Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PFC v R [2011] NSWCCA 275 Hearing dates: 14 and 24 October 2011 Decision date: 15 December 2011 Before: Giles JA, Hoeben J, Hall J Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - multiple counts of sexual intercourse involving children, using children for pornographic purposes and doing act with the intent to pervert the course of justice - competence of counsel at trial - fresh evidence - miscarriage through duress or medication affecting giving instructions - errors by Crown Prosecutor or in summing-up - inconsistency of verdicts - unsafe or unsatisfactory verdicts - appeal dismissed. Legislation Cited: Children (Criminal Proceedings) Act 1987; Criminal Appeal Act 1912. Cases Cited: [C] v State of New South Wales [2006] NSWSC 673; [C] v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R; Dungay v R [2010] NSWCCA 82; Clarkson v R [2007] NSWCCA 70; (2007) 171 A Crim R 1; Craig v The King (1933) 49 CLR 429; GAR v R (No 1) [2010] NSWCCA 163; Ignjatic v R (1993) 68 A Crim R 333; Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284; Mickelberg v The Queen (1989) 167 CLR 259; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; M'Naghten's Case (1843) 1 Car & Kir 130n; (1843) 4 State Tr NS 847; [1843-60] All ER 229; (1843) 10 Cl & Fin 200; (1843) 8 ER 718; Monteiro v R [2011] NSWCCA 113; R v Abusafiah (1991) 24 NSWLR 531; R v Abu-Chabake [2004] 149 A Crim R 417; R v Apostilides (1984) 154 CLR 563; R v Gallagher (1986) 160 CLR 392; R v Abusafiah (1991) 24 NSWLR 531; R v Presser [1958] VR 45; Richardson v The Queen (1974) 131 CLR 116; SKA v The Queen [2011] HCA 13; Still v R [2010] NSWCCA 131. Category: Principal judgment Parties: PFC - Appellant Crown - Respondent Representation: Counsel: Appellant in person F Veltro - Respondent Solicitors: Appellant in person S Kavanagh, Solicitor for Public Prosecutions - Respondent File Number(s): 2008/3811 Decision under appeal Before: Norrish DCJ File Number(s): DC 2007/31/0238; 2008/11/0616 Judgment 1THE COURT : The appellant stood trial before Norrish DCJ on an indictment containing 29 counts, some with alternatives. There were 19 counts of sexual assault or acts of indecency involving 6 different complainants, 3 counts of possessing child pornography or using a child for pornographic purposes, and 7 counts of perverting the course of justice. The trial occupied 27 days from 11 May 2009 to 19 June 2009. A verdict of not guilty on one count was directed on 25 May 2009. The jury returned verdicts of guilty on 23 of the remaining 28 counts. 2On 21 December 2009 the appellant was sentenced to a total period of imprisonment comprising a non-parole period of 10 years 9 months and a balance of term of 3 years 8 months. 3On 9 May 2011 this Court, differently constituted in part, heard an appeal against sentence brought by the Director of Public Prosecutions. The appeal was dismissed: R v PFC [2011] NSWCA 130. 4The appellant had filed an appeal against conviction. He was unrepresented for that appeal, and there were difficulties in bringing it on for hearing. The hearing eventually took place on 14 and 24 October 2011. 5For the reasons which follow, the appeal should be dismissed. 6Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits, in substance, the publication or broadcasting of the name of a child involved (including mentioned) in criminal proceedings, even if the person is no longer a child. This extends to material likely to lead to the identification of the person. We have thought it appropriate to refer extensively to persons involved in these proceedings who were children, and to others including the appellant through whom they might be identified, by initials and otherwise to express these reasons so as to avoid identification. Background 7The appellant was born in 1953. He left school at the age of 15 to work in his brother's company. He worked variously in real estate and as a motor vehicle auctioneer, and then as a projectionist technician at Greater Union for 15 years. He took voluntary redundancy and moved to Taree. 8The appellant was unemployed for some years, and undertook volunteer work at schools and in the community. He founded and ran a computer business from 1997 to 2001. During the period of the offences with which he was charged the appellant lived at Wingham, Taree or Pampoolah in the Manning River area. 9The appellant had been married in 1976 and was divorced in 2000. There were five children of the marriage, some of whom lived with the appellant. 10The offences charged in the indictment covered the period 1997 to 2009. The sexual assault or act of indecency offences involved the complainants DM (4 counts); CB (3 counts), SB (2 counts); DB (5 counts); MH (1 count) and TB (4 counts). All complainants were young males. DB, SB and TB were brothers, in descending order of age. The two offences of using a child for pornographic purposes involved DM and CB. For the offences of perverting the course of justice, it was alleged that the appellant had got or had attempted to get various of the complainants to provide false evidence in relation to one of these or other offences with which he had been charged. 11The appellant met the complainants DM and CB either through his son B or through his son's friends; they were contemporaries of his son. It was contended by the Crown at trial that they were groomed in various ways by the appellant, such as by taking them on outings, exposing them to pornography, lending them the appellant's jet ski and giving them cash, accommodation or gifts. Both complainants were either dysfunctional or from dysfunctional backgrounds before they met the appellant, and CB in particular was prone to engage in anti-social behaviour. 12The appellant also knew the complainants DB, SB and TB through knowing their family. There had been wider dysfunction in the B family. The children lost their mother when young, and between 2001 and 2006 the appellant performed a mentoring role. The appellant extended this role when SB came to live with him and he became SB's legal guardian. It was contended that these complainants were groomed in a similar manner to that described above. 13The complainant MH was a contemporary of either or both of DB and SB, and was one of a group of youths who knew and were known by the appellant. 14The appellant had some criminal antecedents. They included convictions in the early 1970's for false pretences, for which he received minor fines. There were no offences recorded against him from 1972 to 1999. In 1999 he was convicted of having goods in custody reasonably suspected of being stolen. He had been convicted in 1997 for the offence of indecent assault (later quashed) and in 2006 for the offences of attempting to procure a child for pornographic purposes, inciting a child to commit an act of indecency and possession of child pornography (the last later quashed); we refer to these later in our reasons. His criminal antecedents were not in evidence at the trial, but were material to his counsel's conduct of his defence. The offences 15The offences of which the appellant was convicted are tabulated below, and the central evidence in the Crown case is summarised with some chronological context in the following paragraphs. The offences of perverting the course of justice, or later dates, are included in the table out of order so as to indicate the complainant concerned. Complainant Count on Indictment Offence Date of Offence DM 1 Aggravated (under 16) indecent assault (s 61M(1) Crimes Act 1900) 1 August 1997 - 30 September 1997 DM 2 Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act ) 1 December 1997 - 31 December 1997 DM 3 Attempted sexual intercourse with child between 10 and 16 (ss 66C/66D(1) Crimes Act ) 1 December 1997 - 31 March 1998 DM 4 Attempted sexual intercourse with child between 10 and 16 (ss 66C(1)/66D Crimes Act ) 1 March 1998 -30 April 1998 (DM) 6 Do act with intent to pervert course of justice (s 319 Crimes Act ) 1 December 2006 CB 7 Use child over 14 years for pornographic purposes (s 91G(1)(a) Crimes Act ) 1 April 1998 - 31 May 1998 SB 12 Aggravated (under authority) sexual intercourse with child between 14 and 16 (s 66C(4) Crimes Act ) 1 August 2003 - 30 November 2003 SB 13 Aggravated (under authority) sexual intercourse with child between 14 and 16 (s 66C(4) Crimes Act ) 1 April 2004 -30 June 2004 SB 14 Use child for pornographic purposes (s 91G(1)(b) Crimes Act 1 September 2004 - 30 September 2004 (SB) 15 Do act with intent to pervert course of justice (s 319 Crimes Act ) 27 January 2005 - 31 October 2005 DB 16 Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act ) 20 April 2001 - 31 December 2001 DB 17 Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act ) 14 April 2001 - 31 December 2001 DB 19 Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act ) 1 June 2001 - 31 December 2002 DB 20 Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act ) 11 September 2002 - 31 December 2002 (DB) 21 Do act with intent to pervert course of justice (s 319, Crimes Act ) 6 November 2003 - 16 April 2004 (DB) 22 Do act with intent to pervert course of justice (s 319 Crimes Act ) 4 July 2005 - 8 December 2006 MH 23 Aggravated (under 16) indecent assault (s 61M(1) Crimes Act ) 1 January 2003 - 30 June 2003 (MH) 24 Do act with intent to pervert course of justice (s 319 Crimes Act ) 6 November 2003 - 15 April 2004 TB 25 Sexual intercourse with child between 10 and 14 (s 66C(1) Crimes Act ) 1 January 2005 - 31 January 2005 TB 26 Sexual intercourse with child between 10 and 14 (s 66C(1) Crimes Act ) 31 January 2005 - 1 November 2005 TB 27 Sexual intercourse with child between 14 and 16 (s 66C(3) Crimes Act ) 30 September 2005 - 1 November 2005 TB 28 Sexual intercourse with child between 14 and 16 (s 66C(3) Crimes Act ) 28 February 2006 - 26 April 2006 (TB) 29 Do act with intent to pervert course of justice (s 319 Crimes Act ) 6 February 2009 - 11 February 2009 16For the 1997 conviction, later quashed, to which we have referred at [14] it was alleged that on 7 June 1997 the appellant took his son B and a friend TR to Sydney, the appellant and TR slept in the back of the appellant's station wagon, and TR woke up to find the appellant touching him in the groin area. The appellant was charged with indecent assault on 11 June 1997. The Crown initially sought to rely on this as tendency evidence, but it was excluded. As earlier indicated, this was relevant to counsel's conduct of the defence. 17The first offences in time in the present appeal involved DM. DM was born in 1983. 18The first offence was in August - September 1997, when DM stayed at the appellant's home in company with the appellant's son B and a friend SC. DM and the two others were watching videos. They fell asleep. DM woke to find the appellant touching him on the penis. He was directed into another room, where the appellant masturbated him. DM was scared. The appellant asked if he was going to tell anyone, and he said no. Afterwards the appellant gave DM some cash. This was the subject of count 1. 19On 27 November 1997 the appellant was convicted in the Local Court at Burwood of indecent assault on TR. Looking ahead for the moment, he appealed to the District Court and on 27 July 1998 the conviction was quashed when the complainant was unwilling to give evidence. 20The jury was not told of the TR allegations or the TR proceedings. 21The second offence involving DM was in December 1997. The appellant took DM, in company with his son B and SC, from DM's home in Newcastle for a trip to Sydney, where they went skating and to the markets and played video games. DM and the other boys slept at the house of the appellant's mother in Rozelle. DM woke during the night with the appellant performing oral sex on him. This was the subject of count 2. 