Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Doyle v R; R v Doyle [2014] NSWCCA 4
• Hearing dates: 11 July 2013
• Decision date: 20 February 2014
• Before: Bathurst CJ at [1]; Price J at [432]; Campbell J at [472]

Decision

1 Appeal against conviction dismissed.

2 Crown appeal against sentence allowed.

3 Quash the sentences imposed by Woods DCJ for counts 17, 18, 21, 22, 23, 28 and 29 being offences contrary to s 66C(2) Crimes Act.

4 In lieu thereof, for each count sentence the appellant to imprisonment for 5 years consisting of a non-parole period of 2 years 6 months commencing on 4 July 2016 and expiring on 3 January 2019 with a balance of term of 2 years 6 months commencing on 4 January 2019 and expiring on 3 July 2021.

5 Quash the sentences imposed by Woods DCJ for counts 35, 36, 37 and 38 being offences contrary to s 61M(1) Crimes Act.

6 In lieu thereof, for each count sentence the appellant to imprisonment for 6 years consisting of a non-parole period of 4 years commencing on 4 July 2012 and expiring on 3 July 2016 with a balance of term of 2 years commencing on 4 July 2016 and expiring on 3 July 2018.

7 Confirm the sentences imposed by Woods DCJ for counts 1-16 inclusive, 19, 20, 24, 25-27 inclusive and 30-34 inclusive.

• Catchwords: CRIMINAL LAW - appeal against conviction - sexual offences alleged by multiple complainants - tendency evidence - circular or coincidence reasoning - whether the trial judge misdirected the jury as to tendency.; CRIMINAL LAW - appeal against conviction - evidence of complaint - whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.; CRIMINAL LAW - appeal against conviction - sexual experience of complainant - s 293 Criminal Procedure Act 1986 - whether error in refusing leave to cross-examine complainant about sexual experience.; CRIMINAL LAW - appeal against conviction - s 38 Evidence Act 1995 - whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence - whether error in directions.; CRIMINAL LAW - appeal against conviction - whether the trial judge erred in declining re-examination to re-establish credibility.; CRIMINAL LAW - appeal against conviction - whether impermissible cross-examination of the appellant's character witnesses.; CRIMINAL LAW - appeal against conviction - whether summing up was fair and balanced - whether the trial judge failed to adequately put the defence case to the jury.; CRIMINAL LAW - Crown appeal against sentence - whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.
• Legislation Cited: Crimes Act 1900 (NSW), ss 61E, 61M, 66C, 66D, 78Q, 81; Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10, 28; Criminal Appeal Rules, r 4; Criminal Procedure Act 1986 (NSW), ss 130A, 293; Evidence Act 1995 (NSW), ss 11, 38, 39, 46, 60, 66, 97, 98, 101, 102, 103, 106, 108, 135, 136, 137, 192
• Cases Cited: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96; Abdel-Hady ('Sa') v R [2011] NSWCCA 196; BP v R [2010] NSWCCA 303; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; Carbines v Powell (1925) 36 CLR 88; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358; Col v R [2013] NSWCCA 302; DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206; GEH v R [2012] NSWCCA 150; Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606; Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Johnson v R (2004) 78 ALJR 616; Kanaan v R [2006] NSWCCA 109; KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; Magnuson v R [2013] NSWCCA 50; Mill v R (1988) 166 CLR 59; 36 A Crim R 468; Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452; Pearce v R [1998] HCA 57; (1998) 194 CLR 610; Pemble v The Queen (1971) 124 CLR 107; PWB v R [2011] NSWCCA 84; R v Berrigan (Court of Criminal Appeal (NSW), 7 October 1994, unreported); R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487; R v Hammond [2000] NSWCCA 540; R v Holder & Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375; R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474; R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82; R v Meher [2004] NSWCCA 355; R v MMK [2006] NSWCCA 272; 164 A Crim R 481; R v Morgan (1990) 30 NSWLR 543; R v Ryan (No 7) [2012] NSWSC 1160; (2012) 218 A Crim R 384; R v Souleyman (1996) 40 NSWLR 712; R v Sukkar [2005] NSWCCA 54; R v Velevski (No 2) (1997) 93 A Crim R 420; R v Veverka [1978] 1 NSWLR 478; R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51; R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89; R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629; SGJ v R; KU v R [2008] NSWCCA 258; Shanahan v Scott (1957) 96 CLR 245; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528; Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
• Texts Cited: J D Heydon, Cross on Evidence, (9th Aust ed 2013)
• Category: Principal judgment
• Parties: Appeal against conviction; Philip William Doyle (Appellant); Crown (Respondent); Appeal against sentence; Crown (Appellant); Philip William Doyle (Respondent)
• Representation: Counsel: T A Game SC, G A Bashir and P Dwyer (Philip William Doyle); M Cinque (Crown); Solicitors: Uther Webster & Evans (Philip William Doyle); S Kavanagh - Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/194799
• Publication restriction: Non-publication orders in respect of all complainants excluding Mark Lawrence, all witnesses the naming of whom could identify the complainant, all witnesses who were juveniles at the time of an offence and the witness MB.

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-08-24 00:00:00
• Before: Woods QC DCJ
• File Number(s): 2009/194799

Judgment

1 BATHURST CJ: Philip Doyle (the appellant) was arraigned on 38 charges alleging sexual offences committed against five male complainants.

2 The appellant was initially tried on these 38 counts and one further count before Judge North and a jury (the first trial). Judge North gave a directed verdict on one count and the jury was otherwise unable to reach a verdict. At his subsequent trial before Judge Woods QC and a jury, the appellant was convicted on all 38 counts. He was sentenced to an overall term of 7 years' imprisonment with a non-parole period of 4 years and 6 months.

3 The appellant has appealed against his conviction and sought leave to the extent that it was necessary to do so.

4 The Crown has appealed against the sentence imposed pursuant to the provisions of s 5D of the Criminal Appeal Act 1912 (NSW).

The charges the subject of the appeal

5 Counts 1 to 3 in the indictment alleged indecent assault against a male person, Mr Mark Lawrence, contrary to s 81 of the Crimes Act 1900 (NSW) (the Act). The assaults the subject of Counts 1 and 2 were said to have occurred between 1 September 1980 and 30 April 1981, whilst the assault the subject of Count 3 was said to have occurred between 1 September 1981 and 30 April 1982.

6 Counts 4 and 5 charged sexual offences against a male person, PM. Each of the charges alleged that the appellant was a party to an act of gross indecency with PM, a male person under the age of 18 years, namely, 16 years contrary to s 78Q(1) of the Act. The offences were said to have taken place between 8 June 1985 and 31 August 1985.

7 Counts 6 to 11 charged sexual offences against a young male person, DL. Counts 6 to 10 alleged that contrary to s 61E(1A) of the Act, the appellant assaulted DL and at the time of the assault committed an act of indecency on him, DL being under the age of 16 years and under the authority of the appellant. The offence the subject of Count 6 was alleged to have taken place on 5 August 1986; the offence the subject of Count 7 between 1 September 1986 and 30 September 1986; the offences the subject of Counts 8 and 9 between 1 February 1987 and 28 February 1987; and the offence the subject of Count 10 between 1 March 1987 and 30 April 1987.

8 Count 11 charged that between 1 March 1987 and 30 April 1987 the appellant solicited DL, a male person under the age of 18 years, to commit an act of homosexual intercourse with or towards a male person, contrary to s 78Q(2) of the Act.

9 Counts 12 to 16, 19 to 20, 24 to 27 and 30 to 34 charged that the appellant contrary to s 61E(1A) of the Act assaulted KM and at the time of the assault committed an act of indecency on him, KM being under the age of 16 years and under the authority of the appellant. Count 12 was alleged to have taken place between 1 July 1989 and 31 July 1989, Count 13 between 1 August 1989 and 31 October 1989, and Counts 14 to 16 and 19 between 1 September 1989 and 24 December 1989. KM was aged 13 years at the time that these offences were said to have taken place.

10 The offence the subject of Count 20 was said to have taken place between 1 January 1990 and 28 February 1990; the offences the subject of Counts 24 and 25 were said to have taken place between 1 January 1990 and 31 March 1990; the offences the subject of Counts 26, 27, 30, 31 and 32 were said to have taken place between 1 April 1990 and 30 April 1990; and the offences the subject of Counts 33 and 34 were alleged to have taken place between 1 July 1990 and 24 December 1990. At the time of each of these alleged offences KM was said to have been aged 14 years.

11 Count 17 charged that the appellant contrary to s 66D and s 66C(2) of the Act attempted to have sexual intercourse with KM, a person over the age of 10 but under the age of 16 years, namely, 13 years and under the authority of the appellant. The offence was alleged to have been committed between 1 September 1989 and 24 December 1989.

12 Count 18 charged that the appellant contrary to s 66C(2) of the Act had sexual intercourse with KM, a person over the age of 10 years and under the age of 16 years, namely, 13 years of age and under the authority of the appellant. The offence was alleged to have been committed between 1 September 1989 and 24 December 1989.

13 Counts 21 to 23, 28 and 29 charged that the appellant contrary to s 66C(2) of the Act had sexual intercourse with KM, a person above the age of 10 and under the age of 16 years, namely, 14 years of age and under the authority of the appellant. The offences the subject of Counts 21 to 23 were alleged to have taken place between 1 January 1990 and 28 February 1990, whilst the offences the subject of Counts 28 and 29 were alleged to have taken place between 1 April 1990 and 30 April 1990.

14 Counts 35 to 38 alleged that contrary to s 61M(1) of the Act the appellant assaulted MH and at the time of the assault committed an act of indecency on him, MH then being under the age of 16 years, namely 15 years. Each of the offences was alleged to have taken place between 12 April 2003 and 20 November 2003.

Outline of the Crown case

15 Although it will be necessary to deal with the factual background in relation to some of the charges in more detail when addressing the grounds of appeal, broadly speaking the Crown alleged that each of the complainants were young persons who were befriended by the appellant whilst he was the proprietor of a cinema known as the Kogarah Mecca (the theatre). It was alleged that Mr Lawrence applied for a job at the theatre in early 1980 and worked as a projectionist and an usher on Thursday, Friday and Saturday evenings. The Crown alleged that over time the appellant befriended Mr Lawrence and his family. The appellant was alleged at one stage to have promised Mr Lawrence a car and a vintage projector if he worked at the theatre for two years.

16 Mr Lawrence said that a few times the appellant and he went to the appellant's unit at Ozone Street, Cronulla, where they had a sauna or a shower.

17 The indecent assaults the subjects of Counts 1 to 3 were alleged to have occurred in the projection booth of the theatre. Mr Lawrence stated that as it was very hot in the booth he would wear only a singlet and underpants under his overalls. Mr Lawrence claimed the appellant came into the booth and slid his hands into the slits behind the pocket flaps of the overalls where he fondled Mr Lawrence's penis.

18 Mr Lawrence ceased to work at the theatre in early 1982.

19 PM's sister performed in two pantomimes at the theatre. Between the first pantomime and the second (Hansel and Gretel) PM and his family socialised with the appellant and visited his unit overlooking the beach at Cronulla.

20 PM said that he worked as an usher through every performance of Hansel and Gretel. After the pantomime PM began to spend more time with the appellant, although generally in the company of his family.

21 In June 1985 PM's father left for a job in Lismore but his family did not join him until about January 1986. PM continued to see movies at the theatre and received some driving lessons from the appellant. PM said that one night when they drove to Kurnell the appellant suggested they could come back when the weather was warmer and that if they did so PM would not need swimming attire because they could swim in the nude.

22 PM referred to an incident in July or August 1985 when he had gone to the theatre with friends and was offered cask wine by the appellant. As he did not want his mother to find out that he had been drinking it was agreed that the appellant would ask PM's mother to let PM stay overnight at the appellant's unit.

23 After PM's mother agreed, PM stated that he and the appellant went back to the theatre and continued drinking. PM said he became intoxicated. He said that during the journey back to the appellant's unit the appellant touched his penis through his clothing and said something about his "little dick". This was the subject of Count 4 in the indictment.

24 PM claimed that when they arrived at the unit the appellant assisted in removing his clothing and slid his underpants off saying, "You won't be needing those".

25 Thereafter PM said they got into bed and the appellant started to fondle PM's genitals stating, "this will help us to be better friends". PM said it hurt and he asked the appellant if there was any form of lubricant. The appellant obtained some baby oil and put it on his hand and on PM's genitals which he continued to fondle. This incident was the subject of Count 5.

26 PM said that on the next day he contacted and arranged to meet a friend who he identified as NL. The following day he met NL and told him that something of a sexual nature had occurred involving the appellant. However, PM continued to see the appellant.

27 PM said that he had heard of Mr Lawrence's name but had never met him. PM did not recall DL's name and did not remember meeting anyone by that name.

28 DL commenced working at the theatre shortly after March 1986. He was given a uniform to try on and he told the appellant that the pants were tight. The appellant checked by feeling the front of DL's pants. He was given a different uniform.

29 Initially DL worked Tuesday and Friday nights at the theatre, but later he also worked a shift on Saturday afternoons, mainly during school holidays. The appellant also asked him to come in early on Saturdays to help him with odd jobs. He stated that on occasion the appellant took him to lunch at McDonald's or a Chinese restaurant.

30 On Tuesday 5 August 1986 there was a large storm and Salt Pan Creek flooded. DL lived on the other side of the river to the theatre and no traffic could get through, so DL could not be picked up and taken home. DL said he recalled a conversation between himself, the appellant, and Mr Robert Tenant, the theatre manager, in which Mr Tenant offered that he stay at his home. However, the appellant said he would have DL at his place. DL and the appellant arrived at the appellant's Cronulla unit at about 11.00pm.

31 DL was told by the appellant that he did not have a spare bed so he would have to sleep in the appellant's bedroom. As DL did not have a change of clothes he got into bed in his underpants. The appellant also got into the bed, also in his underpants and possibly a t-shirt.

32 DL's evidence was that the appellant was talking to him and touching him on his arm or leg. Eventually the appellant touched DL's penis on the outside of his underpants, holding his hand there for about 30 seconds. DL said he was in shock and very scared. He said the appellant started to stroke his penis and placed DL's hand on his own penis. DL said that he thought at some stage his underpants were removed by the appellant.

33 DL said that the appellant started to masturbate him. DL said his hand was on the appellant's penis and that the appellant was thrusting his hips into DL's hand. DL said this continued for about two hours.

34 This incident was the subject of Count 6 in the indictment.

35 DL said that in around late September 1986 he went to the appellant's house in Sans Souci. The appellant asked him to pose for photographs. DL said that he would and he was given some Speedos to put on. He said they were too small and made his genitals bulge through his pants. The appellant photographed him around the pool and inside the house and then suggested that they go for a drive to Kurnell around the sand dunes.

36 DL said that whilst they were sitting in the back of the appellant's ute, DL wearing the Speedos and the appellant dressed in Speedos and a t-shirt, the appellant started to touch him on the inside and outside of his Speedos and asked DL to do the same to him. It lasted for about 15 minutes.

37 This incident was the subject of Count 7.

38 DL said that in around late November or December 1986 the appellant bought him a 10 watt amplifier.

39 DL gave evidence that sometime later the appellant asked him if he would like to watch a pornographic movie. DL said that one night shortly thereafter he and the appellant went to dinner at a Chinese restaurant. They then went to the appellant's house and began to watch the film on television whilst seated at the edge of the bed. The appellant asked DL if he would like to masturbate to the film. Each of them removed their pants and masturbated.

40 They then started to masturbate each other. DL continued to masturbate the appellant until he ejaculated onto his stomach. This was the subject of Count 8.

41 DL said a similar event to that the subject of Count 8 occurred the following morning, although it did not last as long as the night before. This was the subject of Count 9.

42 Count 10 involved a similar incident to that the subject of Counts 8 and 9. DL said the incident occurred on a night in around March or April 1987 at the appellant's home.

43 DL stated that at that time the appellant asked him to kiss his penis, saying words to the effect "Can you kiss me down there?" DL said he did so and the appellant then asked him to put it in his mouth. DL said he was unable to do so, the thought of it making him feel very sick. DL said he believed that he and the appellant continued to masturbate each other after that. This incident was the subject of Count 11.

44 KM went on a school excursion to the theatre for a screening in around April or May 1989. He said in evidence that some of the other students were "stuffing about" and he told them off as he was keen to see the film. KM said the appellant told him that he was impressed with what he had done and asked him whether he was interested in working at the theatre.

45 KM said that after discussions between himself, the appellant and his mother, he started to work at the theatre, probably sometime between May and July 1989. He said that while he was trying on his uniform the appellant assisted him and in the course of doing so felt the pants around his waist between his crotch and at times brushed his hands against KM's lower buttocks and crotch entirely on the outside.

46 KM said that from time to time after school he went to the theatre and chatted with the appellant. He said that one day in July 1989 the appellant told him he was good looking and he would like to take his photograph. KM said that the appellant told him he would like to see him with his shirt off and to see what he would look like naked. KM said he took his shirt and pants off and was standing in his underwear. He said the appellant then touched him on the chest and around the buttocks and crotch area, encouraged him to take his underpants off and assisted him in doing so.

47 KM said that the appellant then began to fondle his penis to a point where he got an erection. KM said that it continued for a little while but he could not recall how it ended. This incident was the subject of Count 12.

48 After the theatre closed down at some time between August and October 1989, KM said that he assisted the appellant in removing rubbish.

49 KM stated that he was struggling with his sexuality, believing he was gay, and wanted to talk to someone about it. He said he regarded the appellant as a surrogate father figure and told him that he thought he was gay.

50 KM said that one day in August or September 1989 the appellant offered to take him on a tour of the theatre. This included the behind stage area where some pantomime costumes were kept. KM said that the appellant pointed to one and said that he should try it on. KM said the appellant assisted him to get undressed, helping him take off his pants and underpants. When he was naked he said the appellant told him how good looking he was and touched him on the buttocks and around the crotch.

51 Thereafter KM said that the appellant touched him on his penis and played with it until it became erect. This incident was the subject of Count 13.

52 KM said that on another occasion in late 1989, he and the appellant drove in a small truck to the Menai Tip to remove rubbish. He said that during the drive the appellant reached over and started touching him on his leg. The appellant then moved his hand to KM's crotch area on the outside of his pants, and then to his crotch inside his pants but over his underpants.

53 KM said that the appellant then moved his hand inside KM's underpants and touched his penis. KM said he got an erection which the appellant maintained by continually touching and squeezing his penis. This incident was the subject of Count 14.

54 KM said that once they unloaded the rubbish they got back in the truck and drove toward the appellant's house. KM said that when he and the appellant arrived at the appellant's home, the appellant gave him a pair of Speedos. When KM got undressed the appellant started to touch him on his penis and he got an erection. This was the subject of Count 15.

55 After KM put on the Speedos he said that he and the appellant commenced swimming in the pool at the appellant's house. The appellant took off his Speedos and encouraged KM to do the same and helped him to take them off. After he did, KM said the appellant touched him on his penis. He said he got an erection and the appellant maintained it by touching him. The appellant encouraged KM to touch his penis as well, moving his hand and leading it down to the appellant's crotch and telling him to touch or squeeze him. This was the subject of Count 16.

56 KM said he then went to the edge of the pool and put his arms over the ledge. He said the appellant came up to him, lifted him away from the edge and used one of his hands to rub his buttocks. KM said he felt the appellant's finger move inside his anus and start to probe inside. This hurt and the appellant stopped. This incident was the subject of Count 17.

57 KM said the appellant then kissed him on the mouth for a little while and KM then got out of the pool and sat on the edge with his feet dangling in the water. The appellant then swam up to him and opened his legs.

58 KM said that the appellant then put his mouth around KM's penis and took it off, repeating this a couple of times. The appellant then started to move his head back and forth along KM's penis until KM thought he was about to ejaculate. KM did not want to do so, so he backed off. This was the subject of Count 18.

59 After this occurred KM said that he and the appellant lay on the pavement next to the pool. The appellant continued to touch KM on his penis until he ejaculated. This was the subject of Count 19.

60 In early 1990 KM and the appellant met at the theatre and from there went to the appellant's house. KM said that as they drove to the house the appellant touched him on the leg and then on his crotch on the outside of his pants. He then put his hand inside KM's pants and fondled KM's penis.

61 During the drive to the appellant's home KM said that the appellant told him that he had some homosexual pornography. KM said that when they arrived he and the appellant got undressed, lay on the bed, and watched the video. KM said the appellant started to fondle his penis and he got an erection. The appellant either asked KM to touch his penis or moved his hand so he was touching it. This was the subject of Count 20.

62 KM said that the appellant then put his open mouth onto his penis and moved his head up and down. This was the subject of Count 21.

63 KM said that the appellant encouraged him to do the same thing to him. KM said the appellant touched him on the head and encouraged him to move his head down to the appellant's crotch. KM said that he opened his mouth and put it on the appellant's penis. The appellant told him not to bite but to suck and to move his mouth up and down. KM said that he did this for a few minutes. This was the subject of Count 22.

64 KM said the appellant then told him to lie on his stomach. The appellant fondled his penis between his legs and rubbed his hands up around KM's buttocks. KM said the appellant then inserted a finger into his anus. He pulled it out and inserted it again, KM believed more deeply. KM said he told the appellant it was hurting and he stopped. This incident was the subject of Count 23.

65 Sometime between late January and March 1990 KM said he was again helping at the theatre. KM said that he and the appellant drove to the appellant's house and on the way the appellant put his hand down KM's pants and fondled him. This incident was the subject of Count 24.

66 When they arrived at the house KM said he and the appellant went for a swim. After being in the pool for a period they took off their swimmers and swam naked. KM said the appellant touched and fondled his penis, causing it to become erect. KM also touched the appellant's erect penis. This incident was the subject of Count 25.

67 In around April 1990 KM said that the appellant took him on another tour of the theatre. He and the appellant then drove to the appellant's house. KM said that during the drive the appellant touched him on the crotch and then put his hand on the front of his pants and fondled his penis until it became erect. This incident was the subject of Count 26.

68 When they arrived at the appellant's house KM said that the appellant showed him some photographs of young males about his age, some in swimmers and some naked. KM said to the appellant how good they looked without any body hair. The appellant then offered to shave KM. KM said that he and the appellant then went to the sauna at the house. After they turned the sauna on they went to the bedroom, got undressed and watched a pornographic video. KM said the appellant began to fondle him and he reciprocated. This incident was the subject of Count 27.

69 KM said that the appellant then encouraged him to put his mouth around the appellant's penis which he did. He said the appellant placed his hands on either side of KM's head and moved slowly back and forth. This went on for about five to ten minutes. This incident was the subject of Count 28.

70 KM said that when that finished the appellant placed his mouth over KM's penis and did the same to him. This was the subject of Count 29.

71 KM said that thereafter he and the appellant went to the sauna where the appellant fondled him until he became erect. This incident was the subject of Count 30.

72 KM said that they then went for a swim after which they went to the bathroom where the appellant shaved KM's legs, stomach and chest areas. KM said the appellant then shaved his pubic area and whilst doing so fondled him to get an erection. This was the subject of Count 31.

73 Thereafter KM said that he had a shower and returned to the lounge where there was swimwear laid out with a camera. Over the course of the next hour or hour and a half, KM said the appellant took photographs of him, some with him wearing a swimming costume and some naked. In some of the photographs KM had an erection because the appellant had fondled his penis. This incident was the subject of Count 32.

74 In about late 1990 KM said he had a conversation with the appellant at the theatre. The appellant told him the photographs had turned out well and invited KM to his home to look at them. On the drive to the appellant's home KM said the appellant placed his hand straight down the front of KM's pants and fondled him to get an erection. This incident was the subject of Count 33.

75 On the drive back following the viewing of the photographs KM said the appellant fondled him on his penis. This was the subject of Count 34.

76 MH was around 14 years of age when he sought a job at the theatre. He received a phone call from the appellant to come in to meet him and to possibly try on an usher's uniform. Whilst he was trying on the uniform the appellant placed his hands on MH's hips and between his naval and pubic region to gauge the measurement.

77 MH commenced working at the theatre in September or October 2002. MH said that during the Easter school holidays the following year he had a conversation with another employee at the theatre, during the course of which MH said that he had shaved his genital region after watching a pornographic film.

78 The appellant found out about this and MH said the appellant asked him to pose for photographs. MH said he told the appellant he thought it was "a bit gay" but the appellant said there was nothing gay about it. MH then agreed.

79 A couple of days after MH told the appellant that he had shaved his pubic hair, he and the appellant were in the staff room behind the candy bar. MH said the appellant closed the doors and said, "Look come over this way and turn your back to the CCTV because there's a blind spot". MH said that the appellant then asked to "have a look at it" (where he had shaved himself) and the appellant put his hands "near my testicles and I guess went for a grope". This incident was the subject of Count 35.

80 When MH commenced working at the theatre he was picked up by his mother. However, subsequently he was taken home by the appellant. These car trips usually included MH, the appellant and another employee, MB, however occasionally it would only be MH and the appellant.

81 On one of these occasions MH said that the appellant asked to look at his genitalia to see how the hair growth was progressing. MH said it was not really a look, "it was more of a fondle, he'd just go down for a fondle". This incident was the subject of Count 36.

82 MH said he noticed a pattern evolving and after that he sought to ensure that MB was present when the appellant drove him home.

83 MH said that on one occasion he encountered the appellant in the main foyer toilet. He said the appellant pushed him back into a cubicle and put his hands down his pants. MH described it in the following terms, "I guess felt my penis, went for a grab". This incident was the subject of Count 37.

84 MH said that sometimes it was necessary for him to go to the candy bar supply room. He said he was mindful of the area being isolated and tried to be quick when down there. MH said that once the appellant caught him there and "put his hand down my pants inside my underpants" and would "once again go for a grope". This incident was the subject of Count 38.

The defence case

85 The appellant gave evidence denying all of the allegations. Part of his evidence was supported by the evidence of Mr Tenant and MB. In addition, the appellant relied on evidence of good character, calling a number of character witnesses.

The conviction appeal

Ground 1 - The trial judge misdirected the jury as to the proper uses of evidence admitted as tendency evidence and failed to adequately direct the jury as to permissible and impermissible uses of the evidence

86 The Crown sought to rely on tendency evidence at the trial, serving notices on 24 August 2011 prior to the first trial and on 19 March 2012 prior to the trial the subject of this appeal, which stated that the Crown intended to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The notice dated 19 March 2012 so far as relevant was in the following terms:

"The tendency sought to be proved is his/her tendency to act in a particular way or to have a particular state of mind, namely:

1. To have a sexual interest in young male employees

2. To engage in sexual activities with young male employees

3. To use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The activities which the Accused engaged in which demonstrate the tendencies described above include the proclivity of the Accused:

(a) to be alone with young male employees in a cinema

(b) to have young male employees alone with him in his car

(c) to have young male employees alone with him at his house

(d) to share his bed with young male employees

(e) to engage young male employees to undertake additional work beyond their employment at the cinema

(f) to be present while young male employees try on their uniform

(g) to hug young male employees

(h) to kiss young male employees

(i) to ask young male employees to show him their private parts being genitals or buttocks

(j) to touch young male employees on their genitals

(k) to touch young male employees on the genitals when they were alone with him in his cinema

(l) to masturbate young male employees

(m) to masturbate in the presence of young male employees when they were alone with him

(n) to fellate young male employees when they were alone with him

(o) to request or have young male employees fellate him

(p) to question young male employees about their sexual activity and experience

(q) to discuss pornographic films with young male employees

(r) to show pornographic films to young male employees

(s) to take young male employees for drives in his car

(t) to provide young male employees with food treats

(u) to offer to take photographs of young male employees

(v) to take or collect photographs of young males in swimwear or the nude

(w) to be in company of young male employees while they are wearing Speedo style swimwear

(x) to give alcohol to young male employees

(y) to be interested in young male employees having a shaved genital area

(z) to provide meals for young male employees, with and without their family members

(aa) to give young male employees free admission to films

(bb) to give young male employees free admission for friends and family to films

(cc) to give gifts to young male employees"

87 The notice stated that the evidence of tendency sought to be adduced by the prosecution bore upon the facts in issue. The notice then set out in detail 52 particular facts that the tendency evidence was said to bear upon.

88 On 5 September 2011, senior counsel for the appellant at the first trial filed a motion seeking orders including that the counts on the indictment relating to each of the complainants be severed from those relating to the other complainants and that the tendency evidence be excluded.

89 On 8 September 2011 Judge North dismissed the motion. The appellant submitted that as the ruling of Judge North was not revisited at the trial the subject of this appeal, his judgment on the admissibility of tendency evidence was binding as a consequence of s 130A of the Criminal Procedure Act 1986 (NSW). Whether this was so in circumstances where a further tendency notice was filed may be questionable but, in any event, no appeal has been brought in relation to the admission of the tendency evidence as distinct from the directions given in respect of it.

