Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: FB v Regina; Regina v FB [2011] NSWCCA 217
• Hearing dates: 9 August 2011
• Decision date: 30 September 2011
• Before: Whealy JA at [1]; Buddin J at [163]; Harrison J at [164]

Decision

1. Appeal against conviction dismissed.

2. Crown appeal against sentence allowed.

3. In substitution for the sentence imposed in the District Court, sentence the respondent to a non-parole period of 6 years with a total term of 10 years imprisonment to commence on 9 August 2009.

4. The total term will expire on 8 August 2019 and the non-parole period will expire on 8 August 2015 on which date the respondent will be eligible for release on parole.

• Catchwords: CRIMINAL LAW - appeal against conviction - appellant convicted of aggravated sexual assault - admission of tendency evidence- tendency evidence concerned a further sexual assault - possibility of concoction between victims - media reports concerning appellant's misconduct - possibility of contamination - ground dismissed; CRIMINAL LAW - appeal against conviction - miscarriage of justice - incompetence of counsel - failure of legal representatives to adduce evidence of media reports concerning appellant's misconduct - media article relevant to admission of tendency evidence - ground dismissed; CRIMINAL LAW - appeal against conviction - credibility of complainant - inconsistent statements concerning alleged sexual assault - absence of complaint by victim when questioned - judge gave directions in relation to absence of complaint - trial judge found complainant had reason for denying sexual assault - ground dismissed
• Legislation Cited: Evidence Act 1995 (NSW) ss 97, 101; Criminal Appeal Act 1912 (NSW) ss 5D, 6(1)
• Cases Cited: Hoch v The Queen (1988) 165 CLR 292 at 296, 297; Pfennig v R (1995) 182 CLR 461 at [40], 482 - 483; R v AH (1997) 42 NSWLR 702; R v Ford [2009] NSWCCA 306 at [58], [125]; BP v R; R v BP [2010] NSWCCA 303 at [108]; R v Smith (2008) 190 A Crim R 8 at [17]; R v Fletcher (2005) 156 A Crim R 308 at [67]; R v RM [2005] NSWCCA 413; R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; R v Colby [1999] NSWCCA 261 at [111]; Ratten v R (1974) 131 CLR 510; Mickelberg v R (1989) 167 CLR 259; R v Bikic [2002] NSWCCA 227; R v Abou-Chakake [2004] NSWCCA 356; 149 A Crim R 417; R v Poole [2006] NSWCCA 93; R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385; R v Ignjatic (1993) 68 A Crim R 333; MB v R [2009] NSWCCA 200; TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Ali v The Queen [2005] HCA 8; 214 ALR 1; Robert Clee v R [2009] NSWCCA 18; R v Thompson [2002] NSWCCA 149 at [38]; 130 A Crim R 24; R v Esposito (1998) 45 NSWLR 442 at 470, 472; Galea v Galea (1990) 19 NSWLR 263 at 281 - 282; Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55 at 64; Keir v Regina [2007] NSWCCA 149; R v Moffatt (2000) 112 A Crim R 201 at [3] - [5]; Arun v R [2010] NSWCCA 214 per Hall J; SKA v R [2011] HCA 13; 85 ALJR 571; R v McAvoy [2010] NSWCCA 110 at [90]; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184 [68]; R v Achurch [2011] NSWCCA 186 per Garling J at [180]; R v Vachalec [1981] 1 NSWLR 351 at 353 - 354; R v Totten [2003] NSWCCA 207; R v Durocher-Yvon [2003] NSWCCA 299; R v Mostyn [2004] NSWCCA 97; Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371; Carroll v R [2009] HCA 13; 83 ALJR 579 at [8] - [9]; Monteiro v R [2011] NSWCCA 113; Kalache v R [2001] NSWCCA 210
• Category: Principal judgment
• Parties: FB (Appellant); Crown (Respondent)
• Representation: G Newton (Appellant); T Smith (Crown); Ian Byrne Solicitors (Appellant); S Kavanagh (Respondent)
• File Number(s): 2009/227215004; 2009/227215002
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2010-07-23 00:00:00
• Before: Lakatos DCJ
• File Number(s): 2009/227215

Judgment

FB v Regina

1 WHEALY JA : There are two appeals before the court. The first is an appeal by FB ("the appellant") against his conviction on 23 July 2010, in relation to one count of aggravated sexual assault pursuant to section 61J(1) of the Crimes Act 1900 . The trial proceeded as a judge alone trial before his Honour Judge Lakatos DCJ. The second appeal is brought by the Crown in relation to the sentence imposed by his Honour on 11 November 2010, following upon the appellant's conviction. In this appeal, the Crown asserts that the sentence imposed by the trial judge was manifestly inadequate.

2 Before considering the appeals, I should point out and reinforce that there are, as will be apparent, suppression orders in force in relation to the names of certain persons involved in each of the appeals.

Appeal against conviction

3 As I have said, the appellant was convicted upon an indictment that alleged one count of aggravated sexual assault. The circumstances of aggravation relied upon were first the fact that, at the time of the offence in August 2006, the complainant, SE, was under the age of 16 (she being fourteen years of age at the time), and secondly that she was under the authority of the appellant by reason of him being the headmaster of the school she was attending.

An overview of the trial

4 Shortly stated, the evidence was that, at the time of the offence in August 2006, SE was a pupil in Year 8 at a private school in Grafton. The appellant was the school principal for that educational institution. In August 2006, SE had been having difficulties in her relationship with her family. As a result, her parents consulted with the appellant, having regard to his position as her headmaster. The appellant suggested that SE should come and stay with him and his family for some "time out" from the family situation. Arrangements were then made for SE to spend two weeks with the appellant and his family, and she did so between 16 th and 31 August 2006.

5 After returning home from school one afternoon during this fortnightly stay, the appellant gave SE two tablets. He told her they were Panadol. She took one of the tablets because she had a headache. As a consequence of the ingestion of this tablet, she fell asleep very shortly after, while still dressed in her school uniform. The next thing she remembered was waking up in her nightdress, lying on the bed with the appellant on top of her. He was engaging in penile vaginal sex with her. The appellant told the complainant to "just be quiet and lie there". She screamed for him to stop, but he continued, holding her down by the arms. At the time of the incident, SE was a virgin.

6 In June 2009, the complainant wrote a document which was later termed by the trial judge, "the letter of complaint". This was handed to a police officer around that time. In the letter, she referred to instances of inappropriate touching at school by the appellant, and then went on to say (in relation to her stay at his house):-

On the first week I had my period, but on the second week he raped me.

7 On 16 September 2009, the complainant was interviewed by police in the presence of a DoCS officer. The interview was recorded and played as her evidence-in-chief at the trial. At page 30 of the interview, she had provided more detail of the principal incident:-

I think it was this week, a week, I'm not actually sure but he packed my lunch one day and he gave me a bottle of water that was really, really salty. And I didn't drink that day, but when I came home I had a headache, but I didn't tell him. And he came up to me and said, "Do you want some Panadol?" And I said, yes, because it was hurting. And he gave me two tablets and they weren't Panadol. I had one of them, and I can't swallow tablets, so I chewed Panadol. And I know it wasn't that, so I only took one of them. And then, in about probably 10, 5, 10 minutes, I was actually asleep. When I woke up he was raping me.

8 The appellant was spoken to by Detective Senior Constable Farrell on 12 October 2009. He effectively declined to be interviewed, but did say:-

But I just want to tell you I did nothing to her. Nothing at all.

9 Consistently with this statement, the appellant's case throughout trial was that, whilst SE had stayed with the appellant and his family, no such incident as she described had occurred. Indeed, his case was that he would have been incapable of engaging in sexual intercourse at the time by reason of certain injuries to his stomach as a result of an infected post-operative wound.

10 The trial judge's findings and the ultimate conviction imposed necessarily proceeded on the basis that the appellant's version of the incident had been rejected.

Grounds of appeal

11 There were a number of grounds of appeal originally filed, although two were abandoned prior to the appeal hearing. The grounds ultimately relied on were as follows:-

Ground 1: The trial judge erred in admitting the tendency evidence of a witness, MD, pursuant to section 97 of the Evidence Act .

Ground 3: The trial judge failed to take into account matters adverse to the credibility of the complainant in accepting her evidence.

Ground 4: Excessive judicial questioning created a real danger that the trial was unfair.

Ground 5A: There was a miscarriage of justice due to the failure by the legal representatives of the appellant to adduce evidence of the specific contents of media reports relating to the witness, MD.

Ground 6: The verdict was unreasonable and incapable of being supported by the evidence.

12 Grounds 1 and 5A are related. I shall deal with them together. I shall deal with each of the remaining grounds separately.

The tendency evidence

13 On 26 May 2010, the appellant was arraigned before the trial judge. The appellant pleaded not guilty to the charge I have identified earlier. Thereupon, the trial judge embarked upon a pre-trial hearing of an application by the Crown to admit the evidence of a young woman "MD" as tendency evidence. Before his Honour for the purpose of the application was a statement of SE dated 17 September 2009, and the Record of Interview. The statement of MD dated 14 December 2009 was admitted without objection on the voir dire as Exhibit 2. It was common ground that the appellant had pleaded guilty before North DCJ in November 2009 to 5 counts of sexual intercourse with MD contrary to section 73 of the Crimes Act 1900. The argument proceeded before the trial judge on the next day, 27 May 2010. On 28 May 2010, his Honour made a determination in favour of the Crown in relation to the proposed tendency evidence. His Honour stated (at page 19 of his Honour's reasons):-

[The evidence] discloses that he has a tendency for having a sexual desire for underaged girls who are his pupils or were his pupils and were under his care and he acted upon such sexual desire by providing them with drugs and thereafter taking advantage of them.

14 The trial judge held that the evidence was relevant and that it did disclose a tendency and that it had "significant probative value". In that regard, his Honour said (at page 20):-

I have gone through in some detail the comparison between MD's evidence and that of the complainant's. In my view the vast majority of what is disclosed is, to use the old formula, a striking similarity between both accounts and accordingly in my opinion by reason of that similarity, there is a significant probative value to MD's evidence.

15 His Honour also determined that the probative value of the tendency evidence substantially outweighed any prejudicial effect which it might have on the accused. In those circumstances, the ruling was that the Crown would be permitted to tender the statement of MD in the trial.

16 Following this ruling, the trial proper commenced. The Crown made a brief opening. The evidence of the complainant, SE, was taken by way of closed-circuit television from a remote location. The DoCS interview, to which I have made earlier reference, was played as her evidence-in-chief at the trial. Her evidence, including cross-examination, continued up to and including 1 June 2010. The complainant's mother gave evidence on 2 and 3 June 2010. On 8 June 2010, MD's mother gave evidence, and then later in the day, MD herself was called and gave both evidence-in-chief and was cross-examined. MD's evidence-in-chief generally accorded with the contents of the statement that had been before the trial judge on the earlier voir dire application. The nature of her evidence was summarised in the Crown submission in this appeal, and no objection has been taken to its accuracy. In general terms, the evidence was as follows:-

MD went to the same school as SE in Grafton when the appellant was the school principal. MD was two years older. In December 2007 when she was 16 years old, she was staying with the appellant and his family at his home for a week. MD woke one morning with a headache. The appellant gave her a glass of water and two round tablets and told her to take them because they would make her feel better. MD believed that the tablets were Panadol. After taking the tablets, the appellant told her to lie down. MD then lay down and fell asleep shortly afterwards. The next thing she remembered was waking up with her pyjama shorts pulled down and the appellant licking her vagina. MD was shocked. The appellant then took her pants off and got on top of her and had sexual intercourse with her by putting his penis in her vagina. Later that day the appellant told MD it was her fault and that she had caused him to do it and if she told anybody that would hurt his family and they would probably kill him. MD said that the appellant had sex with her several times in different parts of the house over the next week whilst she was staying there.

17 The appellant's case at trial (in relation to the MD incident) was that he agreed that he had performed oral sex on MD and also had sexual intercourse on the first occasion. He denied, however, that she was initially asleep and that he had given her pills. The appellant admitted further acts of sexual intercourse with MD during the following week, but claimed that all sexual acts were consensual. He agreed he had pleaded guilty to the charges relating to his activities with MD.

18 Following the close of the Crown case, Mr Webb (trial counsel for the appellant) re-agitated the possible rejection of the tendency evidence. These submissions essentially revisited the issues of concoction, contamination and the extent of probative value raised during the pre-trial argument. The trial judge was not persuaded by these submissions and, on 8 June 2010, he reaffirmed that the views he had expressed in his earlier judgment remained substantially as they had been. He once again rejected the submission that the evidence demonstrated "any realistic prospect of concoction raised between MD and SE".

19 Thereafter, the accused gave evidence and witnesses were called on his behalf. Submissions were made on 28 June 2010 and the accused was, as I have earlier indicated, convicted on 23 July 2010.