22The third offence involving DM was some months later, in the first months of 1998. DM was taken to a lookout around 20 minutes out of Wingham, where the appellant took photographs of him with a video camera. DM was told to undress and masturbate himself so as to be erect for the photographs. The appellant said he wanted to have sex with DM, and pressed himself against his back and attempted to have intercourse whilst clothed. This was the subject of count 3. 23The fourth offence involving DM was later again, in March-April 1998. The appellant gave DM a lift to a party at Wingham, to see CB and other friends. He stopped the car in a rest area. DM was told to remove his clothes and the appellant grabbed him on the penis. They then moved to the back seat of the car. The appellant was masturbating DM and "sort of" masturbating himself. The appellant attempted to put his penis in the anus of the complainant. After some time DM returned to the front seat of the car and they drove off. The appellant made DM reassure him that he was not going to tell anyone what had occurred and gave him cash (maybe $100-$150) and bought alcohol for him. This was the subject of count 4. 24The appellant was charged with a further sexual offence involving DM (count 5), on which he was found not guilty. It was alleged that in March-April 1998 the appellant employed and used DM, a child under the age of 18 years, for pornographic purposes. 25The next offence in time involved CB. He was born in 1982. 26The appellant met CB through DM in or around May 1998. He introduced CB to pornography, including child pornography, at his home. The appellant told CB that he could make money by posing in photographs similar to those he had been shown, and that the appellant would take pictures of him and find someone to sell them to and would give CB a percentage of the money made. CB initially told the appellant that he was not interested in the offer. Around one week later CB contacted the appellant and said he was willing to have some photos taken. They met in town and the appellant drove the complainant to a lookout. The appellant told CB there was no guarantee of being paid immediately. The complainant was told to pose and to arouse himself. After the photos were taken CB was given money so that he could buy some cigarettes. This was the subject of count 7. 27The appellant was charged with other offences involving CB, on which he was found not guilty. Three occasions of sexual assault in April-May 1998 were alleged (counts 8-10; count 10 was the subject of the verdict by direction). He was also charged with acting with intent to pervert the course of justice (count 11), see at [57] below. 28Chronologically, and material to the charge in counts 6 and 11 of perverting the course of justice, on 9 June 1998 the appellant asked DM and CB to make a video for him. The video (Exhibit B) depicts DM and CB speaking to the camera. The trial judge noted that the complainants appeared to be saying memorised lines or reading from pieces of paper. In the video DM said the following - "DM: CB and I would like to apologise to [ son B] and his dad Mr C. We have been to lots of parties and someone always brings up Mr C and they call him Paedophile P. We add to the gossip by saying that he felt us up and molested us. When we're at these parties everyone tries to outdo each other with bullshit. We are sorry for upsetting [son B] and his dad, they have done a lot and always been there for us to help us, me a lot since I moved out of home. Mr C is a ledge. Today is the 9th June 1998. And do you know what, Mr C is a scammer. Sorry, [son B], man. Hey DB its your turn bro. CB: Really let [son B] and Mr C down. When you're at a party and you don't care what you say as long as someone listens to you, you say bullshit like Mr C molested me and everyone wants to know the details and girls really get sorry for me and start to hug me. I know it was the wrong thing to say these things, wait, I can't read my own writing, but I get so mixed up that I just like attention. Sorry [son B], I hope you and your dad can forgive me. I am in a bit of trouble now and Mr C is helping me. I don't know how bullshit can get out of control. I've heard the school, I heard it at school about me and DM. I'm sorry." 29DM gave evidence that the contents of the recorded statement were not true and that in the video he had read from a statement that the appellant had given him. 30The next offences in time involved DB. He was born in 1987. He first met the appellant through the appellant's nephew JR, who attended the same school. 31The first offence involving DB was in the second half of 2001. JR and DB went out on the appellant's jet ski on a number of occasions. When they returned from one of their outings, JR and DB went back to the appellant's house and started playing on the computer in the appellant's computer room. The appellant took DB into the lounge room, and had him lie on his stomach while he gave him a massage all over his body. DB was then asked to lie on his back while the appellant massaged his chest and legs and had DB remove his shirt. The appellant started to play with the complainant's penis. DB ran away, but eventually was taken back to the lounge room when the appellant undid DB's pants and placed DB's penis in his mouth. This was the subject of count 16. 32The second offence involving DB was about a month later. DB went to Sydney with the appellant and JR. They took JR to his stepfather's house, then went to Time Zone and thereafter to McDonalds. The appellant told DB that they should sleep in the car as it was getting late. He parked the car on a small road near bushland and had DB get into the back of the station wagon with him. There was no bedding. The appellant had the complainant face away from him and inserted his penis into DB's anus. Both slept in the car then eventually drove back to Taree with JR. This was the subject of count 17. 33The third offence involving DB was later in 2001 or in 2002. DB, SB and a number of other boys were staying at the appellant's house. The appellant suggested that DB accompany him to get some pizza. He drove to a lookout near Taree, stopped the car and got into the back of the station wagon with DB, and inserted his penis into DB's anus. They bought pizza and returned to the appellant's home. This was the subject of count 19. 34The fourth offence took place later in 2002. DB continued to go jet skiing with the appellant. On one occasion after they returned to the appellant's home the appellant watched DB shower, then took him to his bedroom and inserted his penis into DB's anus. This was the subject of count 20. 35The appellant was charged with a further sexual offence involving DB, count 18, on which he was found not guilty. DB gave evidence of them driving to a motel near Lismore, where they shared a bed and the appellant touched his penis and put the appellant's mouth to it. 36The next offence in time involved MH. He was born in 1990. He had met the appellant through a friend when he was in year 7. 37The offence was in the first half of 2003. The appellant had offered to take MH wherever he would like to go around the Taree area. MH called the appellant and asked him for a lift. The appellant picked MH up and told him that he needed to go back to his house to collect something. The appellant took MH into the computer room where he showed him pictures and files of naked boys. MH said he was not interested in the pictures and asked to be taken home. The appellant told MH that he could make a lot of money from selling photos such as the ones he had shown him on the internet and overseas. The appellant then led MH into the shower and told him to wash himself. He took MH out of the shower, took him into the lounge room, told him to lie down on the floor and began to masturbate him. When the appellant had finished he offered to take MH home. MH dressed himself. The appellant told MH not to tell anyone. This was the subject of count 23. 38The next offences in time involved SB. He was born in 1989. There were problems at home, and SB came to live at the appellant's house and the appellant became his guardian. 39The first offence involving SB was about a week after SB moved into the appellant's house. It was charged as an offence in the period 1 August 2003 - 31 November 2003, but the appellant contended that SB did not come to live at his house until May 2004. The appellant disturbed SB while he was attempting to go to sleep. He touched SB on the leg. SB pushed him away. The appellant pulled down SB's boxer shorts and kept forcing himself on the complainant (who was lying on his stomach), eventually putting his penis in SB's anus and ejaculating. The appellant told SB not to tell anyone or go to the police. This was the subject of count 12. 40Chronologically, we next refer to the proceedings between the appellant and the father of TR, whom we will call TR2. On 7 November 2003 the appellant complained to police that TR2 tried to run him over. On 2 December 2003 he commenced a private prosecution against TR2 in the Taree Local Court on a charge of intimidation. 41During the hearing of that matter on 15 April 2004, DB gave evidence as a witness for the appellant. Count 21 charged that the appellant had done an act with intent to pervert the course of justice, namely, persuade DB to give false evidence in the TR2 proceedings. At a time before the hearing he got DB to sign, without reading them, statements to the effect that he saw a man trying to run the appellant over, whom he knew and would recognise. The appellant called DB as a witness, telling him that he had to abide by the statements or he would be in trouble. DB gave evidence in the present trial that the statements were false. 42Also at a time before the hearing, the appellant promised MH money to sign a statement for use in the TR2 proceedings saying that he saw the appellant being hit by a man near a store. MH signed a statement dated 11 November 2003. MH ultimately did not give evidence. This was the subject of count 24. 43The appellant subsequently withdrew the intimidation charge against TR2. 44The second offence involving SB was in April-June 2004. SB went between his father's house and the appellant's house frequently. At a time SB was staying with the appellant he was again asleep when the appellant entered his bedroom. The appellant pulled down the blankets and SB's boxer shorts and put his penis into SB's anus. This lasted for approximately 5 minutes, SB thought the appellant ejaculated. He said he was going to inform the police what had happened. The appellant told him, "No you won't because you're getting money out of this case". This was the subject of count 13. 45The third offence involving SB concerned the appellant using a video camera to record SB performing sexual acts with a carrot. The appellant and SB went on holidays together to the Gold Coast and Thredbo. Over this time the appellant asked the complainant if he would pose for pornographic photos for him, and showed him pornographic pictures of youths aged between 10 and 17. He told the complainant that he had posed in similar photos when he was the complainant's age. The complainant refused to take part. Then the appellant asked SB again, and told him that he could make money as the video could be sold overseas on the internet. SB agreed as he had no money. They went back to the appellant's house, where the video was set up in the lounge and sexual acts were recorded including masturbation and SB placing the carrot in his anus. No one else was present. This was the subject of count 14. 46The "carrot video" and a "second carrot video" received particular attention in the appeal. At the end of the "carrot video" SB said, "DB P's home. Can we stop now?" SB gave evidence that he was told to say this by the appellant, whom he was afraid of. The appellant relied on it to show that he was not recording the video, and cross-examined SB accordingly. 