90 The tendency evidence was referred to at length by both the trial judge and Crown Prosecutor at the trial. In her closing, the Crown Prosecutor considered the tendency evidence toward the beginning of her address:

"The other thing that has to be proved beyond reasonable doubt, if you're going to rely on it, is the tendency. That is the tendency the Crown alleges the accused had to act in certain ways; his sexual interest with young male employees; the fact that he acted on that sexual interest. So that is another aspect; if you're going to rely on the tendency, it must be proved beyond reasonable doubt."(26/06/2012 p 3)

91 Later in her closing address, the Crown Prosecutor made the following observations in relation to the tendency evidence:

"Ladies and gentlemen, it is part of this Crown case to say that the accused had tendency to act in certain ways. Relying on the tendency in that way, you can use evidence from one victim in relation to another victim if you find beyond reasonable doubt that the tendency is established on one person's evidence or on two people's evidence. If you find it's established beyond reasonable doubt then it can interact between all these charges.

The tendencies that are alleged, it's a pattern of behaviour from the accused that he had a sexual interest in young male employees, that he engaged in sexual activities with young male employees, and he used his position of authority to obtain access to young male employees so he could engage in sexual activity with them.

I've addressed you a lot as I've gone through the evidence in relation to the patterns and bits of evidence that you can see that proves the tendency; being alone in the car, the cinema, the home, engaging them to get additional work beyond their employment in the cinema. Why? Because that way you're alone with the boy. That creates the situation, the closeness, the opportunities.

To be present when they try on their uniform. I forgot to refer to it yesterday in relation to [MH] but he spoke about how the accused slipped his hand down the front of his pants when he got him to strip off in front of him to try on his uniform. Remember what he did to [KM]. He doesn't do it with his mother. He's thirteen years old, his mother is there, he can get his uniform fitted. No. He waits until he's alone with the boy and he touches him.

Sharing his bed with young male employees; [PM], [DL], [KM]. [KM] doesn't stay overnight but he's certainly in bed with him.

The hugs, the kiss; Mark Lawrence.

Asking young male employees to show him their private parts, being genitals or buttocks. He does it to Mark Lawrence. He does it to [MH]. He arranges it with [KM] in relation to wanting to photograph him. Touching them on their genitals, getting the accused to be masturbated by the boys, masturbating the boys, acts of fellatio when he's alone, requesting them to do that for him. The request was made of [DL] but he couldn't go through with it. [KM] did.

Discussion of pornographic material with the young male employees. We've got the use of pornography with Mark Lawrence, with [DL], with [KM] and the text, the way it happens in relation to [MH] is again about the pornography.

Offering to take photographs of young male employees, taking their photographs. That applies to three of them.

Being in their company in relation to Speedos, alcohol, an interest in the shaved genital area. [KM] he gets to shave down. [MH] he keeps on asking him about it.

Gift giving, providing of meals, getting their family to come in. This is special attention for these boys." (27/06/2012 pp 4-5)

92 As set out in the paragraph above, the Crown Prosecutor noted that in going through the evidence she had addressed the jury in relation to the "patterns and bits of evidence" that were said to prove the tendency. Examples from earlier in her closing included:

"There was one time when Mark Lawrence went to the accused's place that the accused played a pornographic video for him. That is sexualising the relationship between the employer and the employee. That is behaviour that will get repeated time and time again by the accused.

Of course, the accused has denied playing pornography for Mark Lawrence, the same as he denied playing it for [DL], the same as he denied playing it for [KM]. The same as he denied discussions about pornography with [MH]."(26/06/2012 p 5)

...

"But you can see that there's this pattern emerging of special attention for Mark Lawrence and the way he's treated by Philip Doyle. The pattern will be repeated many years later and many, many times."(26/06/2012 p 6)

...

"Again, ladies and gentlemen, this is time, extra time the accused is manoeuvring to be able to spend with these boys, just like he did with Mark Lawrence, just like he did with [PM], taking him off for the driving lessons, and now he's starting with [DL]. In relation to taking stuff to the tip, again it's a pattern that he used with [KM]. Robert Tenant confirmed that throughout the time with the cinema because of the nature of the cinema there was always stuff going to the tip. So we've reached this pattern, we've reached this developing where he's got the more time spent with him, we've got the sexual jokes, we've got the extra time."(26/06/2012 p 23)

...

"Ladies and gentlemen, you can see a very significant and substantial escalation in the behaviour. [KM] is treated differently from the other boys. But as I say, unlike the others, who were feeling dirty or disgusted or guilty, or that it was something wrong, [KM] was actually comfortable with the behaviour. And that is why, in my submission, the accused was able to keep going with what he did.

You can also see with this evidence that we've got the technique that's appeared before of a slow build up. You go to a stage where the person is comfortable before you go to the next step.

Normalised sexual behaviour, use of pornography, jokes, conversation about sexual activity, create excitement and anticipation by talking about pornography before showing it to a teenage boy. It's a pattern of behaviour that you see not just with [KM], but with the others, the progression, the build up, the acceleration, the escalation of the offending."(26/06/2012 p 52)

93 The trial judge's written directions to the jury so far as they related to the tendency evidence were in the following terms:

"Generally, juries may only consider in relation to a particular charge the evidence directly related to that charge and only such evidence. You have before you here the evidence that the Crown relies upon as establishing that the accused committed the particular offences set out in the indictment.

However in certain cases the Crown may be allowed to add to the evidence it calls to prove guilt of a particular charge what the law calls 'tendency' evidence.

Here, the Crown is allowed to assert, in the proof of any (or all) of the charges, a pattern of behaviour revealing that the accused had a tendency to act in a particular way. Here, the Crown asserts that at the time of the alleged offences, the accused:

1. had a tendency to have a sexual interest in young male employees;

2. had a tendency to engage in sexual activities with young male employees; and

3. had a tendency to use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The Crown asserts that the tendencies of the accused which it alleges are demonstrated by the accused doing acts (drawn from the evidence related to all the charges) such as:

taking young males driving alone in his car; having young male employees to his house, alone; touching young male employees on the genitals while fitting their uniforms; questioning young male employees about their sexual experience; giving gifts to young male employees; discussing pornographic films with, and showing such films to young male employees; offering to take photographs of young male employees in underpants or naked; giving alcohol to young male employees; discussing the shaving of the genitals of younger male employees, and actually doing it.

The evidence of the accused having one or more of the tendencies alleged can only be used by you, in the way that the Crown asks you to use it, if you make two findings beyond reasonable doubt.

The first finding is that you are satisfied beyond reasonable doubt that one or more of those alleged acts, which I have listed, in fact occurred.

In making any such finding you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you are satisfied that a particular act relied upon actually took place. If you cannot find that any of these acts is proved beyond reasonable doubt, then you must put aside any suggestion that the accused had the tendency advanced by the Crown.

If you do find beyond reasonable doubt that one or more of those acts occurred, then you go on to consider the second finding. You ask yourself whether, from the act or acts that you have found proved, you can conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt, then again you must put aside any suggestion that the accused had the tendency alleged.

However, if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can from the proved act or acts conclude beyond reasonable doubt that the accused had the tendency to act in the particular way that the Crown alleges, you may use the fact of that tendency in considering whether the accused committed the offences charged, or any of them.

The evidence must not be used in any other way. It would be completely wrong to reason that, because the accused may have committed one crime or been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed all or any of the other offences. That is not the purpose of the evidence at all and it must not be used in that way."

(Emphasis in original)

94 The written directions also contained the following in relation to the issue of separate consideration of the counts in the indictment:

"Subject to a later direction about 'tendency' evidence, you must consider and decide upon each count separately, on the basis of the evidence relating to that charge.

Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider whether or how that conclusion affected your consideration of the remaining counts."

This written direction was delivered in almost identical terms in the trial judge's summing up to the jury (29/06/2012 p 2).

95 In summing up the trial judge addressed at an early stage the function of complaint and tendency evidence in the following terms:

"In considering the various complainants' evidence and whether it does satisfy you of the accused's guilt on one or more of the relevant charges, you can look to see if that evidence is supported by other evidence in the trial. Such other evidence includes complaint evidence and tendency evidence and in this case the Crown says that there is evidence of this kind to support the evidence of the individual complainants ..." (29/06/2012 pp 5-6)

96 The trial judge then gave lengthy directions concerning the use that the jury could make of the tendency evidence. This was largely consistent with his Honour's written directions and was in the following terms:

"TENDENCY EVIDENCE

Generally juries may only consider in relation to a particular charge the evidence directly related to that charge and only such evidence. You have before you here the evidence that the Crown relies upon as establishing that the accused committed the particular offences set out in the indictment. However, in certain cases, the Crown maybe allowed to add to the evidence it calls to prove guilt of a particular charge, what the law calls tendency evidence.

Here the Crown is allowed to assert in the proof of any or all of the charges a pattern of behaviour revealing that the accused had a tendency to act in a particular way. Here the Crown asserts that at the time of the alleged offences the accused (1) had a tendency to have a sexual interest in young male employees, (2) had a tendency to engage in sexual activities with young male employees and, (3) had a tendency to use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The Crown asserts that the tendencies of the accused which it alleges are demonstrated by the accused doing acts drawn from the evidence related to all the charges such as taking young males driving alone in his car, having young male employees to his house alone, touching young male employees on the genitals while fitting their uniforms, questioning young male employees about their sexual experience, giving gifts to young male employees, discussing pornographic films with and showing such films to young male employees, offering to take photographs of young male employees in underpants or naked, giving alcohol to young male employees, discussing the shaving of the genitals of younger male employees and actually doing it.

The evidence of the accused having one or more of the tendencies alleged can only be used by you in the way the Crown asks you to use it if you make two findings beyond reasonable doubt. The first finding is that you are satisfied beyond reasonable doubt that one or more of those alleged acts which I have listed in fact occurred. In making any such finding you do not consider each of the acts in isolation but consider all of the evidence and ask yourself whether you are satisfied that a particular relied upon actually took place. If you cannot find that any of these acts is proved beyond reasonable doubt then you must put aside any suggestion that the accused had the tendency advanced by the Crown.

If you do find beyond reasonable doubt that one or more of those acts occurred then you go onto consider the second finding. You ask yourself whether from the act or acts that you found proved you can conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt then again you must put aside any suggestion that the accused had the tendency alleged. However, if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can from the proved act or acts conclude beyond reasonable doubt that the accused had the tendency to act in the particular way that the Crown alleges, you may use the fact of that tendency in considering whether the accused committed the offences charged or any of them. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused may have committed one crime or been guilty of one piece of misconduct is therefore generally a person of bad character and for that reason must have committed all or any of the other offences. That is not the purpose of the evidence at all and it must not be used in that way.

EVIDENCE ABOUT SEXUAL CONDUCT NOT CHARGED IN THE INDICTMENT

At various points in their evidence several complainants referred to episodes of sexual contact other than the specific charges enumerated in the indictment. For example, [KM] said that 'It happened on numerous occasions a lot more than what is indicated in my statement'; transcript 656.

This evidence is properly before you as tendency evidence, but where there is an allegation of sexually improper conduct other than that specified in the indictment, you should approach the evidence as follows:

(1) You must disregard that evidence entirely unless you are satisfied beyond reasonable doubt that the alleged sexually improper conduct in fact occurred.

(2) Even if you accept that such sexually improper conduct in fact occurred you must not substitute proof of such conduct not charged in the indictment for proof of one of the acts specifically charged in the indictment. However, provided you act on these directions you are entitled to consider such evidence in proof of one or more of the charges if it persuades you of an element of a charge." (29/06/2012 pp 15-17)

97 Later in summing up the trial judge made a number of references to the tendency evidence when summarising the Crown case. His Honour referred on a number of occasions to the consistency in evidence between the complainants, including in the following:

"The Crown puts it that you would believe that his version [Mark Lawrence's] about touching and hugging and kissing in the car. It was sporadic and consistent with the other approaches he has made to boys."(02/07/2012 p 17)

...

"Now the Crown made submissions to you about these allegations and in relation to [PM] she urged upon you, as she did in relation to the other complainants, that the direct evidence has to be supplemented by the fact that there are five independent complainants; that you would regard the conduct overall as demonstrating the tendencies of sexual interest in young men which the Crown alleges."(02/07/2012 p 33)

...

"The Crown put it to you that you would accept his evidence [PM's] about the Subaru, that there were driving lessons out to Kurnell, that the accused said there is no need for a swimming costume at some point, and that even though the accused ever denied going out to Kurnell, that you would not believe that. That there are three complainants all of whom have no contact with each other, all of whom describe being driven out to Kurnell. You would find that a stronger pointer to the sexual interest in having young boys such as [PM] alone in circumstances where he could be influential."(02/07/2012 p 34)

...

"The Crown says to you that, as with the other complainants, you would consider the evidence of [DL] in light of what the Crown alleges is a pattern of similar kinds of misconduct by the accused flowing from his attraction to young men."(02/07/2012 p 59)

...

"The Crown went through the various episodes with you involving gay videos, indecent assaults on the bed, oral sex, the swimwear, the shaving of him after being in the sauna and his interest in shaving is consistent with the [MH] matter. Again, the Crown says that the description of occasional quick episodes of fondling in quiet parts of the cinema described by [KM] are consistent with what Mark Lawrence describes."(03/07/2012 p 25)

...

"The Crown says you would accept the version given by [MH] who was independent of everybody else, much younger, no suggestion that he had got together and told a story in collaboration with [PM] or [KM] or the others. But you get this line again, the Crown says, 'You're so good looking you could be a model.' And this is what [MH] says and the Crown says, well, that is part of the pattern, that is part of his game plan with young men, just like with [KM]. And even though the accused is 60 by this time, he is still, the Crown says, actively interested in young men sexually. And the Crown says you would accept the version given by [MH] of the continuing and repeated sexual interest shown by the accused in the way that he said."(03/07/2012 p 36)

98 Finally, the trial judge made a number of further remarks in relation to the tendency evidence toward the conclusion of his Honour's summing up:

"The Crown case emphasises, to some significant degree, the number of complainants in this case and says that the sheer number of the complainants who come forward independently to give the versions which they do is very supportive of the Crown proposition that the accused has a tendency to be interested in young men in the ways that have been suggested.

There is no way that [MH], [PM], Lawrence, [DL] and so on got together and put their heads together to invent stories and, on the Crown approach to the case, you might expect that there would be some confusions and weaknesses in stories told about events years ago. But when you look at the overall pattern, you would be persuaded beyond reasonable doubt that all of these men, despite some minor confusions or irregularities in their evidence, are telling you the truth; that the character of Mr Doyle is not the character of the outstanding citizen he represents himself to be, rather it is the character of a man who has an interest in molesting young boys and youths over the years, running the sort of business he has; has had the opportunity to pick and choose amongst them; he has picked and chosen a number of attractive young men and he has, indeed, done the things which they say he did.

...

Except with one charge, the charges are brought within a range of dates, therefore it is difficult for Mr Doyle to defend himself against allegations which are uncertain about when they occurred and that perspective is one that you should bear in mind. On the one hand, you have got the Crown suggesting a pattern of interest in young men. On the other hand, you have got positive evidence of good character. So, you have to give consideration to those matters." (03/07/2012 pp 38-39)

The appellant's submissions

99 The appellant submitted that according to the tendency notices the prosecution did not seek to admit the evidence as coincidence evidence pursuant to s 98 of the Evidence Act. As such, he submitted that evidence of two or more events occurring was not admissible to prove a particular act or state of mind on the basis that it was improbable that the events were a coincidence.

100 Although the appellant accepted that the evidence relied upon by the Crown Prosecutor was admissible, he submitted that it was relied upon in such a way as to invoke coincidence reasoning.

101 The appellant submitted that the written and oral directions given by the trial judge in relation to the tendency evidence were erroneous in a number of respects. He submitted that it was left open to the jury to reason that he had one of the three listed tendencies if they were satisfied beyond reasonable doubt of any of the activities set out in subpars (a) to (cc) of the tendency notice. He submitted that the activities were not capable of proving any tendency unless coupled with a sexual act. For instance, he submitted that having "young male employees alone with him in his car", which was not disputed by the appellant, was not capable of proving any of the tendencies without a sexual act also having occurred in the car.

102 The appellant also submitted that the trial judge erred by permitting the jury to engage in "circular reasoning" in relation to the tendency evidence. This was said to have occurred as a result of the jury being directed to consider the evidence related to all of the charges when considering if the appellant had any of the three tendencies. The appellant submitted that it was impermissible to use the alleged occurrence of two events in order to prove that both events had occurred.

103 The appellant submitted that the trial judge erred by permitting the jury to engage in coincidence reasoning and by repeating and failing to correct instances in which the Crown Prosecutor relied on coincidence reasoning in her summing up. In that context he made particular reference to the portion of the summing up to which I have referred in par [98] above. The appellant submitted that coincidence reasoning was evident in the trial judge's reference to "the sheer number of the complainants" and also the repeated mention of the consistency in evidence as between the complainants, examples of which are set out at par [97]. It was submitted that the trial judge in doing so failed to correct coincidence reasoning.

104 The appellant submitted that the trial judge failed to direct the jury that they could not reason in the manner suggested by the Crown Prosecutor in her closing address. The appellant submitted that the Crown Prosecutor used impermissible coincidence reasoning in summarising the evidence of the complainants to identify a pattern. Examples said to demonstrate coincidence reasoning by the Crown Prosecutor are set out in par [92].

105 The appellant submitted that the trial judge erred by refusing to give a direction sought by senior counsel that the defence had no way of knowing whether the complainants had or had not spoken to one another. It was also submitted that the jury were not reminded that several of the complainants came forward following media attention regarding charges having been brought against the appellant. In fact such a reminder had been given in respect of KM and MH (see the directions under the heading "Complaint Evidence Generally" set out in par [187] below).

106 The appellant submitted that the trial judge failed to direct the jury that if they accepted the evidence of good character regarding the appellant, then they might have a reasonable doubt in relation to the tendency evidence. The appellant submitted that the trial judge obscured the proper use of tendency evidence and the onus of proof when he, as set out in par [98] above, referred to a "pattern of interest in young men" alongside "positive evidence of good character".

107 Finally, the appellant submitted that the trial judge failed to give a direction in accordance with R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 (Markuleski).

108 Senior counsel for the appellant submitted that a number of the listed activities in the tendency notice such as (a), (b), (s), (t), (x) and (z) were ordinary incidents of employment. He submitted that the first listed tendency was irrelevant except as a route to the second tendency. He also submitted that the third alleged tendency was relevant only as an aspect feeding into the second tendency. Senior counsel for the appellant submitted that for a tendency to be probative it needed to be a sexual interest upon which the person acts.

109 Senior counsel for the appellant addressed the distinction between tendency and coincidence evidence. He submitted in relation to tendency evidence that what has to be established separately is the tendency itself. As such, tendency evidence works temporally and incrementally in order to establish the alleged tendency. Conversely, he submitted that coincidence evidence invokes a different process of reasoning that involves identifying events that are often not disputed, from which a conclusion can be drawn that the alleged event is not a coincidence. He submitted that as soon as reference is made to aspects like the "sheer number of the complainants" then one is reasoning to coincidence rather than tendency.

110 Senior counsel for the appellant submitted that the events the subject of a specific count could not be used to satisfy oneself of a tendency regarding that count. He submitted that it made no sense to require that uncharged acts be proved independently beyond reasonable doubt, but not in respect of charged acts. He submitted that relying on the very thing that is sought to be proven throws away the exercise by introducing to the jury what amounts to legal nonsense. He submitted that if one was satisfied in relation to Count 1 then that could be used to establish a tendency in relation to Count 2. However, he asserted the trial judge erred by inviting the jury to have regard to the "evidence related to all the charges" when considering if the tendencies were made out. This, he said, pulled in everything including the charges which were to be proven.

111 Senior counsel for the appellant submitted that the trial judge erred by invoking a process of coincidence reasoning. He pointed to the trial judge's reference in summing up to the "sheer number of the complainants" as "supportive of the proposition that the accused has a tendency to be interested in young men". He submitted such statements by the trial judge and Crown Prosecutor did not reason incrementally to a tendency; instead, it was reasoning that it cannot be a coincidence that there were numerous people making allegations. He submitted that even if it was a case of coincidence evidence, warnings would be given against reasoning based on the sheer number of complainants.

112 Senior counsel for the appellant submitted that the trial judge's direction regarding sexual conduct not charged on the indictment, as set out in par [96] above, was instructive. He questioned that if the facts in issue that were the subject of the counts were permitted to be taken into account in considering tendency, why would a special direction be given in relation to the uncharged acts but not in relation to the charged acts? He accepted that the nub of the issue was that a direction should have been given as to the manner in which the charged acts could be used to establish tendency similar to the direction given in relation to the uncharged acts.

113 Senior counsel for the appellant reiterated that the trial judge erred by repeating submissions made by the Crown Prosecutor in relation to the number of complainants. He referred to the trial judge's statement, set out in par [97] above, that the "direct evidence has to be supplemented by the fact that there are five independent complainants" as an example of reasoning by the number of complainants and not by tendency.

114 In relation to a Markuleski direction, senior counsel for the appellant submitted that where the jury had been wrongly directed as to tendency, it is not appropriate to have regard to the jury's verdicts in coming to a conclusion about whether or not such a direction should have been given.

115 As to the issue of leave, senior counsel for the appellant submitted that while Ground 1 picked up factual issues, questions of law were imbedded in the ground. He submitted that an application to exclude the tendency evidence was made before Judge North. However, he accepted that the application was not renewed before the trial judge.

The Crown submissions

116 The Crown at the outset of its submissions noted that none of the matters relied upon in support of this ground of appeal were raised before the trial judge.

117 The Crown rejected the proposition that the activities alleged in the tendency notice were not capable of proving one of the tendencies unless coupled with a sexual act. The Crown referred to the alleged tendency to "have a sexual interest in young male employees" which was said to not require a sexual act. The Crown further submitted that the trial judge's written directions, set out at par [93] above, made it apparent that the jury could not move from finding one of the activities proved to one of the tendencies proved without being satisfied beyond reasonable doubt that the proved acts established the tendency.

118 The Crown submitted that the trial judge's directions regarding tendency evidence did not lead to circular reasoning. The Crown submitted that unlike R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487, upon which the appellant relied, the present case did not involve an assumption as to the facts that were to be proved. The Crown relied on a statement in R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 that the force of coincidence evidence arises from the co-existence of multiple pieces of evidence, where there might not be satisfaction beyond reasonable doubt from a single piece of evidence considered alone. It was submitted that similar reasoning applies to tendency evidence.

119 The Crown submitted that none of the comments made by the trial judge in his summing up in relation to the Crown's argument involved coincidence reasoning. The Crown also submitted that none of the material referred to by the appellant either formed part of his Honour's directions or involved coincidence reasoning, and if it had, it did not give rise to a miscarriage of justice. In this regard, the Crown relied particularly on the judgment of Simpson J in KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226. The Crown emphasised that the trial judge clearly directed the jury as to how they could use tendency reasoning as set out at par [93] above.

120 In relation to a direction regarding possible communication between the complainants, the Crown submitted that the trial judge gave reasons for refusing to give such a direction, essentially that the issue had not been explored in evidence. The Crown also submitted that the trial judge was not asked to remind the jury of complainants coming forward after publicity regarding charges having been brought against the appellant and that the absence of such a reminder could not have caused the trial to miscarry.

121 The Crown submitted in relation to the trial judge's direction regarding good character and tendency evidence that the passage referred to by the appellant, set out at par [98] above, should be considered in its full context. The Crown emphasised that following the trial judge's summing up the Crown Prosecutor suggested his Honour deal with each of the appellant's character witnesses. The Crown submitted that senior counsel for the appellant at the trial accepted the trial judge's invitation to respond regarding character witnesses by asking for the evidence of Mr McWhinney to be referred to and seeking certain directions as to the use to be made of the evidence of Ms Scott and Ms Johnston (see Ground 9 below). The Crown submitted no other objection was taken to the direction.

122 In relation to the appellant's submission that the trial judge failed to give a Markuleski direction, the Crown submitted that the written directions set out at par [94] above were appropriate to raise the issues referred to in that case. The Crown submitted that even if the direction was not appropriate, there could not have been a miscarriage of justice in the present case where guilty verdicts were returned on all counts.

123 At the hearing, counsel for the Crown reiterated that the trial judge gave a direction of the type in Markuleski, and further, in a case where there were no acquittals the issue did not assume anything like the same importance.

124 Counsel for the Crown emphasised that the trial judge's summing up had to be read as a whole. She stated that the appellant's written submissions were replete with references to parts of the summing up but that it needed to be read in its entirety.

125 Counsel for the Crown accepted that to prove a tendency in the nature of the second listed tendency it was necessary to prove a charged or an uncharged offence. She accepted that the activities referred to by the trial judge in his summing up, set out at par [96] above, would not have been enough to be relied on to support the tendency notice. She accepted that this matter should have been made clear to the jury. However, she submitted that as a matter of logic and the manner in which the jury were directed, this issue would have been clear to the jury. She submitted that a specific direction was not required.

The legislative framework

126 The admission of tendency and coincidence evidence is governed by ss 97, 98 and 101 of the Evidence Act which relevantly provide as follows:

"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.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

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

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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.

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

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

Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

...

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.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."

Consideration

127 As I indicated, it was common ground between the appellant and the Crown that to establish the second tendency referred to in the tendency notice, namely, to engage in sexual activities with young male employees, it was necessary to prove a charged act or a sexual offence with such an employee. Perhaps more accurately in the context of this case, to prove the second tendency it would be at least necessary for the jury to, first, be satisfied beyond reasonable doubt that the appellant engaged in one of the activities referred to in subpars (j) to (o) of the tendency notice and, second, to also be satisfied beyond reasonable doubt that the engagement in such activities proved that the appellant had the tendency alleged in par (2) of the tendency notice. The position, in my opinion, was the same so far as the third tendency in the notice was concerned, having regard to the fact that the notice states that the purpose of obtaining access to young male employees was to engage in sexual activity with them.

128 However, that does not mean that the other activities described in the tendency notice or the first listed tendency were irrelevant. Whilst some of those activities, even if proved beyond reasonable doubt, may well have been insufficient to establish the second tendency, the jury if satisfied that a number of those events occurred could have concluded beyond reasonable doubt that the appellant had a sexual interest in young male employees. This conclusion would have been a relevant factor in their deliberations of whether they were satisfied beyond reasonable doubt that one of the charges against the appellant was established.

129 There is no doubt that to the extent reliance was placed on uncharged sexual conduct in establishing the tendency, that conduct had to be proved beyond reasonable doubt: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [41], [46] and [196]; DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206 at [19] and [30]. The trial judge explained this in his direction to the jury in the part of his summing up headed "Evidence About Sexual Conduct Not Charged In The Indictment", which I have set out in par [96] above.

130 The appellant did not cavil with the directions given in relation to the uncharged acts, but submitted that the jury should have been specifically directed that the charged acts themselves could not be used to establish the tendency unless the jury was satisfied beyond reasonable doubt that one or more of such charged acts occurred, without having regard to the tendency evidence. He accepted, for example, that if the jury was satisfied beyond reasonable doubt in respect of the charges relating to Mr Lawrence, they could use that as tendency evidence in considering the charges against at least PM and DL.

131 The trial judge's direction in fact did not deal with the potential use of the charged acts as tendency evidence at all. In the direction to which I have referred in par [96], his Honour dealt with matters that did not constitute sexual offences (see the third paragraph of his direction under the heading "Tendency Evidence" set out in par [96] above). His direction as to how that evidence could be used seemed to relate only to establish tendency alleged from those particular acts.

132 The written directions were in the same form.

133 At the outset of his written directions the trial judge explained that the jury had to be satisfied beyond reasonable doubt of every element of a charge and that they must be satisfied beyond reasonable doubt that each complainant was an honest witness and was reliable as to the vital parts of his evidence before finding the appellant guilty. They were also told that subject to his directions regarding tendency evidence, they were to consider the evidence in relation to each count separately. There was no suggestion that a conviction in respect of any of the counts could be used as tendency evidence in respect of the other counts.

134 I have set out above the address of the Crown Prosecutor so far as it related to tendency evidence. The Crown submitted to the jury that those portions of the tendency notice which referred to activities involving sexual misconduct could be used as showing the tendencies in the notice, but stated that the tendency had to be proved beyond reasonable doubt. The trial judge also made it clear that to prove the tendency beyond reasonable doubt the jury had to be satisfied beyond reasonable doubt both that the activities said to have given rise to the tendency occurred and that those activities gave rise to the tendency in question.