Submissions of the appellant - tendency evidence

20 The submissions of the appellant do not suggest that the trial judge made any error in relation to his understanding and application of the correct legal principles applicable to sections 97 and 101 of the Evidence Act 1995 . Rather, the submission was made by Mr Newton (who appeared for the appellant on the appeal) that the ultimate findings made by his Honour were not open to him. First, Mr Newton submited that the two sets of allegations (those made by the complainant and those made by MD) were not sufficiently similar to allow the admission of MD's evidence. Alternatively, counsel submitted that, if his first submission were not accepted, the evidence of MD should not have been admitted having regard to the operation of section 101 of the Evidence Act because, on the material before the trial judge, there was a real possibility of concoction or contamination of the complainant's evidence ( Hoch v The Queen (1988) 165 CLR 292 at 296).

21 The admission of tendency evidence is governed by the Evidence Act , sections 97 and 101. Those section provide, relevantly:

97 The tendency rule

(1) Evidence of the character, reputation 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 unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, 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.

...

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(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.

22 The appellant's first argument under this heading is that it was not open the trial judge to find that the evidence possessed "significant probative value".

Probative value of evidence is defined in the Dictionary to the Evidence Act 1995 as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

23 It is clear law that evidence that a person has or had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McClellan CJ at CL agreed) in R v Chittadini [2008] NSWCCA 256; 189 A Crim R 492 stated:-

Tendency evidence is tendered to prove (by inference), that because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceedings, acted in a particular way (or had a particular state of mind).

24 More often than not, in a criminal trial, tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. However, evidence may be offered simply to show a tendency to act in a particular way, not necessarily in a criminal manner. Indeed, it is not necessary that the tendency to commit a particular crime or, for that matter, to commit a crime at all. Section 97 applies to both civil and criminal proceedings. It represents a fresh start in relation to the issues involved in the categories of evidence known historically as propensity evidence and similar fact evidence. To assess whether evidence is capable of being admitted as tendency evidence, it is first necessary to consider the issues at trial, and the likely probative force of the evidence, having regard to those issues ( Pfennig v R (1995) 182 CLR 461).

25 In the present matter, the trial judge correctly recognised that, in order for MD's evidence to have significant probative value as required by section 97, the Crown had to establish that the evidence possessed a degree of relevance to the events charged, such that it could be said that it was "important or of consequence" ( R v AH (1997) 42 NSWLR 702). The trial judge identified the relevant fact in issue in the trial. This was whether or not SE had been subjected to the appellant's sexual activity in the way she had asserted.

26 In R v Ford [2009] NSWCCA 306, Campbell JA (with whom Howie and Rothman JJ agreed) said at [125]:-

In my view there is no need for there to be a "striking pattern of similarity between the incidents". All that is necessary is that the disputed evidence should make more likely, to a significant standard, the facts that make up the elements of the offence charged. In my view it meets that test.

27 In a more recent decision of BP v R; R v BP [2010] NSWCCA 303, Hodgson JA (with whom Price and Fullerton JJ agreed) at [108] stated:-

It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or to have the state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64] - [65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

28 In the present trial, his Honour recognised that the matter was not to be determined by applying the "old formula", namely whether there was a "striking similarity", but nevertheless found it useful to identify the similarities and differences. The similarities, he thought, were marked. They were:-

• The age of the girls: MD was 16 years old; SE was fourteen;
• The timing of the offence in each case: MD in December 2007; SE in August 2006;
• The appellant was the principal at the school of both young girls;
• All the alleged offences occurred at the residence of the appellant;
• The appellant had in each case attempted some close contact with each girl on an earlier separate occasion before the occurrence of the offence;
• In both instances, the appellant gave the girls two tablets which looked like Panadol;
• Both MD and SE described falling asleep after consuming the tablets;
• Both MD and SE said that, when they woke up, the appellant was carrying out a sexual act upon them;
• While the wording used was different in each case, the appellant prevailed upon each girl not to tell other people what had happened.

29 At the same time, the trial judge noted that there were differences. There was a difference, for example, in age between the two girls; MD had said that the appellant had not used a condom while SE said he had; the different type of sexual act the appellant was carrying out when each girl initially woke up. His Honour was alert to these differences, although in the case of the last one he noted that there was no need for identical sexual acts to be carried out in order for the evidence to be admissible as tendency evidence (see R v Smith (2008) 190 A Crim R 8 at [17]; R v Fletcher (2005) 156 A Crim R 308 at [67]).

30 In my view, it was clearly open to his Honour to find, as he did, that the evidence of MD made it significantly more likely that the appellant had carried out the acts alleged by SE, as the Crown case asserted. Plainly, there will be cases (as his Honour recognised here) where the similarities are so overwhelming as to amount to what, in pre- Evidence Act days, was called "similar fact evidence", that is evidence showing a "striking similarity" between the acts alleged. It was open to his Honour in the present matter to conclude that the conduct described by MD was sufficiently similar to the allegation made by SE to have significant probative value in showing the relevant tendency. The tendency itself had a high level of probative force, in the sense that it could, to a significant extent, bear on the issue as to whether the alleged sexual assault, with all its particular features, had been carried out by the appellant upon the complainant. In my opinion, the first argument must fail.

31 The second argument advanced by Mr Newton related to section 101 of the Evidence Act 1995 . Where evidence has been properly classified as tendency evidence, and has passed the hurdle in section 97, it is next necessary in a criminal trial to assess whether the evidence should be excluded, having regard to the provisions of section 101 of the Evidence Act . The test is whether the admission of the evidence involves a risk of an unfair trial ( R v RM [2005] NSWCCA 413; R v Ford at [58]). As McHugh J stated in Pfenning at [40]:-

The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

32 In HML v R; SB v R; OAE v R (2008) 235 CLR 334, (a case of relationship evidence), Gleeson CJ remarked that the reason for exclusion of propensity evidence was not related principally to its relevance or irrelevance, but rather because of its prejudicial effect, that is the danger of improper use of the evidence. As Gleeson CJ remarked:-

It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against.

33 As I have stated above, the statutory test is that the evidence must be excluded unless its probative value substantially outweighs any prejudicial effect it may have on the accused. Mr Newton argued that the evidence ought to have been rejected because his Honour should have found that there was "a real possibility of concoction and contamination".

34 In Hoch v R , Mason CJ, Wilson and Gaudron JJ stated at 297:-

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire . If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bares that probative force which renders it admissible. On the other hand, if the depositions of the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction, then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.

35 It necessary to bear in mind that Hoch was concerned with the admission of similar fact evidence under the common law, and propounded the "no other rational view" test that had been adopted in Pfenning at 482-483 by Mason CJ, Deane and Dawson JJ. This, of course, is not the test for the admission of tendency or coincidence evidence under the Evidence Act : R v Ellis [2003] NSWCCA 319; 58 NSWLR 700. Nonetheless, it could not have been said to have been an error for the trial judge in the present matter to approach the matter on the basis he did, namely to explore whether there was material that indicated there was a real chance of concoction having occurred. Mr Newton did not suggest otherwise. His Honour correctly identified, however, that there must be a real chance, rather than a merely a speculative chance, of concoction ( BP v R; R v BP at [110]; R v Colby [1999] NSWCCA 261 at [111]).

36 In his initial interlocutory judgment, the trial judge gave considerable attention to the statements of SE and MD that were before him. In the later ruling, he had regard to the actual evidence he had heard in the trial. His Honour noted, in both decisions, that mere contact or the possibility of contact does not, in itself, necessarily lead to an indication of a real chance of concoction. Overall, his Honour was satisfied that, on the whole of the material before him, at the time of the initial determination (and from the evidence before him in the second determination), that there was no real chance of concoction. In substance, the trial judge found that there was simply no evidence to support a finding that each girl realistically would have known about the specifics of the other's allegation. General knowledge that someone else claimed to have been "abused" did not, of itself, raise the real possibility of concoction.

37 There were essentially two separate strands to the appellant's argument before this court. There was a degree of overlap, of course, but the basic dichotomy was between concoction on the one hand and contamination on the other. The "concoction" argument arose out of two specific matters. The first was the evidence that there had been a contact by telephone between SE and ME in late 2009. The second was the general inter-relationship between some of the young people at the school. For example, the complainant was friends with AD, and he, in turn, was the boyfriend of TB. AD was MD's brother. It was MC, the mother of AD and MD, who reported the appellant to DoCS, citing inappropriate behaviour towards the complainant.

38 The trial judge gave careful consideration to these matters and to the possibilities they raised. He concluded, however, that none of the material as to SE's friendship with either AD or TB, nor the contents of the brief telephone conversation between the two young women, raised even "a hint of suspicion" that there had been concoction or collusion between them.

39 MD's evidence was that she "did not know SE very well at all". She described her as "an acquaintance at school". She said she did not know her outside school and had not seen her "in a couple of years since she left school". She was specifically asked in her statement whether she had any contact with SE since she left school in 2007. Her answer was:-

I have not had any contact with her at all during this time except for a couple of weeks ago. I told TB, AD's girlfriend, who was friends with SE that if she had any questions about what happens in court she could give me a ring because I know what she'd be going through.

40 During her evidence at trial, MD was asked whether, at the time she had spoken to the police, she had discussed with anyone else what she had told the police. She specifically denied ever having spoken to her brother about the allegations. Similarly, she had not discussed them with her brother's girlfriend. She repeated that she had no discussion with SE about the allegations. In fact, she had not discussed it with anyone except her sexual assault counsellor and a detective (Trial Transcript, 322). There had been the one conversation with SE, but it was confined to providing her with reassurance regarding the process of giving evidence in court. This brief conversation occurred, in fact, after MD's court case. It was in December 2009, months after the interview between SE and the police.

41 Another matter relied on by the appellant on the issue of concoction was the list of alleged inconsistencies in statements made by the complainant to various people, including AD and TB. These statements were said to be inconsistent in that they fell well short of the allegations the complainant would later make to the police.

42 The trial judge was very aware of these inconsistencies, and said (at page 15 of his reasons):-

It may be as the complainant says that she was reticent in revealing the entirety of what she alleges occurred to her because of its traumatic effect on her and partly what the accused had told her to do. Such a situation is not outside the bounds of reasonable possibility, given that she was between 14 and 15 years of age at the relevant times. In my view, the power imbalance, if one accepts her version, between her and the accused, and the fact that she may have bowed to that imbalance is certainly not an unreasonable proposition. Accordingly I do not accept Mr Webb's submission that merely because there are prior inconsistent statements that this is evidence of a real chance of collusion or concoction.

43 In the light of the evidence before the trial judge and his careful analysis of it, it was, in my opinion, clearly open to him to make the findings he did, namely that there was no real chance of concoction. Insofar as the complainant had made inconsistent statements, in the sense that her earlier statements fell short of the complaint she ultimately made to the police and about which she gave evidence in court, this did not, in my opinion suggest concoction. Rather, if anything, it pointed in the opposite direction. Mr Newton, I consider, recognised that the argument based on "inconsistent statements" was really one that had greater relevance to a consideration of the overall credibility and reliability of the complainant. He was later to repeat these submissions under the heading of Ground 3. I will return to them in more detail when I consider that ground.

44 The second strand relied on by Mr Newton for his tendency argument was the suggestion that the complainant may have been "contaminated". By this, I understood counsel to be arguing that SE may have been exposed to articles and publicity in newspapers or magazines circulating at the time that referred to either the appellant's conduct generally, or the proceedings against him involving MD. She may, in addition, have been exposed to "gossip" concerning the appellant and his behaviour. The trial judge noted that he had not had the opportunity of seeing the media coverage himself, since it had not been exhibited in the course of the interlocutory proceedings. In the trial, however, there was evidence of the complainant that she had not seen or read any of this material, whatever its content. This evidence confirmed the view that the trial judge had taken in the earlier decision that there was no real prospect of contamination from that source. His Honour took a similar view on the "gossip" issue.

45 It is not necessary for me to traverse every single matter sought to be relied on by Mr Newton under the headings of either contamination or concoction. His Honour carefully examined all the matters which were argued before him, they generally being those matters presently raised before this court. He rejected the submission that, individually or collectively, the matters relied upon pointed to a real chance of concoction or contamination. In my opinion, it was clearly open to his Honour to make the findings that he did in this regard, and the appellant has failed to demonstrate error. There was no suggestion, particularly given that it was a judge alone trial, that the tendency evidence would be used by his Honour illogically, or in a manner unfairly connected with the issues in the trial. The evidence was cogent, as Mr Newton conceded. However, it is clear that its probative value was not outweighed by the risk that the appellant would receive an unfair trial. While the evidence was prejudicial to the appellant in the sense that it was capable of reflecting upon his guilt, that is not the prejudice of which the section speaks. Ground 1 must be rejected.