47The final sexual offences involved TB. He was born in 1991, and had met the appellant through his brothers although initially he had not been allowed to go jet skiing with them. 48The first offence involving TB was in early 2005. The appellant asked SB and TB to chop wood for him. Whilst he was taking a break the appellant asked TB to lie on the lounge, rubbed him on the chest and body on the outside of his clothes, then asked him to take off his shirt and shorts which TB did as he was afraid of what would happen otherwise. The appellant asked TB to take off his underwear. TB did not want to do it but thought he had to. The appellant then sucked TB on his penis. TB ejaculated. The appellant asked TB to repeat the action to him. TB refused to do so. This was the subject of count 25. 49The second offence involving TB was in the following months. TB was approached by the appellant in the street. He told the appellant he was going to his friend's house to borrow some money. The appellant said that he would give TB some money and a McDonalds meal if TB came with him to his house. They purchased some McDonalds and drove to the appellant's house. Along the way the appellant told TB to remain hidden (crouched down) in the car to be out of sight to observers. When TB and the appellant arrived at the appellant's house they went to the appellant's bedroom where the appellant told TB to remove his clothes and lie on the bed. The appellant helped TB remove his clothes and sucked TB's penis. The appellant then told TB to turn over onto his hands and knees, which he did. TB felt some liquid on his backside that he later understood to be lubricant. The appellant had anal intercourse with TB. The complainant asked the appellant to stop what he was doing. On his second request the appellant stopped. TB had a shower and the appellant drove him home. This was the subject of count 26. 50The third offence involving TB was took place some months later again, in the latter part of 2005. The appellant invited TB over to his house. TB was reluctant to go but the appellant offered him money if he went with him. While the complainant was playing PlayStation, the appellant sucked TB's penis. TB ejaculated. This was the subject of count 27. 51The fourth offence involving TB was in the first part of 2006. About 5 or 6 months after the preceding incident TB was approached by the appellant in his car as TB was walking to the Aquatic Centre. The appellant asked TB to come to his house, and offered him money for entrance to the Aquatic Centre and some McDonalds. TB agreed. The appellant drove TB to his house, asking TB to hide himself in the car so that he would not be seen. On arrival the appellant told TB he had something to show him. He took him to the computer room where he showed him a video of two boys giving each other oral sex. The appellant then pulled TB's pants down and sucked his penis. TB ejaculated. The appellant took TB to the Acquatic Centre and gave him money for entry to the pool and some McDonalds. This was the subject of count 28. 52At this point we refer to "the Port Macquarie proceedings", from which came the 2006 convictions to which we have referred at [14]. 53The Port Macquarie proceedings took place before Garling DCJ in the District Court at Port Macquarie in 2006. In that trial the appellant was charged with attempting to procure a child over 14 for pornographic purposes, inciting a person under 16 to commit an act of indecency and possession of child pornography. The appellant represented himself at the hearing. The appellant was convicted on all three counts. The Court of Criminal Appeal confirmed the conviction for the first two counts but quashed the conviction on the third count ( [C] v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1). The appellant was re-sentenced to imprisonment with a non-parole period of 18 months and a balance of term of 18 months on which he was eligible for release on parole in June 2008. 54The Port Macquarie proceedings were the occasion for the offences the subject of counts 6, 11, 15 and 22. By a statement of agreed facts, the jury was told only enough of them to explain the calling of DM, CB and DB as witnesses in the proceedings, and was told that they did not concern allegations of sexual assault made by DM, CB, DB or SB. 55The appellant gave the police a video recording of SB stating that the appellant did not make sexual advances to him, to enable the police to call SB as a witness at the trial. He also asked SB to sign various statements containing denials that he had ever been assaulted by the appellant. SB gave evidence in the present case that he told the appellant before the Port Macquarie hearing that he would not give evidence for the appellant or lie for him, and that threats had been made to him to entice him to make various recordings. This was the subject of count 15. 56The appellant persuaded DB to attend Port Macquarie court and give evidence under oath that he had seen DB and the complainant in the Port Macquarie proceedings kissing, which in his evidence in the present case DB said was untrue. This was the subject of count 22. 57The appellant tendered in the Port Macquarie proceedings the video Exhibit B in which DM and CB apologised for wrongly gossiping that he had molested them. This was the subject of counts 6 (guilty) and 11 (not guilty). 58The final count, one of perverting the course of justice, is count 29. On 8 February 2009 the appellant approached TB at a supermarket in Taree. He asked TB to record a video saying that the appellant was a "top notch bloke" and that his brothers had lied in their allegations against him. TB gave evidence that the appellant had offered him $250,000. He told the appellant that he would consider the offer. Later he told the appellant that he did not want to do the interview. The appeal 59The appellant's former solicitors filed a notice of appeal on 17 December 2009. The appellant became unrepresented. As earlier mentioned, there were difficulties in bringing the appeal to a hearing. An earlier hearing date for the appeal was vacated. 60The appellant filed numerous affidavits and submissions, the former largely being in the nature of submissions rather than factual and the latter containing non-evidentiary factual assertions. There were over 950 pages of these materials ("the appellant's submissions"). The issues raised included the conduct of the appellant's defence by his counsel and solicitor and his mental state at the time of the trial. Affidavits from counsel and the solicitor and from a consultant psychiatrist who had examined the appellant in connection with his trial and a post-conviction bail application were read by the Crown. The materials in appellant's submissions were supplemented by a complete set of appellant's written instructions to his lawyers. Counsel and the solicitor were cross-examined by the appellant. 61We set out below the appellant's grounds of appeal in their final form. They will be repeated as appropriate when we deal with each. "The appellant relies upon the following Grounds & Submissions in that the appellant lost a 'Significant possibility' of an acquittal because of the matters referred to below. 1. The incompetence of trial counsel led to a miscarriage of justice in that counsel - a. failed to put the appellant's defence of being setup by one group of complainants to the court, b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence, c. failed to call upon crown witnesses for cross-examination, d. failed to call upon defence witnesses to give evidence. e. failed to defend the appellant with respect to the aspersion made by his Honour before the Jury that the appellant may be a 'MIND READER', f. failed to put exculpatory statements and/or documents before the court and to the various Crown Witnesses as outlined in the submissions, g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence, h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions inter alia, no proof of evidence. 2. A miscarriage of justice was caused by the Crown - a. failing to call upon Crown Witnesses to give evidence, b. becoming emotionally involved in the trial, c. breached it's duty of disclosure in concealing exculpatory evidence from the court, d. misstating the true state of the evidence during the trial and in Her summing-up to the jury, e. caused unfair prejudice to the accused in cross-examination by casting aspersions against his character in that he had lied to the court when in fact the appellant had told the truth and the Crown had evidence to support this. 3. The learned trial Judge erred and/or misled the jury as to the true state of the evidence in his Honour's summing-up, this led to a miscarriage of justice. 4. The learned trial Judge cast an unjustifiable aspersion against the appellant which was highly prejudicial this led to a miscarriage of justice. 5. The appellant was mentally ill shortly before and during the trial which led to a miscarriage of justice. 6. The appellant was under DURESS that if he exposed that the complainants had set him up his family would be gravely endangered this led to a miscarriage of justice. 7. The prosecutions were malicious carried out by police who were and are defendants in the appellant's statement of claims for malicious prosecution this led to a miscarriage of justice. 8. That the verdicts of the jury on all counts which the appellant was found guilty by the jury were unsafe and/or unreasonable and/or unsatisfactory and/or inconsistent having regard to the whole evidence at the trial. And the learned trial Judge had reservations about the guilty verdicts of the Jury; see his Honour's remarks, Sentencing and Bail transcripts 4 days, December 2009. 9. Fresh and/or new evidence as outlined herein was never put before the court his led to a miscarriage of justice inter alia Counsel did not know the "Full Carrot Video" existed and has never seen the "Todd Ellis" Video. 10. That the appellant is innocent on all counts and justice has miscarried the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal." Ground of Appeal 1 - The incompetence of trial counsel led to a miscarriage of justice in that counsel - a. failed to put the appellant's defence of being set up by one group of complainants to the Court. b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence. c. failed to call upon Crown witnesses for cross-examination. d. failed to call upon defence witnesses to give evidence. e. failed to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a "MIND READER". f. failed to properly and/or adequately examine the appellant in chief and/or re-examine to establish his innocence with regards to the state of the evidence. g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence, h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence. 62In response to this ground of appeal affidavits by Mr Roff, the appellant's solicitor at trial, affirmed 14 June and 29 September 2011, were read. Mr Roff was cross-examined by the appellant. Three affidavits sworn 14 June, 4 October and 13 October 2011 by Mr Webb, the appellant's counsel at trial, were also read. Mr Webb was cross-examined by the appellant. Affidavits of Ms Boulous, who had instructed for the Crown, were also read. Ms Boulos was not cross-examined. 