135 In these circumstances the trial judge, in my opinion, did not fall into error in not directing the jury that if and only if they were satisfied beyond reasonable doubt that one or more of the charged acts occurred without having regard to the evidence relating to the other charged acts, they could then use that conclusion as tendency evidence in respect of the other charges if satisfied beyond reasonable doubt that the tendency was established. In one sense a failure to give such a direction was favourable to the appellant, as the direction did not suggest that evidence relating to the charged acts could be used to establish the tendencies complained of.

136 I do not think this position is affected by the fact that the trial judge directed that the jury should not look at the acts in isolation but consider all the evidence to determine if the acts took place. The acts in question were those summarised in the direction and the direction emphasised the need for satisfaction beyond reasonable doubt that those acts in fact took place.

137 As I indicated, the appellant submitted that the direction referred to in the preceding paragraph involved what he described as circular reasoning. It is correct that as a matter of logic a fact cannot be proved by a chain of reasoning which assumes the truth of that fact: Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 532; Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1 at 17. That does not mean, however, that the evidence of a fact said to establish a tendency need be proved by considering its existence or otherwise divorced from other evidence at the trial. That was made clear in Thompson supra at 17 in the following passage from the judgment of Mason CJ and Dawson J when considering what is now described as coincidence evidence:

"The nine points of similarity advanced by the prosecution and apparently accepted by the trial judge went too far. In considering whether the deaths at Richardson displayed the necessary degree of similarity to the deaths of the two sisters, it was impermissible to include as a fact the matter which it was sought to prove, namely, that the deaths did not occur by accident. The points of similarity accepted by the trial judge assumed that the two sisters were shot through the head, as were the victims of the Richardson killings. That was tantamount to assuming the truth of the fact in issue which the similar fact evidence was tendered to prove. As Brennan J. pointed out in Sutton:

'It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact. That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence. When the Crown seeks to tender similar fact evidence as the foundation for inferring a fact to be proved in a trial, it is erroneous to assume the truth of the fact to be proved in determining the cogency of the evidence. ... That proposition does not preclude reference to direct evidence of the fact to be proved in determining the cogency of similar fact evidence. Similar fact evidence tending to confirm the existence or occurrence of such a fact may be confirmed by direct evidence of the same fact.'

We would only add to that passage the comment that there does not seem to be any reason why the evidence of the fact to be proved which confirms the similar fact evidence, or adds to its cogency, should be confined to direct evidence.

The similarity between the killings at Richardson and those of the two sisters was to be considered in the light of the whole of the evidence."(Citation omitted)

138 R v Gale; R v Duckworth supra, relied on by the appellant, is an example of where coincidence evidence sought to be relied upon assumed the truth of the actual fact required to be proved to establish the offence. The accused were charged with robbing a hotel at Nimbin. Duckworth was the licensee of the hotel and it was alleged that he and Gale were parties to the robbery, having fabricated a story that Duckworth was the victim.

139 Gale and Duckworth had previously pleaded guilty to a robbery at a Queensland hotel which was carried out by them with the assistance of the manager of that hotel. The similarities alleged included the presence of Gale and Duckworth at both robberies and that an insider was involved in both (the manager at the Queensland hotel and Duckworth at Nimbin). The coincidence evidence thus assumed the very matters to be proved, namely, the presence of Gale and the involvement of Duckworth.

140 By contrast, in the present case there was no such assumption. The facts that were said to give rise to the alleged tendencies had to be proved beyond reasonable doubt as the first step in proving that the appellant had any of the particular tendencies. It did not involve any assumption of fact.

141 It can be noted that it is by no means exceptional for tendency to be proved by reliance on evidence established in relation to one of a number of charges in the indictment. In BP v R [2010] NSWCCA 303 evidence of different complainants as to the conduct of the appellant towards them was held to have been correctly admitted as evidence having significant probative value. Hodgson JA dealt with the matter in the following terms:

"[112] In my opinion, subject to the question of concoction, to which I will return, features of the appellant's conduct described by each complainant were sufficiently similar and sufficiently unusual for the evidence of each of them to have significant probative value in showing the specified tendencies; and the existence of those tendencies would have significant probative value in supporting other evidence that the appellant committed the offences charged. In my opinion, it is unusual for a parent or grandparent to do acts of the kind described by each witness, and the acts described by each, if accepted, would in my opinion to a very significant extent rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest in assaulting them; and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged. In my opinion also, the probative value of the evidence is such that it substantially outweighs any prejudicial effect it may have. The danger of the jury responding inappropriately to it, or giving it more weight than it truly deserves, is in my opinion small, particularly if appropriate directions are given."

See also KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552.

142 In the present case no objection was taken to the activities referred to in the tendency notice being relied upon as evidence establishing the asserted tendencies, nor was it suggested that the tendencies if established could be irrelevant in proving the charges. As the trial judge directed, it was necessary for those activities to be proved beyond reasonable doubt and for the jury to also be satisfied beyond reasonable doubt that the activities so proved gave rise to the alleged tendency. The direction in my opinion adequately dealt with those issues.

143 Of more concern is the fact that the activities enumerated by the trial judge both in his written directions and in his Honour's summing up could only go to establish the first of the three tendencies referred to in the tendency notice. However, as the jury was directed that even if the activities were established they had to be satisfied beyond reasonable doubt that those activities established one of the tendencies, I do not think that the direction in the terms it was given caused a miscarriage of justice.

144 The appellant next complained that the trial judge not only failed to direct the jury not to engage in coincidence reasoning but also failed to correct the impermissible use of the evidence as coincidence evidence in the summing up by the prosecutor. That submission must be considered in the context of the written directions set out at par [93] above that subject to the question of tendency, the evidence on each count was required to be considered separately and that if the proved activities established the tendency beyond reasonable doubt, the jury could then use the fact of that tendency in considering whether the accused committed the offence, but the evidence could not be used in any other way. The trial judge also emphasised that it would be wrong to reason that because the accused may have committed one crime or be guilty of one piece of misconduct, he was therefore generally a person of bad character and for that reason may have committed all or any of the other offences: see also par [93] above.

145 Particular complaint was made of that portion of the summing up which is extracted at par [98] above. In the first two paragraphs the trial judge was self-evidently summarising the Crown case. In the first paragraph the trial judge, whilst referring to the "sheer number of the complainants", did so in the context of the proposition that the appellant had the tendency to be interested in young men. Although the trial judge referred in the next paragraph to the "overall pattern", that is not necessarily an invitation to adopt coincidence reasoning, particularly in light of the warning that the trial judge had previously given as to the use which could be made of the evidence.

146 I will not go into detail in relation to the other areas of the summing up about which complaints of this nature are made. However, it must be emphasised that the references to the Crown Prosecutor's address contained in the summing up about which complaints are made must be read in context. Thus, reference in the summing up to the Crown submission "that the direct evidence has to be supplemented by the fact that there are five independent complainants" is immediately followed by "you would regard the conduct overall as demonstrating the tendencies of sexual interest in young men". The same comment was made after the third of the statements referred to, "That there are three complainants all of whom have no contact with each other, all of whom describe being driven out to Kurnell". The other statements complained of are consistent with tendency reasoning, although they could also involve coincidence reasoning. However, the fact remains that the trial judge directed the jury as to the limited use that could be made of such evidence.

147 The situation in the present case is analogous to that considered by this Court in KJR v The Queen supra. The appellant in that case was charged with various sexual offences. Evidence of various other offences not the subject of the charges was admitted to establish tendency. The trial judge in his summing up said of that evidence: "You could use that finding to assist you to conclude that the accused must have committed the other offences in which a similar practice was adopted". On appeal it was argued that the direction was erroneous as it invited coincidence reasoning. This ground of appeal was rejected. Simpson J, with whom McClellan CJ at CL agreed, made the following remarks:

"[3] The relevant directions have been set out in the judgment of Rothman J. I agree with his Honour that there are some passages in the summing up that are couched in language more commonly associated with s 98 (coincidence) evidence than s 97 (tendency) evidence. An example of this is to be found in the passage first extracted under the heading 'Ground 1' where there is a reference to 'a striking similarity between two or more events', giving rise to a conclusion that the offences in question were committed by the same person. Identifying the appellant as the person who committed one or more offences by reference to his having committed another, or others, and parallels in the manner of these being carried out, simply was not an issue in this case. But the language used was not inapt to the issues raised for a jury by tendency evidence. In Gardiner v The Queen (2006) 162 A Crim R 233 I considered the purpose of s 97 of the Evidence Act 1995 (NSW). At [124] I wrote:

'124 Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.'

Proof of a tendency, whether of conduct or a state of mind, is a stepping stone on the way to proof of an ultimate issue. If it is proven that two or more allegations made by a complainant are of conduct having a 'striking similarity', that 'striking similarity' is also available to prove tendency to behave in a particular way. Proof that an accused person had a tendency to behave in a particular way, or to have a particular state of mind, is tendered for the purpose of proving that, on the particular occasion in question, that person behaved in the particular way alleged, or had the particular state of mind alleged."

148 In the present case the similarity of conduct was available to prove tendency and the trial judge said on more than one occasion that it could only be used for that purpose. In those circumstances the direction was not erroneous.

149 It also follows, in my opinion, that it was unnecessary for the trial judge to emphasise that the matters raised by the Crown Prosecutor, to which I have referred in par [91]-[92], could only be used as evidence of tendency. The use that could be made of such evidence was adequately stated.

150 As I indicated, the trial judge declined to give a direction that the defence had no way of knowing of whether the complainants had or had not spoken to each other. In circumstances where there was no evidence or suggestion that they had spoken, it was not erroneous for the trial judge to decline to give the direction sought.

151 Further, the appellant did not seek a direction that some of the complainants only came forward subsequent to the publication of the charges. No miscarriage of justice has been shown from the failure to give such a direction and in those circumstances r 4 of the Criminal Appeal Rules applies.

152 The appellant also criticised the trial judge's direction as to good character. The criticism had two limbs. The first was the failure to refer to the whole of the body of character evidence brought forward by the appellant. In this context it must be remembered that early in his summing up the trial judge referred to what he described as uncontested evidence of good character, stating that the jury should take it into account on the question of guilt and in relation to whether the appellant's evidence should be believed (29/06/2012 pp 20-21). On the third day of the summing up he referred to the Crown proposition that the evidence demonstrated that the appellant was not the person of outstanding character claimed, but rather had the character of a man who had an interest in molesting young boys. He then referred immediately thereafter to the submission put by senior counsel for the appellant at trial that there was good character evidence completely inconsistent with the Crown version, referring in general terms to evidence of persons whose children had gone "through his business" and who denied ever suffering or observing any molestation or irregularity of a sexual kind (03/07/2012 pp 38-39). At the conclusion of the summing up the Crown Prosecutor indicated that the trial judge had not specifically gone to the character evidence. On being asked whether he sought any further direction, senior counsel for the appellant stated that the trial judge had covered the material adequately in summary, but asked that reference be made to the evidence of a Mr McWhinney, and further, in relation to the evidence of Ms Smith and Ms Johnston, that the jury be told it was not appropriate to reason from the fact that they had asked their children if they had been molested, that they were concerned about the appellant. The trial judge complied with that request (03/07/2012 pp 41-42, 46-48).

153 I do not think in those circumstances that the directions were inadequate. Although the trial judge did not refer in detail to all the character witnesses, he did summarise the effect of the evidence and complied with senior counsel's request for elaboration. The jury could have been in no doubt that the accused presented himself as a man of exemplary character and it was necessary to take that into account in determining whether any of the allegations brought against him were made out. Nor do I think the trial judge erred in failing to tell the jury that if they accepted the evidence of good character they might have reasonable doubt in relation to the alleged tendencies. It seems to me that what was said by the trial judge in that portion of the summing up referred to in par [152] above sufficiently averted to this issue. The trial judge also indicated in the portion of the summing up set out in par [98] above, that the evidence of good character had to be taken into account in evaluating the Crown's suggestion that the appellant had a particular interest in young men. Once again senior counsel for the appellant at the trial made no complaint about the direction. Even if a further direction should have been given, r 4 applies and it has not been shown that any miscarriage of justice arose.

154 The final matter raised under this ground was that the trial judge failed to give a direction in accordance with R v Markuleski supra. The direction referred to is that in the case of multiple counts reference should be made to the effect upon the assessment of the complainant's credibility in a word against word case if the jury finds itself unable to accept the complainant's evidence on any count. In Markuleski at [186]-[188], Spigelman CJ stated it is not necessary to specify any precise words, but it will often be enough to direct the jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or the reliability of the complainant's evidence generally.

155 I have set out at par [94] above the direction given to the jury as to the course they should adopt if they found the appellant not guilty on any count because of doubts as to the reliability of the complainant's evidence. Interestingly, the trial judge's direction was in the form suggested in the Criminal Trial Courts Bench Book. Notwithstanding this it may have been preferable to precisely indicate that doubt as to the reliability of the complainant on one count should be taken into account in the jury's assessment of their reliability on other counts. However, the direction in my opinion was adequate to alert the jury as to the impact of doubts as to a complainant's credibility on one count on their assessment of other counts.

156 Finally, the point was not taken by senior counsel for the appellant at the trial and as there was a verdict of guilty returned on all counts there was no miscarriage of justice. Rule 4 of the Criminal Appeal Rules applies.

157 It follows that this ground of appeal is not made out.

Ground 2 - The learned trial judge erred in admitting evidence of complaint related to DL in the trial

158 During the first trial, DL was cross-examined in relation to whether he had complained to his father about any of the incidents he said took place between him and the appellant. He gave evidence that at the time of the incidents he did not tell his father, but said that he told his father about the storm incident some 10 years prior to the first trial.

159 The prosecutor made an application pursuant to s 108 of the Evidence Act to re-establish DL's credibility in respect of this complaint and to lead evidence of a further complaint made to KB, the ex-wife of KL. Judge North rejected the evidence as DL had not been cross-examined on such a complaint. Judge North also rejected an application to call KL.

160 However, before the trial judge an application was made to revisit the ruling and to lead evidence from both DL and KL as to this complaint. The basis was that at the time the order was made by Judge North the Crown was not on notice that alibi evidence would be given.

161 Although the trial judge was not referred in detail to the evidence given by the appellant at the first trial, his evidence was that on the night of the storm which occurred on the day of the incident the subject of Count 6, he was at a Chinese restaurant celebrating the birthday of MB, returning from the restaurant close to midnight. He denied being with DL and, in particular, denied that he was at home with DL from about 11.30 pm. This evidence was given after the ruling by Judge North.

162 In a judgment dated 23 May 2012 the trial judge ruled that the complaint evidence of DL and KL should be admitted. He said that at the time of Judge North's ruling the alibi notice later tendered, which gave rise to the evidence of MB, had not been given. He noted that the appellant intended to introduce similar evidence to that given before Judge North and concluded that the evidence would, by implication, suggest fabrication by DL of his evidence of sexual assault on the night of the storm.

163 The trial judge appeared to accept that mere denial does not constitute a suggestion of fabrication, but stated that the evidence went significantly beyond that to propose a positive geographical separation of the appellant from the location of the assault. In the circumstances he concluded, relying on s 108(3) of the Evidence Act, that it would not be in the interests of justice to permit the denial by the appellant and the evidence of MB to go unchallenged by the prior consistent statements of DL and KL.

164 Thereafter DL gave evidence that in the 1990's he had a conversation with KL about the night of the storm and told her that he was working at the theatre and that he "stayed in his [the appellant's] bed that night".

165 KL gave evidence that in 1991 DL told her that when the river flooded his parents let him stay at the appellant's home, they shared a bed and that "Phil would touch [DL]'s penis and [DL] would touch Phil's penis". KL said the conversation only occurred once, although in cross-examination she said they discussed obtaining counselling and that DL told her that it did happen again. The latter evidence was said to be inconsistent to that of DL.

The appellant's submissions

166 The appellant submitted that this evidence should not have been admitted for a number of reasons. First, he submitted that having regard to the fact that there had been no application to revisit the ruling before Judge North after service of the alibi notice and, further, as it was put to the appellant in that trial that the incident took place after the period the subject of the alibi notice, it was not in the interests of justice that the ruling be revisited.

167 Second, the appellant submitted that the evidence of DL was not evidence of complaint as it contained no reference to sexual misconduct. As set out above, DL's evidence was that he told KL he had stayed in the appellant's bed.

168 Third, the appellant submitted that evidence of alibi is not a suggestion that evidence of a complainant is fabricated or reconstructed. He submitted that even if the evidence was capable of casting aspersions on the credit of DL, the question of leave remained. He submitted that for the reasons give in pars [166] and [167] above, the inconsistency between the evidence of DL and KL and the fact that the complaints were not fresh, leave should have been refused because the introduction of the evidence led to substantial unfairness in the context of a prior binding ruling.

169 The appellant noted that the Crown case as put in the first trial was either that MB and the appellant were mistaken as to the time they returned from the dinner, or that the appellant was not at the dinner at all. The appellant submitted that the former scenario did not lead to the impossibility or geographical separation referred to by the trial judge.

170 Finally, the appellant submitted that the evidence was inextricably linked to the earlier determination by Judge North under s 293 of the Criminal Procedure Act refusing the appellant leave to cross-examine DL as to an alleged sexual encounter with another person which had occurred while he worked at a pizza shop. The evidence was said to reduce the substantial probative value of the complaint and to elevate the unfair prejudice to the appellant who could not test the evidence of DL or KL by reference to that complaint.

171 Senior counsel for the appellant submitted that even if the evidence was admitted, it should only have been admitted for a credibility purpose and not to prove the truth of the statement. However, he accepted that no application was made under s 136 of the Evidence Act to limit the use which could be made of the evidence.

The Crown submissions

172 The Crown submitted that no formal alibi notice had been given in the first trial. It was submitted that the application to adduce evidence of complaint to KL was made after cross-examination to the effect that no complaint had been made by DL to his father. It was said that Judge North rejected the Crown's application to adduce the evidence on the basis that his Honour did not see how a failure to complain to one person would "open that up regarding this particular complaint".

173 The Crown submitted that the trial judge was entitled to conclude that the appellant was implicitly suggesting that DL had fabricated his evidence on this issue. Reference was made particularly to the following cross-examination of DL at the first trial:

"Q. This storm that apparently - this incredible storm that took place that you told us about, are you absolutely certain that that occurred on the evening when you were taken to the accused's place of residence and there was this kind of mutual masturbation?A. Yes I'm sure.

Q. No, are you absolutely sure?A. Yes, I am.

Q. There can't be any doubt in your mind that this was the night that this storm took place because the bridge was knocked out, was that correct?A. That's correct."(23/09/2011 p 460)

...

"Q. Then the next paragraph if we can start there. You talk about moving his hips up and down and his penis rubbed against my hand, then you say after about an hour of Doyle masturbating and fondling my penis, you see that?A. Yes.

Q. Do we take that seriously, he's grabbing hold of your penis, masturbating for about an hour, is that right?A. Yes.

Q. All right. Now as we go over to the next paragraph he's - you are up to two hours there. Do you see paragraph 39, you've got the accused, Mr Doyle, with an erection throughout the two hours, do you see that?A. Yes.

Q. Are we take that as an expression of normal English words, he's got an erection for about two hours, is that right?A. Yes.

Q. But apparently during that instance or that incident you didn't get an erection, is that right?A. That is correct."(23/09/2011 p 472-473)

Consideration

174 Section 108 of the Evidence Act provides as follows:

"108(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2) (Repealed)

Note. The Commonwealth Act includes a subsection referring to section 105 of that Act.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement."

175 Also of relevance is s 192 of the Act. This provides:

"192(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

176 Section 108(3)(b) is narrower than the general law insofar as it requires the leave of the court prior to the introduction of the evidence. However, the references to non-deliberate reconstruction and suggestion widen it, as does the omission of any requirement that the statement be made sufficiently early to be inconsistent with the evidence at the trial being a recent invention: J D Heydon, Cross on Evidence, (9th Aust ed 2013) at [17315].

177 It has been stated that a mere denial of evidence does not suggest that the evidence was fabricated: R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51 at [39]; cf Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 at [7]. However the appellant's case went well beyond that. The complaint related to an event on a specific identifiable date. The appellant not only denied the event but also gave notice that he proposed to lead evidence that he was not in the vicinity of where the event took place. When this is considered in conjunction with the cross-examination of DL at the first trial referred to in par [173] above, it seems to me that it was being at least suggested by implication that DL was fabricating his evidence. In Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452 at [105], McColl JA and Latham J stated that there was no warrant for reading into s 108(3) a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived. Adams J who dissented in the result did not deal with this issue. In my opinion, in the present case, fabrication was in fact strongly inferred.

178 It follows that the precondition to the grant of leave under s 108(3)(b) was made out.

179 The appellant submitted that leave should not have been given. It was submitted that there was no application to revisit the ruling of Judge North at the first trial after the alibi evidence was adduced. I do not regard this as being of particular significance. DL had completed his evidence by that time and a forensic decision not to renew the application which would have involved recalling DL does not seem to be a matter which could prevent the discretion to grant leave being exercised in a retrial.

180 The appellant submitted that the evidence of DL was not evidence of complaint. That may be so, but the evidence that he told KL "I stayed in his bed that night", referring to the night of the storm, was consistent with the version he gave at the trial, albeit not going as far as that version.

181 The fact that the evidence of KL went further (see pars [164]-[165]) and thus was not entirely consistent with the evidence of DL did not provide a basis for declining to admit the evidence. Counsel for the appellant at trial was able, if he so desired, to cross-examine on such inconsistency.

182 Whilst, in my opinion, the fact that the consistent statements were not fresh was relevant to the exercise of the discretion, it is not a precondition for leave being granted under s 108(3) of the Evidence Act. Although the statements were said to have been made some five years after the alleged incident, they were made well prior to the trial. Although the trial judge did not refer to this matter, he was expressly referred to the complaints being late in the argument that took place on the day of his ruling and in those circumstances there is no reason to doubt that he took this into account.

183 Nor do I think the order made by Judge North under s 293 of the Criminal Procedure Act, the subject of Ground 4, affected the position. No reliance was placed on that ruling in resisting the application under s 108 in the Court below. Further, while the evidence of both DL and KL expressly referred to the night of the storm and to the appellant, it does not seem to me that this ruling provided a sufficient basis for refusing leave.

184 No application was made at the trial under s 136 of the Evidence Act to limit the use to be made of the evidence.

185 It follows that this ground of appeal is not made out.

Ground 3 - The trial judge erred in his directions to the jury regarding use of the evidence of complaint

186 The trial judge gave the following written directions on the issue of complaint:

"'Complaint' Evidence Generally

The next direction I must give you concerns what is called 'complaint evidence'.

The Crown argues that this evidence supports the credibility of the complainants as witnesses, in that if you accept the evidence it may increase the weight which you give to the evidence as to the alleged sexual assaults with which the accused is charged.

As this evidence relates to statements allegedly made to other people in the past and outside the courtroom, it is referred to in law as 'hearsay evidence'. A 'complaint' witness merely repeats in court what that witness says the complainant said to him or her about the alleged incident. The person who is said to hear this complaint was not present to observe what occurred between the complainant and the accused as alleged in the indictment. Accordingly, a 'complaint' witness cannot give direct evidence about the actual alleged crime. You will, therefore, necessarily approach this evidence with caution.

I repeat that to meet the argument of the accused that the complainants' evidence is false, the Crown has led this evidence to show that the accused did in fact commit the offences charged.

If you accept that the complaint was made, then you may take it into consideration as some evidence of the fact that the sexual assaults alleged, relating to that complainant, actually took place.

Furthermore, if you accept that a complaint was made, that fact may also assist you in determining the weight to be given to the complainant's evidence here in court by a complainant as to the sexual assaults alleged against the accused.

[I will refer to the 'complaint' evidence.]

Delay in Complaint

The absence of a complaint or delay in making a complaint is a matter that you may take into account in assessing the credibility of a complainant's evidence as to what he said the accused did.

For some complainants, there was delay of decades between the alleged incident and the matters being reported to police.

The accused was first told about the Mark Lawrence allegations when approached by police in 1999, and was told about the allegations by the other four complainants when charged in 2009.

However I am required by law to direct you that a delay in complaint, even a long delay, does not necessarily mean that a complaint is false.

There may be good reasons why a person who has in fact been the victim of a sexual assault may fail to report, to delay in reporting, such an offence.

From your own knowledge of the world, you might think that there could be cases where embarrassment, guilt feelings or worry about the reactions of family or friends might cause a genuine victim of sexual molestation to suppress what had taken place.

In this trial, there may be good reasons which occur to you from the evidence why, if the complainants or any of them were actually molested in their youth, as alleged, they might maintain silence for a long time.

It is for you to evaluate such considerations. You should also take into account the evidence by the accused denying the occurrence of the offences.

Practical Problems for the Defence Caused by Long Delay in Reporting

There is a further warning I should give you relating to this issue of the absence of any or delay in complaint being made by complainants.

It is most important that you appreciate fully the effects of delay or absence of complaint on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.

[In this regard, I will refer to certain specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case.]

These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence him (sic) to establish a reasonable doubt about his guilt, or both.

The delay means that the complainants' evidence cannot be fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant's memory for details would have been clearer. This may have enabled his evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainants' inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on his evidence by pointing to the circumstances which may contradict him. Had the accused learned of the allegations at a much earlier time he may possibly have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant.

Another aspect of the accused's disadvantage is that if he had learned of the allegations at a much earlier time he may have been able to find more witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.

Because the accused has been put into this situation of significant disadvantage the conduct of his defence has been made more difficult. As a result, I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about - the fact that the complainant's evidence has not been tested to the extent that it otherwise might have been and the diminished ability of the accused to bring forward evidence to challenge it, or to support his defence.

However, I am not telling you that these problems for the accused make it impossible for the prosecution to prove its case. If, after carefully considering my warnings and directions and scrutinizing the complainants' evidence with great care (in the context of all the other evidence) you are well satisfied of the truth and accuracy of the complainants' evidence in relation to any of the charges and you are satisfied beyond reasonable doubt that any of the alleged offences did occur, then it is your duty to return a verdict of guilty in relation to that matter."(Emphasis in original)

187 The trial judge gave the following oral directions:

"COMPLAINT EVIDENCE GENERALLY

The next direction I must give you concerns what is called complaint evidence. The Crown argues that this evidence supports the credibility of the complainants as witnesses. In that if you accept the evidence it may increase the weight which you give to the evidence as to the alleged sexual assaults with which the accused is charged. As this evidence relates to statements allegedly made to other people in the past and outside the courtroom, it is referred to in law as hearsay evidence. A complaint witness merely repeats in court what that witness says the complainant said to him or her about the alleged incident. The person who is said to hear this complaint was not present to observe what occurred between the complainant and the accused as alleged in the indictment. Accordingly, a complaint witness cannot give direct evidence about the actual alleged crime. You will therefore necessarily approach this evidence with caution.

To meet the argument of the accused that the complainant's evidence is false the Crown has led this kind of evidence, complaint evidence, to show that the accused did in fact commit the offences charged. If you accept that the complaint was made then you may take it into consideration as some evidence of the fact that the sexual assaults alleged relating to that complainant actually took place. Furthermore, if you accept that a complaint was made that fact may also assist you in determining the weight or value to be given to the complainant's evidence here in court by the complainant as to the sexual assaults alleged against the accused.

I will just interrupt myself there and mention the complaint evidence to you. Mark Lawrence made a statement to police on 13 January 1999 and that of course is a complaint, he said he flew down to Sydney on 13 January 1999 and gave his statement. Now you will recall that Mr Bentley, a police officer, referred to evidence that [EL] had reported the indecent assault of Mark Lawrence. I will just refer to that evidence. You will recall that Mr Bentley was the initial policeman involved in the case and he says at p 407, 'I had at about 7 pm on Monday 11 January 1999 I had a telephone conversation with a female person named [EL] who reported the indecent assault allegations on Mark Lawrence' and then he said on 13 January 1999 he spoke to Mark Lawrence and obtained the statement from him.

So far as [PM] is concerned, he told the Court that he had mentioned to his friend [NL], p 340 of the first trial, he said that 'he rang [NL] on the Sunday after the event that he alleged' and then he gave details to him on the following Monday. [NL] gave evidence about this, p 453 of this current trial. He said,

'[PM] rang me up one day very upset and saying that there had been an incident between him and Philip Doyle.' He said, 'I can't remember if we talked about it on the phone or whether we met somewhere and talked about it. I remember the conversation but I don't remember where it took place but nonetheless he did. I know he did ring me and he was just very upset about that Mr Doyle had apparently given him some alcohol and had, I don't know, sexually assaulted him or molested him or something like that. I didn't ask for the specific details'.