Ground 5A - miscarriage of justice - failure of legal representatives to adduce evidence of media reports

46 In relation to this ground, the appellant tendered a media monitors print-out showing publications between 1 January 2008 and 30 November 2010, which referred to proceedings involving FB. Secondly, and more importantly, there was tendered an article under the name of Les Kennedy in the Sydney Morning Herald published on 19 April 2009. It is entitled, "Brave Girls Pay High Price for Exposing Evil", and relates to two young girls from Year 12 at the school who had voiced concern to other students about FB's behaviour in public towards a teenager at the school. The article also referred to the consequences for a science teacher, who, in late 2006, had complained to the Deputy Principal about FB's behaviour towards certain students.

47 The particular matter relied on by Mr Newton arose out of the fact that one of the two girls mentioned in the article was an acquaintance of the complainant. The article said that this girl, SJ, had been given detention for telling "other girls" she didn't like the way FB cuddled students, or the fact that he had walked around Grafton with his arm around one. The article said SJ had been expelled three days later for "harassing and denigrating students and teachers", according to a letter written by the then-Deputy Principal. The article also mentioned that SJ and the second girl "blew the whistle" on FB, who, the article said, was "awaiting sentence after pleading guilty to sex charges". The article continued:-

Their warning went unchecked by the Education Department, the Department of Community Services and police from the Child Protection Unit, culminating a month later in the drugging and multiple rape of another teenage girl . In March, FB, pleaded guilty to five counts of sexual intercourse with a person in his care (my emphasis).

The matters I have emphasised were presumably a reference to FB's conduct towards MD.

48 The "connection" relied on by Mr Newton in relation to this article, as I have said, was that SE "knew" SJ, and, in fact, had referred to her in her evidence. It is true that trial counsel for the appellant had asked some questions about SJ and they are recorded (Trial Transcript, 52) as follows:-

Question: Was it the situation too at that time... that you knew there were investigations going on or rumours about (FB) in terms of sexual misconduct?

Answer: All I heard was that SJ made a complaint, I didn't actually know why we were there.

Question: Did you know what type of complaint that was?

Answer: No, but I know she got expelled over it.

Question: Well, she got into trouble for calling (FB) an old paedophile or something, didn't she?

Answer: I don't know.

Question: You didn't hear anything about that?

Answer: Only after we were interviewed.

Question: So you've heard about that after you were interviewed, and was that still in 2007 in the same year?

Answer: Yep.

Question: And so it was after the interview that you became aware that (FB) was - there was some investigations going on concerning sexual misconduct on his part with students?

Answer: Yes.

49 There are further relevant questions and answers recorded in the transcript at page 53:-

Question: And this question is asking you well how long after the interview and in 2007 did you become aware of these investigations and issues going on around (FB)?

Answer: I found out what (SJ) said a few weeks after or days, rather, after the interview and then a few weeks later we found out that he'd left, he was...

HIS HONOUR

Question: Can I just ask you... a few weeks after the interview you found out that SJ had said something about (FB), is that so?

Answer: Yep.

Question: What do you understand it was that she said about (FB)?

Answer: I was talking to my older sister because she's friends with her, and she was upset and telling Mum that her best friend got expelled for calling (FB) a paedophile and sticking her tongue out at his daughter.

(The "interview" referred to in these extracts was an in-house enquiry conducted at the school in 2007 by Mr Cudmore, a solicitor. I shall refer to it in more detail later in this decision).

Mr Newton conceded for the purposes of his argument that the evidence of the media reports would have been available at the time of the trial, and so could not constitute "fresh evidence". Nevertheless, counsel submitted that a miscarriage of justice arose as a result first of the failure of the legal representatives for the appellant to adduce the media material, and secondly their consequent failure to suggest to SE in cross-examination, that in the light of the Herald article, there was, as at 19 April 2009, a source from which she could have discovered that another person (ie. MD) had made allegations that she was "drugged and raped by the appellant".

50 (In his affidavit annexing the material, Mr Heffernan had stated that his inquiries confirmed the Sydney Morning Herald was "available to be purchased" in the Grafton area in April 2009).

51 Mr Newton put his argument in two ways. First, he submitted that, had the evidence of the specific article been adduced, this would have strengthened the appellant's argument in seeking to exclude the evidence of MD as tendency evidence. Because it was not so adduced, he argued, the appellant had lost a significant opportunity of an acquittal, and there was accordingly a miscarriage of justice. Alternatively, counsel submitted that, even if the contents of the article had been raised, and the evidence of MD properly permitted as tendency evidence, the evidence of the contents of the article would have assumed great importance. This was because it would have been "cumulative upon other evidence" that the incident involving MD was circulating around the local community. Together with the other evidence of the association between SE, MD and other persons, it would have enabled the appellant to point to a possible source from which evidence of the complainant, if concocted, may have emanated. It would have provided an innocent explanation for the otherwise "damning evidence" from the complainant and MD, indeed that they had both been drugged.

52 The appellant's submissions do not suggest that the "new evidence" that could raise a reasonable doubt as to guilt. The two limited ways in which the appellant argued that the evidence had significance were first, its capacity to bear on the tendency argument, and secondly, its general ability to enlarge the environment in which there was discussion in the Grafton area concerning the accused's aberrant sexual behaviour with at least one other person. Mr Newton frankly conceded that, unless he succeeded on his submission based on the legal incompetence of the trial lawyers, he could not carry the day on this point. That concession was properly made. In my view, it could not be said that the new evidence, taken with the other evidence at trial could raise a doubt in the court's mind that the verdict of guilty could not be allowed to stand ( Ratten v R (1974) 131 CLR 510; Mickelberg v R (1989) 167 CLR 259; R v Bikic [2002] NSWCCA 227; R v Abou-Chakake [2004] NSWCCA 356; 149 A Crim R 417; R v Poole [2006] NSWCCA 93).

53 The appellant argued the point on the basis that the relevant media material had been "passed over" as a result of incompetence by counsel at trial. In the light of that submission, it is necessary for the appellant to establish that a miscarriage of justice has occurred, precisely because that incompetence had deprived the accused of a fair trial ( R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385; R v Ignjatic (1993) 68 A Crim R 333; MB v R [2009] NSWCCA 200; TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Ali v The Queen [2005] HCA 8; 214 ALR 1; Robert Clee v R [2009] NSWCCA 18 ).

54 In my opinion, this argument falls at the first hurdle. There is no evidence from which it could be said that the failure to obtain the newspaper article (if that is what happened) demonstrates "flagrant incompetence" on the part of trial counsel. Before commenting on that proposition, however, I draw attention to certain features of the article itself. First, it should be noted that MD is not named in the article. Secondly, and significantly, there is no reference in the article to the fact the girl in question reported that she had been given two white tablets (believed to be Panadol), and that these were supplied by the appellant. Thirdly, there is no mention of the fact that the girl fell asleep and when she woke up the appellant was carrying out a sexual act on her person. This level of detail - critical to the complainant's evidence - is not disclosed in the newspaper articles about the other girl's evidence at trial, and cannot be inferred from the simple use of the word "drugging". In any event, the complainant was clear in her evidence at trial that she had not seen articles in any newspaper or magazine concerning MD before she complained to police (Trial Transcript, 92 line 36). She had no knowledge that the allegations made by MD involved "drugging" (Trial Transcript, 60 line 45).

55 Quite apart from the non-specifics of the article, if its existence were in fact known to trial counsel, (and there is no evidence one way or the other that it was) it may well have been considered a tactical mistake to confront the complainant with its contents. A denial by the complainant that she had seen this specific article may well have been regarded as putting the appellant at a tactical disadvantage in the trial. As it was, there was evidence at trial that "rumours" were circulating, and that there was some talk of the appellant's sexual activities with a student. It may well have been thought that it was better to leave the evidence in that vague state, rather than to put something precisely to the complainant and thereby run the possible risk of an outright denial. A firm denial that she had seen this particular article may have, from a tactical perspective, put paid to the suggestion that she may have seen or heard other material, not specifically itemised. On the other hand, if, contrary to these possibilities, the existence of the article had simply been overlooked by mistake or through lack of endeavour, such a mistake, in my opinion, would not have cleared the bar so as to permit appellate intervention. In either situation, I am not satisfied that flagrant incompetence, or indeed any level of incompetence, has been demonstrated.

56 Further, I do not consider that the contents of the article would have, in any event, led the trial judge to exclude MD's evidence as tendency evidence. In my opinion, it is unlikely that the article would have altered the trial judge's carefully considered finding that there was no real possibility of either concoction or contamination. Nor would it have been likely to disturb his ultimate finding that SE was an honest and reliable witness.

57 In short, for all these reasons, I would hold that the suggested failure to adduce evidence of the article did not deprive the appellant of a chance of acquittal that was reasonably open to him. Nor, in my opinion, is there any real possibility that a material irregularity occurred at the trial, resulting in an unfair trial. There was simply no miscarriage of justice within section 6(1) of the Criminal Appeal Act 1912 justifying this court's intervention.

58 I would reject this ground of appeal.

Ground 3 - Failure to take into account matters adverse to the credibility of the complainant

59 Mr Newton acknowledged that this ground, if accepted, involved mixed questions of fact and law. However, counsel submitted that there was an error by the trial judge in his approach to the assessment of the complainant's credibility of such significance that it could be said to have resulted in an unfair trial. Mr Newton, in addition, submitted this ground had an additional role to play in relation to ground six, namely the assertion that the verdict itself was unreasonable. For that reason, I will give separate or further consideration to this ground when examining ground six.

60 At the moment, however, the simple submission is that, having regard to the inconsistent complaints, it was simply not open to the trial judge to conclude that he should accept the evidence given by SE. The inconsistencies relied upon may be briefly stated as follows:

(a) The Cudmore interview. This was an interview held at the school between a solicitor for the school, the Deputy Headmaster and the complainant. There were "rumours" about the appellant and, as a consequence, the school arranged for an interview with a number of girls, including the complaint. In this instance, the complainant did not report that anything untoward had happened to her when she had stayed at the appellant's house in 2006.

(b) The complainant's mother, JE, gave evidence that, after the Cudmore interview, she had asked the complainant if she had ever been "uncomfortable" when staying at the appellant's house. The complainant described an incident there, but it was not the act which was the subject of the ultimate charge against the appellant. The complainant herself said that she told her mother that "nothing had happened".

(c) The complainant's differing "versions" of the incident at the appellant's house, as described by her to her friends, TB and AD.

(d) The allegation against the appellant reported by MC (the mother of AD and MD) to DoCS, and her conversation with Constable Talei Fenn. (This allegation effectively repeated the "version" given by the complainant to TB and AD).

(e) Constable Fenn's evidence as to the fact that, during her interview with the complainant in July 2008, the complainant had not told her that she had been sexually assaulted or raped by the appellant. (In her evidence at trial, the complainant insisted that she had told Constable Fenn "essentially" that the appellant had "raped her").

(f) The complainant was interviewed by her family doctor, Dr Van der Merwe, and asked about her sexual experience. She said she was a virgin, and not sexually active. She did not, during the interview, make any reference to being sexually assaulted at any time in the past.

61 It may be convenient at the outset to examine the approach taken by the trial judge to this particular issue. First, the trial judge identified the essential ingredients of the charge brought against the appellant. He identified each of the elements which the Crown had to prove beyond reasonable doubt in order for a determination to be made that the appellant was guilty of the offence. These included that the appellant had sexual intercourse at the specified time at the appellant's home with the complainant, and that such intercourse occurred without her consent. Secondly, the trial judge noted the defence case that the appellant contested the proposition that sexual intercourse as alleged by the complainant took place at all.

62 Thirdly, he gave himself appropriate directions in relation to the absence of complaint by SE. In this regard, he noted that the complainant had not made any precise complaint about what she claimed the accused did to her, until at the earliest she spoke to Detective Fen, or, more likely, later when she spoke to Detective Farrell at the time of the record of interview. The trial judge noted that the absence of complaint was a matter that he was entitled to take into account in assessing the credibility of the complainant's evidence as to what she said the accused did to her.

63 Fourthly, his Honour directed himself that there may be good reasons why a victim of a sexual assault might refrain from making a complaint about such as assault. In this regard, he said (at pages 7 to 8 of his reasons):-

I have heard evidence that the complainant did not complain, particularly because she did not want her parents and in particular her mother to know of the allegations. In this context, in my view, these are the factors I ought to take into account in assessing whether she acted normally or reasonably in this regard. I have to ask myself, how would a reasonable 14-year-old girl in these circumstances react and these are the factors, in my view, that need to be taken into account in this consideration.

64 His Honour then listed a number of matters which it is not necessary to recite in detail. They included the fact that SE was in a fraught relationship with her parents, and her mother in particular; that SE had been sent by her family to stay with the appellant, to provide "time out" for both parties; that the appellant played the role of an honest broker or counsellor towards her; that the appellant was in a position of authority, being SE's teacher and a respected headmaster at a school in Grafton; and that there was a clear age and power disparity between the appellant and the complainant. Finally, he noted that the situation of the complainant being a "problem child" might well make her "reticent about complaining" and might lead her to have reservations about being believed, if she did complain. Against the background of those matters, his Honour said (at page 8):-

In my view, the lack of complaint against that background is easier to understand. In my view, it is therefore unremarkable that she did not complain to the accused's family, that she did not complain to her own family or even to her friends who also attended the same school, at least until there was cause to question the accused's respected status when other allegations against him surfaced.