63We found Messrs Webb and Roff to be impressive witnesses. They were honest and, to the best of their ability, endeavoured to assist the Court by setting out what occurred between them and the appellant before and during the trial. Whilst their recollections were not perfect as to every detail, it was quite apparent from their evidence under cross-examination that each of them had a good recollection of these events and that they were reliable witnesses. Unless otherwise indicated, we accept the evidence of Messrs Webb and Roff. 64It was common ground that despite strong advice of Messrs Webb and Roff to the contrary, the appellant gave instructions both written and oral that the hearing of all the matters should proceed together and that there should not be separate trials in respect of each complainant. The rationale behind the appellant's instructions in this regard was his contention that he had been "set up", that the complainants had conspired together to bring false accusations against him, and that he would be better able to establish that proposition in a joint trial. 65The flavour of what turned out to be a difficult relationship between Messrs Webb and Roff on the one hand, and the appellant on the other hand, is set out in para 8 of Mr Webb's affidavit of 14 June 2011 where he referred to what happened at either a conference of 21 August 2008 or a conference of 9 October 2008 or both - "8. [The appellant] said words to the effect - 'I've been set up and when the jury hear all of the complainants and all of the allegations in the one trial they will see that it is all just a set up. I have video footage of SB masturbating at my house. That's why SB is trying to set me up. I also have video footage of DM masturbating at my house six years before I caught SB out. This is why they are trying to set me up.' [The appellant] also said - 'I want to relitigate the [complainant in the Port Macquarie proceedings] matters and the [TR] matters in my trial. I also want to raise my character to show that I am innocent and I won't take no for an answer.' I said - 'Mr [C] you should plainly understand that I will not raise your character in any trial in which I represent you because you have a criminal record for dishonesty and a criminal record which includes convictions for allegations of a type that you are now facing. You should also note that I will not introduce in any trial any matters to do with [TR] or [the complainant in the Port Macquarie proceedings]. It would not assist you in a trial or trials of this type to raise the issue that you have convictions for dishonesty or to raise the issue that there have been previous allegations made against you concerning sexual misconduct and dealing with children for pornographic purposes. You should plainly understand that I will not budge on these issues and if you wish to obtain other counsel you are free to do so and you should do so if you want these things introduced. I will not introduce them, full stop. I will not introduce your character into a trial or the fact that you have had previous allegations made against you which are outside the matters that you are now charged with. You should think carefully about these things because it is open to you to retain another barrister who may have different views to those which I hold. You should give this careful consideration because once the trial or trials commence, given that you know that I will not budge on these issues, your insistence on bringing these matters into evidence will lead to my withdrawing from your trial. Criminal trials cost the people of New South Wales a fortune and it would be a shocking waste if some weeks into the trial it becomes necessary for me to withdraw'." 66Before dealing with specific submissions by the appellant, we set out the principles applicable to a ground of appeal raising incompetence of counsel. In Monteiro v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said - "[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include - '2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.' (p 685, per Gleeson CJ) [156] Earlier, Gleeson CJ had said - 'As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.' (p 683) [157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms - '... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.' (p 684) [158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said - '16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks." 67Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336 - "Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere." 68The task facing counsel at trial was a difficult one. Not only did he have to deal with a large number of counts of an essentially similar kind from six different complainants, but those counts included what were described as " public justice counts", ie doing acts intending to pervert the course of justice (counts 6, 11, 15, 21, 22, 24 and 29). Counsel also had to deal with counts involving the use of juveniles for pornographic purposes (counts 7 and 14). 69Most of the material the appellant wished to rely upon which suggested that he had been "set up" by the complainants came from statements and videos taken by him from the complainants or other young persons. Counsel appreciated that the more statements taken by the appellant which were produced, the stronger the inference would become that the appellant was able to control and manipulate these young persons by getting them to sign statements that he had prepared or participate in videos which he had arranged. Neither at trial, nor in the appeal, did the appellant appear to understand the seriousness of this problem. 70Additionally, some of the material in counsel's brief and which the appellant had in his possession could properly be classified as child pornography. In the case of the " carrot video", it was the appellant's position that he knew it was going to be made before it was filmed and that DB had assisted him by obtaining and providing a copy of the video to him. The appellant admitted to covertly filming young boys masturbating in his home and to downloading from the internet a picture of a young male in a bath with his face obscured masturbating which he tendered in the Port Macquarie proceedings (written instructions, 11 May 2009, pp 14, 16, 67). Throughout the proceedings, the appellant was the only person who produced such material either to the police or to a court. Counsel appreciated, but the appellant did not, that the more of this material which was used (the probative value of which was marginal at best), the more likely it was that the jury would draw an inference adverse to the appellant in respect of the pornographic photographs counts. 71The concern and care with which counsel treated that material at the trial could not in any way be regarded as " flagrantly incompetent", and was well within his authority as counsel conducting a trial on behalf of the appellant. Many of the specific complaints now raised by the appellant involve a considerable element of hindsight and a failure to understand the double-edged nature of this evidence. 72In oral submissions and in the document entitled Eighth Supplementary Submissions (appellant's submissions pp 898-904), the appellant set out his specific complaints concerning the conduct of the trial by counsel. Mr Webb responded to those complaints in his affidavits and in oral evidence when cross-examined. (a) The failure to put the appellant's defence of being set up by one group of complainants to the Court 73The real complaint of the appellant was not so much that counsel did not put the defence, but that counsel did not put the defence in the way in which the appellant would have liked it to have been put. Counsel clearly raised the matter in open court before the jury (AB638) when he said - "Mr C's case is one which raises fabrication on the part of the complainants. Each of them individually and sometimes collectively ... " Not only was this proposition put by counsel in his closing address, but it was comprehensively dealt with by the trial Judge in his summing-up. 74On this issue, the appellant's case at trial was that he became concerned about rumours circulating in the Taree area that he was a paedophile. It seems to have been accepted that he was known as "Paedophile P"; there was evidence that when he drove CB to a party in April-May 1998 bottles were thrown at him and he was called that. He consequently formed the belief that he might be set up. It was this belief that was relied upon to explain why he took the unusual action of gathering what he believed to be exculpatory material from various young persons in the form of statements and videos and why he kept certain pornographic material (appellant in chief AB1886-1890, 1898; cross-examination AB1964-1965; defence closing address AB2131-2132, 2138; summing-up AB156-157, 218-219). The video made on 9 June 1998, Exhibit B, in which DM apologised for "add[ing] to the gossip by saying that he felt us up and molested us" and CB gave a similar apology is one such video; as we have noted, DM gave evidence that what he said was not true and he had read from a statement the appellant had given him. 75DM and CB were cross-examined on the basis that they had collaborated to bring false allegations of a sexual nature against the appellant (AB818). SB was cross-examined to the effect that the appellant did not film the " carrot video" and that SB intended that video to make the appellant look guilty or to set the appellant up (AB1237). (As we have earlier mentioned, the appellant relied on the video recording SB saying "DB, P's home. Can we stop now" to show that the appellant was not recording it, but SB's evidence was that he was told to say that.) DB was cross-examined to the effect that he made false allegations against the appellant in order to avoid going to prison for an unrelated offence (AB1377-1383). MH was cross-examined to the effect that he had fabricated his evidence involving allegations of sexual assault and that what was contained in a statement which he signed on behalf of the appellant was the truth (AB1434-1443). TB was cross-examined to the effect that he made allegations against the appellant because he became aware that his older brothers had made such allegations and he wanted to support them (AB1497, 1525). This is not exhaustive. In our opinion, consistently with awareness of the dangers of using statements and videos taken by the appellant, the defence was maintained. 76This sub-ground of appeal has not been made out. (b) The failure to act on the appellant's written and verbal instructions before and during the trial including alibi evidence 77During the trial, counsel adopted the procedure of checking with the appellant after the cross-examination of any contentious or important witness. He told the appellant that he would not move onto another witness unless he was satisfied that the appellant was happy. In his evidence in the appeal, Mr Webb said - "A. The defence was run that you agreed to, which was the exculpatory videos concerning [DM, CB and SB] and otherwise that the case would be run in accordance with my forensic judgment having regard to your interests and it was a feature of the way in which your instructions were settled that we would pause along the way, as to say you and I and Daniel [Roff] or the instructing officer of the firm with us, to inquire are you okay with the way the case is being run, are you happy with the way in which cross-examination is being conducted. So that in my mind, because of the way that you provided the instructions it was best to pause along the way, stop and say, are you happy with that, is that okay and then keep proceeding. And that in my mind was the best safeguard to ensure that your instructions were complied with in the context of our agreements and that is what occurred along the way." (T14, 24 October 2011) 78On what appears to be the only occasion when counsel did not follow this procedure, the appellant wrote a letter to his solicitors and sent copies to the trial Judge and the DPP (appellant's submissions p 127). The transcript records the Judge affording counsel time the following day to obtain further instructions (AB1408). 