosecutor's opening address. The jury received correct directions as to its use, namely, as but an aid to their understanding of the Crown case and as a statement of what alleged act of the applicant was relied upon by the Crown as constituting the offence in respect to each of the charges (SU 5-6 of 19/11/98)

198 During his opening address the Crown took the jury through the Schedule and explained it (T197 of 13 October 1998). He summarised the Crown case on each charge. Thereafter the Crown led its evidence as to each count in the indictment sequentially, the Crown Prosecutor explaining as he did so to which count in the indictment the particular evidence related. The jury would also have received help from the exhibits tendered as each complainant's case was dealt with. Both the Crown Prosecutor and counsel for the applicant addressed the jury at length and in detail.

199 In his summing-up the judge dealt with each count and the evidence in relation to it. He also covered matters of a more general nature. The judge also summarised the applicant's evidence and submissions. The judge dealt with the issues as to the dates alleged and the arguments advanced to them. He gave this general direction: "As to the question of dates, as I have already said, Mr Crown has correctly informed you that provided you are satisfied beyond reasonable doubt that the offence alleged in the charge was committed within the range of dates alleged and that the complainants were then under sixteen in respect of all the charges, except charges 24 through to 29 when in which case the Crown must show that the alleged victim was under fourteen, the Crown does not have to prove that the offence was committed on any particular date." 200 The summing-up contains a useful summary of the evidence and the judge was careful to relate his directions of law to the facts. After having heard the comprehensive summing-up the jury would have been well able to deal with the charges. By that time (if not before) they would have mastered the complexities of the case.

201 The Crown submitted that the fact that the jury were able to properly consider their verdicts on each individual count, notwithstanding that there were then five complainants and thirty-seven counts, with many dates and periods of time relevant to each, was indicated by the verdicts delivered. They returned verdicts of not guilty on nine counts. That indicates that the evidence on those counts gave rise to a reasonable doubt. In his remarks on sentence the judge explained as to each of the counts on which the applicant was acquitted, why the verdict of acquittal was probably entered and that the basis of acquittal was rational. He rejected the suggestion of inconsistency of verdict as to some of the counts on which the applicant was acquitted. The judge stated that there was a doubt whether the offences alleged in the nine counts on which the applicant was acquitted had been committed within the dates specified in the indictment. The judge's reasons explaining the acquittals are convincing.

202 An examination of the trial transcript, the summing-up, the verdicts entered and the judge's remarks on sentence reveals that the jury should have been and was able to handle this multiple trial competently and could and did analyse and understand the detailed evidence including that as to dates. The verdicts returned were those which could reasonably have been expected. The jury gave their verdicts extensive consideration. There is no substance in the contention that the trial was unfair from the outset because separate trials were refused or, I would add, at any stage.

The applicant correctly submitted that prior to his trial there was a large amount of publicity in print and on television prejudicial to his case, The judge refused a stay of proceedings and this refusal was upheld on appeal. The applicant acknowledged that the judge sought to cure any prejudicial effect of this publicity by instructing the jury that they must ignore anything they may have heard or read about the applicant and decide the case solely on the evidence presented in court. The applicant submitted that the judge unfairly expected the jury to be able to wipe from their minds the pre-trial publicity and that in the real world it was doubtful (to put the case at its lowest) whether the jurors were capable of cleansing their minds of all they had read or seen pertaining to the applicant's arrest, extradition from South Africa, charging and trial. The applicant further submitted that there was no way to determine whether or to what extent the pre-trial and during trial publicity played on the minds of the jurors and affected their deliberations and verdicts.

204 The applicant submitted that these unknown factors may have combined with the other weaknesses and deficiencies complained of earlier to render the trial unfair, and the appealed verdicts unsafe. In his judgment of 8 October 1998 the judge detailed some of the severely prejudicial material which appeared in the media. For example, on a very well known TV programme, aired at prime time, the commentator described the accused as a "millionaire merchant banker, paedophile, who for twenty years now has preyed on countless young boys". The commentator went on to assert that the applicant had done this with "virtual immunity" because he had established a relationship with a network of corrupt police. There were even more prejudicial statements, some of which were expressed in colourful and attention-catching language. The adverse material extends from 1993 to 1998 with a great deal of it in 1996.