65 There was a further direction given by the trial judge. It was an important one. This was a direction acknowledging that determination of the issues in the trial involved "close consideration of the one witness", namely the complainant. His Honour noted that the guilt of the appellant was to be determined, on the Crown case, largely on the evidence of the complainant herself. His Honour said that this required that caution be exercised in relation to the acceptance of her evidence. He noted specifically that he needed to be satisfied beyond reasonable doubt that the complainant was "both honest and an accurate witness". It was necessary for him "to examine her evidence very carefully in order to be satisfied that it can be safely acted upon to the high standard required in a criminal trial".

66 The trial judge then examined in considerable detail numerous statements made by the complainant to other people between August 2007 and 16 September 2009, when the complainant had engaged in a full police interview. The first of these had involved the complainant's interview in October 2007 with Mr Cudmore in the presence of the Deputy Headmaster. As I have indicated, this interview was one of a series of interviews conducted "in-house" at the school relating to general allegations that the appellant had been behaving inappropriately towards students at the school. A draft unsigned statement was prepared after this interview with SE. It did not refer to anything untoward happening when the complainant stayed at the appellant's house in 2006. The complainant said she did not raise the incident in the Cudmore interview because she was intimidated by the circumstances, and for other reasons.

67 The trial judge examined carefully the circumstances of the Cudmore interview and Exhibit H, which was the unsigned statement to which I have referred. His Honour said (at pages 22 - 23):-

It should be noted in considering this exhibit that the statement was not signed by the complainant at any time. Furthermore, it was her evidence that parts of her statement were incorrect. In order to assess the significance that such a draft statement should be accorded, one needs to have regard to the circumstances in which the material was elicited from the complainant... Prior to speaking to Mr Johnson and Mr Cudmore, the complainant had been approached by the accused and spoken to about how she should conduct herself at the interview... His statement to her, according to her evidence, that nothing happened, if one is to accept her version, must have placed pressure upon her to indicate that that was the position when she was asked in the course of that interview. The power imbalance between the Principal of a school and a young girl in these circumstances is also relevant in that consideration. Next it should be remembered that the complainant had no support person in that interview.

68 His Honour also reflected upon the fact that the complainant understood that Mr Cudmore was an investigator, investigating "unspecified complaints against the accused". It must have been obvious to her, he said, that the complaints being investigated were not those involving the assault by the appellant upon her. His Honour observed that she said she had been "intimidated", and was "locked in a room with two men". She had indicated to the trial judge that she was far from comfortable in the situation in which she found herself. He said (pages 23 - 24):-

She was not with people with whom she was comfortable, and in those circumstances it is highly unlikely, whatever the truth was, that she would disclose matters which were highly embarrassing and potentially highly traumatic for her.

69 The next matter dealt with by his Honour in this context was a letter written by the complainant's mother, JE, on 19 October 2007. This was, in effect, a formal complaint to the school about the manner in which JE perceived her daughter had been dealt with in the course of the interview with Mr Cudmore and the Deputy Principal. The letter contained a hand-written notation, which referred to a conversation the mother had with the appellant when he rang her on 19 October 2007. The note, in her handwriting, read (at page 24):-

(FB) rang me. He rang and said that was bad judgement and was following lawyer's instructions. He also informed that the allegation came from an ex-teacher.

70 This conversation was elaborated upon when JE gave her evidence at trial. The particular conversation confirmed to JE that the appellant had spoken to SE before the Cudmore interview. According to the complainant, "he said to me to tell them nothing happened".

71 His Honour, in his examination of JE's evidence, stated (at page 45):-

At the end of her examination, I asked (JE) to describe her relationship with her daughter. It was a matter which I then thought was relevant and still do in determining whether or not any absence of complaint was something which should reflect adversely upon (SE). ...[(JE) said that] the relationship between her and her daughter... was the least close, and that she was closer to the youngest and the oldest daughter. SE was the middle daughter. She said that before August 2006, her relationship was such that the complainant would never tell her mother anything. She was always reserved and quiet in any matter, did not matter what it was. The complainant divulged very limited information to her parents... (JE) stated in the period 2006 to 2008, the nature of the relationship between mother and daughter was that if there was something troubling the complainant, she would not come and ask for the advice of her mother.

72 The trial judge then recounted in detail JE's evidence, which included her attempts, after the Cudmore interview, to coax the complainant into telling her whether anything untoward had happened at the appellant's house. SE had told her mother (at page 44):-

When (FB) came down to my bedroom and he sat on the edge of the bed and put his arm around me.

SE was also asked by her mother whether there was "anything else" she would like to tell her, and the complainant had said "no".

73 In his submissions, Mr Newton argued that there was a particular significance in the fact that, when she was cross-examined by trial counsel, the complainant had denied at first that she told her mother there was "no sexual activity involved". However, as the transcript makes clear, at (Trial Transcript, 91 - 101), the complainant had insisted that the actual words she had used to her mother were that "nothing happened". In other words, she was denying she had used the expression, "no sexual activity". She was not denying that she told her mother "nothing happened". Her evidence was that she had told her mother "nothing happened" at FB's house, because she did not want her mother to know that she'd been raped by the appellant.

74 His Honour concluded that SE's mother's evidence confirmed that, although she had queried her daughter about her experience with the appellant, she was told that "nothing happened". The trial judge then recounted the competing submissions made to him at trial by the Crown Prosecutor and trial counsel for the appellant on the issue of inconsistent complaints. His Honour, in this context, gave particular emphasis to the defence submissions made concerning the range of prior inconsistent statements made by SE on the topic as to whether sexual intercourse had occurred. These included the matters stated by SE to her mother, Mr Cudmore, Dr Van der Merwer and especially to TB and AD. His Honour's analysis continued (at pages 75 to 77):-

As I say that aspect of the case has caused me to think very hard and carefully about whether or not that ultimately destroys the credibility of the complainant.

Ultimately, it was put that these were prior statements made in different contexts. Each was exculpatory, none can be explained by embarrassment. It is certainly true that there were prior statements made in different contexts. The theme, however, which counsel did not raise but which the complainant did, was that she did not wish to tell anybody for fear that her parents, or particularly her mother, would find out. The fact that her mother was present when the examination with Dr Van der Merwer took place was not mentioned.

Again, the fact that she did not tell her mother seems to me is self-evident. In my view, that was a common and explicable theme. As I have said earlier, it found resonance in the explanation given by MD in the events which occurred to that particular young person...

In terms of the lack of complaint, I have reviewed the evidence of the complainant and the way in which she spoke to different people. As I have said earlier, her lack of complaint in my view has a reasonable explanation having regard to the following matters: her fraught relationship with her mother and her parents, the position of power of the accused and his position of respect as the headmaster and mentor, not only to her, but to other families and/or troubled families under his control, making it less easy for a fourteen-year-old to have confidence that any serious complaint she made would be accepted. It was only when the accused's reputation was publicly called into question by the surfacing of other complaints that the complainant divulged what had occurred.

Next, her version about her periods have prevented the assault was in its limited (way) not inaccurate. It ultimately gave an inaccurate impression if it was designed to suggest that that was all that occurred. As I have indicated, it is consistent with what she alleged that occurred in the first week that she was there. And as I say, in the context of her reticence to complain and an embarrassment about the subject matter, in my view it is understandable that a fourteen-year-old might raise enough to, as it were, to wave the red flag but not go into the gruesome detail with both her family, friends and others.

As I have also indicated in reviewing the evidence, although the complainant ultimately agreed with the proposition that she affirmatively told people that no sexual activity took place, when her precise words are examined, no such affirmative proposition in her own words to the various people to whom she complained is made out. The issue was "and nothing happened". It was put at that level of generality and it seems to me even thought that was not a completely accurate statement by her, it is not an affirmative position that she said "no I was not sexually assaulted". She simply did not go to that point.

I have no doubt that any reasonable listener, including TB and AD or any other person listening to what she did say, would assume that the lesser version was the high point of her complaint, namely that her periods had saved her from anything worse, and that is a reasonable assumption, but in my view, given the constraints as I have indicated the complainant was under at that point in time, I am dissuaded that this makes her a dishonest witness about that matter.

75 The trial judge then examined with care the evidence of the appellant himself. (Earlier his Honour had indicated that he accepted the evidence of MD as to the nature of the sexual incidents perpetrated upon her by the appellant). His Honour, after considering all the evidence, came to the conclusion that the appellant had an unhealthy sexual interest in both MD and SE. He was unimpressed with the evidence of the appellant. He found that, in 2006 and 2007, he had a sexual interest in young girls in his care. He also held that the appellant had given evidence "in a calculated manner". The trial judge gave detailed reasons for his conclusions in that regard. Indeed, he found the evidence to be, on a number of occasions, "exaggerated, self-serving and in some cases given reluctantly". He was unimpressed by the defence assertion that the appellant would not have been able to commit an act of sexual intercourse upon SE because of the pain and the difficulties associated with the infection following his stomach surgery. His Honour pointed out, with some force, that the appellant had been able to climb in and out of a boat, and also to manage the flying and landing of light aircraft at Coffs Harbour on 19 August 2006 without any difficulty. There is no need for me to recount each and every matter that his Honour pointed to in coming to his conclusion that he did not accept a number of the aspects of the evidence given by the appellant.

76 In a final section of his lengthy decision, the trial judge once again considered the issue of the evidence of the complainant. His Honour said (at pages 85 to 87):-

Cases of this kind where there are only two witnesses to an alleged offence, and no objective corroboration of either, present juries and judges with perhaps the most difficult task in determining the proper disposition at trial. The cases have been colloquially but inaccurately referred to as 'oath against oath'; but in fact the real question is whether the evidence of the complainant should be accepted beyond a reasonable doubt. In that equation, it is valid to consider the versions of the complainant and that of the accused and to examine them in a common sense way, in order to decide whether her evidence should be accepted to that standard. In terms of demeanour, I found the complainant an honest young person who, from time to time, made concessions against her interest... her evidence was characterised, in my view, by honesty and candour. It was not always logical or consistent, but those deficiencies can in part be attributed to her age, the sometimes vague and unclear use of language and the questions asked of her and the lapse of time since the events occurred. The latter considerations of course require a careful consideration of the reliability of her evidence. In the event, there are sufficient matters which corroborate parts of the picture she painted in her contact with the accused and they are: the accused's reputation for being "touchy and feely" observed by other students and Mr Seymour, and conceded by the accused; the fact that the accused did have the opportunity at the Wakakirri Dance Festival to do what he did; the fraught relationship between the complainant and her mother, as compared with MD's situation and her mother; the two telephone calls made by the complainant to her mother, one of which said, "when can I go home?"; The fact that the complainant became upset when she was examined by her doctor; the fact that the accused had a sexual interest in female students as demonstrated by MD and indeed, the fact that there were common elements to what MD said happened to her, including the provision of drugs and an assault approximate to waking up, which recurred in both versions. Also, in my view, the fact that the complainant gave evidence that the accused was wearing a shirt wherein any scar that he had was obscured. It was either, as I say, a lucky coincidence which came in aid of a false historian or it was the truth. I prefer to believe the latter. In my view the fact that the accused arranged Mr Johnson as a support person who spoke to the complainant. It is not fully explained in any meaningful way. And finally I accept (the complainant's mother's version) of the conversations she had with the accused on 19 October (and it) seems to me the statement "that I just wanted to love the girls" is also indicative of support for what was known in the old cases as a guilty passion.

On the other hand I formed the view, as I said, that the accused was an academically accomplished individual and an intelligent person who, in the instances I have outlined, gave his evidence in an exaggerated and calculated fashion. In my view, having watched him being examined and cross-examined, he was not being honest and candid about these matters...

For all of those reasons I am satisfied beyond a reasonable doubt that the complainant is an honest and reliable witness. I am satisfied beyond a reasonable doubt that sexual intercourse did occur between SE and the accused in August 2006 and I am satisfied that the Crown has established its case beyond a reasonable doubt.

It will be seen from this analysis that that the trial judge gave very careful consideration to each of the inconsistencies urged upon him. In the end, notwithstanding the submissions to the contrary, he concluded that he should accept the complainant as both honest and reliable.

77 I turn now to consider Mr Newton's submissions in relation to this ground. In relation to the matters relied upon as inconsistent statements, Mr Newton made three points. First, he argued that they were in fact inconsistent. That much may be accepted as his Honour the trial judge did. However, as his Honour found, there were a number of factors that made it clear why it was the complainant was reluctant to tell the full story of what had happened to her, both when she spoke to her friends, her mother, and to the authorities. Secondly, Mr Newton pointed to the fact that the complainant had told each of her school friends that her "periods had saved her". Mr Newton argued that an earlier version of the complainant's account of what had occurred in the first week at the appellant's house, when she had her period, was not consistent with what she told AD. In that instance, she later told AD the appellant had given her some tablets, told her to lay down, and then walked in behind her to the room. He started touching her "and the only thing that stopped him" was that she had her period.