79The trial transcript supports counsel's evidence to the effect that he obtained confirmatory instructions from the appellant throughout the trial (AB820, 900, 1198, 1249, 1260, 1398-1400, 1408, 1513, 1516, 1686, 1783, 1871, 1899 and 2020). 80Both counsel and the instructing solicitor advised the appellant in clear and very definite terms that he should not give evidence. The appellant did not take that advice and gave evidence. This was a matter in relation to which the appellant would not change his instructions and counsel, against his better judgment, allowed the appellant to give evidence. 81In addition to his written submissions, the appellant, in cross-examination, identified specific pieces of evidence which, he submitted, counsel should have used, but did not do so. These submissions are most appropriately considered under this ground of appeal. As can be seen, when counsel followed the appellant's instructions the result was often unsatisfactory. When he refused to do so, there were sound forensic reasons behind that decision. 82It is clear from the transcript of the trial that counsel did not reject the appellant's instructions without good reason. When he thought there was a forensic advantage to be gained, he followed the appellant's instructions. Where the supposed forensic advantage was disproportionate to the prejudicial effect, counsel did not follow the appellant's instructions. As already indicated, on a number of occasions during the trial and in the course of the appeal, the appellant appeared to have no appreciation of the prejudicial effect likely to flow from evidence or lines of enquiry which he instructed counsel to use. Statement of SB dated 6 December 2006 83In accordance with instructions, counsel sought to cross-examine SB on the basis of a statement produced by the appellant which he said had been signed by SB on 6 December 2006. This was a statement in which SB denied that the appellant had committed any offences against him. When shown to SB, he said that it was not his signature and testified that he had never seen the document before (AB1258-1259). The SB shower video 84In accordance with instructions, counsel sought to introduce into evidence a pornographic video of SB masturbating in the shower (Exhibit 2). This was only done after SB had given evidence to the effect that the only pornographic video he had taken part in was the " carrot video" (AB1168). After being shown Exhibit 2, SB testified that he had no recollection of taking part in that video. Counsel then suggested to him that he had lied to cover up the fact that he had been caught out (AB1237-1238). Upon instructions, counsel put to SB (AB1263) that it was DM who took that video. SB denied this and said that he did not know a DM and could not remember ever making that film. When DM was recalled as a result of that evidence of SB, he said that he did not know SB and did not take part in the filming of the video (AB1601-1602). The result, of course, was that the jury was likely to think that the appellant took the video. The Dean-Tim video 85This was a video featuring the appellant and DB which was allegedly taken on 16 June 2001. In it DB, inter alia, told the appellant that TR told him that "he could make easy money or something by saying that [the appellant] put his hands down my pants or something". The admissibility and probative value of this document was discussed in court in the absence of the jury (AB1395-1400). 86The ramifications and potential prejudice to the appellant of this video were significant, in that it could open up the issue of the appellant having also sexually assaulted another young adolescent boy, ie TR. Counsel sought instructions on the tender of this video (AB1400). Oral instructions not to tender it were given, the appellant was asked to sign confirmatory written instructions, but he wrote "do not" into the instructions to reverse their meaning. He then changed his instructions again, and returned to instructions not to tender the video. 87Counsel dealt with the issue of how the words "do not" were added to the instructions in paragraph 4 of his affidavit of 4 October 2011. There counsel said - "4. In the ninth supplementary submissions the Appellant refers to his having written in 'do not'. This is correct. In the course of the trial, see T851, his Honour made some remarks regarding the potentially prejudicial nature of certain evidence. These remarks were relevant in my mind to the Dean-Tim video. This video was not intended in the context of the defence case to be tendered or pressed because it introduced [TR] into the trial, raising a further allegation of sexual misconduct against [the appellant], not otherwise in the trial. [The appellant] had previously agreed to keep [TR] (and [the complainant in the Port Macquarie proceedings]) out. Mr Roff then proceeded to draft written instructions at the bar table reflecting and confirming [the appellant's] previously agreed position on this issue. Mr Roff then approached the dock to ask [the appellant] to sign the instruction. [The appellant] then wrote the words 'do not', clearly indicating he wanted the tender and/or or the issue pressed. At this point Mr Roff approached me and indicated [the appellant's] position. I then walked to the dock with Mr Roff and spoke to Mr C in words to the effect - 'Counsel: Mr C I advise you against pressing this issue. It will bring [TR] into the trial. [The appellant]: All right do what you think is best, I'll trust you.' I then turned to Mr Roff in the presence of Mr C and said 'Daniel, are they my instructions? That is not to press the issue'. Mr Roff then said yes they are. I then indicated my instructions to the court." 88Mr Roff gave evidence concerning this issue (T35.4, 14.10.11) - "A. Mr C had said to us he wanted the Dean Tim video, as he called it, played to the jury. Dr Webb indicated the same to his Honour Judge Norrish and Judge Norrish made certain comments regarding potential dangers of that to Mr C in the circumstances. Hearing that I began to prepare a file note on the basis [the appellant], being capable of intelligence in some circumstances, would agree the tender would not be pressed. When I presented him with that document he wrote in words 'do not' and then signed it down the bottom. I took that back to Dr Webb, showed Dr Webb what [the appellant] had said and asked Dr Webb to come with me and talk to [the appellant]. We both went back to the dock, explained the situation to [the appellant] and [the appellant] said what I have written down the bottom but refused to sign it again after having crossed out the words 'do not'. So I made a note of what he had said given that something may arise if Mr C complained about us afterwards. Q. Were they the words he used? A. They were the words he used. Q. 'I trust youse'? A. 'I trust youse'." 89The version of events described by counsel and the instructing solicitor is consistent with the trial transcript (AB1396-1400). 90The decision by counsel not to press the tender of this video was undoubtedly correct. Its benefit to the appellant's case was problematic at best, but its prejudicial effect would be inevitable and substantial. The tender of that video could only have damaged the appellant's case. The Todd Ellis video 91The Crown sought to call Todd Ellis as a witness in its case. The evidence would have been relevant to counts 21 and 24 which were public justice offences. The Crown case was that the appellant persuaded DB (count 21) and attempted to persuade MH (count 24) to give false evidence in his private prosecution against TR2. 92Count 21 involved the appellant persuading DB to falsely state that he had seen an incident where TR2 had tried to drive into the appellant. DB gave evidence in the Taree Local Court that he had seen such an incident. At trial, he said that the evidence he gave for the appellant at the Taree Local Court was false (AB1354-1358). TR2 was called at the trial and gave evidence that he had not been involved in any such incident (AB1613). 93Count 24 involved an attempt by the appellant to have MH give evidence in those same proceedings by promising him money. MH signed a statement prepared by the appellant, the details of which MH said at trial were not true. The statement said that he had witnessed TR2 try to drive into the appellant. He said that he signed the statement because of the offer of money and his immaturity (AB1431). 94Todd Ellis had also signed a statement prepared by the appellant which stated that he had witnessed the incident. On 1 April 2009, the appellant sent a copy of this statement to police asking them to investigate and to call Todd Ellis at trial. Police located Todd Ellis and obtained a statement from him on 29 April 2009 (AB1572-1580). When first shown the statement (purported to have been signed on 12 November 2003), Todd Ellis had no recollection of ever having signed it. After speaking to DB, he was reminded of an incident when he was aged 14 when the appellant came to the home of an acquaintance, produced a statement and asked him to sign it. DB was present at the time. Todd Ellis said that he signed it because the appellant said he would give him some money. Under cross-examination on the voir dire, Todd Ellis confirmed that what was written in the statement he signed for the appellant was false. He said that he was not present when the incident was said to have occurred and did not see anything (AB1584). 95At trial, the Crown sought to use the evidence of Todd Ellis in two ways - (1) as a piece of circumstantial evidence to show that the incident did not happen; and (2) as tendency and coincidence evidence consistent with the appellant preparing false statements and arranging for them to be signed by young persons. 96The defence objected to Todd Ellis being called in the Crown case. A voir dire was held (AB1572-1590). The Judge ruled that the evidence of Todd Ellis was inadmissible (AB59-93). There is no ground of appeal challenging his Honour's ruling. 97At trial, the appellant gave evidence that Todd Ellis was present at the time of the incident and ran across the road to ask him if he was "OK". The appellant's complaint on appeal was that Todd Ellis was not called by the defence at the trial and that counsel did not see the " Todd Ellis video". The appellant said that the video recorded an interview between him and Todd Ellis about the incident involving TR2 in which Todd Ellis supported his version of events. 98Had the evidence of Todd Ellis and the video been led in chief in the appellant's case, this would not have assisted him. When the appellant made a statement to police concerning the incident, he did not disclose that Todd Ellis was an eyewitness. The evidence of Todd Ellis on the voir dire was that he did not see the incident and that he was induced by the appellant to sign a false statement by the offer of money. The introduction of yet another video of a young person reciting matters which he said were false and which he was put up to by the appellant, would not have assisted the appellant. 99In any event, the Todd Ellis video would only have become relevant had Todd Ellis given evidence at the trial. His evidence was ruled inadmissible by the trial Judge and so that issue did not arise. Finally, counsel said that he had never been provided with a copy of the Todd Ellis video. The "full carrot video" or "second carrot video" 100The appellant submitted that, in accordance with his instructions, counsel should have tendered the "full carrot video" or "second carrot video " . At trial, a " carrot video" was tendered (Exhibit D). In the appeal, the appellant said that the "second carrot video" was a longer version of that which had been tendered at trial. Despite a number of requests by the Court, the appellant was not able to articulate what was in the "second carrot video" which would have provided more assistance to his case at trial than had already been provided by Exhibit D. Exhibit D was used to cross-examine SB, see [75] above. 