Now that is complaint evidence and you understand that the nature of this evidence is that [NL] is not saying that he was anywhere where he saw himself anything taking place between [PM] and Mr Doyle, he was saying that that is what [PM] reported to him and it is what we call 'hearsay evidence'; and the significance that you attach to it is a matter for you. So far as [PM] bringing this to the attention of the police, Detective Senior Constable Lee gave evidence that on 26 August 2009 he was contacted by [PM] the day after a media release relating to the arrest of the accused Mr Doyle.

Now again turning to [DL]. [DL] told you that he made a complaint to [KL] his then wife (or [KL] as she was) and she gave evidence about that at p 243 in the following terms. She was referring to her relationship to him, she said they started living together in 1991 and he was working, amongst other places, at the Pizza Place at Kogarah. She said they were in a car at McDonald's, 'I don't know for whatever reason we just started talking about personal stuff'. She said they had been delivering pizzas. She said 'From what I remember he was telling me about when he was working at the Kogarah Mecca and he mentioned Phil Doyle and [DL] was about fourteen at the time and he was saying that there were no women or no girls kind of employed there'. Well that is of no great significance, but she was asked to focus on what he specifically told her and she said, p 243:

'Yes he told me about a time when it was raining and storming and the Georges River was flooded and he couldn't get home and he'd been at work that night and his parents were called to see if they come and pick him up and they couldn't get there and they gave the okay for [DL] to stay at Phil Doyle's place that night.

Q. Did [DL] say anything else about what happened that night?

A. He didn't want to go into too much detail but what he did say was that they shared a bed and that Phil would touch [DL's] penis and [DL] would touch Phil's penis and he seemed composed but he was kind of staring into the distance.'

In cross-examination she indicated that she had been separated from him six years ago and she said she was definite about having been told that, that Mr Doyle had been in bed with him and that there had been touching of the penis.

Now [DE] (you will recall, one of the workers at the Kogarah Mecca) gave evidence, amongst other things, on this subject, the subject of complaint. She said that she would occasionally work with [DL] on the same shift, p 367:

'We were in the candy bar and it's just normal chit chat but it was quiet and we weren't speaking at the time and then he just made the statement that something similar to 'Phil got me to pose for photos in my undies' and I didn't know how to react to that or what to say to it so I just kind of did a lame oh or something like that and he never pursued it any further and I never said anymore so it was just silence after that for quite a while.

Q. Did you ever have a further conversation with [DL] about what he had said?

A. No.'

Now that relates to the charge in count 7.

As for [KM], there is no complaint evidence. He said in his evidence that he had not revealed anything about it until after he saw the article in the paper and the arrest had occurred, and he contacted the police after 25 August 2009 and made his statement on 14 September 2009 and similarly with respect to [MH], there is no complaint evidence, he said he did not discuss it with anybody until he contacted the police in September 2009.

As I say to you that is complaint evidence, it is not eye witness evidence and you have to treat it with caution, but you are entitled to take it into account in the way that I have described.

Let me refer to delay in complaint. The absence of a complaint or delay in making a complaint is a matter that you may take into account in assessing the credibility of a complainant's evidence as to what he said the accused did. With some complainants there was a delay of decades between the alleged incident and the matters being reported to police.

The accused was first told about the Mark Lawrence allegations when approached by police in 1999 and was told about the allegations by the other four complainants when charged in 2009. However, I am required by law to direct you that a delay in complaint, even a long delay, does not necessarily mean that a complaint is false. There maybe good reasons why a person who has in fact been the victim of a sexual (sic) may fail to report or delay in reporting such an offence and from your own knowledge of the world you might think there could be occasions where embarrassment and guilt feelings or worry about the reactions of family or friends might cause a genuine victim of sexual molestation to suppress what had taken place.

In this trial there maybe good reasons which occur to you from the evidence why, if the complainant or any of them were actually molested in their youth as alleged, they might maintain silence for a long time. It is for to evaluate such considerations (sic). You should also take into account the evidence by the accused denying the occurrence of the offences.

PRACTICAL PROBLEMS FOR THE DEFENCE CAUSED BY A LONG DELAY IN REPORTING

There is further warning I should give you relating to this issue of the absence of any or delay in complaint being made by the complainants. It is most important that you appreciate fully the effects of delay or absence of complaint on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. In this regard I will refer to certain specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case. I will just refer to some of those matters, members of the jury.

One of them is the inability of each of complainant to remember some possibly important details in connection to the allegations of assault, in particular regarding the night of the big storm of 5 August 1986, each complainants' incapacity to recall with any precision the date, or in some cases the month upon which he was allegedly sexually assaulted or when he began and entered his employment with the Kogarah Mecca Centre. Again, another consideration is the unavailability of some Kogarah Mecca Theatre staff, now dispersed over the years, to give evidence about various matters raised in the defence case - for example, to confirm Mr Doyle's evidence as to the frequency with which the complainant, [KM], attended the Kogarah Mecca Cinema after he ceased employment there, and probably some other matters.

Another matter is the inability (because of the lapse of time) to have a proper inspection undertaken of Mr Doyle's former residence at [Sans Souci], particularly with respect to the presence or absence of an operative sauna about which the complainant [KM] gave evidence. The view of the swimming pool from the premises next door and, since there has been changes made, an inspection closer to the point in time of the allegations might have indicated the presence or absence of a pool table or a billiard table which [DL] says Mr Doyle allegedly had at his home at the time of the [MP]/[DT] masturbation incident.

Another matter which time affects is the unavailability of Mr Doyle's mother to give evidence upon the issue of whether Mr Doyle did take the complainant, [PM], to her place prior to the alleged occurrence in count 4 and the inability to find any persons she might theoretically have been entertaining at that time.

Another consideration related to delay is the unavailability of [DW] potentially to contradict evidence given by the complainant [PM] that Mr Doyle provided alcohol to [PM], [DW] and [NL]. Again, another matter that relates to delay is the unavailability of Robert Lopez to give evidence, in person - he has died. He might have given evidence and been tested in the witness box particularly with respect to his assertions of the complainant [DL] returning to work for the Kogarah Mecca around the mid 1990s and his recollection of paying [DL] cash for the two or three weeks he worked there at the time, and although there is a statement from him writing to Mr Lopez you do not have his evidence in person. Another consideration related to delay is the inability to identify persons nominated by [MB] as being at his [birthday party] on 5 August 1986.

Further, time and the lapse of time has made it impossible to have a proper inspection of the unit at Ozone Street, Cronulla as to how it was at the time of the allegations and particularly about whether there is an operative sauna or the presence or absence of a trap door in some part of the unit allegedly seen by the complainant [PM]. Again, I mention the inability to have had a proper inspection undertaken of the residence at [Sans Souci] again particularly with respect to the presence or absence of a working sauna about which the complainant [PM] gave evidence, and the presence or absence of a pool table which [DL] has mentioned and which I have already referred to.

Now these matters may not only have been affected by the long delay. It may be that the long passage of time has had an impact on Mr Doyle's ability to remember the details in connections with various allegations and so to assist his defence. For example, as appears at p 823 of the transcript, Mr Doyle's failure to remember putting an inscription in the book Mark Lawrence said was given to him upon Mr Doyle's return from America and another instance of his failure to recollect, which may well be attributable simply to the lapse of time, is the failure to remember whether Mark Lawrence rode in one of the vintage cars (that is at p.825) and Mr Doyle's recollection about the car that he drove on the evening of 5 August 1986 might well be affected by the lapse of time or the exact route he took to and from the city might similarly be affected; transcript p.882. Or, again, his inability to remember how much time per day he spent at the Hurstville Mecca Cinema; p.876.

Now, these difficulties are the kind which I have mentioned, put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or in bringing forward evidence to establish a reasonable doubt about his guilt, or both. This delay means that the complainant's evidence cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant's memory for details would have been clearer. This may have enabled his evidence to be checked in relation to those details against independent sources so as to verify or to disprove it. The complainant's inability to recall precise details of the circumstances surrounding incidents makes it difficult for the accused to throw doubt on the evidence by pointing to circumstances which may contradict him. Had the accused learned of the allegations at a much earlier time, he might possibly have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant.

Another aspect of the accused's disadvantage is that if he had learned of the allegations at a much earlier time he may have been able to find more witnesses or items of evidence that might have either contradicted the complainant or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him. Because the accused has been put into this situation of significant disadvantage, the conduct of his defence has been made more difficult. As I result I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about. The complainant's evidence has not been tested to the extent that it otherwise might have been and there is a diminished ability of the accused to bring forward evidence to challenge it or to support his defence.

However, I am not telling you that these problems for the accused make it impossible for the prosecution to prove its case. If, after carefully considering my warnings and directions and scrutinising the complainant's evidence with great care in the context of all the other evidence, you are well satisfied of the truth and accuracy of the complainant's evidence in relation to any of the charges and you are satisfied beyond reasonable doubt that any of the alleged offences did occur, then it is your duty to return a verdict of guilty in relation to that matter."(29/06/2012 pp 6-15)

The appellant's submissions

188 The appellant submitted that the trial judge erred in directing the jury that evidence of complaints as to particular counts could be used to support the credibility of the complainants as witnesses. He submitted that the direction was far too general, particularly where there was no complaint evidence for some of the complainants. Aligned to that he submitted that the trial judge erred in directing the jury that it could increase the weight given to the evidence in respect of all of the sexual offences and also in directing the jury that if they were satisfied the complaint was made, then it could be used as evidence for the fact that all of the counts took place.

189 The appellant submitted that the trial judge summarised the evidence of complaint without confining it to particular counts. He submitted that the concluding words, "As I say to you that is complaint evidence, it is not eye witness evidence and you have to treat it with caution, but you are entitled to take it into account in the way I have described", reinstated the general directions in relation to the evidence of all the complainants.

190 The appellant referred to Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, in which the High Court emphasised the statutory preconditions to the admission of evidence of complaint contained in s 66 of the Evidence Act, including, that the occurrence of the asserted fact was fresh in the memory of the complainant. He referred to the statement of Gleeson CJ and Hayne J at [40] that there may well arise circumstances where use of complaint evidence would be limited.

191 The appellant also referred to the fact that in the circumstances in Papakosmas supra, where there had been what the appellant described as spontaneous and immediate complaint, Gleeson CJ and Hayne J pointed out at [42] that a direction describing the hearsay evidence as "'some evidence' in support of the charge was accurate, and did not overstate its importance." He submitted that the circumstances in Papakosmas were very different to the circumstances in the present case.

192 The appellant submitted that the precondition of "fresh in the memory" of the complainant was not satisfied in the case of DL's complaint to KL, or in the complaint of Mr Lawrence to his mother or the police some 19 years later and thus could not be used in support of Counts 6 or 7 in relation to DL, or Counts 1 to 3 in the case of Mr Lawrence.

193 Further, so far as the evidence of the complaint to KL was concerned, the appellant referred to the acceptance by McHugh J in Papakosmas supra at [90] that the need for a discretionary limitation was much stronger when the evidence was admitted under s 108(3)(b) of the Evidence Act rather than s 66(2).

194 The appellant submitted that the complaint recalled by DE from DL was not a case of sexual activity alleged in a particular count. In circumstances where the evidence of DE was different from that of DL, DE stating that DL told her that he was photographed in his underwear as distinct from the evidence of DL that he was photographed in Speedos, and also where no evidence was given by DL of a complaint to DE, the appellant submitted that the evidence was not available to support Count 7.

195 The appellant submitted that the only evidence capable of use as truth of the facts was the complaint evidence of PM in relation to Counts 4 and 5.

196 The appellant submitted that the errors in the direction regarding complaint constituted a miscarriage of justice.

197 Senior counsel for the appellant pointed first to the trial judge's reference in his summing up to the statement by Mr Lawrence to the police on 13 January 1999, which he described as a complaint. Senior counsel for the appellant said it would have been better to say it was not a complaint, particularly having regard to the provisions of s 66(3) of the Evidence Act.

198 Senior counsel for the appellant then referred to the trial judge's directions concerning the complaint by PM to NL, which he said was not specific to Count 4. In relation to PM's complaint to the police he made a similar submission to that which he made in respect of the complaint to the police by Mr Lawrence.

199 Senior counsel for the appellant submitted the statement of complaint made by DL, which was admitted as a result of the application of s 108(3) of the Evidence Act, should only have been admitted for a credibility purpose and the jury should have been told that. He repeated the written submission that the complaint to DE was not capable of supporting Count 7.

200 Senior counsel for the appellant submitted that the effect of the directions was to elevate a whole list of matters which could not be complaints. He submitted that the combined effect of the directions was that all of the out of court representations were admissible to prove the facts.

The Crown submissions

201 The Crown submitted that none of the matters the subject of the appeal on this ground were raised at trial. The Crown submitted that underlying the submission that complaint evidence generally could not be used as proof of the facts was an assertion that the evidence was wrongly admitted. The Crown pointed out that no objection to its admission was taken and no limitation under s 136 of the Evidence Act was sought.

202 The Crown submitted that had objection been taken, consideration could have been given to the matters referred to in s 66(2A) of the Evidence Act.

203 The Crown also pointed to the fact that the trial judge directed that there was no complaint evidence in respect of either KM or MH.

204 Counsel for the Crown also pointed to the fact that the trial judge in his directions dealt with the problem of delay in relation to complaint evidence.

Consideration

205 Section 66 of the Evidence Act provides as follows:

"66(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and

(b) the age and health of the person, and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave."

206 Apart from the evidence of complaint made by DL to KL there was no objection taken to the admission of the evidence of any of the other complaints, nor was there any application made under s 136 or s 137 of the Evidence Act to exclude the evidence or limit its use. Indeed, although the appellant at least implicitly suggested that some of the evidence was wrongly admitted, no ground of appeal was directed to that issue.

207 Further, no objection was taken to the summing up of the trial judge on this point.

208 Section 66(2A) was introduced into the Evidence Act following the decision of the High Court in Graham supra, where it was held that "fresh" means recent or immediate, its contemporaneity or otherwise being the most important consideration in any assessment of freshness. The approach to be adopted in the application of s 66(2A) was considered by this Court in R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629, where complaint of a sexual assault of a child under the age of 10 made between two and five years after the event was held to fall within the subsection. In holding that the evidence was admissible, Whealy J, with whom the other members of the Court agreed, stated that the expression "fresh in the memory" was to be interpreted more widely than in Graham supra. He stated that it was not confined to an examination of the temporal relationship which, whilst relevant, was not determinative, as the nature of the event concerned must also be taken into account as an important consideration: Graham supra at [79] and [99].

209 Thus, it is correct that in considering whether complaint evidence should be admitted consideration must be given to whether the statutory preconditions were made out and whether the use of the evidence should be limited pursuant to s 135, s 136 or s 137, Papakosmas supra at [34]-[35], [40], [44] and [90]-[94]. However, the preconditions must be considered having regard to the words of the statute in the manner discussed in XY supra.

210 The trial judge did not have to give consideration to whether the preconditions were fulfilled as the evidence was admitted without objection. As was stated by McHugh J in Papakosmas supra at [72], in the absence of any objection no error of law was demonstrated either in the admission of the evidence or in the direction. Rule 4 applies and for the reasons set out hereunder no miscarriage of justice has been shown.

211 The appellant complained that the trial judge's direction was far too general, particularly where there was no complaint evidence in relation to some of the complainants. I do not think this criticism is justified. As I indicated in dealing with Ground 1, the trial judge at the outset of his directions emphasised the need to consider the evidence on each count separately. Further, in each of his written and oral directions set out at pars [186] and [187] above, his Honour stated that "If you accept that the complaint was made, then you may take it into consideration as some evidence of the fact that the sexual assaults alleged, relating to that complainant, actually took place" (emphasis added). Further, in relation to the complaint evidence the trial judge dealt with each complaint separately and stated that there was no complaint in respect of KM or MH.

212 It is correct as the appellant stated that the trial judge did not confine the complaint evidence to a particular count. However, with the exception of the complaint of DL to KL and PM to NL, the complaints did not relate to particular instances. That may have been relevant had any application been made to exclude or limit the evidence, but none was made.

213 So far as the delay in the making of the complaints was concerned, this would also have been relevant had the admissibility of the evidence been challenged. However, the trial judge emphasised that the delay in the making of the complaints was a matter to be taken into account in assessing the credibility of the evidence, addressed the difficulties occasioned to the appellant by virtue of such delay occurring and had previously warned the jury of the caution to be used in assessing such evidence. In these circumstances I do not think the direction caused the appellant to lose the chance of an acquittal.

214 In these circumstances this ground has not been made out.

Ground 4 - The trial miscarried as a result of the ruling of the trial judge in the first trial (binding in the second trial), erroneously refusing leave pursuant to s 293 Criminal Procedure Act to cross-examine the complainant DL about his alleged sexual experience with the pizza shop owner, Mr Bonica in the late 1980's

215 In a statement to the police made on 7 September 2009, DL, in addition to alleging sexual misconduct by the appellant, asserted he was sexually assaulted by a Mr Robert Bonica, the proprietor of a pizza store where he worked in 1988 and early 1989. He alleged in the statement that he was sexually assaulted by Mr Bonica in April 1989 following which he immediately resigned his employment. The allegation made by DL against Mr Bonica was accurately summarised by the appellant in his written submissions in the following terms:

"For the first 6 months of his employment at the Pizzeria, Mr Bonica was friendly and made jokes about sexual things.

In around September or October of 1988, Mr Bonica starting complimenting him on his appearance and discussed homosexual experimentation.

Mr Bonica began giving him gifts, and in August 1988 gave him a gift for his birthday.

One night after work in November 1988, at the invitation of Mr Bonica he went to his unit in Hurstville and watched a pornographic video with Mr Bonica.

Around April 1989, Mr Bonica suggested that he and DL go to the Emperor's Garden Chinese restaurant in Chinatown. They arrived around midnight, ate a meal and left around 1.30am.

That evening after dinner at the Chinese restaurant, DL drove Mr Bonica back to his car. When they pulled up at the curb, Mr Bonica leant over from the passenger seat and rubbed DL's genitals in an attempt to get him aroused. He continued to rub his genitals for some minutes.

DL resigned after the incident where Mr Bonica rubbed his genitals.

DL returned to work for Mr Bonica around December 1990, delivering pizzas two nights a week. DL's then girlfriend, [KL], was pregnant and DL worked for Mr Bonica for 'a few months' over that period."

216 In dealing with the effect that the conduct alleged against the appellant had on him, DL made the following comments in his statement:

"67. I continued to work at the cinema for a few more months. I started to become a different person after the incidents. I felt dirty and was disgusted with myself, and I carried shame. My level of confidence in myself and my identity began to crumble, at a time when I was trying to find my identity as a young man. I would retreat from social situations with my friends and become a loner, keeping to myself a lot, feeling I had nothing good to offer anyone as a friend or person."

217 Ultimately, DL made the following comments in relation to the alleged conduct of both the appellant and Mr Bonica:

"86. These incidents involving Philip Doyle and Robert Bonica left me an empty and disillusioned person. Over the years I've felt many emotions including insecurity and these incidents have had a major influence on my confidence. Even today, I try and avoid coming into contact with men because I feel intimidated which is based on fear of being vulnerable. I am socially awkward and feel that I am weak willed and easily led due to my experiences with Doyle and Bonica. If I'm amongst a group of people who are laughing at a joke or a funny situation, I would rarely be relaxed enough to join in, and would never feel like part of the group. My humour developed into black humour after the incidents with Doyle. I see that whole period leading into my early 20's as a dark chapter of my life."

218 In the first trial the appellant sought leave to cross-examine DL on the incident concerning Mr Bonica. In a judgment delivered on 27 September 2011, Judge North declined to grant such leave, relying on the provisions of s 293(6) of the Criminal Procedure Act.

219 It was apparently argued before Judge North that the incident concerning Mr Bonica was disclosed or implied in the case for the prosecution by the tender of the statement of DL at the committal proceedings. That submission was rejected by Judge North. Although it was contended on the appeal that Judge North erred in his application of s 293(6), this particular submission was not pressed at the appeal.

220 Judge North also rejected the argument that s 293(6) was enlivened because the statement by DL in his evidence that he felt sick when the appellant asked him to put the appellant's penis into his mouth implied a lack of sexual experience such as to enliven the subsection. Judge North concluded that whether what occurred subsequently with Mr Bonica compounded DL's feelings of disgust or self-loathing, that could not be relevant to a fact in issue. On this basis he rejected the application.

221 Although the appellant relied on s 293(4) in his submission before Judge North, his Honour did not deal with this argument, probably because it was not clear whether or not it was pressed.

222 No application was made to revisit the ruling of Judge North at the trial.

The relevant legislation

223 Section 293 of the Criminal Procedure Act provides as follows:

"293(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c) if:

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to:

(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked:

(a) to give evidence that is inadmissible under subsection (2) or (3), or

(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied:

(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

(9) (Repealed)."

The appellant's submissions

224 The appellant emphasised that this Court has made it clear on a number of occasions that the categories of exception in s 293 of the Criminal Procedure Act should be construed broadly and in favour of the accused.

225 The appellant submitted that the conduct alleged by DL against the appellant and against Mr Bonica were part of a connected set of circumstances within the meaning of s 293(4)(a)(ii), pointing to the fact that DL in par [86] of his statement to the police suggested his condition of feeling empty and disillusioned was a consequence of the incidents of abuse by both the appellant and Mr Bonica. He submitted that the similar allegations made against Mr Bonica and the timing and circumstances of the complaint made about the appellant to KL were so connected to the circumstances of the offence that it bore on DL's credibility and also the objective likelihood of two separate employers of DL acting in a similar fashion in the 1980s. He submitted that the timing of the complaint to KL may have suggested that DL was confused or transferring his anger against Mr Bonica to the appellant. He submitted that these were matters on which the appellant was entitled to cross-examine.

226 The appellant also submitted that the case for the prosecution implied a lack of sexual experience such as to enliven s 293(6). He submitted that this followed from the evidence of DL that he felt introverted, withdrawn and dirty as a result of the incident. He submitted that s 293 and its predecessor were introduced into the legislation to prohibit irrelevant questioning of sexual assault victims as to their previous sexual behaviour. He stated that this was not the situation in the present case and the proposed questioning should have been allowed so the jury were appraised of all the circumstances, particularly when the prosecution was allowed to lead evidence of complaint and the trial judge permitted that evidence to be used as evidence of the fact that the offences occurred.

227 The appellant submitted that given the relevance of the evidence there was no rational forensic purpose in not seeking to revisit the ruling of Judge North, particularly when evidence of complaint was allowed to be introduced. He also submitted that the prosecutor should have drawn the attention of the trial judge to the different context in which the ruling of Judge North was made.

228 The appellant submitted that the failure to permit this cross-examination deprived the appellant of a real chance of an acquittal.

229 The appellant further submitted that even if Judge North and the trial judge had correctly applied s 293, this Court retained a residual discretion to allow an appeal on this ground on the basis that there was a miscarriage of justice in that the appellant was deprived of a real chance of acquittal. In this context the appellant referred to the decision of this Court in R v Morgan (1990) 30 NSWLR 543. Senior counsel for the appellant noted that the Crown did not contend that the case was wrongly decided. Senior counsel also submitted that s 6 of the Criminal Appeal Act was broad enough to deal with the situation, referring to Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358.

The Crown submissions

230 The Crown submitted that the ultimate question was whether the appellant lost the chance of an acquittal which was fairly open to him as a result of the refusal to permit cross-examination on the incident involving Mr Bonica.

231 The Crown submitted there was no obligation on the prosecutor to apply to revisit the ruling of Judge North when defence counsel had not done so.

232 The Crown submitted that the argument based on s 293(4) of the Criminal Procedure Act was abandoned before Judge North, but in any event it was erroneous.

233 The Crown placed particular reliance on what was said by this Court in GEH v R [2012] NSWCCA 150, in which similar submissions to those made by the appellant in this case were made in respect of two sets of alleged sexual offences. The time difference between the alleged offences was between 8 and 15 months. The Crown submitted that the appeal in GEH v R supra was dismissed because of a failure to demonstrate that the incident sought to be introduced occurred at or about the same time as the incident the subject of the charge or formed part of a connected set of circumstances in which the alleged offence was committed. In the present case the Crown pointed out that the time difference between the incidents involving the appellant and those involving Mr Bonica was 23 months.

234 The Crown submitted that Judge North was correct in the conclusion he reached concerning s 293(6). In that context counsel for the Crown emphasised that DL had said in his statement (at par [67]) that the feelings of dirt, disgust and shame arose from his encounters with the appellant.

Consideration

235 For the exception to the prohibition in s 293(3) of the Criminal Procedure Act contained in s 293(4)(a) to apply, both limbs of the subsection must be satisfied. In the present case the alleged offences by the appellant against DL took place in 1986 and 1987, the last being in March or April 1987. The incident with Mr Bonica was alleged to have taken place in April 1989 some two years later. Accepting that the section is to be construed liberally in favour of the accused (see for example R v Morgan supra at 551), it does not seem to me that the sexual activity alleged against Mr Bonica took place at or about the time of the commission of the offences alleged by DL against the appellant.

236 Further, I do not think that the precondition in s 293(4)(a)(ii) is satisfied. The question is whether the two complaints of sexual activity, namely, the alleged assaults by the appellant and the alleged assault by Mr Bonica, formed part of a connected set of circumstances in which the alleged prescribed offences, being the offences by the appellant, were committed. There does not seem to be a connection between the alleged assaults by the appellant and the alleged assault by Mr Bonica. The fact that complaints to the police were made at the same time does not demonstrate the events formed part of a connected set of circumstances.

237 I do not think the fact that the statement could be used in some way to test the credit of DL affects the position. Two alternatives were suggested by the appellant. He suggested that if the statement were true it would suggest that DL was transferring his anger against Mr Bonica to the appellant. Alternatively, if it were false, it could demonstrate that DL had a predilection for making false complaints. Either way the relevant event itself, being the alleged assault by Mr Bonica, did not form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. Although the complaint against Mr Bonica might go to the credit of DL, it was not so connected to the commission of the offences alleged that it bore on the objective likelihood of their commission: see GEH v R supra at [81]-[82].

238 Further, in my opinion the evidence did not fall within s 293(6). As I pointed out, DL said in his statement at par [67] that he felt disgusted with himself and carried shame as a result of the alleged assaults by the appellant. This was stated separately to the feelings that he said he felt after the further alleged assault by Mr Bonica. It does not seem to me that the statement implied any lack of sexual experience such as to enliven s 293(6). The feelings that were referred to by DL could be held equally by a person with or without a lack of sexual experience. It does not seem to me that DL stating that he had these feelings after the assaults by the appellant implied a statement that he lacked sexual experience.

239 Further, the case of the prosecution made no reference to the alleged assault by Mr Bonica. Cross-examination as to his experience at a later time after the assaults the subject of the charges took place could have no relevance to his sexual experience or lack thereof at the time the alleged assaults by the appellant occurred.

240 In these circumstance, Judge North was correct in refusing leave to cross-examine DL in relation to his alleged sexual experience with Mr Bonica.

241 The appellant submitted that even if this was the case the exclusion of the evidence, particularly coupled with the admission of the evidence of the complaint made by DL to KL, meant either that its exclusion or the admission of that complaint evidence led to a miscarriage of justice.

242 In that context the parties accepted that even if the evidence was correctly rejected, the appeal could be allowed if there was a miscarriage of justice: R v Morgan supra at 554; cf R v Berrigan (Court of Criminal Appeal (NSW), 7 October 1994, unreported); contra HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [47] and [150]-[153].

243 I have already dealt with the reasons that the trial judge was correct in admitting the evidence of the complaint made by DL to KL.

244 Further, I do not think that the fact that the evidence of the alleged assault by Mr Bonica was excluded, whether coupled with the admission of the complaint evidence or otherwise, led to a miscarriage of justice.

245 On the material available the evidence would have gone no further than showing that DL had made a complaint against another person relating to an incident some two years later. There was no evidence to suggest that this complaint was true or false. It does not seem to me that there was a real chance that a jury having accepted the evidence of DL beyond reasonable doubt would reach a different conclusion solely based on the fact of another complaint, absent any evidence as to whether the further complaint was accurate or otherwise. In these circumstances, in my opinion, there was no miscarriage of justice.

246 My opinion is not altered by the fact that the complaint to KL was admitted. That complaint was specific both as to the identity of the offender and the time it took place. It does not seem to me that in those circumstances the account that a jury would take of a complaint concerning a specific instance would be affected by the fact that a complaint in relation to a different incident had been made at a much later point in time.

247 It follows in those circumstances that this ground of appeal is not made out.

Ground 5 - The learned trial judge erred in (a) Allowing Mr Tenant to be cross-examined by the prosecution under s 38 Evidence Act 1995 and (b) Allowing Mr Tenant to be recalled to give "supplementary evidence" for the prosecution

248 Mr Robert Tenant worked at the theatre from 1973 when he was aged 16 until 1991, rising to the position of general manager.