78 In my opinion, the trial judge was alert to this additional inconsistency, and took it into account, as I have indicated above. Indeed, in his oral submissions, Mr Newton appeared to accept that the view taken by the trial judge concerning this aspect of the matter was one that was open to him.

79 Mr Newton's third point, however, was that the complainant in the witness box had denied giving a version to her friends of the kind identified. In addition, he argued, she had told her mother that no sexual activity took place. Mr Newton's point was that, while it was reasonable to suppose that the complainant might be reluctant to tell her friends and family exactly what had happened to her, and that this might excuse her for giving them a version which was short of the truth, the complainant in the witness box denied altogether having given a limited version to family and friends. However, I do not think this is a fair reading of the evidence of the complainant at trial.

80 In relation to her friends, FB and AD, the complainant at first did deny the precise terms of the conversations as they were put to her by trial counsel. Later in her evidence, however, when this matter was addressed a second time in cross-examination (Trial Transcript, 90 - 91), the following response was given:-

Question: You have indicated that you never spoke to (AD) or (TB) concerning what had happened to you and (FB)?

Answer: No, I said that I never spoke to them about the actual incident.

Question: You know that it's been suggested that you did?

Answer: Mm.

Question: And you reject that?

Answer: Yep.

81 In relation to her mother, the response given by the complainant appears most clearly at Trial Transcript, 91 - 92:-

Question: You see, you told your mother that when you stayed at the (accused's) house that you didn't have sex with (FB)?

Answer: I don't remember telling mum that, I remember telling her that nothing happened...

Question: So putting it in your words, you're saying you told your mother that when you stayed at (FB)'s house, nothing happened?

Answer: Yeah.

Question: Is that the fact?

Answer: No.

Question: But that's what you told your mother?

Answer: Yeah.

Question: Can I suggest that when you told your mother that nothing happened, that was the truth?

Answer: No.

And later (Trial Transcript, 92):-

Question: Right so when she found out about the interview your mother asked you about it?

Answer: Yeah.

Question: One of the things she asked you, let's be frank about, is did anything [happen] of a sexual nature at the (accused's) house?

Answer: Yeah.

Question: And you said nothing happened?

Answer: Yeah.

Question: Why did you say that?

Answer: Because I didn't want her to know.

Question: Can I suggest to you that you're not being truthful in relation to what you're not saying to his Honour?

Answer: No.

82 Finally, there is a reference at Trial Transcript, 101 to the same subject matter. In these answers, the complainant once against insisted that her mother had asked her about FB and she had told her mother that "nothing happened at (FB)'s house". She said that she had told her mother this because she did not want her mother to know that she had been "raped by (FB)". A fair reading of these extracts (and others appearing in the transcript) show that Mr Newton's submission cannot be sustained.

83 There were two further instances relied on by Mr Newton in his written submissions. The first was the interview with Dr Van der Merwer. As I have said above, the complainant told the doctor she was a virgin and she had not been sexually active. It needs to be recalled, as his Honour pointed out, that the interview was conducted while SE's mother was present, and that at the end of the interview, the complainant became "very distressed". The second related to the statements made to Detective Fenn. It is clear that his Honour accepted the evidence of Detective Fenn on this point. The issue, however, was whether the complainant had told Detective Fenn anything at all about the sexual assault by the appellant. The fact that the complainant was wrong in her recollection about that does not seem, in my view, to have any significant bearing upon the credibility of the complainant, and that was the view taken by the trial judge.

Ground 4 - excessive judicial questioning created a real danger that the trial was unfair

84 Mr Newton properly conceded that more latitude should be granted to a judge sitting alone in terms of the extent and nature of the permissible questioning of a witness ( R v Thompson [2002] NSWCCA 149 at [34]; 130 A Crim R 24). The rationale for such latitude was confirmed in R v Esposito (1998) 45 NSWLR 442 at 470 (quoting Galea v Galea (1990) 19 NSWLR 263 at 281 - 282 per Kirby ACJ) as follows:-

This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.

85 Mr Newton submitted that, notwithstanding such latitude, the trial judge's questioning of the appellant and his witnesses was excessive in the present trial. Further, he argued it was of a character that created "a real danger" that the trial was unfair. There was also an instance where the trial judge had asked questions of the informant, Anthony Farrell. A submission was made that these questions were inappropriate, because they were designed to elicit evidence "to bolster the prosecution case in a very significant respect".

The judge asked questions of defence witnesses

86 The appellant himself was asked a number of questions by the trial judge. First, at the end of his evidence-in-chief, the trial judge asked several brief questions, endeavouring to clarify the nature of the sexual activity the appellant was admitting in relation to the witness, MD. Secondly, during cross-examination by the Crown, the trial judge asked a number of questions briefly about the appellant's reasons for speaking with SE prior to her being interviewed by Mr Cudmore and the Deputy Principal. Thirdly, at the end of cross-examination, his Honour indicated he wished to ask some questions of the appellant "to clarify a few things in my mind". Those questions spanned about five and half pages of the transcript. The questions related to the following matters:-

• Questions in relation to the capacity to record dates on the digital photographs of the appellant's injuries and the reasons for their being taken. (This issue had been raised in cross-examination by the Crown);
• Questions clarifying the evidence that the appellant had flown "twice" in the period that SE was staying with him, and asking him about the safety belt he had worn on each occasion;
• Questions which, on their face, appeared to be an endeavour to clarify whether the appellant agreed or denied certain matters about which MD had given evidence;
• Questions on an incident that had arisen in the evidence of the complainant. (This incident fell into the category of an "uncharged event" concerning the complainant). His Honour predicated his questions about it (the Dance Festival incident) because he said it had not been dealt with thus far in the trial by either counsel or the Crown. His Honour asked the appellant whether he agreed with SE's claim or not).

87 The next witness who was asked a number of questions was the appellant's wife, VB. These questions were asked at the conclusion of her cross-examination by the Crown, and covered the following topics:-

• Background information in relation to her professional qualifications as a school administrator and the academic qualifications of the appellant;
• Questions designed to elicit how it was she had arrived at the date she had given in relation to the various medical procedures undergone by the appellant; the date of the photographs that were tendered of the appellant's wounds, and how long she had to dress them while he was recovering;
• Questions about the nature of restraint devices used when she had gone flying with the appellant;
• The details of her flying to see her parents in Sydney during the period that SE was staying at the house with the appellant; and
• Questions concerning her absence of knowledge of the appellant's sexual contact with MD at the time it was occurring.

88 The third defence witness was DR. He was a pastor at the regional Baptist church. His evidence had been that he had stayed with the appellant and his family between 15 and 18 July 2006. He had been asked in evidence-in-chief whether the appellant had appeared in any way affected or compromised by reason of the wound resulting from the infection. He had given evidence that the appellant was "very cautious as he was moving around". DK was cross-examined by the Crown as to the nature of activities which he had undertaken with the appellant during his visit. DK volunteered that the two men had taken a trip down the river in the appellant's boat. The Crown asked questions about the necessary process of manoeuvring the boat into the water and the method of climbing into it. At the conclusion of the cross-examination, his Honour asked further questions of DK as to what had been involved in the fishing trip, and further questions about the physical manoeuvres necessary to get the trailer into the water, and to clamber into the boat.

89 The final defence witness questioned by his Honour was the appellant's daughter, SB. There were only four questions asked of this witness, and they were questions designed, as I read the transcript, to elicit whether she, being a very young girl at the time, had any reliable method of aligning her evidence to actual dates. The questions related, for example, to whether she kept a diary at the relevant time of the visit by SE in 2006, and when it was she had first been asked to remember back to what had happened in August 2006.

Principles applicable to judicial questioning in a criminal trial without a jury

90 Most of the authorities which underline the caution to be properly exercised by the trial judge during a criminal trial relate to trials where there is a jury. On the other hand, as might be expected, there are cases that recognise the greater latitude to be afforded to the questions asked by a trial judge in the context of a civil trial. That was the situation in Galea v Galea itself. In view of the statutory framework now surrounding criminal trials in New South Wales, it may be appropriate to restate the accepted principles, but with particular emphasis on the fact that it may be expected that henceforth more criminal trials will be conducted without the benefit of a jury. This may underline the proposition that, in appropriate circumstances, a judge sitting on a criminal trial without a jury will be entitled, within reasonable limits, to explore issues of fact with both Crown and defence witnesses.

91 The relevant principles were enunciated by Kirby ACJ in Galea v Galea . In summary, his Honour stated:-

(1) The test to be applied is whether the excessive judicial questioning ... [has] created a real danger that the trial was unfair. If so, the judgment must be set aside ...

(2) [G]reater latitude in questioning and comment will be accepted where a judge is sitting alone ...

(3) ... the appellate court must consider whether ... the judge has ... moved into counsel's shoes and 'into the perils of self-persuasion' ...

(4) The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions ...

(5) It is also relevant to consider the point at which the judicial interventions complained of occur. ...

(6) The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change ... The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements ..."

92 Although now more than fifty years old, there are, in addition, two cases in the English Court of Appeal that have been frequently and usefully cited. These are Yuill v Yuill [1945] 1 All ER 183 and Jones v National Coal Board [1957] 2 QB 55. Judges are reminded that they must take care not to have their "vision clouded by the dust of conflict". In an oft-repeated passage in Jones , Denning LJ said (at 64):-

The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal."

93 As is clear from the general statement of principles in Galea , the respective functions of judge and advocate in a trial without a jury are well-known and are relatively constant. But this does not mean that there is an unchanging and rigid appreciation of the way in which those functions are carried out. In civil trials, in the last fifty years in New South Wales, it has become much more common for judges to take an active part in the conduct of cases than was at an earlier time the case. The growth of litigation, the increasing complexity of litigation, and the limited resources of courts and legal aid have made it inevitable that judges must, within reasonable limits, intervene wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency. As Kirby ACJ said in Galea (at 281 - 282):-

In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid.

94 These observations by his Honour were in the context of a civil trial, but they clearly have a resonance for the conduct of a criminal trial where the judge sits without a jury.

95 In R v Esposito at 472, Wood CJ at CL said of a criminal trial involving a jury:-

The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.

96 This was a passage that attracted itself to Ipp AJA in Thompson at [38]:-

Notwithstanding the many judicial comments that have been made in regard to the issue, the boundary between permissible judicial intervention in a criminal trial and intervention of a kind that results in an unfair trial is not capable of clear definition. While the line may be narrow and the ice may be thin, the line is not bright and it is not always easy to determine whether the ice will hold. There are, indeed, circumstances in which a trial judge may legitimately intervene in a criminal trial.

97 Here, once again, Ipp AJA was speaking of a situation in a criminal trial with a jury. A fortiori, the circumstances in which a trial judge may legitimately intervene in a criminal trial conducted without a jury will be wider. They will, depending on the circumstances, be many and varied. It is impossible, indeed undesirable, to mark out the outer limits of appropriate questioning. Much will depend on the manner in which it is done, the timing with which it occurs and the opportunities that are given to the parties to deal with answers that may be given by a particular witness. In my opinion, it would be quite inappropriate to restrict the capacity of a trial judge sitting without a jury to clarify matters, within legitimate or proper limits, where that clarification is relevant to the resolution of the issues before the court.

98 A good example in the present trial is one of the matters complained of by Mr Newton. Detective Senior Constable Farrell gave evidence that he had interviewed the complainant on 16 September 2009. The interview was by way of a recording. It was played at the trial as part of the complainant's evidence-in-chief. By the time Detective Farrell gave his evidence on 3 June 2010, both the complainant and her mother had been extensively cross-examined in the trial. It was very clear at that stage that there were issues regarding the complainant's credibility, the making of inconsistent statements, and issues suggesting the possibility of contamination arising from the similar allegations made by MD. During his evidence-in-chief, Detective Farrell confirmed that the interview with SE had been videotaped and gave details as to where that occurred. His Honour interrupted the process of evidence-in-chief when the following questions were asked (Trial Transcript, 184 - 185):-

Question: Mr Farrell, can I ask you just a couple of matters. The system of interviewing complainants involves, as we saw, an interview by a police officer and a DOCS worker which is video taped and recorded by sound?

Answer: Correct.

Question: And of course as you know, in the course of your work in these sorts of cases the mechanism by which the evidence-in-chief of the complainant is brought before a court such as this is by the playing of that interview. What are the protocols so far as the clarity or precision of the record which is made, I ask you this because juries normally, and in this case myself, are, or is required to look at the evidence of a young person or a complainant by looking at a screen and I have to say that on screen you do not get a very clear picture of the face of the individual who's making the complaint. At times the sound is very muffled. The equipment, it seems to me, is perhaps not as good as it should be, is that all that you're supplied with?