101The defence advanced at trial in respect of count 14 (which was based on Exhibit D) was that the appellant was not present or involved in the actual making of the video (AB2131-2131), but that it had been made by DB and SB. Counsel agreed that the appellant had told him that there was a "second carrot video" which was longer. Neither he nor Mr Roff had been provided with a copy of the longer video nor had they ever viewed it. Notwithstanding that counsel did not see the longer video, he was aware of it and proceeded on the basis that it would not assist the defence. It is not clear to us how the fact that the appellant was also in possession of a longer version of this video, or may have been involved in editing or otherwise manipulating a copy of the longer version, would have assisted the appellant at trial. This is particularly so when the appellant was not able to identify for this Court the difference between the longer "carrot video" and Exhibit D which would have assisted him at trial. The matter was further complicated at the hearing of the appeal by the appellant's statement that there was yet a third " carrot video", the contents of which he did not further describe. 102Not only was counsel entitled to make the forensic judgment which he did in relation to the " second carrot video", the appellant has failed to demonstrate how he was disadvantaged by the longer " carrot video" not being tendered. The "Car Cam video" 103Mr Webb referred to this document at p 14 of his affidavit of 14 June 2011 as follows - "Webb: 'What is the video about of you having a phone conversation, apparently with SB and a female? What is that doing in the material you have provided to Mr Roff?' Appellant: 'That relates to a conversation I had with SB.' Webb: 'Why was the conversation filmed in the car showing you to be talking on the phone - showing just you and the car?' Appellant: You'll be able to tender that, the video makes it look more realistic.' Webb: 'Do you mean that the video is just a device to make it look more realistic?' Appellant: 'That's right. It's better if people see as well as hear. It will make the conversation seem more realistic'. Webb: 'In what way is it a device?' Appellant: 'It's not in real time. The video is at one time and the talking is at another time. I prepared the video and the audio for my defence'." 104Counsel told the appellant that he would not use evidence which had been altered in that way since this was tantamount to misleading the Court. At pp 230-231 of the bundle of appellant's written instructions the appellant agreed that this evidence should not be used. The written instructions set out the danger associated with such a tender, ie it was consistent with the Crown case of a tendency on the appellant's part to fabricate and manipulate evidence. 105Counsel's refusal to rely upon that evidence was forensically sound and the appellant has failed to show that he suffered any disadvantage by that video not being tendered. Alibi 106The appellant initially instructed counsel in 2008 that he was not present at a number of the alleged crime scenes (counsel's preliminary advice, 5 August 2008 at appellant's submissions p 98). The appellant later instructed counsel that he did not have an alibi. In relation to that matter, Mr Webb said in his affidavit of 14 June 2011 - "9. I cannot recall whether it was in the conference of 21 August or 9 October at Chambers that I raised the issue of alibi with [the appellant]. This occurred in one of these two conferences. 10. I said to [the appellant]: 'Mr C in relation to any of the matters that you are aware of is it the situation that you may have in fact been somewhere else, other than the place where the alleged conduct is said to have occurred?' Mr C said: 'Not really. All of the allegations basically relate to the area in which I lived and many of the allegations relate to things said to have happened in my own home'. I said: 'You need to think clearly about this issue because if you are going to raise any issue going to alibi Mr Roff needs to know well before any trial. An alibi means that you are saying that when something happened you were in fact somewhere else, positively identifying where it was that you were in terms of place and time. Mr Roff needs to provide notice to the Crown as to any issue of alibi. Alibi can't be raised on the run. It requires notice to the Crown so that the police can make enquiries. Do you understand that?' Mr C said: 'Yes but I don't have an alibi because I was living in the area where these things are said to have happened and many of them happened on the Crown case in the house that I was living at. So no I don't have an alibi for any of the matters that I am aware of.' 11. The issue of alibi was raised by me in conference and not by [the appellant]." As a result of those instructions, no alibi notice was ever served. The appellant was present in court when counsel told his Honour that he was not running alibi (AB1863, 1865-1866) and there is no record of any complaint made by him at the time. 107The appellant submits, at appellant's submissions p 80, that the two matters where he would have relied upon alibi were in respect of counts 2 and 17. 108Count 2 involved DM staying at the home of the appellant's mother in Rozelle. The appellant said that he stayed that particular night at his sister's house nearby. He said that SC, the friend of his son who had gone to Sydney with them, could corroborate this. 109It was never alleged, nor was it the Crown case, that the appellant had stayed the night at his mother's home. The evidence of DM (AB688-689, 764) was that he awoke just as he was ejaculating to find the appellant giving him oral sex. The appellant then left the room. In cross-examination, DM said " He may well have left after that happened, but what I said was true, that's a fact. That's what happened he was there and that was him". No statement was ever obtained from SC, nor was he subpoenaed or required to be called in the Crown case by the defence. 110Count 17 involved DB being sexually assaulted in the appellant's car. DB's evidence (AB1293-1299) was that the offence occurred after they had left JR with JR's stepfather. The appellant said that JR would be able to give evidence that DB had stayed that night with him and his stepfather and that the offence could not have occurred. 111Police obtained a statement from JR on 5 May 2009, in which he said that the appellant had already seen him and had obtained an affidavit from him. Both the police statement and the affidavit obtained by the appellant are annexures to the affidavit of Ms Boulous sworn on 29 September 2011. The statement made by JR to the police and that obtained by the appellant are quite inconsistent on this issue. The statement made by JR to the police does not exclude the offence in count 17. 112The police served on the defence a copy of the statement made by JR and also a copy of the affidavit which the appellant had obtained from him. The witness was made available, but was not required to be called by defence counsel. 113Mr Webb referred to those matters in his affidavit of 4 October 2011 as follows - "5. On the issue of alibi, [the appellant] gave specific instructions prior to the trial that he did not have an alibi available to him of which he was aware. In respect of count 2, at [the appellant's] mother's place at Rozelle, [SC] did not in my view raise alibi. [SC] was present at the house overnight, with the question at trial being whether or not [the appellant] returned to the house during the night (as [the appellant] instructed me that he was staying at his sister's house nearby, and returned the following morning bringing croissants for breakfast). 6. [JR] was made available by the learned Crown prosecutor at trial and was available to be called at the defence request. [the appellant] was advised of this matter during the course of the trial. I expressed a concern in the context of the trial raising public justice counts, that [JR] had previously been approached by [the appellant] to provide a statement. I raised with [the appellant] the issue that this matter might be dangerous. [the appellant] then indicated that he did not require [JR] to be called. Otherwise [JR] had initially been raised by [the appellant] as a prospective witness on the issue of character, not alibi." Mr Webb was not cross-examined as to alibi by the appellant in the appeal. 114The advice which counsel provided to the appellant in relation to JR was forensically sound. Any evidence from SC would not have provided an alibi. The appellant has failed to establish that he had an alibi defence available and that his case at trial was damaged by counsel's failure to raise that issue. 115This sub-ground of appeal has not been made out. (c) Failure to call upon Crown witnesses for cross-examination 116No submissions were made by the appellant specifically directed to this ground of appeal. In any event, the ground of appeal is not made out. Where appropriate, the Crown witnesses were vigorously cross-examined. Consistently with his evidence, however, counsel was careful to avoid referring to the TR2 proceedings and the Port Macquarie proceedings in that cross-examination. (d) Failure to call upon defence witnesses to give evidence 117The appellant's complaints in this regard have already been dealt with in respect of the matters raised in sub-ground (b) above. 118This sub-ground of appeal has not been made out. (e) Failure to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a "MIND READER". 119This is a reference to an observation made by his Honour in the course of the trial at AB1970. The appellant was being cross-examined. The context of his Honour's observation was - "CROWN PROSECUTOR: Q. In the first sentence of that letter you say that SB has been living with you for twelve weeks? Appellant: A. Yes. Q. So it would be correct to say that he was living with you in April 2004 wouldn't it? A. Well I believe what I should have put is - no - if you read my letter, "SB has now been in my care for some twelve weeks". Probably I should have put approximately twelve weeks and I can give you the statement here that gives you the exact date SB came into my care, the day I took him to DOCS, you've got it in your files Miss. HIS HONOUR: No, no please Mr C. APPELLANT: Sorry. HIS HONOUR: Don't volunteer things that you say people have got because they may not have them - I don't know. APPELLANT: They served on you your Honour. HIS HONOUR: No, you may be a mind reader for all I know but you can't keep on asserting that people have got things, right. Mr C. I am not going to ask you again. I'm going to have to cut you off because it's not an answer to the question. APPELLANT: Yes, sorry. HIS HONOUR: You're not answering the question, right. WITNESS: Okay. CROWN PROSECUTOR: Q: I understand you agree that you wrote a letter to DOCS on 1 July 2004. A. Yes. Q. Saying that SB had been in your care for some twelve weeks? A. That's right, yes. HIS HONOUR: And by that you mean approximately twelve weeks? A. Yes. Q. In answer to the Crown, can he find a document that assists him to remember the date that SB came into his care, Madam Crown? CROWN PROSECUTOR: Well yes. HIS HONOUR: Right, without telling us what the document is, see if you can find the relevant document there in fairness to the earlier answer you gave." (AB1969.33 - 1970.31) 120During the appellant's evidence his Honour had warned him (for his own benefit) not to volunteer information that was not responsive and to listen carefully to each question (AB1885, 1922, 1924, 1925, 1951, 1958). The appellant did not heed those repeated warnings. The comment by his Honour at AB1970 was made against that background. Even following this comment by his Honour, the appellant continued to volunteer information (AB1978, 1979, 1983, 1998, 2009, 2010 and 2014). 