249 In the course of his evidence in chief Mr Tenant stated that he could not recall if a fridge with wine in it was in his office at the theatre. By contrast, in his evidence in the first trial he said that there was wine in the fridge in his office on occasions.

250 Mr Tenant also gave evidence that he and the staff generally finished work around midnight. This was in contrast to a statement he had made in 1999 in which he said quite often "we would be working late until the early hours of the morning".

251 Mr Tenant's evidence was that PM was never employed at the theatre. He described him as KM's "hang-on brother", recalling he was about 10 years of age.

252 During the course of Mr Tenant's evidence in chief the Crown Prosecutor made an application under s 38 of the Evidence Act to cross-examine Mr Tenant: first, by showing him his early evidence concerning wine in the fridge (the first application); second, by showing him that part of his statement which referred to working into early hours of the morning (the second application); third, by showing him a promotional flyer to suggest that he was wrong about PM being 10 years old and not being employed at the theatre (the third application); and, fourth, showing him a reference which stated that KM was employed as an usher (the fourth application).

253 Mr Tenant's evidence had been that he could not recall KM very well, he did not remember interviewing him and it was unlikely that he was employed by the appellant without first being interviewed by Mr Tenant.

254 Following these applications the following exchange occurred:

"CROWN PROSECUTOR: If I am going to put to the jury that he is wrong about these matters I ought to give him the opportunity-

HIS HONOUR: Correct himself, yes. Well, if you could get the evidence he's given today - it's basically a prior inconsistent statement, is it not?

CROWN PROSECUTOR: Prior inconsistent statement in relation to the evidence he gave on the last occasion.

HIS HONOUR: And you say unfavourable?

CROWN PROSECUTOR: And unfavourable, your Honour, yes.

HIS HONOUR: What's your attitude about that, Mr Terracini?

TERRACINI: First of all, he's not my witness; secondly, it's a regular application by Crowns that witnesses are unfavourable which I find quite offensive to a lot of witnesses. Prior inconsistent is a far more neutral situation. They're just shown their statements and say, 'Look do you agree or not?' I don't think that he should be an unfavourable witness.

HIS HONOUR: You don't think he should be an 'un' what?

TERRACINI: I don't think that there's a basis for demonstrating he's unfavourable.

HIS HONOUR: At this stage anyway the Crown is basically saying he said different things. Yes, that's the case, isn't it, Madam Crown?

CROWN PROSECUTOR: He said the same thing about [PM], he said the same thing about [KM], but if I'm going to submit the jury he's wrong I have the obligation to seek to put the material to him.

TERRACINI: Well as I stated it's not my witness, I got it on the first trial your Honour's dealt with and other than a meet and greet I've had no dealings with Mr Tenant so I don't want to be in the situation of suggesting that we seek to protect him in any shape or form.

HIS HONOUR: Well you can show - do you have any objection to the Crown showing him the - is there a flyer?

CROWN PROSECUTOR: There is, it's a, what's the words, a brochure for the pantomime naming [PM] as the usher. There is a reference signed by Phillip Doyle for [KM] commencing his work as an usher. There are-

HIS HONOUR: Not signed by Mr Tenant?

CROWN PROSECUTOR: No by Mr Doyle. But it would be clear that [KM] was employed during the time that Mr Tenant was the manager, according to that reference.

TERRACINI: And I think that the reference will fall in a way where this witness is saying that he was around; he's obviously doing something but I don't have much memory of him and if his figure of about 100 ushers accurate, and it seems to be approaching that number, then it's hardly surprising that he doesn't know every single person.

HIS HONOUR: Well Madam Crown in general I'll let you put these things to him without any necessity to - we've gone well beyond hostility and there's no suggestion of that but it may well - I can see he's unfavourable. Point the differences out to me tomorrow morning and give me a copy of the flyer and so on and I'll consider it further."(30/05/2012 pp 260-261)

255 On the following day the trial judge was shown the material said to give rise to the inconsistency and, ultimately, the following exchange took place between the trial judge and senior counsel for the appellant:

"HIS HONOUR: Well it doesn't seem at this stage as if he has been adverse in the sense of not trying to do his best. But in all those matters, prima facie it seems to me that you should be entitled to ask him appropriately leading questions. The, Mr Terracini this is not rip and tear stuff I think the Crown could legitimately put those matters.

TERRACINI: Well your Honour all the Crown has to do is to say 'I want to show you he was born on such and such a date' there's no issue about it your Honour.

HIS HONOUR: Exactly.

TERRACINI: If he's never said as I understand, he never said that he does remember anything, but that's not surprising.

HIS HONOUR: No, no, I think that Madam Crown is just being very cautious. I think that's right. Madam Crown if you start to cross-examine this witness I'll, in any vigorous fashion I'll stop you."(31/05/2012 pp 265-266)

256 As a result, the following questions were asked of Mr Tenant by the Crown Prosecutor without objection from the defence:

"Q. And your recollection is that [PM] would have been about ten when you first met him?A. As I recall yes, he was only young.

Q. Now in relation to the pantomimes, if there are pantomimes done at the end of year over three years that involves [KM] being Hansel and Gretel, her first pantomime. Little Red Riding Hood her second pantomime and Cinderella her third pantomime. In relation to [PM] and when your recollection is he is ten years old, would that have been at the start?A. I really don't recall. I don't know how old he was, I just thought he was around about ten when you mentioned it

Q. What I want to do is suggest that [PM] was actually born in December of 1968, so by 1983 when the May Jack and the Beanstalk pantomime was on the boy would have been actually fourteen years old?A. Maybe yeah.

Q. And that he was actually employed to work on the Hansel and Gretel pantomime as an usher and that pantomime was January 1984?A. [PM] was never employed as an usher.

Q. Front of House, is that duty usher duties?A. Yes.

Q. If the witness could please be shown this, which is a copy of exhibit NN from the previous proceedings. Mr Tenant looking at that, does that appear to be a copy of an official souvenir program for the Mecca Theatre production of Hansel and Gretel?A. Yes.

Q. A production that was performed at the Mecca Theatre Kogarah, January 9 to 21 of 1984?A. Yes.

Q. If I can take you to the last page of that document. It gives a list of people that the Hansel and Gretel show spectacular wishes to thank the following people for their devoted assistance to the show?A. Yes.

Q. [PM] is listed as Front of House, isn't he?A. Yes I can see that.

Q. Having seen that do you concede it is possible that [PM] did actually work as an usher on that performance and you just don't recall him at this stage?A. I don't recall [PM] working.

...

Q. During the course of giving evidence I want to suggest to you that these questions were asked and these were the answers you gave, referring to page 292, 'Q. During the time of 1986 do you know if there was often alcohol kept in the theatre manager's fridge, wine?' and your answer, 'Yeah, there would have been wine on occasions'. Next question, 'Was there a fridge up in the office that you had, the office that was on the street level?' and your answer was 'Yes'?A. Yes, I thought about it after you talked to me yesterday and there was a fridge there, a little bar fridge.

Q. And the little bar fridge that was in the office that you occupied was that a little bar fridge where there was often wine kept?A. It was in the kitchen area, it wasn't in my office.

Q. Last year you certainly agreed that the all right was kept in the that manager's fridge, you said, 'Yes, there would have been wine on occasions'?A. Yes. The fridge was in the kitchen area which was around that corner from where I sat.

Q. But just focussing on the theatre manager's fridge, the fridge that was in your office?A. No there was never a fridge in my office. I was referred to the theatre's manager's fridge as the fridge that was in the kitchen because there was fridges in the candy bar.

Q. Right but last year when you were asked, 'Was there a fridge up in the office that you had, the office that was on street level?' and your answer was 'Yes'?A. Well the office, the kitchen is on street level as well.

...

Q. I suggest that during the time it was closed for renovations that [KM] would on occasions come to the cinema to help take rubbish away with the accused?A. No that wouldn't have happened.

Q. Could this document please be shown to the witness which is exhibit CC from the previous proceedings. Does it appear to be a reference signed by, or a copy of reference signed by Phillip W Doyle?A. Yes.

Q. On Mecca Movies City letterhead?A. Yes.

Q. Dated November 7, 1993?A. Yes.

Q. So by that stage you were no longer working for the Kogarah Mecca?A. No.

Q. The first line, 'I have known [KM] in the capacity of friend and employee for a period of almost five years'?A. Yes.

Q. Given the timeframe of that reference that would take us back to at least 1989?A. Yes.

Q. Is it possible that [KM] was employed at the Kogarah Mecca Theatre having seen that reference from then starting May 1989 and you just don't recall that boy?A. I just don't recall him. I did all the hiring and firing and I don't recall [KM] ever working for us.

Q. But is it possible that he is just one of the many employees, that you just don't recall him?A. Yes.

Q. But he did work there from May 1989 to the middle of 1991?A. Well I don't recall him working there in that timeframe.

...

Q. I show you a copy of this document. Does that appear to be a copy of the statement that you made at the Southport Police Station in 1999?A. Yes.

Q. At the time you made that statement and you were asked questions specifically about the early 1980s would your recollection have been better that it is now?A. I don't know. I don't know how to measure that.

Q. Well 1999, 19 - 17 years after the event do you think your recollection would have been better than it is now when I'm asking you questions 32 years later?A. Possibly.

Q. I ask you to have a look at page 2 of that statement. I'm going to read the very bottom paragraph or part of it 'When Mark worked his mother or father would drop him off and pick him up again at the end of the night'. Were you referring there to Mark Lawrence.A. Yes.

Q. 'A lot of the times Mark would be dropped off by someone working there instead of having his mother or father coming for him', is that what you said?A. Yes.

Q. You go on to say 'Quite often we would be working late until the early hours of the morning or some staff would stay back after work and have a social chat and a few drinks together'?A. Yes.

Q. So at that stage in 1999 what you included in your statement was 'quite often we would working late until the early hours of the morning'?A. I was referring to myself and Phil Doyle there.

Q. Is that straight after you've spoken about when Mark worked his mother or father would drop him off and pick him up again at the end of the night. A lot of times Mark would be dropped off by someone working there instead of having his mother or father come to him. Quite often we would be working until the early hours of the morning or some staff would stay back after work and have a social chat and a few drinks together?A. Some staff would have been the adults, Phil, myself.

Q. But in relation to working until the early hours of the morning the projectionist would have to stay until the end of the film, wouldn't they?A. Correct.

Q. And if the projectionist was getting a lift home with Philip Doyle would he also be there until the early hours of the morning?A. No. The young staff would have been taken home straight away.

Q. But the ushers they finished up earlier, didn't they?A. Some did, some stayed."(31/05/2012 pp 275-284)

257 Earlier in his evidence Mr Tenant had given the following evidence concerning gifts to staff:

"Q. During the time that you were employed at the Kogarah Mecca cinema did you receive any gifts from Phillip Doyle yourself?A. Oh he might have - t-shirts when he went overseas, things like that but nothing, nothing major, no.

Q. Were you aware of any other members of staff being given any gifts by Mr Doyle?A. Small things, a box of chocolates, that sort of thing, nothing, nothing huge."(31/05/2012 p 268)

258 Mr Tenant had given evidence at the first trial that the appellant had not given any gifts to staff. In these circumstances the Crown Prosecutor made an application under s 38 of the Evidence Act to cross-examine Mr Tenant on that statement (the fifth application). The application was in the following terms:

"CROWN PROSECUTOR: Your Honour just on the basis that is again evidence it was inconsistent with the evidence that he has given here today only gifts.

HIS HONOUR: And it what?

CROWN PROSECUTOR: Only gifts. He said today that there were gifts given. That he recalls gifts being given, T-shirts, chocolates, things like that.

HIS HONOUR: Yes.

CROWN PROSECUTOR: And last year he said there not any gifts.

HIS HONOUR: What's the point of, what's the significance of that?

CROWN PROSECUTOR: The significance is that gift giving for the ushers is exceptional behaviour by accused, consistent with the tendency evidence. The other staff at the Kogarah Mecca to his knowledge during the time that he worked there were never given any gifts.

HIS HONOUR: What did he say this morning. He said that occasionally there would be chocolates or T-shirts or something.

CROWN PROSECUTOR: T-shirts, things brought back from overseas trips. I didn't have an exact note in relation to it but certainly consistent with him coming back and giving gifts.

HIS HONOUR: Well it seems to be inconsistent but is that the only questioning about gifts in the previous trial of this witness."(31/05/2012 p 280)

259 Mr Tenant was then cross-examined on the voir dire in relation to the prior statement. Following that the trial judge made the following remark:

"That probably covers the field Madam Crown. I mean I will allow you to remind him of that evidence in front of the jury. And he can explain it. I won't allow you to cross-examine him about the matters of discussion, certainly at this stage anyway."(31/05/2012 pp 281-282)

260 The application does not appear to have been opposed by senior counsel for the appellant at the trial.

261 Thereafter, Mr Tenant was questioned on this matter to the following effect:

"Q. Mr Tenant, in relation to the evidence that you gave on 15 September last year I want to suggest that you were also asked this question and gave this answer:

'Q. During the time that you worked with Philip Doyle were you aware of him or do you have any knowledge of any gifts being given to any members of staff?'

and your answer was 'No'. Do you agree that was the evidence that you gave in September of last year?A. Yes.

Q. You were then asked 'Did you receive any gifts?' And your answer was 'No', do you agree that was the evidence that you gave in September of last year?A. Yes."(31/05/2012 p 283)

262 During cross-examination Mr Tenant gave evidence concerning a sauna at the appellant's premises. This evidence was to the following effect:

"Q. Have you got any memory of being in that or seeing it?A. I remember seeing it. It was used as a storage area. It didn't work.

Q. Storage for what, do you have any memory of that?A. It had boxes in it. I'm not sure what was in the boxes.

Q. And in terms of steps leading down to the water from the Ozone Street place at Cronulla, have you got any memory of seeing them?A. Yes.

Q. Was that attached to his property in the sense that it was part of the Certificate of Title of the property or was it used by anybody who was on the site of the home unit block?A. It was used by anybody.

Q. So as it were a set of stairs going down from the front side of the home unit down to the water?A. Correct."(31/05/2012 pp 298-299)

263 Mr Tenant gave the following evidence at the first trial:

"Q. With respect to the property at Cronulla, Ozone Street, Cronulla, was there any discussion or any conversation that you heard about doing the same thing to the sauna at Cronulla, that is turning it into a development room as opposed to a sauna?A. I don't really recall, so I think there was a sauna down there but I never used it and I never paid much attention to it.

Q. But there's no doubt that there were steps leading down to the beach?A. Correct.

Q. They could be readily accessed?A. Easily accessed yes."(15/09/2011 pp 310-311)

264 At the conclusion of the cross-examination of Mr Tenant by senior counsel for the appellant at the trial, the Crown Prosecutor applied to further question him. This application (the sixth application) concerned two matters. First, that Mr Tenant had declined to make a statement to the police after 1999 and, second, inconsistent evidence concerning a sauna at the appellant's premises. The first matter was said to constitute re-examination, while reliance was placed on s 38 of the Evidence Act in respect of the second matter. It is necessary to refer to the exchange between the Crown Prosecutor and the trial judge concerning the application:

"CROWN PROSECUTOR: Your Honour rather than yo-yoing the jury in and out, if I could just indicate in relation to the evidence that was given regarding the sauna in cross-examination I am going to be applying to question the witness about what he said in the previous trial about that in re-examination and there are other matters where he was asked about whether the police had asked him for certain things, I'd also want to ask him about the fact that he declined a number of requests from the police to make a statement post 1999.

TERRACINI: I don't mind that your Honour because we can ask him about the police harassment when they were trying to interview his eleven year old daughter and saying to them that he was not being co-operative because he allegedly knew far more. And then they turned up at his house when he was absent and then started speaking to his daughter. So no doubt that will all come out. That's the reason why he decided he wouldn't be making any further statements to the police."(31/05/2012 p 315)

265 The trial judge suggested the application be considered at the conclusion of the cross-examination. Thereafter, the following exchange took place:

"CROWN PROSECUTOR: Your Honour yesterday the witness gave evidence at page two hundred and-

HIS HONOUR: So this is an application under-

CROWN PROSECUTOR: It's an application to cross-examine the accused in relation to prior inconsistent statements.

HIS HONOUR: So this is section?

CROWN PROSECUTOR: S 38.

HIS HONOUR: I'll just get the transcript. Yesterday's transcript is it?

CROWN PROSECUTOR: Yes your Honour.

HIS HONOUR: Which page?

CROWN PROSECUTOR: Starting at page 298 yesterday.

HIS HONOUR: Two ninety-eight, right. Which line?

CROWN PROSECUTOR: Commencing at line 48 in relation to the sauna at Ozone Street, the witness said he remembered seeing it, 'It was used as a storage area, it didn't work, it had boxes in it, I'm not sure what was in the boxes'. Last year when he was asked about the sauna at page 284 at line 4 he was asked, 'Q. The unit at Ozone Street, do you know whether or not there was any sauna at that unit? A. I believe so, I recall - I don't - I never went in it, it was downstairs I believe.'.

HIS HONOUR: Two eight-four, right. So Ozone Street is at Cronulla is it?"(01/06/2012 p 326)

266 Following further discussions the following remarks were made:

"TERRACINI: I mean to the chase, if my friend in normal re-examination wants to say, 'On a number of occasions you were asked to make a statement to the police and you declined' well there can't be an objection to that, as long as your Honour tells the jury that a private citizen doesn't have to make statements to police, there's nothing wrong with that. And again if my friend says, 'Well you had a conference with Mr Bowe' I couldn't object to that either because it's a fact. But your Honour would need to tell the jury that he doesn't have to speak to Mr Bowe either but he did, and there's nothing wrong with that either.

CROWN PROSECUTOR: I'm content with that your Honour.

HIS HONOUR: Well on that point I think that's the position that we'll follow. Are we clear on that?

...

HIS HONOUR: All right. Now as to Mr Terracini, as to the sauna matter, plainly that's an inconsistency isn't it?

TERRACINI: Yes well again I emphasise that we don't act for him but I agree that there is an inconsistency. I don't agree though that the stairs are. It still has to be a meaningful inconsistency. Maybe I'm missing something, I just don't see any significance. The staircase existed, there's no question about that. And it leads down to the water and.

HIS HONOUR: I suppose the place hasn't been blown up since then has it or? Demolished to make way for a Taj Mahal?

CROWN PROSECUTOR: No the police officer-

TERRACINI: No it's still there.

CROWN PROSECUTOR: -has been to the outside and has certain photographs-

TERRACINI: Yes there's photographs your Honour.

HIS HONOUR: Well are there photographs inside and outside or?

CROWN PROSECUTOR: Not inside.

TERRACINI: No not inside.

HIS HONOUR: Look well Madam Crown on that point you can clarify, it seems to me, find out what you can about it but not so as to cross-examine about credibility. On the sauna business it seems to me that there clearly is, within terms of s 38, a prior inconsistent statement, and if you wish to go further than that and deal with issues of credibility in relation to it, you will need to make another application to me. At the risk of irritating the jury but you may cross-examine about that.

In terms of the scope of that cross-examination I am inclined to adopt the approach of Mr Justice Hayden (sic) that the section is only meaningful if it eventually might allow questions with a view to shaking the witness' credibility but you don't get to that point. You certainly don't get to that point right now. We'll see what the witness says.

CROWN PROSECUTOR: Your Honour so I, to raise it, I also wish to put to him the evidence given at p 310 from 15 September in relation to the Ozone Street sauna.

HIS HONOUR: 310?

CROWN PROSECUTOR: Lines 45 to 50. Cross-examination.

HIS HONOUR: This is the last trial?

CROWN PROSECUTOR: It is the last trial.

HIS HONOUR: That's at 310. This is about a development, being turned into a development room, a camera room is it? 310 as distinct from-

CROWN PROSECUTOR: Yes. Well 310 he said in chief in relation to the sauna-

HIS HONOUR: Sorry where I'm just losing the plot here. We're talking about the first trial or yesterday?

CROWN PROSECUTOR: The first trial 310.

HIS HONOUR: All right which line?

CROWN PROSECUTOR: Line 45. 'With respect to the property at Ozone Street, Cronulla, was there any discussion or any conversation you heard about doing the same things you saw at Cronulla. That is turning it into a development room as opposed to the sauna?'. 'But I don't really recall, so I think there was a sauna down there but I've never used it and I never paid much attention to it.'.

HIS HONOUR: Yes. All right, whereas yesterday he said?

CROWN PROSECUTOR: Whereas yesterday in his evidence about the sauna in cross-examination was, 'I remember seeing it, it was'-

HIS HONOUR: But which page?

CROWN PROSECUTOR: Page 298.

HIS HONOUR: Yes?

CROWN PROSECUTOR: Lines 38 to 46.

HIS HONOUR: Well there appears to be a contradiction there. And you can ask him to explain that contradiction. And then I won't let you take it any further unless you make a - in the light of what he says, unless you make a further application. What I mean by that is, that you may conduct yourself like a probing questioner but not like a destructive question, if I can use the term from one of the cases on the subject, unless and until I give any further direction about it. But on the face of it there's a clear contradiction. He may just say well he remembers now, I don't know. And that's matter for submissions in due course. But there is a contradiction and you can certainly ask him questions about that. We may need to revisit it, I don't know. But you can ask those questions. Do you agree with that Mr Terracini?

TERRACINI: Yes your Honour, my position is only by way of a suggestion. It seems uncontradicted that he wasn't given a copy of his evidence which was lengthy, in fairness to him, perhaps if we can have a morning tea break, he can see the transcript and then at least he's got the opportunity to see what he said and he may well just say, 'Oh look I've made an error.'.

CROWN PROSECUTOR: Your Honour I don't believe it's ever appropriate for the Crown to give witnesses copies of their transcript from prior trials.

HIS HONOUR: No well we wont do that no.

TERRACINI: Your Honour I'm not suggesting that there is anything improper but he did give a lengthy period of evidence and he doesn't have any aide memoirs of any kind.

HIS HONOUR: Well that's all right the Crown is not going to cross examine him destructively, as I said she can certainly probe with questions about that and we'll see what happens, there may well be another matter of law. Well are we clear on those points?

TERRACINI: Yes your Honour.

HIS HONOUR: Very well, we'll have the jury. Is that all of the re examination of - or there may be other matters that you wish to deal with that don't necessarily require any contention."(01/06/2012 pp 332-335)

267 Thereafter the following evidence was given without objection:

"Q. Do you recall in the previous trial you were also asked about the sauna at Ozone Street Cronulla?A. Probably yes, I don't recall the exact question.

Q. Well I suggest to you last year when I was asking you questions at page 284 line 4, you were asked this question, the unit at Ozone Street do you know whether or not there was any sauna at that unit, and your answer was, I believe so I recall I don't I never went in it, it was downstairs I believe. Was that the evidence that you gave in relation to that sauna last year when you were asked about it?A. If you say so, yes.

...

Q. Between that occasion when you said that you never went in it and it was downstairs I believe, you haven't had any opportunity to go and have a look at those premises have you?A. No.

Q. But yesterday you said that it was used as a storage area and you remembered seeing boxes in it?A. Yes.

Q. You were also asked in cross examination last year another opportunity in relation to the sauna at Ozone Street at page 310, you were asked this question in cross examination, with respect to the property at Cronulla Ozone Street Cronulla was there any discussion or any conversation that you heard about doing the same thing to the sauna at Cronulla, that is turning it into a development room as opposed to a sauna. And the answer you gave, I don't really recall so I think there was a sauna down there but I never used it and I never paid much attention to it. Do you recall if that was the evidence that you gave last year when you were asked in cross examination about the sauna at Ozone Street?A. If that's what's there.

Q. What's changed between last year when you told a jury that you never went in it, 'It was down there I believe', and when you told the jury that 'I never used it and I never paid much attention to it', compared to yesterday when you detailed it being used as a storage area, 'It didn't work, it had boxes in it.'. What's changed since you gave the evidence last year and giving evidence yesterday?A. I guess time, had time to think about it and reflect, that was asked - the first questions were asked me with no notice or anything to remember a sauna. You don't have a chance to think about it.

Q. Well you were asked questions by me about the sauna and then my learned friend went to the sauna again in cross-examination so you certainly got asked questions about the sauna last year on two occasions and fairly consistent accounts that you hadn't paid much attention to it and you'd never been down there?A. I'd never been in it to have a sauna.

Q. So the evidence you gave on oath last year on two occasions when you said you'd never been in it and you never paid much attention to it, that evidence that you gave you now say is wrong?A. I gave evidence at the time that I thought was correct. As I said, I've had time - this has been going a long time, you start to remember different things. The sauna meant nothing to me, I'd never used the sauna there.

...

Q. But as of 2009 you've said that there were a number of approaches by the police-A. Yes.

Q. -asking you to make a statement?A. Yes.

Q. Did you ever actually meet up with the police where they may have had any opportunity to show you any photographs or any documents or any materials?A. No, no.

Q. And was that by your choice?A. Yes.

Q. Prior to the trial in September last year did you have a conference with any lawyers?A. I had Michael Bowe visited me at my place of work."(01/06/2012 pp 336-338)

268 No direction was ultimately given to the effect that Mr Tenant had no obligation to speak with the police.

269 There was subsequently an application to recall Mr Tenant to give evidence concerning the ownership of a truck which Mr Tenant had owned from 1989 to 1996 and about a thankyou note from Mr Lawrence which was said to have been given to the appellant when Mr Lawrence ceased employment at the theatre.

270 The application was made on two grounds. It was the appellant's case at the trial that when Mr Lawrence ceased employment at the theatre he left a thankyou note for the appellant. At the first trial Mr Tenant said he did not remember such a note, whereas at the trial in question he said that he did recall it.

271 The second matter which formed the basis of the application related to a truck which according to the evidence of KM was used for taking rubbish to the tip. Inquiries had revealed that the vehicle was owned by Mr Tenant from 1989 to 1996 and thereafter by the appellant until 11 May 2012 when it was transferred to Mr Tenant. The Crown indicated that it wished to question Mr Tenant in relation to the acquisition of that truck and the evidence he gave in the proceedings.

272 Mr Tenant was cross-examined on the voir dire. Thereafter the following exchange took place between the trial judge and counsel:

"HIS HONOUR: The truck is in fact something that's been dealt with in the trials. It's a fact relevant to a fact in issue in the trial in relation to one of the charges involving [KM]. And the question of what it was like is relevant. On the answers given here I don't see how I can let you cross-examine him about it; you may want to ask about the truck because it was mentioned and get what he has to say about it but I don't think you're entitled to cross-examine him Madam Crown because he simply denies any impropriety. It's a fact that he received it and he doesn't dispute that and he can explain that; it is a matter in issue in the trial is the question of the Ute, whether the Ute was used in relation to the rubbish removal. There was a - whether or not it was a truck. [TM] says she sees a Ute, a pale vehicle which she doesn't, presumably mix up with a truck with a cage on it; so I know that all those things are in issue in the trial. I've a mind to let you get the supplementary evidence about the fact that he owned the truck and it was in Mr Doyle's name and that it was later transferred to him but none of that is really contrary to the evidence that he's given in the case; so unless it's inconsistent you're not entitled to cross-examine on it but you are entitled to get it out as evidence-in-chief.

CROWN PROSECUTOR: It could still be motive to lie your Honour.

HIS HONOUR: Well you're entitled to put to the jury at the end of the trial that you rely on some witnesses and not on others, of course it depends what the accused says presuming he gives evidence. I'm not going to make any ruling about motive to lie at this stage on the material in the Basha Inquiry or the voir dire, call it whichever, you may not cross-examine the witness on that material but you may get it out as supplementary evidence.

CROWN PROSECUTOR: Your Honour I'd also like to cross-examine on the note evidence.

HIS HONOUR: You can cross-examine on that and no doubt he'll give the same evidence he has. But you can certainly cross-examine on that; you've covered the sauna haven't you?

CROWN PROSECUTOR: I have covered the sauna your Honour.

HIS HONOUR: And the fridge?

CROWN PROSECUTOR: Yes I did your Honour.

HIS HONOUR: Well you're entitled to put to the jury at the end of the trial, no doubt as you will, that they should accept one version rather than another. But in terms of credibility - what's that section, 102 is it, about credibility?

TERRACINI: Yes your Honour.

HIS HONOUR: It's got to have substantial-

TERRACINI: Probative value.

HIS HONOUR: -now you might be suspicious but the fact is that he gives what appears to be a plausible explanation about that, that he's got plastic Guide Dogs in the back of the truck. No doubt Mr Terracini is salivating at the prospect of being able to mention Guide Dogs for the blind in his address to the jury, but it doesn't seem to me to be such to have such weight that it represents a basis for an attack on the credibility of a witness at this stage. I don't know what the evidence will show later on but you can cross-examine him about the note in front of the jury and you can get from him the registration history so to speak of the vehicle because it does have some bearing on at least one of the issues - one of the charges in the trial; very well we'll have the jury.