Answer: Your Honour, obviously resources are stretched in all areas. Police obviously, although you'd think we'd have very good equipment, at times, are substandard as are the locations of some of these child interviews, they can occur within school classrooms with the bells ringing and students walking past, etcetera, as indicated with this, that interview was conducted within a actual office allocated to do interviews and again it gets that muffled sort of sound but in relation to where to place the camera to get the best view, it is awkward and again those interviews are substandard. I know they had trialled having clips and the things so you could get better voice clarity of victims but again a lot of victims are not like this matter, they are quite substantially younger, grabbing it and then, you know, tapping [sic] and it goes through the sound systems and it's very hard to have a uniform system to add clarity to an interview.

Question: In paragraph 7 of your statement you refer to how you assessed the complainant's emotional state through some or all the parts of the interview. You wrote there that she looked very sad and shy and at times upset, wiping tears from her eyes, is that a correct account of your assessment of what you saw?

Answer: That is correct. I did, I seen little tears forming in her eyes, although she's not to a point I wouldn't say crying as in need tissues, wipe eyes but absolutely, I believe from my first initial meeting she was very low and I feel on that time when she did speak to me an audio/video that she was still quite a sad person. As to what she's like if I went out and spoke to her today.

Question: I have to say that in my viewing of the video I think that I could probably discern the first two descriptors, sad and shy, clearly enough she wasn't a very strong and assertive person, her voice dropped off many times and she trailed away I suppose. I have to say I did not discern the issue of tears as they occurred, would you be able to identify, do you think, I won't ask you to do so but do you think you'd be capable of identifying the place or places in the interview where such events relating to tears and wiping of eyes may have occurred?

Answer: No I couldn't your Honour.

99 The questioning ceased at this point. A little later, the Crown Prosecutor asked some further question in chief. I will set out that further examination in chief and the questions which followed (Trial Transcript, 188 - 189):-

EXAMINATION IN CHIEF BY CROWN PROSECUTOR

Question: Officer, you were asked by his Honour with respect to the set up of the camera effectively and your observations of SE, in particular you said that you observed tears in her eyes. Did you regard, or advise that during the course of the playing of the tape there was a notation made by the Crown with respect to signs of crying during the course of the interview?

Answer: That's correct.

Question: And that was then marked upon your transcript?

Answer: Transcription out of my brief, that's correct.

Question: If I can just show you your copy of the transcription. Certainly it's your independent recollection during the course of the interview. I'll go to the question and answer which has been nominated as question 301 and the answer therein. You agree that as part of the lengthy response that was made to your question in relation to what happened in that two week period, towards the end of that answer that (SE) gave you and then in about "Probably five, ten minutes I was actually asleep and when I woke up he was raping me". Do you agree that there's a notation that the complainant appeared to be crying at that point in time?

Answer: That's correct.

Question: Also if you go to question 456?

HIS HONOUR

Question: Ms Crown can I just ask whose notation was that, I'm sorry.

CROWN PROSECUTOR

Answer: This is by the Crown during the course of the video tape and I've asked the officer to confirm whether that was his recollection.

HIS HONOUR

Question: By the Crown, who in these circumstances, the Crown?

CROWN PROSECUTOR

Answer: Myself your Honour.

HIS HONOUR

Question: So you've made notes on the transcript --

CROWN PROSECUTOR

Answer: Yes --

HIS HONOUR

Question: And you're asking this witness to agree with --

CROWN PROSECUTOR

Answer: If he can agree that that was his understanding and recollection but if I can get to the next --

HIS HONOUR

Question: Yes by all means --

CROWN PROSECUTOR

Question: To be transparent. To go to question 456. Do you have that with you?

Answer: I do.

Question: Do you agree that there was the question asked of the complainant and then another question asked of yourself at 457 as to "How are you feeling?" She says "All right, you're right" and would you agree that that would be consistent with concern that you had for the complainant at that time?

Answer: That's correct.

Question: And again do you have a recollection of her crying at that particular point of the interview?

Answer: Yeah as per my statement, I couldn't indicate to your Honour straightaway without replaying the entire video where I felt that she was crying and after reference with you two pertinent points where I visualised that yeah.

Question: Do you also agree that, yes that's fine your Honour so they can be regarded on the video tape itself?

Answer: (No verbal reply).

HIS HONOUR

Question: I'm sorry, just so that I understand this process before Mr Webb asks the question, is it the effect of the evidence you've just given Mr Farrell that the Crown has drawn your attention to those two areas of the interview and you, on reflection say that those were or would have been the times that she was shedding some tears?

Answer: Madam Crown did make the observations, I obviously made them whilst I was taking the interview by audio video and that was reflected in my statement. When you particularly ask me that question out of the top of my mind I could not single out a particular question where she was crying at that time your Honour.

Question: I'm not at the moment I suppose disputing the original statement I'm just wondering what was the mechanism by which you refined your recent evidence to questions 301 to 456. Was it that the Crown has drawn these matters to your attention and you've concluded that their observation was correct or have you looked at the video subsequent to that and checked yourself or how did you go?

Answer: No I'm going off Madam Crown's observations your Honour.

100 The first observation I would make is that it was perfectly appropriate for his Honour to seek clarification of where it was in the interview the complainant was observed to have tears in her eyes. As his Honour had pointed out, the recording was of poor quality but the statement from the officer indicated that she had at some stage been in tears. The issue required clarification. Initially, the officer said that he could not precisely recall where it had occurred. When the matter resumed later in the day, the officer had the advantage of a further interview with the Crown Prosecutor. It was on that basis that he made his estimate that she had first begun crying as she was describing the incident where she woke up and found the appellant having sexual intercourse with her.

101 The police officer was then cross-examined extensively by trial counsel. As I read the cross-examination, there was not a single question directed to either the fact that the complainant had become teary during the interview, nor to the precise time at which that occurred, nor to any matter arising out of the trial judge's questions. Nor had trial counsel taken any objection to the particular questions.

102 I would reject the submission that his Honour's quite appropriate questioning was designed to elicit evidence that "bolstered the prosecution case in a significant respect". It was plainly designed to ascertain precisely when it was, according to the statement of the police officer, that the complainant became teary. In a case where her credibility, reliability, and possible contamination by other witnesses were in issue, it was entirely proper for his Honour to make the enquiry. It was the trial judge's duty to determine the facts. Moreover, he did it in a polite and courteous way. He did not interrupt counsel. He gave defence counsel every opportunity to cross-examine the witness. It was counsel's clear choice not to raise any issue about the matter his Honour had brought to the witness' attention. Indeed, it would have been remiss of his Honour not to raise the issue as he did. As I have said, there was no objection by counsel to his doing so. There was no suggestion that the police officer's description of the complainant's demeanour throughout the interview was anything other than accurate.

103 There is no need for me to go into the same level of detail for each instance of asserted "inappropriate" questioning of the appellant and his witnesses. The following points, however, may be safely suggested. First, in every case, the questioning was clearly relevant to an issue that required clarification. Secondly, the questioning was invariably carefully introduced and politely stated. The witness, once asked, was allowed to answer as he or she wished. Thirdly, there was no attempt to traduce or browbeat the witness. The overall impression I gained was that the trial judge was simply endeavouring to clarify issues or obtain information to resolve issues that were troubling him. Fourthly, the questions were generally asked at the end of cross-examination, or at the end of evidence-in-chief.

104 One example was the questioning directed to the appellant at the end of his evidence-in-chief relating to the important question of his plea of guilty in the prosecution for his sexual activities with MD. The appellant had stated in chief that, during each of the occasions he was having sexual intercourse with MD, he believed she was consenting. Immediately prior to the commencement of cross-examination, the following exchange occurred (Trial Transcript, 380 - 381):-

HIS HONOUR

Question: Ms Crown before you commence can I just ask one question please, before you commence?

The question as was put to you was that so far as MD was concerned was there any occasion that you in effect believed she was not consenting and you said "No there was no such occasion" is that correct?

Answer: That's correct.

Question: What was she not consenting to?

Answer: Sex, sexual activity.

Question: Well can you tell me, because I at the moment have nothing from you as to what sexual activity was said to have taken place between you and her. I have a version from her?

Answer: Your Honour there was sexual intercourse and oral sex.

Question: You have heard the evidence that she has given?

Answer: Yes.

Question: At the moment I don't know what it is that you say did occur and did not occur so far as she's given evidence. So I just wonder if you might tell me what it was?

Answer: On the first count your Honour, we were in bed...

105 It is clear that this questioning was designed to adduce from the appellant precisely what it was he claimed had happened between MD and himself. The questions arose in circumstances where the appellant had thus far not given in evidence his precise version of those events. The questions were highly relevant and appropriately asked prior to cross-examination by the Crown. Indeed, it might be said the questioning was, if anything, helpful to the appellant's position, because it enabled him, prior to cross-examination by the Crown, to state his position very clearly. His response, if accepted, clearly assisted his case.

106 There was only one occasion when the trial judge interrupted the cross-examination of the appellant. This occurred at the point when the Crown has been asking the appellant about his conversation with SE immediately prior to the Cudmore interview. The transcript records (pages 397 - 398):-

HIS HONOUR

Question: ... why did you speak with her at all, if there was nothing to be complained about why did you have to speak to her at all?

Answer: I just got her from the class and I said that a man had come to - was coming to speak to her, she was concerned about who this man was and what he wanted.

Question: Well she didn't know before you told him that a man was coming to see her correct?

Answer: Yeah I told her.

Question: All right. So my question to you is, what was the occasion for you speaking with her at all, if you considered there was nothing to fear about what she might say?

Answer: I don't really know, I just simply said this guy had come to talk to her about the time she spent at our place and don't worry about it and just tell the truth.

Question: Did you not think that is an investigator was coming around to enquire about complaints concerning you that you might get yourself into further trouble if it was discovered that you were talking to the people that they are going to speak to?

Answer: You Honour that is absolutely - it just he caught me unawares when he rang it just was a stupid thing to do and you know, I shouldn't have done, I should have got a staff member to do it, I remember I was afraid of the gossip and that's why I done it, but yeah look your Honour, I rang [JE] I apologised, I said I had done the wrong thing, I should never have spoken to her, it was just a stupid thing that I did at the time.

Question: I am just trying to understand your thought processes, it may well have been but as you take yourself back there why was it that you did it?

Answer: I did it because I was worried about the rumour mill with my staff and I thought if I arranged the interviews then my staff or people who gossip on my staff wouldn't find out what it was all about.

Question: Can I ask you how do you suppose your staff could not have known that there were interviews going on if they occurred at the school?

Answer: Well it was in the administration block which was away from the staff. Look my secretary knew there was obviously some staff that were being interviewed, they knew, and yeah, look it was a very silly thing to do I should have asked one of them to organise it, I didn't, it wasn't because I was afraid, it certainly, as I said nothing happened with [SE] at the home, I had nothing to be concerned about, I just simply wanted her to relax and not to worry about anything, and that's why I just said, just tell the truth.

107 In my opinion it was entirely appropriate to put these matters to the appellant. It was also appropriate to raise them with him at this point in his cross-examination, lest they be overlooked. The appellant was thus given an immediate opportunity to respond to a potentially damning piece of evidence. Indeed, had the particular questions not been asked (either by counsel or the trial judge), the appellant may have had a reason to complain about the course and conduct of the trial, if it had later been relied on.

108 Once again, there was no objection raised by trial counsel to the questions. No complaint of any kind was raised. Mr Webb was not prevented from asking any further questions himself, if he had wished to do so on the point. These comments apply generally to the questions by the trial judge of the other defence witnesses. On my reading of the transcript, there was no re-examination in the case of any of those witnesses, nor was there re-examination of the appellant himself.

109 One general complaint that was levelled against the trial judge was that all the questions he asked tended to assist the prosecution rather than the defence. As I have endeavoured to point out, that was not always the situation. But in any event, I see no indication in any of the questioning adopted by the trial judge that it was his intention to assist the prosecution. In each instance, the trial judge, whose task it was to determine the issues of fact in this somewhat difficult trial, intervened simply for the purpose of clarifying the evidence and understanding more precisely the issues at trial. It is obvious that, in the course of clarifying the evidence, and throwing a clearer light on the issues at trial, a judge may, without taking sides one way or the other, involuntarily or inevitably, assist either the prosecution or the defence. For my part, I cannot accept that this unintended consequence, if that is what happened, makes such an intervention inappropriate. I cannot accept that there is any principle that suggests a trial judge (whose task it is to determine the facts) should sit mute, especially in a situation where the lack of clarification and precision will hinder the ultimate fact finding process. In addition, counsel on either side need to know the nature of any matter that may be troubling the judge.

110 It is now some twenty years since the observations in Galea v Galea were written. The imperatives suggested by Kirby ACJ in that case, recognising the right and ability of a trial judge, within reasonable and legitimate boundaries, to question witnesses in a non-jury trial, are singularly apt, in the context of present day litigation. In that case, the trial judge had been, as Meagher JA recognised, driven to a degree of exasperation and irritation which was reflected in the number, type and tone of questioning adopted. Yet, despite this, the questioning, in the view of the Court of Appeal, did not transgress proper boundaries. By comparison, nothing of that kind happened in the present trial. The trial judge's interventions were moderate, balanced, necessary and proper in every respect. In my opinion, there is no substance in this ground of appeal.