121The intervention of his Honour was designed to assist the appellant, not to belittle or demean him in the eyes of the jury. When using the expression "mind reader", his Honour was doing no more than attempting in a perhaps colourful way to direct the appellant that he should only answer the question which he was asked and not try to anticipate future questions. 122Given the circumstances in which his Honour made this comment, there was no occasion for counsel to intervene. On the contrary, intervention by counsel may well have been counter-productive and have sent a message to the jury which was adverse to the appellant's interest. 123This sub-ground of appeal has not been made out. (f) The failure to put exculpatory statements and/or documents before the Court and to the various Crown witnesses as outlined in the submissions. 124This has already been dealt with in relation to the specific issues identified in sub-ground (b). The concern of counsel (and it was a legitimate concern) was that the production of too many exculpatory statements and videos would strengthen the inference that the appellant was able to control and manipulate young persons by getting them to sign statements which he had prepared and on most occasions witnessed. This would be particularly dangerous in relation to the public justice counts; it would also be dangerous in relation to the other counts as showing the appellant's influence over the young persons. 125Counsel's decision to rely upon some exculpatory statements and not on others was forensically sound, and the appellant has failed to establish that the refusal by counsel to put all available exculpatory statements and videos before the Court damaged his case. 126This sub-ground of appeal has not been made out (g) Failure to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocence with regards to the state of the evidence. 127It is clear from the affidavits of Mr Webb and Mr Roff that a comprehensive proof of evidence was prepared before the appellant gave his evidence and that discussions took place with the appellant in relation to that proof before he gave his evidence. Mr Roff in his affidavit of 14 June 2011 said - "34 On or about 11 June 2009 I received from Dr Webb a draft proof of instructions in relation to PFC. He said to me words to the effect of "Have a look at this and see if it accords with your recollection of his instructions. We will go through it with [P] downstairs and see if he agrees". I did not make any suggested amendments as it appeared to me to accord with the instructions provided by PFC. I do not recall any amendments or corrections subsequently being made by PFC. These instructions were the result of having reviewed the material provided by the prosecution and PFC, as well as having spoken with PFC in great detail over numerous occasions." 128The evidence in chief and in re-examination of the appellant is fully consistent with the case for the defence which was put to the complainants and the Crown witnesses in cross-examination. The presentation of this evidence was, however, marred by the appellant's tendency to give non-responsive replies to questions and to volunteer information. The reasons why no evidence was led concerning the TR2 proceedings and the Port Macquarie proceedings have already been given. 129This sub-ground of appeal has not been made out. (h) Failure in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence. 130A proof of evidence was prepared and the structure of the evidence in chief led from the appellant is consistent with the existence of such a proof of evidence. At para 22 of his affidavit of 14 June 2011 Mr Webb set out the philosophy which underpinned the defence case and how he explained that to the appellant. He advised the appellant that he intended to run the defence case in the following way - Where the appellant had made exculpatory videos in respect of any of the complainants, counsel intended to rely on that video only as the best and most transparent record of his not engaging in sexual misconduct with that person. That he would not rely upon other evidence unless in the context of the trial and in his forensic judgment there would be a benefit to the appellant. Counsel explained that there was a limit that a jury would reach in terms of absorbing all of the statements and documents which the appellant had prepared and that at some point the number of videos and statements might look as though the appellant had something to hide. That he would not tender all of the material that the appellant wanted him to nor would he ask questions in cross-examination that he did not think would advance the appellant's case. 131The course adopted by counsel in this respect was forensically sound. It reflected the fact that the public justice counts were intricately bound up with the sexual assault counts. It also reflected the position in which counsel was placed by the instructions, against his strong advice, that there should not be separate trials for each complainant; while the appellant apparently had in mind that dealing with all matters together would assist his contention that the complainants had conspired to bring false accusations against him, the danger in the course was very real and it required careful handling. Most of the material the appellant relied upon to suggest that he had been "set up" came from statements or videos taken by him from the complainants or other young persons. The more the appellant produced such statements, the greater was the risk that the jury would conclude that the appellant was able to control the complainants and other young persons by getting them to sign them. 132Counsel was also rightly concerned about some of the material in the brief and other material which the appellant apparently had in his possession, but which he had not provided to counsel or Mr Roff. Some of that material would properly be regarded as child pornography. The approach to that material, which counsel correctly took, was that he would not tender it in the trial unless he was able to see some forensic advantage. One of the problems faced by counsel and the appellant was that even though the appellant claimed that some of the pornographic material was prepared by the complainants to "set him up", the only person who ever produced such material, either to the police or to the Court, was the appellant himself. This left the appellant open to the inference that he had created it. 133In relation to the cross-examination of the complainants, it is apparent from the transcript that they were cross-examined at length as to the deficiencies in their evidence and the lack of immediate complaint. (We refer to this also at [366]-[367] below. Some of the complainants were giving evidence at trial twelve years after the events in question. Nevertheless, it is also apparent from the transcript that a number of the complainants found giving evidence about what had occurred quite traumatic. 134A number of the complainants found it difficult to be accurate with the dates when various offences occurred. The trial judge directed the jury that this lack of particularity or any change in the dates on which the offences were said to have happened, was a matter which could be taken into account in assessing the credibility of the particular complainant. On the other hand, his Honour said that the jury was entitled to take into account that the offences occurred at a time when the complainants were very young and that there was no evidence that they were keeping a diary or had any reason to record precisely when these events occurred. 135The judge directed the jury on the issue of delay and how it operated to disadvantage the appellant and also how it impacted on the credibility of the complainants. This was a strong direction and assisted the appellant. There was no occasion for counsel to ask his Honour to modify that direction in any way. Nevertheless, in each case the complainants gave reasons why they delayed in reporting the matter to the police. The acceptance or rejection of this evidence was a matter for the jury. It did not and could not reflect upon the competence of counsel in his representation of the appellant. 136The cross-examination of the complainants demonstrates that counsel identified and relied upon inconsistencies in the evidence of the complainants with a view to challenging their credibility. In some cases he relied upon inconsistencies between the versions given by the complainants in evidence at the trial and on other occasions he relied upon the appellant's instructions as to alleged inconsistencies. It is apparent from the cross-examination of the complainants that they were fully tested on these issues. 137This sub-ground of appeal has not been made out. The admission by counsel that he had failed in his duty to the appellant 138The appellant submitted in his Ninth Supplementary Submissions (appellant's submissions p 905) that at the end of the trial counsel had admitted that he had failed in his duty to the appellant. There was a background to the exchange between the trial judge and counsel on which he relied. On more than one occasion in re-examination the appellant had stated in open court that he consented to showing his private parts to the jury. Despite the efforts of counsel to control him, the following occurred at AB2023 in the presence of the jury - "APPELLANT: Mr Webb, I consent to showing my private parts to the - WEBB: Sir is there anything else you wanted to say about that document? A. No about the other matter that we discussed. I'm quite happy to show my private parts to the jury - WEBB: Just a moment. WEBB: There's no further questions arising in re-examination. APPELLANT: Mr Webb, I've decided I'm quite happy to do that. I've put the embarrassment aside. And I'm quite happy to display it and I think that has to be done. WEBB: Would you just be quiet Mr C thank you. APPELLANT: Mr Webb I have to do that, that's my instructions." 