TERRACINI: Your Honour I should be permitted then to cross-examine about the innocuous nature of the truck because if my friend, and this may require a ruling from your Honour before Mr Tenant's leave, because if my friend's going to say it's a motive to lie and I've got grave feelings of disquiet about that approach because he's given categorical denials in the absence of the jury and we're entitled to those denials if she's going to say that he's got a motive to lie knowing what's been heard in the absence of the jury. The fellow's got to have some opportunity by indirectly to stand up for himself.

HIS HONOUR: Well if the evidence is being called as supplementary evidence, which it is, you can cross-examine on it.

TERRACINI: Thank you.

HIS HONOUR: Right. We'll have the jury. It's a matter for you Madam Crown how far you take that whether you want to raise that matter but you can certainly get the history if you wish to."(07/06/2012 pp 526-528)

273 The Crown Prosecutor then asked Mr Tenant questions directed toward the inconsistent statements concerning the note. Thereafter she asked the following questions:

"Q. So your contact with Philip Doyle was certainly beyond telephone conversations discussing his state of health?A. I did that as well.

Q. Did you also meet him for some meals on occasions?A. I saw him not for meals, I saw him at Ramsgate RSL for a drink once and the Panorama Room at Bulli for a drink once.

Q. Were they prearranged or did you just happen to be there and you happened to see him?

A. No they were prearranged.

Q. And were both of those after September 2011 when you gave evidence in this matter last year?A. Yes.

Q. In relation to the receipt of that truck from Mr Doyle-A. Yes.

Q. -has that had any influence on the evidence you've given?A. None whatsoever.

Q. The friendship that you've maintained with Mr Doyle-A. I wouldn't really call it a friendship like he's never been to my place, my wife has never even met him.

Q. You've certainly been to his place though apart from the truck?A. Yeah once - one other time.

Q. Was that the weekend before you gave evidence in September 2001?A. I don't recall what weekend it was sorry.

Q. Your Honour I am referring to page 285 from the 15 September.

HIS HONOUR: That is last year is it?

CROWN PROSECUTOR: It is your Honour.

Q. I suggest that you were asked these questions on the 15 September, 'When was the last time you saw him apart from these court proceedings' and your answer was 'Last weekend'. Do you agree that you gave that evidence on the 15 September last year?A. If that's what it says yes.

Q. You were asked 'When you saw him last weekend, 'Was there anybody else present' and your answer '[MB]'.A. Okay.

Q. Do you recall seeing Philip Doyle on that occasion with [MB]?A. I don't know the dates sorry. I can't remember a weekend - which weekend it was or where it was.

Q. Well within days of giving evidence in the proceedings last time you had been in the company of Philip Doyle and [MB], does that accord with your memory?A. If I said that then that's would've happened yeah.

Q. And in the months leading up to September 2011, did you spend other time with the accused Philip Doyle?A. Possibly.

Q. You were asked on the 15 of September 2011, 'Are you able to say how many occasions' and your response 'I don't know exactly. Half a dozen, ten, maybe ten'.A. Okay.

Q. Do you agree that's the evidence you gave in September of last year?A. Yes.

Q. So in relation to Philip Doyle do you say that you don't really have a friendship with him?A. Not really.

Q. Well what was the purpose of seeing him on those half dozen maybe ten occasions?A. Mainly about his health, how he has been affected.

Q. Mr Tenant have you had any discussions with anybody about the evidence that you gave in September 2011?A. Not really no.

Q. Have you spoken to anybody about the evidence that you gave about the sauna at Ozone Street Cronulla?A. No.

Q. Are you certain of that?A. Yes. I think so.

Q. This morning did you say it was impossible that you had had discussions with somebody about the Ozone Street Sauna?A. I may have mentioned to my wife in discussions with her but nothing else.

Q. In relation to your concern for Philip Doyle's health has that had any influence on the evidence that you have given in these proceedings in front of this jury?A. No.

Q. Nothing further.

HIS HONOUR: Mr Terracini.

TERRACINI: Yes.

CROWN PROSECUTOR: Sorry.

Q. The work that you are doing now-A. Yes.

Q. -does that include work as a consultant for Guide Dogs Australia?A. Yes.

Q. Is that paid employment with Guide Dogs Australia?A. You get a fee yes.

Q. And does part of your fee relating to transporting the plastic guide dog money box donation things?A. Yes.

Q. So you are paid in relation to transporting those plastic guide dog money box things?A. Yes I get a fee.

Q. And does your fee relate to how often or how many of those you deal with?A. Yes.

Q. The truck that you're now in possession of that you were given by Philip Doyle, is it your intention to use that truck to transport these plastic guide dog donation boxes?A. Yes that's what it's for.

Q. So you're going to or your intention is to make money from using that truck?A. You just about break even, it's more of a charity than anything. They give you a small fee but by the time you run petrol, accommodation, running around you don't make much money.

Q. Well you're certainly paid a fee and you can claim expenses as part of your tax return, can't you?A. Yes."(07/06/2012 pp 536-539)

274 Senior counsel for the appellant at the trial then cross-examined Mr Tenant to establish that the truck was of very little value, worth about $400, and had not been used for transporting life size Guide Dog Australia donation boxes. Mr Tenant also denied receiving money from the appellant.

275 In her address to the jury the Crown Prosecutor made the following remarks:

"Robert Tenant was the manager from the time when Mark Lawrence started at the Kogarah Mecca and he said that Mark Lawrence came back and asked for a job at the cinema for his brother after he'd left the cinema. Mark Lawrence denied that that happened. Robert Tenant was called by the prosecution as a witness. It is a matter for you as to how much of that man's evidence you may accept and how much you may reject. For you to decide whether or not he was honest in the things that he told you. It was discovered during this trial after Robert Tenant had been called and finished his evidence that he had been given a truck by the accused. So Robert Tenant was re-called and questioned about that truck. It may be old, it may be in poor shape, it may not be worth very much, but he can use it to make money and that's what he said he was going to do with it. He can put about a dozen plastic moneybox guide dogs in the back of that truck and to set up a guide dog is worth about $90. A load of guide dogs on that truck would be close to $1,000.

You can accept parts of a witness's evidence, you can reject parts. You decide the value of a witness's evidence. You decide if you accept all of what they say. Robert Tenant is a person that gave at times conflicting evidence between the two trials. His memory differed according to him between the two trials. Considering his credibility, was it really just fortuitous for the accused that in matters that were in dispute that his fresh recollections, his more recent memories are consistent with the defence case?

Robert Tenant was asked about the sauna. Now, he gave sworn evidence last year that he had never been in that sauna. In cross-examination he said, 'I don't really recall. I think there's a sauna down there. I never used it. I've never paid much attention to it.' Significantly, this year - now that sauna goes to the credibility of Mark Lawrence - he's got a different memory. This year he says that the sauna was used for storing of boxes. Boxes stored in there is his new memory this year.

You can consider his evidence. I submit to you that it's not a basis on which you would be prepared to reject Mark Lawrence as a witness of truth for saying that he did have saunas with Philip Doyle in that basement of the Ozone Street unit. [MB] said that he saw the sauna. He didn't see the sauna until after Mark Lawrence had left work at the Kogarah Mecca Cinema. He did not have the opportunity to see it in the time period when Mark Lawrence said he used to have saunas with Philip Doyle.

...

Robert Tenant's recollection regarding [PM] is obviously clearly wrong. He believed that [PM] was the younger brother of [KM] and he would have been about ten years old. [PM] was between fifteen and seventeen years old at the time he was associated with the Mecca. So he's wrong. He's not accurate. He is mistaken in his recollection."(26/06/2012 pp 11-12, 21)

276 The trial judge gave the following directions concerning the evidence of Mr Tenant:

"So far as Robert Tenant is concerned, the Crown mounted an attack on his credibility and said, in effect, that he had worked for Mr Doyle for a long time, and he is a close friend and would try and be supportive of him, and in fact, he changed his evidence about the sauna, and has a new memory about the sauna being used for storing boxes, which he did not have in his previous evidence.

...

So far as Robert Tenant is concerned, he seems to mistake [PM] for somebody else. He says he thinks that [PM] was about ten which could not be right by any calculation. [MB] said that [PM] did not work there at all. The Crown says you would set [MB]'s evidence aside and conclude that he is not a witness of truth."(02/07/2012 pp 17, 36)

The appellant's submissions

277 The appellant submitted that the matters the subject of the first four applications did not fit within any of the categories contained in s 38(1) of the Evidence Act. He submitted that the evidence the subject of the first and second applications was not inconsistent with Mr Tenant's previous evidence. To the extent that there were minor inconsistencies, they were not sufficient to warrant the grant of leave, particularly when it could be concluded that the purpose was a credibility purpose. He submitted that the evidence that Mr Tenant did not recall PM's age was neutral.

278 The appellant pointed to the fact that the Crown Prosecutor, in her summing-up, used the evidence to discredit Mr Tenant.

279 In relation to the gifts, the appellant pointed to the fact that the Crown Prosecutor was permitted by the trial judge to refer to Mr Tenant's earlier evidence in front of the jury so he could explain it. The appellant submitted that the Crown Prosecutor did not give Mr Tenant an opportunity to give an explanation. He submitted this evidence should not have been permitted.

280 In relation to the sixth application, the appellant submitted that the application should have been refused for the reasons given by senior counsel for the appellant at the trial. He submitted that the closing address showed that the purpose of the application was to attack the credibility of Mr Tenant. He submitted that this breached the ruling of the trial judge.

281 The appellant pointed to the fact that the trial judge ultimately did not give a direction to the effect that a private citizen does not have to talk to the police.

282 The appellant submitted that the supplementary evidence given by Mr Tenant was inadmissible in its entirety. He submitted there was no provision in the Evidence Act which permitted supplementary evidence to be called and that it did not fall within s 46 of that Act. He submitted that as a result of the evidence being permitted to be adduced, his counsel was forced to deal with the issue. The appellant submitted that the adducing of the evidence contravened s 102 of the Evidence Act.

283 In support of the submission that what occurred constituted a miscarriage of justice, senior counsel for the appellant stated that having regard to the mode of trial where some witnesses gave evidence on screen and added a little at the hearing and some gave evidence live, the significance of the live evidence was magnified. Senior counsel submitted that whilst the matters complained of may not of themselves have been of significance, overall they could be seen to amount to a miscarriage of justice.

284 Senior counsel for the appellant submitted that the rulings were not proper rulings under s 38 of the Evidence Act as the trial judge had not considered all the elements of the section in reaching his conclusion.

The Crown submissions

285 The Crown submitted that it was necessary for the appellant to establish that it was not open to the trial judge to permit the cross-examination or that the evidence obtained caused the trial to miscarry. The Crown submitted that neither of these matters was established.

286 The Crown submitted that senior counsel for the appellant at the trial did not oppose the first, second, third or fourth applications.

287 The Crown submitted that the appellant was incorrect in stating that there was no dispute that KM worked at the theatre. The Crown referred to the evidence of the appellant in which he stated that there had only been one occasion where KM accompanied him on a trip to the tip and to the effect that KM had worked only a handful of sessions at the theatre.

288 The Crown submitted the fifth application clearly related to inconsistent evidence given by Mr Tenant and that senior counsel for the appellant at the trial did not object to the evidence being adduced.

289 In relation to the sixth application, the Crown submitted that there was no qualification to the concession by senior counsel for the appellant at the trial that there was an inconsistency in regard to Mr Tenant's evidence in relation to the sauna, as distinct from the evidence concerning the steps leading to the beach.

290 So far as the supplementary evidence was concerned, the Crown pointed to the fact that senior counsel for the appellant at the trial did not object but rather pointed to a method by which the evidence might be taken. Further, the Crown submitted that any adverse effect was neutralised by the cross-examination of Mr Tenant by senior counsel for the appellant at the trial.

Consideration

291 Section 38 of the Evidence Act provides as follows:

"38(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b) the party is a witness in the proceeding."

292 Section 38 of the Evidence Act widens the area in which a party can be given leave to cross-examine his or her own witness compared with the position at common law: see J D Heydon, Cross on Evidence, (9th Aust ed 2013) at [17405]. In particular, it is not necessary to demonstrate hostility. Unfavourable is held to mean simply not favourable: R v Souleyman (1996) 40 NSWLR 712 at 715; R v Velevski (No 2) (1997) 93 A Crim R 420; Kanaan v R [2006] NSWCCA 109 at [83]. However, it may be accepted that evidence is not unfavourable simply because it does not fit a particular case theory of the prosecution: R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at 461-462.

293 Further, the use of the word "about" in the chapeau to s 38(1) makes it clear that leave may be granted to not only conduct cross-examination specifically directed to one of the subjects referred to in s 38(1), but also to the probability of establishing a factual state of affairs in relation to the matters contended for by the party conducting the cross-examination: R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [67] and [73].

294 Further, to the extent that the cross-examination was based on prior inconsistent statements, those statements could be admitted as evidence of the truth of their contents if the evidence was relevant to matters in addition to credibility and, having been admitted for purposes which included an attack on the credibility of the witness, the evidence fell within the hearsay rule exception contained in s 60 of the Evidence Act: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 at [19], [21] and [23]. The effect of the section was summarised by this Court in Kanaan supra:

"[83] Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party - in order, for example, to establish that the witness has made a prior inconsistent statement. The word 'unfavourable' means merely 'not favourable', and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67].

[84] The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of "unfairly prejudicial" in ss 135-136 and of "unfair prejudice" in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]."

295 It is not necessary in the present case to determine the extent to which the amendments to Pt 3.7 of the Evidence Act affect the position as set out in Adam v The Queen supra and Kanaan supra (see Col v R [2013] NSWCCA 302 at [29]-[32] and R v Ryan (No 7) [2012] NSWSC 1160; (2012) 218 A Crim R 384 at [16]ff) as the evidence falls within s 106 of the Evidence Act, leave to introduce it having been granted. With that background it is convenient to deal with each of the applications the subject of this ground of appeal.

296 The first and second applications related to what were prior inconsistent statements. I do not agree with the appellant that the evidence given by Mr Tenant at the first trial or in the police statement was not inconsistent with the evidence given at the trial. I have set out the conflicting evidence in pars [249]-[252] above. There were inconsistencies. In the exchange that occurred after the application had been made, senior counsel for the appellant at the trial did not suggest the statements were not inconsistent. The questions asked and answered are set out in par [256] above. The evidence was not objected to and it did not seem to me to go beyond the extent of the grant of leave given by the trial judge on these applications.

297 The appellant submitted that the sole basis of the evidence that was sought to be led was for credibility purposes. I do not agree. Having regard to the evidence of PM concerning the consumption of alcohol and the hours that Mr Lawrence said he was at the theatre, the evidence was relevant quite apart from credibility issues.

298 No point was taken on the appeal concerning the failure by the trial judge to expressly consider the matters referred to in s 192 of the Evidence Act in deciding whether or not to exercise his discretion to grant leave.

299 In these circumstances, in my opinion, the trial judge did not err in granting leave to cross-examine on the matters the subject of the first and second applications.

300 The third and fourth applications did not arise out of prior inconsistent statements. The basis on which cross-examination on these issues was permissible could only be that the witness was unfavourable. The trial judge did not expressly articulate that this was the basis on which he allowed the questions. However this was presumably the basis, as the trial judge stated that it did not seem to him that the witness was adverse in "the sense of [Mr Tenant] not trying to do his best".

301 Importantly there was no objection taken to the matters the subject of the third and fourth applications being put to Mr Tenant, nor was there any objection to the questions that were subsequently asked of Mr Tenant.

302 I have set out those questions and answers at par [256] above. The questions went no further than suggesting to the witness that PM was 14 years old, which he accepted was possible, and showing him a pamphlet which suggested that PM worked as an usher at the theatre, something which Mr Tenant denied. The evidence was relatively innocuous and in my opinion its admission did not amount to a miscarriage of justice.

303 The fifth application related to what was said to be a prior inconsistent statement on the question of whether gifts were given to staff. The application was not opposed. As I indicated, the prosecutor suggested that the material was relevant over and above the issue of credibility. It seems to me that the trial judge was justified in the absence of objection in allowing the questions to be put. Once again no criticism was made of the fact that the trial judge did not expressly take into consideration the matters referred to in s 192 of the Evidence Act in reaching his conclusion.

304 The questions asked by the prosecutor simply put to Mr Tenant his earlier evidence. He was not asked to explain why his evidence had changed either in cross-examination or re-examination.

305 In my opinion, the evidence of whether or not the giving of gifts to young staff members was exceptional was relevant as one matter that could go to one of the tendencies alleged. It was referred to in par (cc) of the tendency notice as one of the activities that demonstrated the alleged tendencies. The appellant complained that Mr Tenant was not given the opportunity to explain his conflicting evidence. It is difficult to see how asking a question as to the reason there was a change in his evidence would have assisted the appellant. Further, it would have been open to senior counsel for the appellant at the trial to cross-examine Mr Tenant on this issue. He chose not to do so. In these circumstances I do not think there was a miscarriage of justice in granting this application and permitting the evidence to be led.

306 The sixth application also was not objected to. So far as the sauna was concerned, the issue of whether the sauna at Ozone Street Cronulla was operative was of significance having regard to the evidence of Mr Lawrence to which I have referred in par [16] above. The trial judge, particularly in the absence of any objection, was entitled to give leave to the prosecutor to cross-examine on this issue. The ruling given by the trial judge, whilst not entirely clear, would seem to permit a cross-examination, albeit, not destructively. It is unnecessary to determine what fell precisely within the ambit of that ruling as no objection was taken to the questions asked. In these circumstances the trial judge did not err in permitting this cross-examination and there was no miscarriage of justice.

307 So far as the refusal to make statements to the police was concerned, the evidence went no further than what had been suggested by the parties as appropriate and by the trial judge's ruling. Senior counsel for the appellant at the trial did not seek to cross-examine as to the reason for such refusal. In the circumstances, no miscarriage of justice occurred as a result of that questioning.

308 It is true that the trial judge did not give the direction that private citizens do not have to make statements to the police. However, senior counsel for the appellant at the trial did not seek such a direction, no doubt for the legitimate forensic reason that he did not wish Mr Tenant's refusal to speak to the police to be further drawn to the attention of the jury. In those circumstances there was, in my opinion, no miscarriage of justice by reason of the failure to give such a direction.

309 So far as the application to recall Mr Tenant was concerned, I have set out the exchange which occurred on this issue in par [272] above. There seemed to have been no objection to the application to cross-examine on the note and the cross-examination was in accordance with the ruling of the trial judge.

310 The questioning in relation to the truck causes more difficulty. The trial judge permitted evidence on the registration details of the truck but not as to credibility. The cross-examination went beyond the identification of the vehicle and involved an examination of Mr Tenant's association with the appellant and questions concerning the truck, suggesting that Mr Tenant would profit from its use. However this was done without objection.

311 I agree with the submission of the appellant that the evidence did not fall within the matters contemplated by s 46 of the Evidence Act. However, to the extent the appellant suggested the power to recall witnesses is limited to the circumstances in that section, I do not agree. Section 11(1) of the Evidence Act provides that a court's power to control proceedings is not affected by the Act, except so far as it provides otherwise expressly or by necessary intendment. It does not seem to me that the conferral of a power to recall witnesses in particular circumstances necessarily implies that there is no power in other circumstances to do so. If the power of the court were to be limited in that fashion, it would be expected that it would be clearly stated.

312 The recall of a witness is a discretionary decision. In these circumstances in which no objection was taken and leave was granted to senior counsel for the appellant at the trial to further cross-examine Mr Tenant after the evidence sought to be adduced was given, there does not seem to me to be any basis to say that there was an error in granting the leave sought.

313 The examination conducted by the Crown Prosecutor, in my opinion, went beyond the leave granted. Further, the questioning relating to Mr Tenant's friendship with Mr Doyle could only be described as cross-examination on credit. However, there was no objection to the cross-examination.

314 In these circumstances I do not believe the trial judge fell into error in permitting the questioning. Further, I do not consider that what occurred caused the trial to miscarry or otherwise constituted a miscarriage of justice. First, in cross-examination senior counsel for the appellant at the trial was able to establish that Mr Tenant had given the same evidence in chief at the first trial concerning his association with the appellant, thereby making it clear that Mr Tenant was not concealing his association with the appellant. Second, in cross-examination senior counsel for the appellant was able to establish the truck was for all intents and purposes, worthless.

315 Third, in my opinion, it would have been appropriate, notwithstanding the ruling of the trial judge, to have granted leave under s 38(3) of the Evidence Act to cross-examine Mr Tenant on the matters raised on the basis that he was an unfavourable witness. The credibility of Mr Tenant was a matter of relevance in the trial. In my opinion, in the circumstances where the transfer of the truck took place shortly prior to the evidence being given, the evidence sought to be adduced could substantially affect the credit of Mr Tenant and thus fall within the exception of the credibility rule in s 103. Whether it would do so or not would depend on the answers given by Mr Tenant and the jury's assessment of those answers.

316 In these circumstances this ground of appeal has not been made out.

Ground 6 - The learned trial judge erred in his directions to the jury as to the use of the evidence led in the trial in relation to Mr Tenant pursuant to s 38 and the evidence called by the prosecutor as "supplementary evidence"

317 I have set out the relevant directions at par [276] above.

The appellant's submissions

318 The appellant submitted that the trial judge, effectively having refused leave to the Crown to use the evidence obtained pursuant to leave under s 38 of the Evidence Act and leave to obtain supplementary evidence to attack Mr Tenant's credibility, then included that attack in his directions. The appellant submitted that the jury should have been directed that they could not reason in the manner suggested by the Crown.

319 The appellant submitted that by repeating the Crown's submission that Mr Tenant said he thought PM "was about ten which could not be right by any calculation", the trial judge misstated his evidence and compounded this error by failing to refer to the fact that his evidence, that PM did not work at the theatre, corroborated the evidence of MB and the appellant.

320 The appellant submitted that the trial judge also erred by failing to give a direction as was envisaged during the hearing that a private citizen does not have to make a statement to the police.

321 The appellant submitted that this was exacerbated by the failure of the trial judge to refer in his summing up to the fact that Mr Tenant's evidence corroborated that of the appellant, that he recalled the thankyou note and cabinet Mr Lawrence gave them when he left the theatre and that he did not recall ever being asked about DL staying at his home on the night of the storm, whereas the prosecution case on Counts 1-3 and 6 were set out in full.

The Crown submissions

322 The Crown noted that senior counsel for the appellant at the trial made no reference in his address to the jury to the fact that a private citizen does not have to speak to the police, nor raised the issue with the trial judge in the discussion which took place concerning his Honour's directions.

323 The Crown submitted that no objection was taken to the application to cross-examine Mr Tenant concerning the sauna. It was submitted that consequently there could be no error in the trial judge referring to the Crown's attack on his credibility based on his conflicting evidence.

324 The Crown also submitted that there was no need for the trial judge to correct the Crown submission that Mr Tenant thought PM was "about 10". It was submitted this was of little importance and in any event was a fair summary of his evidence that PM was "maybe around - I don't know, he was ten years old, I can't really put an age on it. He was, he was young".

325 The Crown submitted that the directions were not wrong in law, nor did they cause the trial to miscarry.

Consideration

326 Once it is accepted that the evidence the subject of Ground 5 was properly admitted, it seems to me it was not incumbent on the trial judge to inform the jury that they could not use the evidence to consider the attack by the Crown on the credibility of Mr Tenant. As was pointed out in Kanaan supra at [80], the Crown is not obliged to accept whatever is said by the witnesses it calls. As was also pointed out in Kanaan supra at [82], the Crown's obligation to call all relevant witnesses, even where their evidence does not support the Crown case, does not deny the prosecutor the opportunity to discredit the evidence of a Crown witness: see also R v Le supra at [68]. It follows that the Crown can submit that one of its witnesses should not be accepted and it is not inappropriate in those circumstances for a judge to direct a jury to consider the question. That is what occurred in the present case.

327 There does not seem to me to be any error in the trial judge repeating the submission made by the Crown that Mr Tenant thought PM "was about 10". As set out above, Mr Tenant's evidence was that PM was "maybe around - I don't know, he was ten years old, I can't really put an age on it". Whilst this is somewhat different, it does not seem to me to be a difference of substance, certainly not such that a failure to refer to it could amount to a miscarriage of justice.

328 I have already indicated why there was no miscarriage of justice in failing to give a direction that a private citizen is not obliged to make a statement to the police.

329 So far as the failure by the trial judge to refer to the fact that the evidence of Mr Tenant confirmed that of the appellant that he recalled Mr Lawrence leaving a thankyou note, that must be considered in the context where the trial judge referred to the evidence of Mr Lawrence in which he accepted he may have left a thankyou note on ceasing employment. It is difficult to see how reference to the two conflicting pieces of evidence given by Mr Tenant on this issue would have advanced the appellant's case. There was no error in these circumstances particularly when such a direction was not sought.

330 It is correct that the trial judge did not refer to Mr Tenant's evidence that he did not recall it being suggested that DL stay at his home on the night of the storm. However, that was a comparably minor matter. The critical issue as it emerged was whether DL stayed at the appellant's home on that night or if, as the appellant contended, he was nowhere in the vicinity. In those circumstances I do not think the failure to refer to Mr Tenant's evidence was erroneous or caused a miscarriage of justice.

331 In these circumstances this ground of appeal has not been made out.

Ground 7 - The trial judge erred in permitting cross-examination by the prosecutor to: (a) Introduce out of Court statements that MB had made to himself concerning the complainants (in the cross-examination of MB and Mrs Scott); (b) Suggest impropriety in MB's attendance at Court with the appellant (in the cross-examination of MB)

332 MB was a witness called for the defence. He worked at the theatre from 1981 as a teenager until the theatre closed in December 2003, at which point in time he held a management position.

333 The appellant submitted that the evidence of MB was relevant to all of the complainants. He also gave evidence of good character.

334 In relation to the counts concerning Mr Lawrence, MB gave evidence in which he asserted that Mr Lawrence had behaved inappropriately to him whilst they were alone in the projection booth, making sexual advances towards him. MB said he was uncomfortable with this and asked to be moved towards the front of house. He also gave evidence that when Mr Lawrence left in 1982, he left a cabinet with a thankyou note addressed to the appellant and Mr Tenant.

335 MB gave evidence that PM never worked at the cinema. MB stated that he was the usher in the 1984 pantomime and PM assisted him informally.

336 MB gave the alibi evidence relied on by the appellant. He said that the night of 5 August 1986 was the night of his birthday party but the weather made it difficult for his friends to attend a dinner at Chinatown. He said the appellant attended the dinner, picking him up around 10.00pm and leaving around midnight.

337 The appellant said that after DL ceased to work at the theatre and went to work at the pizza parlour he was coming back and forth to the cinema all the time. This was consistent with the evidence of DL. MB said that DL went back to work at the theatre for two weeks in the mid-1990s, something denied by DL.

338 MB said that in 1987 he had a conversation with DL about a person, MP, in which DL told him that he had watched a pornographic film with MP and a third person and MP had started to masturbate which DL thought was disgusting.

339 MB gave evidence that the sauna at the appellant's Cronulla unit was not operational, being used for storage. He said the room that looked like a sauna at the appellant's home at Sans Souci was in fact a photographic darkroom.

340 MB gave evidence that after KM ceased to work at the theatre, KM came to the theatre once a week, almost every week, for 10 years. He said that all of KM's family did this, although in cross-examination he said that it was KM who came regularly and the others came only occasionally.

341 MB gave evidence of a conversation he claimed to have had with KM in 1995 when KM suggested they could sue the appellant saying, "we could say that Phil had touched us up, sexually interfered with us, and sue him". MB replied, "Don't be ridiculous" and KM said it would be just "his word against our word". MB said at the time he had in mind writing a play concerning false allegations of sexual assault for financial advantage.

342 MB gave evidence that in 2008, KM, who by that time was a police officer, pulled him over for a joke and was extremely friendly. He said that he last saw KM in 2008.

343 MB said that he knew MH who had told him when they worked together at the theatre that he had shaved his genital area.

344 MB was cross-examined extensively by the Crown. Early in his evidence two witnesses were interposed. Thereafter the Crown Prosecutor stated that she wished to cross-examine MB on a statement made outside the Court, overheard by one of the complainants and a character witness for the appellant, in which he stated, "They're just a bunch of gold digging fuckwits".