Ground 5 - the verdict was unreasonable and incapable of being supported by the evidence

111 The final ground of appeal was that the verdict was unreasonable and incapable of being supported by the evidence. In that regard, Mr Newton's written submissions may be distilled as follows:-

(a) the complainant's evidence was uncorroborated;

(b) the complainant failed to make any complaint consistent with what was asserted by her at the trial until she had spoken to the police in mid-2009;

(c) the complainant gave inconsistent earlier "complaints" that significantly undermined her credibility;

(d) the appellant was recovering from significant surgery and had wounds which (at the very least) contributed to the improbability of the appellant having committed the offence;

(e) the complainant gave a "thank you" card to the appellant and his family that was inconsistent with her being the victim of a sexual assault;

(f) the complainant's mother gave evidence that the complainant's behaviour had improved when she returned home from staying at the appellant's house and that the complainant "spoke in glowing and complimentary terms of [FB]; and

(g) (in the event that this court took the view that the evidence of MD should not have been admitted), the lack of tendency evidence in the Crown case against the appellant.

Principles in relation to a claim of unreasonableness where the decision is that of a judge sitting without a jury.

112 Section 6(1) of the Criminal Appeal Act 1912 (NSW) states that the Court of Criminal Appeal "shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence."

113 The principles governing a conviction appeal from the verdict of a judge sitting without a jury were stated by this court in Keir v Regina [2007] NSWCCA 149 (Hunt AJA, Johnson and Latham JJ). Johnson J referred to statements made in an earlier decision, R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at [3] - [5]. In that case, Wood CJ at CL (Foster AJA and Adams J agreeing) observed:-

3 The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R50, and Kurtic CCA (NSW) 26 February 1996 unreported.

4 Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial Judge (s17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s6(1) Criminal Appeal Act 1912 ), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant...

114 These principles were recently affirmed in Arun v R [2010] NSWCCA 214, in the judgment of Hall J (with whom McClellan CJ at CL and Davies J concurred).

115 The task of the Court of Criminal Appeal in an "unreasonableness" appeal has recently been restated by the High Court of Australia in SKA v R [2011] HCA 13; 85 ALJR 571. In the plurality judgment of French CJ, Gummow and Kiefel JJ, it was stated at [11] - [14]:-

11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R (1984) 181 CLR 487 at 493 by Mason CJ, Deane, Dawson and Toohey JJ:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R ( 2002) 213 CLR 606 at [58], McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

13 T he starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say (at 494):

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

....

14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" ( Morris v R (1987) 163 CLR 454 at 473). In M , Mason CJ, Deane, Dawson and Toohey JJ stated (at 492 - 493):

In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".

116 In the present matter, having regard to the ground of appeal relied on by the appellant, it is this court's task to make an independent assessment of the whole of the evidence, paying special attention to those matters relied upon by the appellant in its submission, to determine whether the finding of guilt by the trial judge can be supported.

117 In making its own assessment, this court must, however, bear in mind the important qualification referred to in M at 493:-

But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

118 In the present context, this means that, in making the independent assessment of the evidence, this court must recognise that the trial judge had the benefit of having seen and heard the witnesses, and that he was the tribunal entrusted with the primary responsibility of determining guilt or innocence.

119 The qualification is further discussed in M at 494:-

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.

120 These aspects of the court's assessment apply equally to the approach necessary to be taken when the finding in question is that of a judge sitting without a jury.

The assessment

121 In my opinion, the case against the appellant was a strong one. The ultimate issues at trial were relatively simple and straightforward, even if the factual matrix was, as it often is in cases of this kind, somewhat complex and not without difficulty. If the complainant's evidence were accepted and the appellant's evidence rejected, a finding of guilt was not unreasonable. I have examined the evidence carefully, and, for my part, I have no doubt whatsoever that the complainant's evidence should be accepted. The qualifications expressed in M require this court, when making its assessment, to adequately recognise, if it has a doubt, the advantage a trial judge may have had in reaching his or her conclusions. Here, the trial judge concluded that the complainant, SE , was an honest and reliable witness. For my part, however, while I acknowledge the qualification, I do not need to call it in aid. I have no doubt about the complainant's veracity. My examination of her evidence leads me to the firm conclusion that it has the ring of truth about it. Of course, there were inconsistencies, and there was an absence of complaint for a considerable time. Those matters have to be weighed in the balance. But there were powerful reasons given by the complainant in her evidence to explain those matters, especially the impact upon her of the injunctions to silence imposed upon her by the appellant and, more importantly, her own natural reluctance, in the dynamics of the family situation, to mention any of those matters to her mother. She positively did not wish her mother to find out what had happened. This also explains her reluctance to tell her friends exactly what happened, and her aversion to revealing "the gruesome details" to them.

122 A similar comment can be made about the 'thank you' card written to the appellant after the fortnight in question when the complainant had been staying at his home. Of course, the card was written not only to the appellant, but to his family. The complainant, in her evidence, explained that she only did this because she had been trained by her mother to thank those who gave hospitality, and she had decided that she did not want her mother to know what had happened to her. She said in evidence:-

I actually did not want to write it and mum told me so I did. I actually took a few, well a lot of persuading, to get me to write it.

The complainant also said that her mother had no knowledge that anything bad had happened, and that she, the complainant, "wanted it to stay like that".

123 These explanations strike me as the truth. They explain adequately what might otherwise appear to be a strong inconsistency. The same point may be made about Mr Newton's argument that the complainant "spoke in glowing and complimentary terms of [FB]." This isolated statement does not adequately reveal the periods of bad behaviour described by the complainant's mother when she was describing her daughter's behaviour after her return to the family environment (Trial Transcript, 130).

124 There was ample evidence at trial to show that the appellant had an unhealthy sexual interest in the complainant. This evidence came not only from the complainant, but from other witnesses as well. Contrary to Mr Newton's submissions, this was formidable evidence in the prosecution case.

125 In relation to the evidence given by the appellant, even though I did not have the advantage of seeing and hearing it when it was given, my reading of it is that it was, in a number of respects, self-serving and overstated. The fact that the appellant had "chosen" the Deputy Headmaster to be the complainant's support person for the purpose of the Cudmore interview, and that he spoke to her about the evidence she was to give, was damning, to say the least. Even more significant, was the evidence relating to the appellant's behaviour with MD, which, in my opinion, was rightly admitted as tendency evidence. The appellant's evidence that he was physically unable to have sexual intercourse because of his wounds following post-surgery infection was, in the circumstances, demonstrated in his cross-examination to be quite unbelievable. He had been able to pilot and fly a plane, able to drive motor vehicles, and able to load and unload a boat from a trailer, climb in an out of a boat, and so on. And of course, it was the Crown case that he had put the complainant to sleep with a tablet before initiating sexual intercourse with her.

126 Having made an independent assessment of the evidence, I have concluded that I have no doubt as to the guilt of the accused. For that reason, in my opinion, it was well open to the trial judge, as a matter of fact, to be satisfied beyond reasonable doubt of the guilt of the appellant. I do not consider that there is any danger that an innocent person has been convicted.

127 I would dismiss this ground of appeal. It follows then that I would dismiss the appeal against conviction.

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Regina v FB - Crown Appeal

128 Having dealt with the appeal against conviction, it is now necessary to deal with the Crown appeal. In this part of the decision, I shall refer to FB as the respondent.

129 The appeal is against the sentence imposed by the trial judge on 11 th November 2010. I have earlier set out many of the details of the trial including the charge. It was, it will be recalled, a charge that, between 16 th and 31 August 2006, the respondent had sexual intercourse with SE without her consent, in circumstances of aggravation. Those circumstances were that at the time, SE was under the age of 16, and had been under the authority of the respondent, as he was the headmaster of her school.

130 The offence of aggravated sexual assault is provided for in section 61J(1) of the Crimes Act 1900 . It provides a maximum penalty of 20 years, and a standard non-parole period of 10 years. His Honour's sentence is recorded in the following terms:-

In relation to the offence with which you have been charged, and I have found you guilty, I convict you of that offence. I impose a non-parole period of 4 years. That is to commence on 4 th February 2010. I pause to note that is partially accumulated by 6 months on the penalty imposed by Judge North. It will first expire on 8 th February 2014.

I impose a balance of term of 2 years and 6 months which will expire on 8 th August 2016. Effectively, that is a term of 4 years, backdated by 6 months, with a non-parole period of an effective term of 6 years and 6 months.

131 The reference by the sentencing judge to a partial accumulation by 6 months on the penalty imposed by Judge North requires explanation. The respondent had been dealt with by Judge North in the District Court on 20 th November 2009. He had pleaded guilty to an indictment containing five charges. Each stated in identical terms that, between 10 and 14 December 2007, he had sexual intercourse with MD, she then being under his special care as headmaster, and being under the age of 17 years, contrary to section 73(1) of the Crimes Act 1900 . The offence carried a maximum penalty, in each case, of 8 years imprisonment. Judge North's remarks on sentence were tendered during the sentencing proceedings before Judge Lakatos. Judge North noted, when sentencing the respondent, that he had been bail-refused for those offences since 9 May 2008.

132 The overall effect of the sentences imposed by Judge North for the five offences was imprisonment for a total term of 3 years and 9 months, with a non-parole period of 2 years and 3 months, commencing on 9 May 2008 and expiring on 8 August 2010. By the time his Honour Judge Lakatos sentenced FB on 11 November 2010, the non-parole period for Judge North's sentences had expired (on 8 August 2010). The respondent had remained in custody, presumably bail refused, after the expiry of the non-parole period.

Mistake by the sentencing judge

133 It is clear that his Honour Judge Lakatos intended to impose a total effective sentence of 6 years with a non-parole period of 4 years. It is also clear that his Honour intended that these sentences would run partly concurrently (by six months) with the sentences imposed by Judge North. The intended result was that the non-parole period imposed by Judge Lakatos was, but for a period of six months, to be wholly cumulative on the effective non-parole period imposed by Judge North. This was intended to result in a situation where the effective time in prison for the SE offence would be 3 years.

134 However, it appears that, in the present sentencing exercise, Judge Lakatos "simply misspoke" when he indicated that the sentence would commence on 4 February 2010. It is agreed between the parties that the correct commencement date was 9 February 2010. All the subsequent documentation indicates that this is so. Consequently, this court may proceed on that basis.

Crown submissions on appeal

135 The Director relies on two grounds in support of this appeal. Essentially however, he argues that the sentence imposed was manifestly inadequate. Ground one is said to reveal "a discrete error" to explain how it was the judge came to impose a manifestly inadequate sentence. The two grounds are:-

Ground 1: His Honour erred in that the sentence imposed did not adequately reflect the objective seriousness of the offence, nor did it reflect his Honour's finding that the offence was "just below" the middle of the range of objective seriousness;

Ground 2: The judge imposed a sentence that was manifestly inadequate.

Findings by the sentencing judge

136 As this was a sentence following trial, the standard non-parole period of 10 years had direct application. His Honour was required to make an assessment of the objective seriousness of the offence, and provide his reasons for that assessment. The finding by his Honour, referred to in Ground 1 mentioned above, was that the current offence was "just below" the mid-range of objective seriousness.

137 The factors that his Honour identified as bearing upon the objective seriousness of the offence were as follows:

• The complainant was 14 years of age and the respondent was a mature man in his 40s;
• The respondent was the headmaster of the school and the complainant was a student at that school. Thus there was a power imbalance and a position of trust and control. Further, because the complainant had been staying in the respondent's home at the relevant time at the request of her parents, the respondent was, by analogy, "in loco parentis" for that period;
• The complainant was vulnerable. This was not only because of her age, but because the respondent had taken advantage of the conflict between SE and her parents, and the offence took place at a time when she was under his control and absent from familial support;
• The respondent had ingratiated himself with the complainant by taking her flying and buying her gifts;
• The respondent took advantage of SE when she was asleep;
• The respondent used moderate force, by holding down SE against her will when she awoke; and
• The intercourse was penile-vaginal in nature.

138 On the other side of the coin, the sentencing judge took into account that no physical injuries had been suffered by SE. The assault was not lengthy, and the respondent had acted in this manner on but one occasion. There had been, however, the application of some pressure by way of "threats" by the respondent to SE, in order to hide what had occurred.

139 The Crown did not challenge the discretionary finding of his Honour that the offence was "just below the mid-range of objective seriousness". The real complaint was that the non-parole period imposed - 4 years - was "dramatically" below the standard non-parole period of 10 years. The Crown argued that there was nothing that warranted a non-parole period so substantially below the standard. Further, the Crown argued that there was nothing revealed in the remarks on sentence that would justify the non-parole period falling so far below the standard period. The Crown submitted that, having regard to the objective seriousness of the offence, the non-parole period of 4 years was so disproportionate thereby as to indicate error ( R v McEvoy [2010] NSWCCA 110 at [90] per Simpson J). The Crown argued that there was nothing in the subjective circumstances of the offender that could possibly warrant a departure of this magnitude.