205 The judge accepted that the applicant had been the subject of a barrage of publicity from the media, that this has had potential prejudicial effect in disclosing his prior convictions, his involvement in corrupt activities with dishonest police and admitted or notorious paedophiles and that some of this publicity had been couched in inflammatory and sensational language. The judge nevertheless thought that the public interest in bringing the serious charges to trial must prevail. The judge found that a great deal of the publicity was so remote in time as to mitigate its seriousness as a threat to a fair trial and noted that he was constrained by authority to hold that jurors will abide by directions of law given to them.

206 The Court of Criminal Appeal held that Judge Davidson had applied the relevant principles. Spigelman CJ applied two comments of Gleeson CJ in earlier cases: "The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character ( R v PH CCA unreported, 4 March 1994). and "Some of the arguments advanced by the appellant are tantamount to saying that, in the events that happened, it was impossible for him to receive a fair trial in front of a jury, and that if he could not have a trial without a jury he should never have been put on trial at all. I would reject this. The criminal justice system, of which trial by jury is an integral part, often has to function in circumstances of intense publicity potentially prejudicial to an accused person. Various mechanisms, including, where necessary, proceedings for contempt of court, are available to protect the integrity of the system. Ultimately, however, it is the capacity of jurors, properly instructed by trial judges, to decide cases by reference to legally admissible evidence and legally relevant arguments, and not otherwise, that is the foundation of the system." (R v Milat , CCA unreported 26 February 1998) 207 It does less than justice to the capacities of jurors to imagine that they accept, or accept uncritically, what appears in the media. When they have actual evidence before them they focus on that.

208 The Crown referred to the remarks of Spigelman CJ:

"This kind of publicity is unquestionably capable of having an impact on persons who constitute juries. However, there are mechanisms by which such impact can be ameliorated."

` 209 Steps were taken to ameliorate the impact of the publicity. Prior to empanelling the jury the judge had the Crown read out the names of the witnesses it intended to call and explained to the jury panel that the accused was Philip Harold Bell. The judge outlined to the jury panel the name of each of the alleged five victims, the dates during which and the places at which the alleged offences were said to have been committed and the nature of the charges. The judge emphasised to all members of the panel that they had to act and only act on the evidence, that is what was given from the witness box and other material placed before the jury in the courtroom. The evidence did not include anything which may have come to their ears or eyes before they were sworn or from any other source including the media. He instructed the jury panel that anything which was not part of the material admitted into evidence in that courtroom which came to their notice was to be excluded entirely from their consideration.

210 The judge directed the jury panel that if any of them had, or thought he or she had some information acquired from any source relating to the accused or the circumstances of these alleged offences, anything relating to the persons named in the charge other than the accused (the complainants) or anything in relation to any of the proposed witnesses which any panel member thought would prevent or hinder him or her from considering the case impartially, dispassionately and based only on the evidence to be led, putting all else aside completely, such member should identify himself or herself now and he would hear an application that such a member be excused. The judge also asked any member of the jury panel, who thought that he or she may not be able to exclude entirely from his or her mind any publicity, to identify himself or herself for the purpose of being excused. One jury panel member identified himself in the manner requested and the judge heard the application and excused that panel member.

211 The judge's instructions were clear, firm and comprehensive. At the end of the first day of the trial (T186) the judge referred to and reiterated the instructions he had given to the panel members prior to their being sworn as jurors. He reminded them of the need to determine the case solely upon the evidence led in the courtroom and to disregard anything acquired from any other source. The judge repeated the substance of his earlier instructions and made it clear that the jurors must put right out of their minds any publicity in the media which came to their notice about the case they were hearing. The judge also asked them to try and avoid any media publicity coming to their attention.

212 On 23 October 1998 (T819) the judge again reminded the jury of their obligation to decide the case solely on the basis of what they heard in the courtroom and not on anything that may come to their eyes or ears outside the court, including anything reported in the media. This came after an inaccurate and prejudicial headline to an article purporting to report the proceedings had appeared in a major daily newspaper.

213 Immediately before the addresses commenced on 17 November 1998 (T1874) the judge reminded the jury of their obligation to reach a verdict solely on what they had heard by way of evidence from the witness box or seen by way of inspection of the various items admitted into evidence. He repeated his cautions given at the start of the trial, not to resort to any place nearby when arriving and leaving the court and to refrain from discussing the case, even on a casual basis, with anybody outside their own number.

214 In summing up the judge said (SU4-5): "As I have tried to emphasise throughout, your verdict must be based on the evidence which you have heard from the witness box and the documents which have been admitted into evidence as exhibits during the course of the trial. Your verdicts must be based on that material alone and such assistance as you may derive from the submissions of counsel. … I simply want at this stage to direct your attention to your duty to look at each of these charges separately with a view to determining your verdict solely on the basis of the evidence admissible in relation to that charge."