345 Senior counsel for the appellant at the trial objected and the following exchange occurred:

"TERRACINI: Well, one, we obviously got no instructions because I haven't spoken to him but more fundamentally the relevance of that in terms of his own personal view is just that, not relevant. Certain inferences could be drawn by the statement. One is that he doesn't believe the allegations and he thinks that the allegations have been made up by materialistic people or alternatively he's of the view that Mr Doyle is innocent and he's as it were myopic or somewhat partisan, but either way my submission is it is not relevant to his evidence unless my friend can put to him that he is biased in some way.

HIS HONOUR: Well do you intend to put bias, Madam Crown?

CROWN PROSECUTOR: Well I certainly intend to put he's being untruthful in relation to certain matters, your Honour, and that he has an extremely strong friendship with the accused and that this is-

HIS HONOUR: In effect you're putting bias.

CROWN PROSECUTOR: Yes, and that this is colouring it and he has very strong feelings himself in relation to this. Your Honour, that's not-"(21/06/2012 p 1101)

346 MB was then asked questions without objection on the voir dire and the trial judge then gave leave to ask the questions before the jury. MB gave the following evidence:

"Q. Did you say something about 'gold digging'?A. Yes, I did.

Q. But what, you deny the word 'fuckwits'?A. Yes, I do.

Q. I suggest that's what you said when you went outside, [MB], 'Just a bunch of gold digging fuckwits' was your phrase?A. No, it wasn't."(21/06/2012 p 1104)

347 Later in the cross-examination, the following exchange occurred:

"Q. You've been at court every single day since this trial started, haven't you?A. No.

Q. How many days have you missed since this trial started?A. About three.

Q. And part from those three days have you spent lunchtimes with Philip Doyle each day?A. Not each day, no I have not.

Q. How many did you miss?A. Probably about three or four.

Q. Would those have been the days when he was in cross-examination, [MB]?A. That was aside from the days he was in cross-examination.

Q. So, aside from, so when I ask you how many days you spent lunch with him you've given a figure but now you're saying something different?A. No, when he was in cross-examination I wasn't allowed to see him because I understand that, I was given strict instructions by senior counsel. On other days I did not spend lunch with him, no I did not.

Q. Well, I asked you how many days that you didn't have lunch with him and you gave a figure.A. Well, it was probably three or four days plus the days he was in cross-examination. So it was probably seven days all up.

Q. And morning teas other than the days when he was in cross-examination, how many morning teas would you have not spent with Mr Doyle?A. Other than when he was in cross-examination probably two or three.

Q. During the course of those times when you came to court did you come to court of a morning with Philip Doyle?A. No, I did not,

Q. Did you return home from court of an afternoon with Philip Doyle?A. No, I did not.

Q. Did you have any discussions in relation to the evidence that had been given during the course of this trial?A. No.

Q. Last year when the trial was running did you attend court every single day during the course of that trial?A. Almost every single day.

Q. Prior to that trial had you attended every single mention of the proceedings from the time when Philip Doyle was arrested?A. Yes I did as moral support. I understand the gravity of the charges and I think everyone deserves moral support.

Q. [MB] you understand the rules in relation to giving evidence, don't you?A. Yes I do.

Q. That unless you're asked a question you're not entitled to make a speech to the jury, you understand that clearly don't you?A. Yes.

Q. You understand that your response is meant to be responsive to the question, don't you?A. Yes."(22/06/2012 pp 1136-1137)

348 Subsequently it was put to MB that he had either fabricated or was mistaken as to the conversation with DL and also the conversation with KM during which KM suggested that a false complaint be made.

349 During the course of the cross-examination of MB a character witness, Ms Sylvia Scott, was interposed at the request of senior counsel for the appellant at the trial. She gave the following evidence in cross-examination without any objection:

"Q. Mrs Scott, did you hear [MB] say when he left the courtroom, 'Just a bunch of gold-digging fuckwits'?A. I didn't hear the fuckwit - what you've just said. He seemed upset.

Q. All right.A. He seemed upset, he seemed angry and I just overheard him say - he didn't direct it at me, he didn't talk to me, he just said they're just gold-diggers, that's all I picked up from it. Just, yeah, gold-diggers.

...

Q. Did you hear anything that sounded like a swear word when he was outside the court yesterday?A. To be honest I don't know. No, I wasn't really taking much thing, I just heard the gold-digging thing and I thought 'Oh God' and that's about it, just, yeah. He may have said it, I don't know. I'm being honest with you, I didn't pick up on it. I just sought of thought 'Oh', he seemed just angry."(22/06/2012 p 1152)

The appellant's submissions

350 The appellant submitted that the cross-examination of MB on what took place outside the Court was irrelevant or should have been disallowed as any probative value was outweighed by the danger of unfair prejudice. The appellant submitted that the evidence was permitted to be introduced toward the beginning of the cross-examination with the calculated impact being to cast MB as a partisan witness. The appellant submitted that the reintroduction of the evidence through Ms Scott exacerbated this problem.

351 The appellant submitted that there was no basis for the suggestion that MB was making a speech to the jury. The appellant also submitted that the cross-examination concerning MB's attendance at the trial was designed to suggest that he had had improper contact with the appellant.

352 The appellant submitted that the basis for the application to adduce the evidence from Ms Scott concerning MB's statement outside the Court was misplaced as the Crown relied on the evidence of MB in many respects.

353 Senior counsel for the appellant submitted that the evidence surrounding the statement outside the Court served no forensic purpose. He accepted that the trial judge gave no direction on the issue and on its own it was not particularly significant. However, senior counsel pointed out that the credibility of MB was important for the appellant at the trial and that the complaint had to be looked at in the context of other incidents surrounding the trial which are the subject of other grounds of appeal.

The Crown submissions

354 The Crown submitted that the comment attributed to MB outside the Court could give rise to the inference that his view of the complainants may have coloured the truthfulness of his evidence. It was pointed out that senior counsel for the appellant at the trial made no further objection after the conclusion of the voir dire.

355 So far as the accusation of making a speech was concerned, the Crown submitted that MB's statement set out above that "I understand the gravity of the charges and I think everyone deserves moral support" was non-responsive to the question asked and justified the rebuke.

356 The Crown also submitted that it was appropriate to suggest that MB was closely aligned to the appellant.

Consideration

357 MB was an important witness. He provided the alibi evidence in relation to Count 6. He also gave evidence of an approach by KM to manufacture complaints against the appellant. His credit was a matter of particular significance at the trial.

358 The statement made by MB whilst outside the Court, whether made to himself or to other third parties, indicated a particular attitude which could lead to an inference being drawn that he was a person who might seek to tailor his evidence in favour of the accused. In these circumstances it could substantially affect the credibility of the witness within the meaning of s 103 of the Evidence Act. In these circumstances there was no error in the trial judge allowing the cross-examination of MB on this issue.

359 However, I do not believe that the evidence of Ms Scott should have been permitted. The only basis could be that MB's denial of the use of the word "fuckwits" denied the substance of the evidence put to him and so made Ms Scott's evidence admissible under s 106 of the Evidence Act. However the substance of the evidence, in my opinion, was embedded in the use of the words "gold diggers". In these circumstances s 106 of the Evidence Act did not operate to permit this evidence.

360 However the evidence that was admitted without objection went no further than the evidence of MB on this topic. In one sense it was favourable to the appellant in that it confirmed that MB did not use the word "fuckwits".

361 No objection being taken to the evidence in the Court below, r 4 of the Criminal Appeal Rules applies and no miscarriage of justice has been shown.

362 This ground of appeal has not been made out.

Ground 8 - The trial judge erred in declining to permit re-examination of the witness MB to re-establish his credibility

363 During re-examination of MB, senior counsel for the appellant at the trial asked the following questions:

"Q. Now so far as the suggestion - let's call a spade a spade - that you're being accused of being a liar, in terms of your real estate, do you own any real estate?A. Yes I do.

Q. Where abouts?A. In the southern suburbs near Brighton-Le-Sands.

Q. Does it have a mortgage on it?A. It did have a mortgage on it up until quite recently.

Q. With who?A. With the Westpac Banking Corporation.

Q. And where did you get the money to purchase the home unit?A. I did it the old fashioned way, I saved up, put a deposit and I went down to the bank and mortgaged my life away.

Q. And in relation to investigations your own finance - even your own banking records, there was a-

CROWN PROSECUTOR: Objection.

TERRACINI: No I press it, he's been called a liar-

CROWN PROSECUTOR: Objection.

TERRACINI: They subpoenaed his banking-

CROWN PROSECUTOR: Your Honour-"(22/06/2012 p 1165)

364 Thereafter the witness was stood down. The prosecutor complained that during the exchange when senior counsel for the appellant at the trial said, "They subpoenaed his banking", MB turned to the jury and said, "It did, it did".

365 The prosecutor then submitted that in cross-examination she had said nothing about money other than paying for overseas trips which were business related when MB was an usher. She pointed out that, "My friend already asked him about having money in his evidence in chief".

366 Senior counsel for the appellant at the trial said the question went to the Crown subpoena of the financial records of MB to be produced to the Court, saying that it had been suggested that there was a close relationship between MB and the appellant and that MB was going to get some benefit from his evidence. Senior counsel submitted the question arose out of cross-examination because the inference which was sought to be drawn from the cross-examination was that MB was connected with the appellant, either emotionally and/or financially, so having a motive to lie.

367 The judge declined to admit the evidence.

368 Thereafter the jury returned and passed a note to the trial judge which became MFI 42. The trial judge then gave the following direction:

"HIS HONOUR: Thank you members of the jury, I have note from you which is MFI 42 which invites me to stop the witness from commenting directly to the jury regarding particularly the matter of the bank accounts and the note says 'For example he faced us directly and said 'they did, they did'.' Well members of the jury, I made a ruling that that evidence is irrelevant so you can disregard anything about the bank accounts.

You will recall that in any event in his evidence-in-chief Mr Terracini adduced some evidence from [MB] about financial matters but the witness's evidence has been completed. It's a matter for you to assess what significance the witness's evidence has. You will remember that this is a trial involving some degree of emotion and no doubt you will hear in due course speeches by counsel in which they make remarks to you about the way you should approach the evidence of various witnesses in the trial, the complainants and Mr Doyle and [MB], well you'll hear those speeches and at the end of the day you'll be the ones who make an assessment about it."(22/06/2012 p 1171)

The appellant's submissions

369 The appellant submitted that the evidence sought to be adduced was relevant and admissible pursuant to s 39 and s 108(1) of the Evidence Act. He submitted that the trial judge erred by declining to allow the questioning and instead directing the jury that the bank accounts were irrelevant.

370 The appellant submitted that the effect was exacerbated by the Crown Prosecutor's attack on the credibility of MB in her closing address, in which she urged the jury to consider that the appellant and MB were not witnesses of truth. She relied on, among other matters, MB's attempt to answer the question concerning bank records after objection was taken in support of her submission that MB was not impartial, honest and reliable.

371 The appellant submitted that the other submissions made by the Crown Prosecutor show that MB was not partial, pointing out that on a number of instances reliance was placed on the evidence of MB in support of the Crown's case and that in relation to other aspects of his evidence there was no dispute. He submitted that this was inconsistent with the proposition that MB was not a reliable or impartial witness. He submitted that the trial judge should have allowed leeway in re-examination and his refusal to allow the questioning resulted in a miscarriage of justice.

372 Senior counsel for the appellant submitted that although the Crown had not cross-examined on the basis MB was receiving a financial benefit, the Crown sought to discredit MB in every other way. He submitted that in the context of the case it was unfair not to permit the re-examination.

373 Senior counsel for the appellant submitted that although the refusal to permit re-examination may not itself have been significant, in conjunction with the other grounds relied on, it amounted to a miscarriage of justice.

The Crown submissions

374 The Crown simply asserted there was no error of law in declining to permit re-examination and it did not result in the loss of a chance of acquittal.

Consideration

375 Although it is correct that pursuant to s 108(1) of the Evidence Act the credibility rule does not apply to evidence adduced in re-examination, the requirements within s 39 of the Evidence Act still need to be satisfied.

376 The evidence did not arise out of cross-examination and no error of discretion has been shown in the refusal by the trial judge to grant leave to re-examine. The fact that the credibility of MB was attacked generally does not mean, in my opinion, that the judge committed an error in the exercise of his discretion in declining to permit re-examination.

377 In these circumstances this ground of appeal is not made out.

Ground 9 - The trial miscarried by virtue of impermissible cross-examination of character witnesses to suggest that they were "concerned" about impropriety between the appellant and their sons

378 This ground concerns the cross-examination of two character witnesses called by the appellant at the trial. The first, Ms Scott, was asked if she had questioned her son if anything had happened between him and the appellant. She said she had and he said no. She was then asked if she questioned her son because of concerns she had. She answered no.

379 The second witness, a Ms Johnston, was cross-examined as to whether she asked her son if anything had happened to him. She was then asked if she questioned her son, "because you were concerned and you wanted to find out if anything had happened to your son?" She answered yes.

380 In her closing address the Crown Prosecutor, referring to the evidence of Ms Scott and Ms Johnston, made the following remarks:

"Ladies and gentlemen, if your brother, your father, your son, was charged with offences of this nature you wouldn't ask a question. If you truly trust the person and you truly believe the person wouldn't act like that, you wouldn't ask the question."(27/06/2012 p 14)

381 After the trial judge had concluded his summing up the Crown indicated to the trial judge that he had not specifically referred to each of the character witnesses. The trial judge asked senior counsel for the appellant at the trial if the material was adequately covered and he replied as follows:

"TERRACINI: And in relation to Mrs Scott and Mrs Johnson we'd ask your Honour to tell the jury that it's again not an appropriate style of reasoning to be asking your children simply because there's something in the paper as to whether they'd been molested by Mr Doyle. That was a line of questioning by the Crown, saying, 'Well, did you ask your son if he'd been molested?' and I addressed it on the fallacy of that as to establishing the charge - or charges. We'd ask your Honour to comment on that and we'd also ask your Honour to tell the jury that the Crown didn't mention at all during its address, what I did, was that [PM] and [DL] did work at the cinema together."(03/07/2012 p 42)

382 The trial judge then gave the following direction in relation to Ms Scott and Ms Johnston:

"Now, Madam Crown put to you that there may be some significance in the fact that those ladies even questioned their sons about it, but I can tell you as a matter of law that you cannot reason in that fashion. You may think, for example, that, well, it is irrelevant that some children do not have any concerns about Mr Doyle, but what you cannot say is that lurking behind a mother's question to her son in the circumstances of Mrs Scott and Mrs Johnson, because they asked that question is the possibility that something did go wrong with Mr Doyle. You cannot reason in that fashion."(03/07/2012 pp 47-48)

The appellant's submissions

383 The appellant submitted that in combination with the attack on the credibility of Mr Tenant and MB, the direction was insufficient to remedy the miscarriage of justice which had occurred as a result of the cross-examination of defence witnesses and the Crown Prosecutor's address.

The Crown submissions

384 The Crown pointed out that no objection was taken to the questions asked of Ms Scott and Ms Johnston. Senior counsel for the appellant at the trial only raised the question after the Crown Prosecutor inquired if adequate reference had been made to the character evidence and consequently the direction requested was given.

385 The Crown submitted that there was no reason to think the jury would do otherwise than follow the direction of the trial judge.

Consideration

386 The direction given by the trial judge was given in unequivocal terms at the conclusion of his Honour's summing up. There is no reason to think that the jury would disregard it.

387 It follows that there was no miscarriage of justice and this ground has not been made out.

Ground 10 - The trial miscarried by virtue of the failure of the trial judge to adequately put the defence case

The appellant's submissions

388 The appellant submitted that the summing up must be read as a whole to determine whether it is lacking in judicial balance such as to render a trial a miscarriage of justice. He emphasised that the jury must not have been deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied on in support of the defence. He submitted that an accused person is entitled to have their case presented to the jury in the summing up to enable them to understand the defence case.

389 The appellant submitted that there was a failure to summarise the defence case in critical respects. In particular, he submitted the trial judge failed to adequately direct the jury in relation to tendency, evidence of complaint, aspects of credibility of individual complainants, the appellant's evidence and its support from defence witnesses. The appellant acknowledged that the point was not raised before the trial judge but submitted that the failure was a departure from an essential requirement of the law.

390 The appellant submitted that the trial judge failed to direct the jury that if they accepted the evidence of good character, particularly around young boys, they may have a reasonable doubt that the appellant had the tendency that was suggested by the Crown. Further, the appellant submitted that the evidence of good character was inadequately summarised by the trial judge. He referred to the evidence of 11 character witnesses including Mr Tenant, MB, Ms Smith and Ms Johnston, all of whom gave evidence of no complaint of his treatment of young boys.

391 The appellant referred to the final direction to the jury that essentially the case was one of, on the one hand, "a pattern of interest in young men" and on the other, "positive evidence of good character". He submitted that the jury should have been directed that the Crown needed to prove the asserted tendencies beyond reasonable doubt before they could be taken into account but, on the other hand, the jury was bound to take into account the evidence of good character both in considering whether they could be satisfied of the existence of those tendencies beyond reasonable doubt and whether any count was proved beyond reasonable doubt.

392 The appellant submitted that the jury should have been told that the late complaint evidence could not be used as evidence of the truth of the allegations. He submitted that this included the complaint made by DL to KL and the complaints made to the police.

393 In relation to the complaints made by PM to NL and DL to DE, the appellant submitted that the jury should have been told that they needed to evaluate the significant differences between the complainants' versions of such complaints and the evidence of NL and DE respectively.

394 The appellant submitted that there was no reference to MB's recollection of DL's account of his complaint to MB about MP, although MP's evidence was summarised. Further, he submitted that the evidence of MP did not support that of DL in critical respects, indicating that the highest it went in corroborating DL was that he said he recalled the appellant asking if the three boys wanted to "take our clothes off and have a pull in front of some porn". He submitted that the trial judge was incorrect in saying MP's evidence of playing a sensor game supported DL. Further, the appellant submitted that the trial judge should have directed that if the jury accepted the incident had occurred, it was relevant only in supporting the evidence of DL relevant to tendency and not to any count on the indictment.

395 In relation to the incident referred to in the previous paragraph, the appellant complained that the trial judge failed to refer to the evidence concerning the credibility of DL. It was submitted that this included the evidence of MB that the pool table referred to by DL had been removed from the appellant's house in the month after its purchase and evidence of other witnesses which corroborated this statement. The latter evidence included that of MP who did not remember playing pool there, AL who did not remember a pool table and Mr Tenant who said the appellant got rid of the pool table about a month after he purchased the house.

396 The appellant submitted that the trial judge did not inform the jury that the evidence of Mr Tenant was contrary to the evidence of DL which was to the effect that Mr Tenant had offered to take him home on the night of the storm, nor did the trial judge summarise the evidence of MB on that topic.

397 The appellant submitted that the trial judge was incorrect in saying that DL's evidence that the appellant had a navel scar was unprompted, submitting that it was prompted by a question from a police officer. He submitted that the trial judge referred only briefly to the difficulty DL had in identifying the whereabouts of the scar, whilst the prosecution case was summarised in detail. In particular, the appellant submitted there was no reference to the late recollection of the navel scar in the context of having failed to observe a lengthy hip to hip scar on the appellant. Nor was the significance of PM and KM having failed to observe either scar given comparable emphasis in the summing up compared to the emphasis placed on the Crown Prosecutor's argument about DL's evidence.

398 The appellant also pointed to the failure to refer to the fact that, contrary to the evidence of Mr Lawrence and KM, the appellant's case was that there was no operational sauna in either the Cronulla unit or the Sans Souci house and, further, that the Subaru ute described by KM as a car in which an offence took place, had not been purchased at the time of the offence. It was submitted this was significant in relation to credibility findings. The appellant referred in particular to the evidence of Barry Groves, PM and MB that they did not see a sauna at the appellant's Cronulla unit, and the evidence of DL, MB, the appellant's nephew LD, Mr Tenant and Mr Groves, that there was not an operating sauna at the appellant's Sans Souci house. The appellant stated that this was important in assessing the credibility of KM who claimed he was sexually assaulted in the sauna.

399 The appellant submitted that the evidence of Mr Tenant supporting his defence was not summarised by the trial judge.

400 The appellant complained that the trial judge failed to remind the jury to take into account in assessing the appellant's credibility, his age and the fact he had been called upon to give evidence about matters spanning approximately 30 years.

401 The appellant submitted that in these circumstances the trial miscarried.

402 Senior counsel for the appellant submitted that it was necessary for a fair summing up for the defence case to be brought together. He submitted that the failure of the trial judge to do this, coupled with what he described as a summary of a whole series of impermissible propositions, meant that there was not a fair summing up of the defence case.

403 Senior counsel for the appellant submitted that it was not appropriate, as he described it, to interleaf the defence case with that of the prosecution even where multiple counts are concerned. Senior counsel for the appellant submitted that this approach diminishes the defence case.

The Crown submissions

404 The Crown noted that the trial judge's summing up took place over three days and occupied 132 pages of transcript. They also noted that the trial judge told the jury that if he happened not to refer to material they should not disregard it, for it was up to them to consider what was significant.

405 The Crown pointed out that the only matters raised at the conclusion of the summing up was a factual error in respect of the name Robert Lopez, the matters regarding the character witness evidence to which I have referred above, evidence concerning the question of whether DL and PM worked at the theatre together and the possibility of concoction generally. The Crown pointed out that the trial judge gave further directions as requested on each of the first three matters but declined to in relation to the fourth matter. The latter is not the subject of any ground of appeal.

406 The Crown referred to its earlier submissions concerning the directions on tendency and complaint. The Crown submitted that the other matters were peripheral matters and senior counsel for the appellant at the trial may have had a legitimate forensic purpose for not raising them.

407 The Crown also pointed out that the trial judge in his summing up made express reference to the difficulties to which the appellant was exposed, having regard to the delay of up to decades in making the complaints.

Consideration

408 There was no dispute between the parties as to the obligations imposed on a trial judge in directing the jury and summing up the respective cases of the Crown and the accused.

409 It has been long established that a trial judge must give a direction both as to the law and the possible use of relevant facts upon any matter on which a jury could in the circumstances of the case upon the material before them find or base a verdict: Pemble v The Queen (1971) 124 CLR 107 at 117-118; R v Veverka [1978] 1 NSWLR 478 at 480. It has been emphasised that if the summing up is to be fair and balanced the defence case must be put to the jury: R v Meher [2004] NSWCCA 355 at [82]. As was said by this Court in Abdel-Hady ('Sa') v R [2011] NSWCCA 196 at [136], the requirement of balance obliges the trial judge to bring to the jury's attention those parts of the evidence that reflect significantly on the factual issues in the case and to explain how the evidence impinges on them.

410 To consider whether a summing up is unfairly balanced it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led at the trial: R v Sukkar [2005] NSWCCA 54 at [90]. This does not necessarily require an exhaustive consideration or analysis of the entirety of the evidence or even an analysis of all conflicts in the evidence so long as the critical evidence is identified, and the cases of the Crown and the defence in relation to the issues are summarised in a fair and meaningful way: see R v Sukkar supra at [93] citing R v Meher supra at [77]. The question is not to be answered by a comparison between the length of time dedicated to the Crown and the defence respectively: R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 56.

411 I have read the whole of the summing up which extended over some three days and I consider that it was fair and balanced. The approach taken by the trial judge was to deal with each complaint separately, summarising the principal evidence on each count, particularly the evidence and cross-examination of the relevant complainant, and to then draw to the jury's attention the particular matters brought forward by the Crown and the appellant for the respective verdicts contended for by each of them.

412 This process was criticised by the appellant as failing to draw together the defence case. I do not agree. Assuming the critical evidence in respect of all counts was referred to, the method adopted was an appropriate way of exposing to the jury the defence case in relation to each of the counts. This enabled the jury to focus on each count separately as they were obliged to. It does not seem to me that a summing up which dealt with the Crown case on all counts and then separately with the defence case on all counts would have been of greater assistance to the jury than one which put the case of the Crown and the defence in respect of each complainant side by side for the jury's evaluation.

413 I have already dealt with the appellant's criticism of the trial judge's directions so far as they concern tendency and complaint evidence. For the reasons which I have given I do not consider the directions and summing up were erroneous in the manner complained of.

414 So far as the evidence of good character was concerned, I have already pointed to the fact that the trial judge gave the directions requested. Further, the trial judge emphasised in his summing up on a number of occasions that the accused was a man of good character, evidence which he described as uncontested: see 29/06/2012 pp 20-21; 02/07/2012 p 59; 03/07/2012 p 39 where the evidence of good character with young children was referred to. It seems to me that this issue was adequately dealt with.

415 The criticism that the trial judge made no reference to the appellant's case that there was no operational sauna at either the Cronulla unit or the Sans Souci house lacked foundation.

416 Early in the summing up the trial judge said that one particular difficulty confronting the appellant from the lapse of time between the events in question and the trial was the inability to verify if there was an operational sauna at either the Cronulla unit or the Sans Souci house (29/06/2012 pp 11-12). The evidence of Mr Tenant and MB that the sauna at the Cronulla unit was not operational was referred to (02/07/2012 p 20), as was the evidence of the appellant denying that there was an operational sauna at either premise. Although not all of the evidence concerning this matter was referred to, the jury would have been aware that an important issue in the defence case on which there was conflicting evidence was whether the sauna at either premise, but in particular the Cronulla unit, operated. As can be seen from the evidence and summing up of both the prosecution and the defence, the question of the sauna at the Sans Souci premises was not of great relevance. The more important matter, having regard to the evidence of KM, was in fact the location of the swimming pool at those premises and whether it could be seen from the neighbouring house.

417 So far as the pool table was concerned, the trial judge referred to the lapse of time and the inability to verify the presence or absence of a pool table (29/06/2012), the evidence of MP that he did not remember anything about a pool table (02/07/2012 p 50) and senior counsel for the appellant at the trial's submission that the pool table had been removed (02/07/2012 p 61).

418 So far as the difference between the evidence of PM and NL in respect of the complaint alleged to have been made by PM to NL, the trial judge in dealing with NL's evidence referred to discrepancies between it and what he had said in his police statement (02/07/2012 pp 30-31). The trial judge also referred to the discrepancies between the evidence of PM and that of NL (02/07/2012 p 39).

419 As the appellant accepted, the evidence of MP was summarised (02/07/2012 pp 48-50). The trial judge in the course of that summing up did not say whether and to what extent MP's evidence corroborated that of DL or that his evidence of the sensor was corroborative of DL's evidence. Although he did refer to the Crown's submission that the evidence was corroborative.

420 The direction of the trial judge concerning the appellant's scarring did not in my opinion justify the criticism which was made. The trial judge initially referred to the evidence of DL that Detective Lee had raised the matter of the scar with him (02/07/2012 p 53). The reference by the trial judge to this evidence being "apparently unprompted" was a reference to the Crown submission (02/07/2012 p 57). The trial judge subsequently referred to the defence case that the jury should be sceptical about this evidence, pointing to the fact that DL did not refer to its exact location, that it came from a question from Detective Lee and that the jury should be concerned about the late arrival of the evidence (02/07/2012 pp 61-62). The judge also referred to the fact that PM only stated that he observed the scar on the appellant relatively late in the proceedings and the significance to the defence of his failure to notice the hip to hip scarring (02/07/2012 p 39).

421 The trial judge did refer the jury to the fact that the Subaru ute in which KL alleged some of the incidents occurred was constructed after the incidents took place (03/07/2012 pp 14, 24, 28).

422 I have considered the other matters raised by the appellant in the context of a consideration of the whole of the summing up. Taken as a whole and in light of the matters to which I have referred, I do not believe that the summing up failed to adequately present the appellant's case at trial. I have reached this conclusion without regard to the fact that the directions in respect of the matters complained of were not sought by the appellant. However I am fortified in my view by the fact that experienced senior counsel for the appellant at the trial did not consider it necessary to seek further directions.

423 It follows that this ground of appeal has not been made out.

Rule 4 of the Criminal Appeal Rules

424 The appellant submitted s 5 of the Criminal Appeal Act gives a convicted person a right of appeal against conviction on any ground which involves a question of law alone. He submitted that r 4 of the Criminal Appeal Rules must be read down so as not to apply to an appeal on such a ground.

425 Rule 4 provides as follows:

"4 No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

426 The rule-making power in the Criminal Appeal Act is contained in s 10 and s 28 of that Act. The only relevant power is contained in s 28(2)(h), being the necessary or expedient rule-making power. It does not seem to me that this power could limit an express right of appeal conferred by the Act.

427 In Shanahan v Scott (1957) 96 CLR 245 at 250, the plurality emphasised that the power to make regulations providing for all or any purposes necessary or expedient for the administration of the Act or for carrying out its objects could not extend the scope or operation of the Act or widen the purpose of the Act to add new and different means of carrying them out or depart from or vary the plan that the legislature had adopted: see also Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402. Such a regulation would go beyond the field marked out by the Act: Carbines v Powell (1925) 36 CLR 88 at 91-92.