The judge's findings on subjective circumstances

140 It is appropriate at this point to return to the remarks on sentence. In view of the arguments raised by the Crown in the appeal, it is helpful to examine the subjective circumstances of the respondent. This is particularly important in the present matter as Mr Newton, who appeared for the respondent on the appeal, argued that the sentencing judge had reduced the standard non-parole period to the extent that he did after careful consideration of "other relevant factors, such as personal circumstances".

141 The first finding that was made by his Honour, not challenged on appeal, was his conclusion that he should deal with the respondent on the basis that the offence against SE was his first major criminal offence. While it is true that he had been earlier dealt with for the offences against MD, those offences had in fact occurred in the year following the sexual intercourse with SE. Secondly, however, his Honour did not accept that the respondent's longstanding symptoms of a "severe depressive illness" (referred to by Dr Watson-Munro) contributed to the commission of the offence against SE. Indeed, his Honour was confirmed in this view because the psychiatrist had been unable to say whether the offender had been suffering from any psychological symptoms back in August 2006. The psychiatrist candidly admitted that it would be speculation on his part to attempt that particular judgement. However, it was accepted that there was a long-standing depressive illness of a severe nature which was still affecting the respondent.

142 In this regard, his Honour noted the following statement by Mr Watson-Munro in the written report (at page 4):-

It is clear that this man has suffered protracted symptoms of severe depression which commenced earlier on in his life and which were compounded by a number of key events inclusive of his deteriorating relationship with the Grafton community when he took up his position as the Principal [of the school].

According to the psychiatrist, the respondent was now "heavily medicated" with anti-depressive and anti-psychotic drugs. He said there were no differences in the respondent's presentation between the two occasions when he first saw him in 2009 and the occasion when he saw the offender in 2010. He noted, however, that "the prisoner's mood was more stable presently speaking". Mr Watson-Munro, during examine-in-chief (Submissions on Sentence Transcript, 24) expressed the opinion that "the prisoner is clearly a paedophile".

143 Mr Watson-Munro thought that the respondent required more intensive treatment than he had received at the time of the sentencing hearing. The sentencing judge noted that there were programmes which were presently available which might be of considerable assistance in the rehabilitation of the respondent. These normally extended over about four years, and involved the taking of medication which reduces libido, as well as involvement in a long term cognitive behaviour programme.

144 It seems that the psychiatrist was wary of expressing a definitive opinion on the risk of recidivism. He said "candidly" that this depended upon whether the prisoner had a "long commitment to treatment". Based on benevolent assumptions, however, it seemed to be his concluded opinion that the risk of recidivism was "moderate". The sentencing judge accepted this proposition, namely that the need for post-release treatment and its prospects of decreasing the risk of recidivism, required a lengthy non-parole period enabling supervision.

145 There were two matters, however, which the sentencing judge thought should particularly be taken into account as mitigating factors. These were the fact of extra curial punishment and, due to the nature of the offence, the harshness of the incidents of imprisonment. As to the first, the sentencing judge took into account that, prior to the commission of the offence, the respondent had been a highly regarded professional teacher and the principal of a country school. He had been a well-educated person apparently living a happy family life. His Honour said (Remarks on Sentence, 20):-

It is self-evident that his fall from grace, by reason of these serious criminal matters, has been dramatic, and no doubt traumatic for him and also for his family. It has resulted in his estrangement from some of the members of his family and from the loss of any future career in teaching. I interpolate to say it may well have a far broader impact, that it would prohibit him from any career which may well bring him into contact with young children... His counsel has submitted that he practically is unemployable. Whether that description overstates the position or not might be debated. However, it is certainly clear that his professional life, as he knew it, after his release from custody, is not open to him and never will be.

146 As to the second matter, the sentencing judge accepted the evidence of Dr Watson-Munroe that the respondent "is a vulnerable person in the prison context and is likely to be the subject of adverse attention by other prisoners". It appears the respondent told his psychiatrist that he had been assaulted in prison, "leading to broken bones". Furthermore, he had been subsequently been assaulted by others "throwing fruit at him". He had been on full protection since his incarceration "and that meaning he has been locked in his cell for between 18 and 23 hours a day". His Honour indicated, however, that there was no direct evidence from the respondent of this fact, although he was prepared to accept the second-hand account of the respondent's position at the time when that information had been passed to his psychiatrist.

147 There were other general matters dealt with by his Honour. He noted, for example, that the respondent had completed a sex offenders' programme over 14 weeks at the Goulbourn Gaol. He noted that the respondent had expressed "profound remorse notwithstanding that he indicated he was not guilty". He noted the previous good character of the respondent. (In this regard, his Honour indicated that he proposed to treat this offence as the first serious offending of the respondent in point-of-time). On the issue of character, his Honour observed that good character or lack of previous conviction was not to be taken into account as a mitigating factor, if the court were satisfied that the factor concerned was of assistance to an offender in the commission of an offence. (This was clearly a reference to the provisions of section 21A(5) of the Crimes (Sentencing Procedure) Act 1999 which, it is accepted, applied to the subject offence and the respondent). In this regard, his Honour concluded, however, that the respondent's good character should be treated as "a neutral factor". That is to say, the sentencing judge took the view that the issue of good character was one which was to be regarded as neutral in the particular circumstances that related to his position in the school and his ability thereby to pursue his predilection for interfering with young girls.

The imposition of sentence

148 The sentencing judge recited the various matters that I have earlier listed relative to a determination of the objective seriousness of the offence, and where it stood in the range of seriousness. He said (Remarks on Sentence, 18 - 19):-

For all of those reasons, I considered that whilst this is a serious offence, the objective gravity of it is just below the mid range of objective seriousness. I also consider that the sentence that should be imposed should be partially accumulated on that imposed by Judge North because this, in point of time, represents the prisoner's first series of serious criminal transgressions against the criminal law, and also, in my view, by reasons of totality. Even though the prisoner has not given evidence in the sentencing proceedings, I am satisfied that due to the nature of the offence, and the status of the offender as a teacher or principal of the school, the incidents of his imprisonment have been, and may well continue to be, harsh. I accept the evidence of Mr Watson-Munro that he is a vulnerable person in the imprisonment context and is likely to be the subject of adverse attention by other prisoners. I have had regard to that matter in determining the appropriate sentence.

On the issue of extra-curial punishment, his Honour said (Remarks on Sentence, 20):-

As I say, the authorities are clear that a court is entitled to take into account such extra-curial punishments, with the proviso that the offender could not have committed these offences in the way that they were committed, without being a highly regarded teacher and then a person of good character.

149 Finally, the sentencing judge had regard to the evidence of Mr Watson-Monro concerning the need for the respondent to continue to undergo appropriate therapy and counselling both while in custody and on release. He made recommendations in each of those regards. His Honour then imposed the sentence to which I have earlier made reference, ensuring that there was a degree of partial accumulation upon and within the sentences imposed by Judge North, and structuring the sentence to reflect his finding of special circumstances. The ultimate sentence imposed by his Honour reflected this by varying the statutory ratio to 61.5 per cent.

Was the sentence manifestly inadequate?

150 It is plainly the position, the respondent having been found guilty after trial, that the standard non-parole period had direct application by force of statute. It was not merely there to serve as a guidepost on sentence in the situation where a plea of guilty has been entered ( R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184 [68]). The sentencing judge was obliged to have regard to both the maximum penalty and the standard non-parole period ( R v Achurch [2011] NSWCCA 186 per Garling J at [180]).

151 In the present matter, the sentencing judge concluded that the objective gravity of the offence fell "just below the mid range of objective seriousness". Although perhaps somewhat generous to the respondent, there was no challenge by the Crown to this finding.

152 The real question arising on the Crown appeal is whether there was any justification, in the findings his Honour made in relation to subjective circumstances or otherwise, that would permit the imposition of a non-parole period of no more than four years. The standard period for this offence if it were in the mid-range of objective seriousness was 10 years. In my opinion, with all due respect to the sentencing judge, I have been forced to conclude that his Honour's reasoning fails to justify such a substantial departure from the standard non-parole period.

153 First, it may be observed that the non-parole period imposed is only 40 per cent of the standard non-parole period. Secondly, the overall term of the sentence was 6 years, a sentence itself well below the standard non-parole period. Each of these factors in itself is sufficient, in my opinion, to suggest or point strongly to error, unless the apparent discrepancy can be explained by the respondent's subjective circumstances, or by some other matter.

154 However, there is nothing in those subjective circumstances, or elsewhere in the sentencing material, that would warrant such a substantial departure from the standard non-parole period. The respondent was entitled to have the sentencing court take into account his depressive state and the judge did so. However, this circumstance could not, in the present matter, possibly outweigh or undermine the objective seriousness of the offence. As the courts have repeatedly stated in this context, ill health cannot be allowed to become a licence to commit crime, nor should offenders expect to escape punishment because of the condition of their health. Of course, it will be the responsibility of the Correctional Service authorities to provide appropriate care and treatment for prisoners with illness and disabilities ( R v Vachalec (1981) 1 NSWLR 351 at 353 - 354). This factor could not have explained the selection of a four year non-parole period.

155 The two circumstances most beneficial to the offender were hardship in prison and the factor of extra curial punishment. As to the first, the only evidence before the sentencing judge was the abusive behaviour experienced by the respondent in prison and his concern that this would or might continue after he had been sentenced. There was no evidence, for example, to suggest that there would be imposed on the respondent any specific custodial situation that would reveal hardship out of the ordinary ( R v Totten [2003] NSWCCA 207; 10 Crim LN 61 (1582); R v Durocher-Yvon [2003] NSWCCA 299; 10 Crim LN 78 (1610); R v Mostyn [2004] NSWCCA 97).

156 As to extra curial punishment, it may be accepted that the respondent had lost altogether his career as a teacher by virtue of his commission of the offence. Once again, however, this consideration could not, in the circumstances, have possibly outweighed or effectively undermined the level of objective seriousness involved in the offence. The respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end.

157 The sentencing judge also took into account such remorse as had been shown by the offender, and his potential for rehabilitation. His previous good character was taken into account, but, for reasons his Honour explained, remained in the end at a neutral level.

158 Having considered all of these matters, and making every allowance for them, I have come to the clear view that the sentence imposed was manifestly inadequate in the well-recognised sense that it was unreasonable or plainly unjust ( Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371; Carroll v R [2009] HCA 13; 83 ALJR 579 at [8] - [9]). Individually and collectively, the matters referred to by his Honour could not, having regard to the objective seriousness of the offence, explain or justify the degree to which the non-parole period fell below the standard.

159 Mr Newton relied on three decisions to make the point that there were cases where sexual offences against young girls involving breach of a position of trust, had resulted in sentences similar to the present. These demonstrated that the present sentence was not "out of the range". Mr Newton also relied on JIRS statistics which suggested, in his submission, a similar conclusion. I would make two points in response. First, the court has spoken repeatedly about the caution with which it should approach statistical analysis. Indeed, as Simpson J observed, with considerable acuity, in Monteiro v R [2011] NSWCCA 113, the statistics concerning offences against section 61J of the Crimes Act 1900 suggest no more than that Part IV Div 1A is, it would seem, not being applied with the rigor that should be accorded to a regime imposed by parliament. Secondly, none of the cases mentioned by Mr Newton (or for that matter a number of cases referred to by the Crown) are of any great assistance. The facts of one are invariably very different from the other, and from the facts of the present matter.

Re-sentencing

160 It is necessary to re-sentence the respondent.

161 In doing so, I observe that there is nothing which would lead me to conclude that the Court should decline to intervene in the exercise of its discretion. I have given full weight to tall the salient features of the case which I have identified above. I take into account also the position agreed between the parties that the respondent is currently at the special management area placement. I would maintain the finding of "special circumstances" for the reasons identified by Lakatos DCJ. I am also mindful of the consequences that flow from the fact that the sentence which I propose will be accumulated, to some extent, upon the pre-existing sentence which was imposed by Judge North: Kalache v R [2001] NSWCCA 210.

162 I propose the following orders:

1. Dismiss the appeal against conviction.

2. Allow the Crown appeal against sentence.

3. In substitution for the sentence imposed in the District Court, sentence the respondent to a non-parole period of 6 years with a total term of 10 years imprisonment to commence on 9 August 2009.

4. The total term will expire on 8 August 2019 and the non-parole period will expire on 8 August 2015 on which date the respondent will be eligible for release on parole.

163 BUDDIN J : I agree with Whealy JA.

164 HARRISON J : I agree with Whealy JA.

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Amendments

11 October 2011 - 'Vandermerler' corrected to 'Van der Merwer'.
Amended paragraphs: 74, 83, 60(f)

11 October 2011 - 'accused' corrected to 'complainant'.
Amended paragraphs: 102, line 5

Decision last updated: 11 October 2011