215 When the judge made an order allowing the jury to separate over the weekend commencing on 27 November 1998 while they were considering their verdict he said: " … again, I must emphasise the essential requirement that you do not discuss this case with anybody in the meantime. The community which we are all here to serve is entitled to a verdict from you not on the basis of anything that might come to your ears or your eyes outside this courtroom, but only on the basis of the evidence which has been given in this courtroom and what has been said in this courtroom. I would ask you to refrain from discussing this case with anybody, apart of course from yourselves when you are and if you are assembled together, and I would also ask you to avoid any media coverage of this case which may appear."

216 The course taken and the instructions given by the judge would have ensured that the jury decided the case solely on the admissible evidence. The applicant's complaint that the verdicts were unsafe because of media publicity fails.

217 Under cover of his letter of 27 June 2001, the applicant made further submissions as to the credibility of the evidence of SB. SB had received victims compensation of $40,000 and $9000 for costs. SB admitted in cross-examination that he had been paid moneys pursuant to his victims compensation application. SB gave evidence that he believed he was 15 when he first met the applicant and the latter began sexually abusing him. SB admitted that he could be mistaken. This was because of the alleged relationship in time to the date when the applicant leased a flat at Manly. The difficulties for the prosecution arising out of this presumably led to the acquittal of the applicant on count 33. SB was a witness, not the complainant. It was for the jury to consider whether this mistake, which was understandable given the lapse of years, affected the reliability of the remainder of the evidence of SB. Count 33 was but one of a substantial number of charged against the applicant arising out of his alleged conduct towards CA. The point was adequately covered at the trial.

218 Verdicts Unreasonable or Cannot be Supported Having Regard to the Evidence

The principles to be applied are set out in M v The Queen (1994) 181 CLR 487 at 493-494 and Jones v The Queen (1997) 191 CLR 439. In Jones the majority of Gaudron, McHugh and Gummow JJ discussed M and at pp 450-1 said: "In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: '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.'

The majority judges explained the application of the test as follows: '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 has 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.' " 219 That test and approach must be applied in the present case., There is the subsequent decision of Gipp v The Queen (1998) 194 CLR 106 at 114, 123, 150 162, 164 applying M. See also Fleming v The Queen (1998) 197 CLR 250 at 255-256; Giam (1994) 104 A Crim R 426 and R v Smith [2000] NSWCCA 468 at paras 33-36.

220 The Crown correctly submitted that the present case was one in which the jury enjoyed a considerable advantage in assessing the credibility and reliability of the witnesses. They saw each of the complainants and the other witnesses who gave evidence. Many gave evidence over an extended period both in chief and in cross-examination. For example, M spent nearly four days in the witness box, for almost two of which he was under cross-examination in the presence of the jury. The applicant also gave evidence in chief for about three hours and was cross-examined for about five hours. This would have been of considerable assistance in a case where the events happened many years before the trial and the jury had to deal with issues as to whether various events happened and, if so, when. One of the jury's tasks was to decide whether mistakes as to dates and times were adequately explained. Another task was to assess credibility of the complainants, the witnesses and the applicant. Could any weight be placed on his denials? It was also a case in which feelings ran deep and the manner in which evidence was given was important. Passionate and colourful language was used.

221 Although the applicant's evidence on sentence was obviously not before the jury it does provide some interesting insights as to the trial. He said at T87 of 8 February 1999: ", … during the course of my trial for the first time in my life, the notion came into my head that there was a potential for harm in the relationship between a man and a youth in a hebophiliac relationship. … I have heard evidence … that shocked and unnerved me in a way that has never happened in my life before. … I had never seen this concept (of victimhood) until I sat over there and saw young men, some of whom I had had long intimate relationships with, turn on me and look at me with hatred. This was a terrible defining moment in my life. … It happened when [DC] hit the stand. …"

222 After referring to DC having felt secure and loved in the applicant's home for a number of years the applicant continued (T88 of 8 February 1999):

"So, therefore, the shock factor of having him sit where I am now,and my sitting over there, and having him literally shout abuse at me said to me that for the first time in my life - I mean his - what have I done here? Am I responsible for this? What is this? Here is a loving friend whom I thought would be a friend 10, 20 and 30 years down the track, as many of these young men in the hebophile relationships I've had over the years still are. So here was a new, defining experience, and if it is possible that my relationship with a young man, the way that I have loved a young man can - has got the capacity to do damage, then there is no way in the world that I would allow a situation like that to redevelop." 223 The jury would have been able to observe the reactions of the applicant, the complainants and the other witnesses. In his oral submissions the applicant described the trial as one of great emotion and histrionics. The evidence of the applicant before the judge revealed the applicant as a man of mental agility and one who was capable of putting a favourable gloss on all that he did, but it was far from convincing.