428 However, it must be remembered that the rule is limited to directions or to the admission of evidence. As McHugh J pointed out in Papakosmas supra at [72], a trial judge does not make an error of law where an appellant has failed to object to evidence or failed to ask for a direction. With the greatest respect to his Honour, that may state the position a little too widely. For example, a direction that was incorrect as to the burden of proof or in some other fundamental respect would, in my opinion, constitute an error of law irrespective of whether it was asked that it be corrected. In the present case a misdirection as to the use that could be made of tendency evidence would fall into such a category.

429 However, it is unnecessary to express a final view. In the present case I have concluded that r 4 applies on three occasions (see pars [156], [210] and [361] above). Consistent with Papakosmas supra, no error of law was made in the absence of any application to correct or elaborate on the directions referred to in pars [156]-[157] above, or in the absence of objection to the admission of the evidence in pars [360]-[362] above.

Conclusion

430 In the result, the appeal against conviction should be dismissed.

The Sentence Appeal

431 I agree with the reasons and orders proposed by Price J.

432 PRICE J: I have had the opportunity of reading the draft of the Chief Justice's judgment in the conviction appeal. I agree with his Honour's judgment.

433 On 20 March 2013, pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the Director"), filed and served a notice of appeal against the sentences imposed by Woods DCJ on 24 August 2012, asserting that they were manifestly inadequate. The Director filed an Amended Ground of Appeal on 14 June 2013 which gave notice that the Director intended to rely on the following ground:

"His Honour erred in failing to accumulate the sentences by an appropriate period and imposed an overall sentence which was manifestly inadequate both with respect to the head sentence and to the minimum term."

434 As the Chief Justice has recounted, the appellant was found guilty by the jury on 38 counts and was sentenced by the Judge to an overall sentence of imprisonment of 7 years with a non-parole period of 4 years 6 months.

435 For the sake of continuity I will refer to Mr Doyle as the appellant, although he is the respondent in the Crown appeal.

436 The Judge was confronted with a difficult sentencing task as he was obliged to sentence the appellant for 38 offences that had been committed over 23 years upon five young victims. The sentences imposed are best explained by the following table that was provided by the Crown (CWS par 5):

Count	Date	Offence	Name/ Age	Circumstances	Max. penalty/ SNPP	Sentence imposed
1	1.9.80-30.4.81	s.81	14 or 15 ML	PD1 came into the cinema projection box, put his hands through ML's overalls and fondled his genitals.	5 years	2 years, 6 months FT: 4.7.12 - 3.1.15
2	1.9.80-30.4.81	s.81	14 or 15 ML	Same details as Count 1	5 years	2 years, 6 months FT: 4.7.12 - 3.1.15
3	1.9.81-30.4.82	s.81	15 or 16 ML	Same details as Count 1.	5 years	2 years, 6 months FT: 4.7.12 - 3.1.15
4	8.6.85-31.8.85	s.78Q(1)	16 PM	Counts 4 and 5 are one episode. During a car ride to PD's home PD grabbed PM on the penis through his clothes.	2 years	18 months FT: 4.7.12 - 3.1.14
5	8.6.85-31.8.85	s.78Q(1)	16 PM	In his bedroom PD started to masturbate PM and to masturbate himself at the same time.	2 years	18 months FT: 4.7.12 - 3.1.14
6	On or about 5.8.86	s.61E(1A)	14 DL	In his bedroom PD masturbated DL and DL touched PD on the penis	6 years	3 years FT: 4.7.12 - 3.7.15
7	1.9.86-30.9.86	s.61E(1A)	15 DL	At Kurnell, after taking photographs of DL, PD started to fondle and then masturbate DL.	6 years	3 years FT: 4.7.12 - 3.7.15
8	1.2.87-28.2.87	s.61E(1A)	15 DL	Counts 8 & 9 While DL was staying at PD's home they watched a pornographic film and PD masturbated DL and asked him to reciprocate.	6 years	3 years FT: 4.7.12 - 3.7.15
9	1.2.87-28.2.87	s.61E(1A)	15 DL	The morning after count 8 PD masturbated DL and asked him to reciprocate.	6 years	3 years FT: 4.7.12 - 3.7.15
10	1.3.87-30.4.87	s.61E(1A)	15 DL	Counts 10 and 11 are one episode. At PD's home he masturbated DL.	6 years	3 years FT: 4.7.12 - 3.7.15
11	1.3.87-30.4.87	s.78Q(2)	15 DL	PD asked DL to perform fellatio on him.	2 years	12 months FT: 4.7.12 - 3.7.13
12	1.7.89-31.7.89	s.61E(1A)	13 KM	At the cinema PD encouraged KM to remove his clothes, touched him number of times on the penis and then masturbated him.	6 years	3 years FT: 4.1.14 - 3.1.17
13	1.8.89-31.10.89	s.61E(1A)	13 KM	At the cinema PD encouraged KM to remove his clothes (to try on a pantomime costume) and touched him on the penis and then masturbated him.	6 years	3 years FT: 4.1.14 - 3.1.17
14	1.9.89-24.12.89	s.61E(1A)	13 KM	Counts 14-19 are one episode. In the car on the way to the tip after loading rubbish at the cinema PD fondled KM's penis	6 years	3 years FT: 4.1.14 - 3.1.17
15	1.9.89-24.12.89	s.61E(1A)	13 KM	PD took KM back to PD's home for a swim in the pool and as KM was putting on speedos PD helped him to undress and fondled KM's penis.	6 years	3 years FT: 4.1.14 - 3.1.17
16	1.9.89-24.12.89	s.61E(1A)	13 KM	In the pool PD placed KM's hand onto PD's erect penis and then started to masturbate KM at the same time.	6 years	3 years FT: 4.1.14 - 3.1.17
17	1.9.89-24.12.89	s.66D/C (2)	13 KM	PD tried to insert a finger into KM's anus.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
18	1.9.89-24.12.89	s.66C(2)	13 KM	KM sat on the edge of the pool and PD performed fellatio on him.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
19	1.9.89-24.12.89	s.61E(1A)	13 KM	PD masturbated KM until KM ejaculated	6 years	3 years FT: 4.1.14 - 3.1.17
20	1.1.90-28.2.90	s.61E(1A)	14 KM	Counts 20-23 one episode. KM went to PD's home and while watching a gay pornographic video PD put M's hand onto his penis and they engaged in mutual masturbation.	6 years	3 years FT: 4.1.14 - 3.1.17
21	1.1.90-28.2.90	s.66C(2)	14 KM	PD then performed fellatio on KM.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
22	1.1.90-28.2.90	s.66C(2)	14 KM	KM performed fellatio on PD.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
23	1.1.90-28.2.90	s.66C(2)	14 KM	PD inserted a finger into KM's anus	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
24	1.1.90-31.3.90	s.61E(1A)	14 KM	Counts 24 and 25 one episode. During a drive from the cinema to PD's place PD fondled KM's penis	6 years	3 years FT: 4.1.14 - 3.1.17
25	1.1.90-31.3.90	s.61E(1A)	14 KM	After a swim they both removed their swimmers and fondled each other.	6 years	3 years FT: 4.1.14 - 3.1.17
26	1.4.90-30.4.90	s.61E(1A)	14 KM	Counts 26-32 are one episode. PD took KM to his home from the Kogarah Mecca and fondled KM's penis during the car ride.	6 years	3 years FT: 4.1.14 - 3.1.17
27	1.4.90-30.4.90	s.61E(1A)	14 KM	PD and KM went to into the bedroom and fondled each other whiles watching a gay pornographic video.	6 years	3 years FT: 4.1.14 - 3.1.17
28	1.4.90-30.4.90	s.66C(2)	14 KM	KM performed fellatio on PD.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
29	1.4.90-30.4.90	s.66C(2)	14 KM	PD then performed fellatio on KM.	10 years	2 years, 6 months NPP: 4.7.14 - 3.1.17, balance 2 years, 6 months exp 3.7.19
30	1.4.90-30.4.90	s.61E(1A)	14 KM	PD and KM went into the sauna fondled each other	6 years	3 years FT: 4.1.14 - 3.1.17
31	1.4.90-30.4.90	s.61E(1A)	14 KM	PD shaved KM's genitals and masturbated him at the same time.	6 years	3 years FT: 4.1.14 - 3.1.17
32	1.4.90-30.4.90	s.61E(1A)	14 KM	PD fondled KM's penis to cause an erection to KM whilst taking photos of him.	6 years	3 years FT: 4.1.14 - 3.1.17
33	1.7.90-24.12.90	s.61E(1A)	14 KM	Counts 33 and 34 are one episode. PD fondled KM's penis while driving him to his home to see the photographs.	6 years	3 years FT: 4.1.14 - 3.1.17
34	1.7.90-24.12.90	s.61E(1A)	14 KM	While driving back from his home PD fondled KM's penis.	6 years	3 years FT: 4.1.14 - 3.1.17
35	12.4.03-20.11.03	s.61M(1)	15 MH	At the cinema PD asked to see MH's genitals and grabbed him on the testicles when MH pulled out his penis.	7 years (SNPP: 5 y)	4 years FT 4.7.12 - 3.7.16
36	12.4.03-20.11.03	s.61M(1)	15 MH	PD drove MH home and whilst parked outside MH's home asked to see his penis and then touched him on the genitals.	7 years (SNPP: 5 y)	4 years FT: 4.7.12 - 3.7.16
37	12.4.03-20.11.03	s.61M(1)	15 MH	At the cinema whilst MH was using a toilet PD pushed him back into the cubicle, put his hand down his trousers and touched him on the penis.	7 years (SNPP: 5 y)	4 years FT: 4.7.12 - 3.7.16
38	12.4.03-20.11.03	s.61M(1)	15 MH	At the cinema whilst MH was in the candy store room PD put his hand down his pants and touched him on the penis.	7 years (SNPP: 5 y)	4 years FT: 4.7.12 - 3.7.16

The proceedings on sentence

437 During the proceedings on sentence, victim impact statements of ML, PM, MH, DL and KM were tendered. The statements of ML, PM and MH were also read to the Court.

438 In the appellant's case, a report from Dr Stephen Allnutt, a forensic psychiatrist was tendered, as was a report from Dr Peter Trefely, the appellant's general practitioner. A letter from the appellant's brother Denis Doyle was also tendered.

439 The appellant was 69 years old at the time of sentence. Dr Allnutt noted that the appellant came from a family of three whose parents remained together. The appellant had not been exposed to sexual violence or physical abuse but there had been domestic violence in his parents' relationship. He obtained a school certificate at age 16, but left school to make a name for himself. Dr Allnutt reported that the appellant had never been unemployed and had done well financially. He had owned movie theatres and worked in light entertainment and television. He had donated to charity throughout his life.

440 The psychiatrist considered that the appellant could not be regarded as manifesting "a significant depressive, anxiety or psychotic disorder although he could be regarded as manifesting symptoms of an adjustment disorder with a depressed and anxious mood secondary to his current circumstances" (AB 810). Dr Allnutt noted that the appellant described "some claustrophobia in confined spaces" but he did not manifest significant medical problems (AB 810).

441 Dr Trefely referred to the appellant suffering from hypercholesterolaemia and borderline hypertension, but observed that he was in comparatively good health for his age.

442 The appellant gave evidence during which he maintained his "complete innocence." He referred to the charges as being "hideous and disgusting allegations" (AB 2756).

443 The appellant did not have any previous criminal convictions.

Remarks on sentence

444 For the purpose of sentencing the appellant, the Judge was obliged to determine the relevant facts. His Honour was confined to finding facts that were not inconsistent with the verdicts of the jury. The facts found are as follows (ROS pp 1-4):

"Counts 1, 2 and 3 relate to the victim [ML]. [ML] was working when he was fourteen or fifteen in the Kogarah Mecca Cinema as a projectionist. The three offences consist of his employer, Mr Doyle, taking advantage of the opportunity of [ML] being involved in the process of presenting the film to come up behind him and to grope his genitals through openings at the side of his uniform. There were three separate offences of this kind.

As with all of the other victims [ML] was seduced and controlled by Mr Doyle, who is a very charming man, not violent, but a man with a persistent interest in molesting boys. [ML] had done nothing to precipitate the misconduct except to be, as the other lads were, attractive teenagers.

...

The victim [PM] was named in counts 4 and 5 of the indictment. He was slightly older, sixteen at the relevant time. Like the others he came in contact with Mr Doyle through the Kogarah Mecca Cinema. His sister was a juvenile lead in some patomime shows that Mr Doyle put on at the theatre. In short the charges were (count 4) during a car ride to the accused's home he grabbed him on the penis through his clothes; count 5, when he had him back at his house, semi drunk, the offender started to masturbate [PM] and they ended up in the same bed, a result engineered by the offender.

...

The victim [DL], likewise, came to be known to the offender through the cinema. The charges numbered 6 to 11 on the indictment involved the offender masturbating [DL] and vice versa. Count 7 - at Kurnell after he had taken photographs of [DL], the offender started to fondle then masturbate him. Counts 9 and 10 occurred when [DL] was at the offender's home. While watching a pornographic film, the accused masturbated the boy and asked him to do the same to him. The next morning there was again masturbation and fondling. Counts 10 and 11 involved the same kind of conduct. Count 11 involved the offender asking [DL] to have homosexual intercourse in the form of fellatio. It is unnecessary to dilate upon the details of all those matters.

...

The next victim sequentially down the indictment and in time was [KM]. The offender had the most intense relationship with him and the largest number of charges on the indictment relate to contact between the offender and [KM]. These are counts 12 to 34, Count 2 in 1989 and count 34 at the end of 1990.

...

Mr Doyle is a theatrical man, a very talented musician, a man able to move in all sorts of social circles and to be friendly with people. He was a very competent business person, able to conduct quite an extensive business with a number of employees. Generally he was able to present himself as a man of the world. By contrast [KM] was aged thirteen at the time of the first episodes, counts 12 to 19, which include variously sexual touching on the penis, masturbation a number of times, fondling him on the penis in the swimming pool, undressing him and fondling his penis, trying to insert a finger into his anus, performing fellatio on him, masturbating him, showing him gay pornographic videos and the like. One event involved going into a sauna and then after the sauna shaving the boy's genitals as he masturbated him. He then took photographs of him.

...

[MH] is the last in time of the victims, the time frame for his matters being within 2003 when he was working, like many of the others, as an usher or similar at the Kogarah Mecca cinema. Like the others, he was an attractive young man and the lapse of time between 1980 and 2003 demonstrates the persistence of Mr Doyle's interest in boys or young men. He would drive [MH] home from time to time. He attempted to 'groom' him, often telling him how handsome he was. At one stage he groped him while they were in a toilet cubicle in the cinema and on another occasion in the candy storeroom. That gives a broad picture of the offences.

It is significant that Mr Doyle was the employer. I am careful when I read the terms of the indictment, not to double count any element of any particular charge. This is an important legal matter, but it is a background to all these charges that Mr Doyle was in a position of authority. He was, as I have said before, a charming man, easily able to influence boys, and he was able to get on well with their parents, designedly so to assist in access to their sons."

445 During his sentencing remarks, the observations and findings made by the Judge included the following:

(a) the appellant continued to protest his innocence and even after verdict asserted his disgust at the alleged behaviour. The appellant had forfeited any leniency which would have been shown to him if he had confessed and indicated his remorse (ROS 7);

(b) any claims to good character could not be sustained after the appellant committed the offences against ML in 1980 and 1981 (ROS 8);

(c) the delay in the prosecution of the offences was not a matter of mitigation as "it [had] at all stages been open to [him] to come forward and admit his misconduct" (ROS 8);

(d) the defence submissions that the allegations against the appellant caused him "enormous stress" and put him through "an emotional hell" were hypocritical and without merit (ROS 8); and

(e) he was satisfied beyond reasonable doubt that each of the complainants had suffered over the succeeding years significant psychological damage as a result of the appellant's treatment of them (ROS 9-10).

446 His Honour took into account the following matters in mitigation:

(a) the offences were not offences of violence, nor did the appellant employ threats;

(b) the appellant had no prior convictions for any criminal misbehaviour;

(c) the appellant had been actively philanthropic in the St George area over the years, making significant charitable donations; and

(d) by the time the appellant was to be released, "he will be approaching, or in his mid seventies, and not the charming figure of authority he may have been to teenagers twenty years ago" (ROS 11). His Honour considered it was unlikely that the appellant will commit further offences in the future, but this was "a guarded observation since his misconduct [had] been persistent over decades" (ROS 11).

447 Special circumstances were found justifying a variation in the statutory ratio between the non-parole period and the balance of term of the sentence being the appellant's first prison sentence and "as a convicted paedophile, the [appellant] will justifiably be in fear of physical abuse inside prison" (ROS 11).

Argument

448 There is one ground of appeal being the assertion that the Judge erred in failing to accumulate the offences by an appropriate period and imposed an overall sentence which was manifestly inadequate both with respect to the head sentence and to the minimum term. The Crown submitted that in cases of multiple child sexual assault, the appropriate course is to accumulate the individual sentences.

449 The Crown asserted that not only were the sentences for offences committed against some complainants, entirely subsumed by sentences for offences committed against other complainants, there was concurrency between the sentences imposed with respect to the sexual offences committed against individual complainants. The Crown contended that one of the matters which may have contributed to the overall inadequacy of the sentence was the misplaced emphasis by the Judge on the absence of violence in the offending which was not a mitigating factor. The total effective sentence, the Crown said, failed to adequately reflect the totality of the appellant's criminal conduct. The Crown referred to the following features:

(a) the appellant was found guilty following a trial;

(b) the maximum penalties for the 38 offences ranged from 2 years to 10 years;

(c) general deterrence is of special significance for offences of this nature;

(d) the offences spanned 23 years;

(e) KM was 13 years old when the first set of offences, including aggravated sexual intercourse with a child occurred;

(f) in a number of instances the appellant was the complainant's employer and as such was in a position of authority (where this is not an element of the offence); and

(g) the Judge found that substantial psychological harm had occurred to all five complainants.

450 The appellant submitted that the Crown did not raise any error in point of principle but complained about accumulation, a matter essentially within the discretion of the trial Judge. The appellant referred to the Crown not addressing in its submissions that a sentencing Judge must take into account sentencing patterns that existed at the time of the offences.

451 The appellant pointed out that counts 1-3 were committed in 1981 - 1982 and were offences contrary to s 81 Crimes Act 1900 (NSW). The appellant observed that the sentencing practice at the time was to fix the non-parole period at somewhere between half and a third of the term of the sentence. The appellant said that s 81 Crimes Act encompassed acts of indecency, including digital anal penetration and fellatio, which were more serious than the appellant's offending in counts 1-3. The appellant referred to Sentencing Sex Offenders in New South Wales, An Interim Report by Ivan Potas which noted at p 66 that in 1974 "approximately one-third of those convicted for [indecent assault] received custodial sentences" and for this offence the most likely result was that an offender was placed on a recognizance.

452 The appellant argued that a review of all of the head sentences and non-parole periods imposed on him suggested that he received penalties at the upper end of the range of sentences that would be appropriate according to the sentencing patterns that existed at the time of the offence. The appellant submitted that the Crown had not demonstrated that the practice of running sentences concurrently was not open to the Judge when sentencing for offences that occurred in the 1980s and with the exception of the final four counts involving MH, the offences were committed before the decision in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The appellant cited Button J's remarks in Magnuson v R [2013] NSWCCA 50 at [143] that "the approach to questions of cumulation and concurrence was more lax before the handing down of the decision in Pearce v R in 1998."

453 The appellant submitted that the Judge correctly took into account and imposed sentences that reflected the sentencing practices of the time when the offences occurred. When all of the circumstances of the offences and of the appellant were taken into account, the sentences were not manifestly inadequate and the Crown appeal should be dismissed.

Consideration

454 It is well established that the appellant was to be sentenced in accordance with the sentencing standards that applied at the time of his offending. In recent years, detailed consideration has been given by this Court to sentences imposed for offences involving indecent assault upon children that were committed in the 1970s, 1980s and 1990s. In Magnuson, Button J (with whom McClellan CJ at CL and Bellew J agreed) carefully considered statistical material from the 1970s and concluded at [91] that "the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now." Button J observed at [92] that, "before 1981, indecent assault encompassed many sexual acts that fall within the definition of sexual intercourse today." His Honour noted that there had been a steady increase in sentences for serious offences across the board and sexual offences had not been excluded from that process. Button J said at [117]:

"Over the past 25 years, there have been a number of developments within the criminal justice system of New South Wales that have led to a lengthening of sentences to be served, both with regard to sexual offences and offences generally. Without seeking to be exhaustive, they include: the creation of the statutory ratio between the non-parole period and the head sentence by way of the Probation and Parole (Serious Offences) Amendment Act 1987, and its expansion to all offences by way of the Sentencing Act 1989; the abolition by the same Act of remissions; the creation of "natural life" sentences; the steady increase in maximum penalties, including but not limited to sexual offences; the judgment of the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, which led to more focus upon accumulation and partial accumulation when sentencing for more than one offence; most of the guideline judgments of this Court, commencing with R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; the watershed decision of this Court in R v AEM [2002] NSWCCA 58, which had the effect that sentences for serious sexual offences were thereafter lengthier; and finally, the commencement of the regime of standard non-parole periods in 2003."

455 In PWB v R [2011] NSWCCA 84, RS Hulme J (with whom Beazley JA and Harrison J agreed) provides a table of cases from 1988 until before 1 January 1999 involving offences of indecent assault and assault against a person under the age of 10 years, contrary to s 61E and s 61M(2). RS Hulme J accepted that the sentencing standards applicable at the time of the offending (1987 - 1988 and 1991) were more lenient than in 2011. His Honour observed at [64]:

"I have referred above to the principle that the Applicant was entitled to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR [2002] NSWCCA 129. One aspect of that was that during 1987 and 1988 the Probation and Parole Act 1983 was in force. Under that Act the usual proportion between non-parole periods and the total term was much less than it is today under the Crimes (Sentencing Procedure) Act 1999 . The non-parole period was commonly between one-third and one half of the total sentence - Dousha v R [2008] NSWCCA 263 at 35; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39]."

456 In the present case, the Judge was aware that the appellant was to be sentenced in accordance with the sentencing standards that applied at the time the offences were committed. The Judge said (ROS 5):

"The sentences I impose relating to the various victims will vary, as I have said, partly because the law requires that I impose penalties reflecting the sentencing practices of the time when the offence occurred. These offences occurred over decades, during which period parliament increased penalties for some offences..."

457 None of the material before this Court establishes that, having regard to the sentencing practice at the time of the offending, the sentence imposed for any individual offence by the Judge was manifestly inadequate. The real issue is whether the total effective sentence failed to adequately reflect the totality of the appellant's criminal conduct.

458 Although the statements of the High Court as to the operation of the principle of totality in Mill v R (1988) 166 CLR 59; 36 A Crim R 468: Pearce v R [1998] HCA 57; (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616 post dated the appellant's offending in counts 1-11, the principle applied to multiple offences committed in the 1980s. In R v Holder & Johnston [1983] 3 NSWLR 245 at 260; (1983) 13 A Crim R 375 at 389, Street CJ described the principle as follows:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

459 The determination of whether a sentence is to be imposed concurrently or consecutively is a discretionary one: R v Hammond [2000] NSWCCA 540, but "that discretion is generally circumscribed by a proper application of the principle of totality": R v MMK [2006] NSWCCA 272; 164 A Crim R 481, the Court (Spigelman CJ, Whealy and Howie JJ) at [13]. As Howie J stated in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

460 The sentences imposed by the Judge for counts 1-11 and 35-38 commenced on 4 July 2012. These counts concerned the offences committed in 1980 - 1982 (victim ML), 1985 (victim PM), 1986 - 1987 (victim DL) and 2003 (victim MH). Each sentence was imposed as a fixed term, the longest being for 4 years (counts 35-38 victim MH), which subsumed the fixed terms for all of the other sentences commencing on 4 July 2012. The practical effect of structuring the sentences in this way is that the appellant has not been punished in any real sense for his criminal conduct towards ML, PM and DL. Although the Judge recognised that the appellant's offending against KM involved offences contrary to s 61E(1A) (indecent assault) with a maximum penalty of 6 years imprisonment and offences contrary to s 66C(2) (sexual intercourse) with a maximum penalty of 10 years imprisonment, the non-parole periods imposed for the sexual intercourse offences (counts 17, 18, 21, 22, 28 and 29) are totally subsumed by the fixed terms imposed for the 15 indecent assault offences committed against KM.

461 Furthermore, the sentences for each of the s 66C(2) offences against KM are to be served concurrently although they were committed in 1989 and 1990 and involved fellatio and the insertion by PD of a finger into KM's anus who was 13 or 14 years old. The appellant has not, in my view, been punished in any real sense for this serious and separate criminal conduct.

462 In my opinion, an overall sentence of 7 years with a non-parole period of 4 years 6 months does not adequately reflect the totality of the appellant's sexual misconduct against his five young victims, notwithstanding the allowance that must be made for the sentencing standards that applied at the time of the offending and to the appellant's subjective circumstances. The sentence is manifestly inadequate.

463 There is another matter that requires attention. The Judge declined to set non-parole periods for the offences contrary to s 61M(1) Crimes Act (counts 35, 36, 37 and 38). As these offences were committed after 1 February 2003, a standard non-parole period of 5 years applies and the Judge was obliged by the terms of s 45 Crimes (Sentencing Procedure) Act 1999 to set a non-parole period for these offences. There is no discretion: SGJ v R; KU v R [2008] NSWCCA 258 at [75] - [78].

464 The question remains as to whether the Court should intervene and re-sentence the appellant. There is a residual discretion to decline to interfere even though the sentence is manifestly inadequate.

465 In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Their Honours at [36] described the primary purpose of laying down principles as a "limiting purpose" and said:

"It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."

466 Their Honours observed that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honours said at [43]:

"They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."

467 The Crown submitted that there are no discretionary reasons to dismiss the appeal whereas the appellant contended that the residual discretion should be exercised having regard in particular to the appellant's age and the trauma he has suffered in custody and the age of the offences with the exception of the last four counts. An affidavit from the appellant was tendered, as was an affidavit of his solicitor.

468 In his affidavit, the appellant describes the stress and panic that he suffered as a result of the suspected murder of an inmate in the cell next to him, the deterioration of his health given his age and the difficulties he experiences in custody as an elder prisoner.

469 The appellant does not suggest that treatment for the conditions he describes will not be available to him in prison. Unfortunately, it is often the case that offenders who commit sexual offences against children are not sentenced until they are in their senior years and the offences have some antiquity. The delay in determining the Crown's appeal results from the complexity of the issues raised in the appellant's appeal against conviction. I do not consider that by allowing the appeal, the guidance to sentencing Judges comes at too high a cost in terms of "justice to the individual".

470 For the purpose of re-sentencing, the objective and subjective considerations to be taken into account are clear from what I have written to this point. I would allow the appeal and re-sentence the appellant to an overall term of imprisonment for 9 years. I confirm the Judge's finding of special circumstances but have determined that a non-parole period of 6 years 6 months is the minimum period that the appellant must spend in custody in order to appropriately reflect the criminality involved in the offences: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63].

Orders

471 Accordingly, the orders I propose are as follows:

1. Crown appeal allowed.

2. Quash the sentences imposed by Woods DCJ for counts 17, 18, 21, 22, 23, 28 and 29 being offences contrary to s 66C(2) Crimes Act.

3. In lieu thereof, for each count sentence the appellant to imprisonment for 5 years consisting of a non-parole period of 2 years 6 months commencing on 4 July 2016 and expiring on 3 January 2019 with a balance of term of 2 years 6 months commencing on 4 January 2019 and expiring on 3 July 2021.

4. Quash the sentences imposed by Woods DCJ for counts 35, 36, 37 and 38 being offences contrary to s 61M(1) Crimes Act.

5. In lieu thereof, for each count sentence the appellant to imprisonment for 6 years consisting of a non-parole period of 4 years commencing on 4 July 2012 and expiring on 3 July 2016 with a balance of term of 2 years commencing on 4 July 2016 and expiring on 3 July 2018.

6. Confirm the sentences imposed by Woods DCJ for counts 1-16 inclusive, 19, 20, 24, 25-27 inclusive and 30-34 inclusive.

The earliest date that the appellant will be eligible for release on parole is 3 January 2019.

472 CAMPBELL J: For the reasons given by each of their Honours, I agree with Bathurst CJ and with Price J respectively that the conviction appeal should be dismissed and that the Crown appeal on sentence should be allowed. I agree with the orders proposed by Price J re-sentencing the offender.

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Decision last updated: 20 February 2014