224 The judge was careful to demonstrate in his remarks upon sentence that this was not a case in which it could be said that the verdicts were inconsistent. In his oral submissions the applicant agreed that the jury was intelligent and that they had "a sufficient reason for the mix of guilty and not guilty verdicts."

225 The Crown accepted that for the majority of counts in indictment 1 there was no direct corroboration of the complainants' accounts. The Crown correctly submitted that there was a powerful body of evidence which established a rather unique and consistent pattern of conduct by the appellant which substantially lent credence to the versions of the individual complainants (see SU 20 November 1998 at 48-49 and the detailed summary in the Crown Prosecutor's address at T1924-1929).

226 There was other additional evidence which supported the evidence of the complainants. This is summarised by the judge at SU 20 November 1998 at 62, to 23 November 1998 at 19. I have earlier referred to SA's evidence. This is one example.

227 The applicant submitted that there was a common factor which linked six of the seven complainants and similar fact witnesses, namely money. He asserted that before the trial A10 and SB were both paid a large amount of money (victims compensation) for under-age sexual contact with him and that at the time of the trial M, BB, DC and CA had claims for compensation pending. The applicant said that he was not sure about the position of JL. The applicant submitted that if the value of potential media contracts was added there was big money at stake on the trial. There was some evidence of one potential media contract as to M, but a warning was given as to M. The evidence, as a whole, does not support the suggestion that there are financially rewarding media contracts available to the complainants or the witnesses. I do not take into account small amounts paid for expenses, travel or time spent.

228 The applicant asserted that $449,320 by way of victims compensation was riding on the convictions. The Court is not aware how much each alleged victim received, although it does have details as to how much some received. It seems that some of the witnesses had already received their money. It is common for complainants, and witnesses who also claim to be victims in sexual offence cases, to have claims for compensation pending at the date of trial or to be considering making such claims or to have received such compensation. Indeed, they are sometimes cross-examined to the effect that they have not made a claim and that if their version of events was correct they would have done so. The Victims Compensation Tribunal is separate from the Crown. If an accused wishes to raise that matter at the trial the accused can have his counsel cross-examine as to that, or he can issue a subpoena (or its equivalent) to prove that a claim has been made. This is often a two-edged sword.

229 A victim has a legal right to claim victim's compensation and the exercise of that right does not contaminate the evidence of a witness who is a victim. It is different if it is shown that his evidence is driven by a desire to obtain money regardless of the truth. It is not improper for a victim who gives truthful evidence to want to obtain victim's compensation. This was a case in which the police sought out the alleged victims. They did not go to the police. It is apparent on reading the evidence that the complainants and some of the witnesses who alleged that they were victims, felt very deeply about the way the applicant had allegedly used them and committed serious criminal offences on them. Further, there was no credible evidence of the various complainants and other alleged victims having put their heads together to obtain victims compensation. The police interviewed the various young men separately and told them of their right to claim victim's compensation.

230 It was well open to the jury to reach the verdicts which they did. Any other result would have been surprising. The verdicts were reasonable and amply supported by the evidence. This ground of challenge fails.

231 The applicant submitted that even if this Court thought that none of his complaints was in itself sufficient to warrant a new trial, when they were taken together there was a real risk that there had been a miscarriage of justice and that a new trial should be ordered. I disagree. There has been no miscarriage of justice and no risk of a miscarriage. Even if this Court had granted the applicant leave to withdraw his Notice of Abandonment and leave to appeal out of time, the appeal against the conviction would have to be dismissed.

The applicant also sought to have the sentences imposed upon him, but not yet served, reduced. He told the Court that he did not want to appeal against the sentences which he had served. He advised the Court that he wished to appeal against the sentences on counts 31, 6 and 18. Whether he wishes to pursue appealing against the sentence on count 31 remains to be clarified. The question of an appeal against the sentences was stood over pending the disposition of the appeal against conviction.

233 I propose the following orders: (a) Leave to withdraw Notice of Abandonment of appeal against convictions refused.

(b) Leave to appeal against convictions out of time refused.

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