139The appellant relied upon the subsequent part of the trial transcript - "HIS HONOUR: Mr C I'm going to give you an opportunity to speak to your barrister in a moment privately, not in open court and that's in fairness to you but Mr Webb is endeavouring to look after your interests and I just want to hear what he has to say. Yes Mr Webb? WEBB: In my submission in light of the way that it has emerged and the particularity of the utterance concerning I so instruct the wand waving aspect that that has without seeking to invest it with any form of humorous taint in my submission the situation it is sought to make medical investigations concerning this. Your Honour would bear in mind he is a man with five children off the bat but - HIS HONOUR: What, which is information he volunteered. WEBB: That's so and given the way that it has been raised and also some of the issues which arise in Regina v Takeo and any sense the jury might have that there's not a united and faithful approach in terms of the legal advisers of the client in my submission application is made to immediately inquire of the appropriate medical practitioners who may be able to shed some light on this issue. HIS HONOUR: That's why I'm raising it because it is quite clear that if I can use a colloquialism both in the context of what was not said by your client in cross-examination and the further information he provided in re-examination, that your client has I don't mean this critically of him, but a "bee in his bonnet" about a particular aspect of the matter and I can't ignore it as much as I can't ignore an elephant sitting in the room. So as much as someone or anyone would wish it to go away or not go away, the truth of the matter it has been raised with the jury and that's a matter that needs to be addressed. Can I ask this question of you and if you decline to answer it I would fully understand but are you in a position to tell me what the character of the issue is? WEBB: Yes your Honour, as I apprehend the position, Mr C indicates that he at times material to the allegations, particularly the anal/penile allegations he was impotent or unable to sustain a erection by reason of some medical aspect, the onset of which occurred ex post facto to the five children." (AB2027-2028) (emphasis added) 140In subsequent discussions between counsel, his Honour and the prosecution it was agreed that the appropriate way to establish any suggestion of impotency was by reference to medical evidence, not by reference to the assertions of the appellant. After seeking instructions, counsel advised the Court as follows - "WEBB: A decision has been made not to pursue the matter any further, to leave it as it presently stands and accordingly I'm in a position to close the defence case." (AB2037) 141The issue raised by the appellant at the conclusion of re-examination had been the subject of advice and specific instructions (Mr Webb's affidavit of 14 June 2011, pp 24-26, 50-51). The outburst by the appellant clearly came as a complete surprise to counsel. 142The appellant relied on the matter we have emphasised in the passage last set out as an admission of failure in duty. In the full context, the statement by counsel is not an admission that he failed to do his duty by his client. What counsel was concerned about was an impression that the jury may have formed because of the conduct of the appellant, that there was some division of opinion between the appellant and counsel. The exchange between counsel and the trial judge could not in any way be regarded as an admission by counsel that he had not properly looked after the interests of the appellant. 143The written instructions disclosed that the appellant provided counsel with frequent and detailed instructions throughout the course of the trial, setting out not only matters that he wanted addressed but also specific questions that he wanted asked of certain witnesses. Some of these instructions were cast in mandatory terms. These instructions were not binding on counsel. The appellant was aware that he could terminate counsel's retainer at any time but specifically chose to continue with his representation, notwithstanding the decisions made by counsel during the trial, many of which are now the subject of complaint by the appellant. 144Counsel was entitled to exercise his discretion and to take whatever forensic or tactical decision he thought best in the circumstances. It is clear that in the light of the instructions not to seek separate trials, counsel faced a very difficult task. In the context of making appropriate forensic and tactical decisions in this case, counsel had to have regard to the risk associated with the possible disclosure of the appellant's prior convictions. Counsel also had to deal with the appellant's inability or unwillingness to understand the significant prejudice to his case had counsel followed all of his instructions. 145Ground of appeal 1 has not been made out. Ground of Appeal 9 - Fresh and/or new evidence as outlined herein was never put before the Court which led to a miscarriage of justice, inter alia, counsel did not know the "full carrot video" existed and had never seen the "Todd Ellis" video. 146It is convenient to deal with this ground of appeal in proximity to ground of appeal 1. 147The appellant's submissions in relation to this ground of appeal are set out in Part B of his Eighth Supplementary Submissions (appellant's submissions p 900). The appellant submitted that all of the material he referred to in the submissions constituted "fresh evidence" on the basis that it was "concealed", not only by counsel but also by the police and by the Crown. The appellant submitted that because counsel had not seen the "full carrot video" or "Todd Ellis video" that the trial miscarried and the appeal should succeed on that basis. 148A preliminary, but important issue is whether any of the material constitutes "fresh evidence". The principles on which fresh evidence may be admitted on a conviction appeal have been considered on a number of occasions: for example, R v Gallagher (1986) 160 CLR 392, Mickelberg v The Queen (1989) 167 CLR 259; R v Abu-Chabake [2004] 149 A Crim R 417 and GAR v R (No 1) [2010] NSWCCA 163 at [26]. 149For evidence to be fresh, it must be evidence that was not available at the time of trial. It is not contended by the appellant that any of the material upon which he now seeks to rely was not in existence or was not within his knowledge, or not available, to be used at trial. The real complaint is that his counsel or the Crown did not adduce the evidence or chose not to rely upon it. 150In Gallagher the following statement of principle by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 was referred to with approval - "A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that that a miscarriage has occurred unless the fresh evidence has cogency and plausibility, as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance." 151In Mickelberg the test was expressed at 310 as - "There is no very precise formulation of the quality which must attach to fresh evidence before it will ground for a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": See, e.g. Gallagher ; Craig v The King ; Ratten ; Lawless. In essence, the fresh evidence must be such that when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J). Or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused]". ( Gallagher , per Gibbs CJ and per Mason and Deane JJ)." (footnotes omitted) 152In accordance with earlier directions in this Court, the appellant gave notice that he wished to tender the following items as "fresh evidence" on the appeal. In relation to each item of evidence in the absence of full compliance with the earlier directions, he was directed by the Court (T40, 24 October 2011) to indicate what it showed and what should have been done with it by counsel at trial. The "fresh evidence" was - (i) A video of SB masturbating on the chair in front of a computer. (ii) A CD containing photographic images (which could be characterised as child pornography) which was labelled "Copy of [S's] fake pictures behind TV" and "[S's] music". (iii) A CD entitled "Car Cam phone calls". (iv) A video entitled "Dean - Tim". (v) A full version of the "carrot video". (vi) Two floppy disks and a CD copy containing photographic images (which could be characterised as child pornography) which were labelled "set up [P] 1998". (vii) A video described as the "Todd Ellis video". 153Leaving aside that this evidence was not "fresh", there are other reasons why the tender of this evidence should be rejected. 154In relation to item (i), the appellant sought to answer the questions posed to him by the Court by saying - "Counsel should have put it before the Court because it went to the motive why SB was setting me up, or one of the motives why SB was setting me up". (T41, 24 October 2011) This was not a response in accordance with the direction of the Court. Moreover, the first five minutes of this video was shown to Mr Webb in cross-examination and he denied that he had ever seen it before. 155Since this video was not shown to Mr Webb before or during the trial, it is not open to the appellant to now argue that a copy of the video should have been used in the trial. In any event, from the limited description provided of its contents, and from the brief part of it which was viewed by the Court, the video did not in any way satisfy the tests set out in Gallagher and Mickelberg. 156In relation to item (ii), in answer to the questions posed by the Court the appellant said - "Counsel should have put to SB that he'd made the first disc or both discs were made by him, the CD2, Copy of [S's] Fake Pictures Behind TV, was specifically made to set me up and SB refers to this in his retraction statement of 6 December 2006." (T41, 42, 24 October .2011) 157The appellant's response did not answer either of the questions put by the Court and did not provide a basis for the tender of that item. There was the added difficulty that SB had refused to acknowledge that he had signed the statement of 6 December 2006. Accordingly, the Gallagher and Mickelberg tests are not satisfied and the tender should be rejected. 158In relation to item (iii), the appellant said - "Well SB's evidence was that he rang from Casino telling me I couldn't use the videos in evidence, where S's telephone conversations from Casino are that he's trying to borrow money off me and he gives the account details, so clearly this went to the credibility of SB and to Ms Crystal Egan, that they both lied about that phone call. (T42, 24 October.2011) 159The background to this item is set out above. It was faked, and for the reasons earlier set out it is clear that counsel's decision not to rely upon the item was forensically sound. Moreover, the probative value of the item was marginal at best and would have had no effect on the outcome of the trial. 160In relation to item (iv), the Appellant said - "This was one of the most important parts because it relates to DB and an interview I did with him in 2001 where he states that he has been approached by the first complainant, [TR], to set me up and that was my whole case that I'd been set up from the beginning and DB had - that video had to be put to DB as well as [TR]. That's why [TR] had to be called." (T42, 24 October 2011). 161We have earlier referred to the Dean-Tim video. As there described, the potential prejudicial effect of that item, had it been used at the trial, far outweighed any benefit which it might have gained for the Appellant. Counsel's refusal to tender the video was forensically sound. It can not be said that it would have been likely to cause the jury to entertain a reasonable doubt about the appellant's guilt, quite the reverse, or that it satisfies any other test for reception as fresh evidence. 162In relation to item (v), the appellant said - "Okay, now as referred to in the mandatory questions and in SB's statement that I took from him at Manning River, 3 December 2004, S refers to these three videos and that the short one that was tendered in evidence was made to set me up and that it was a video by his brother, D. So clearly these questions had to be put to SB, as well as DB, that D had made that video. GILES JA: Made the short one as - APPELLANT: As well as the long one. DB made the whole carrot video. GILES JA: Well just on that one, what's the point of the full version rather than the short version? APPELLANT: Because SB refers, gives details in this 3 December 2004 statement which is also on video. That statement was taken on video where he explains how the video was made. GILES JA: Let me be a little more specific because we do need to understand this. APPELLANT: Yes. GILES JA: What would the full version show which would assist your case which the short version would not show? APPELLANT: That DB had made the video and that the words on the video were not at the end of the video as S's evidence - S states in his evidence, that at the end of the tape 'Mr C told me to say these words' where it is not at the end of the tape - it's about a third of the way in I believe. So it proves that it's not there. S is relying on just a small piece of the tape which is the set up tape saying 'hey, Mr C told me to say this at the end', and it's not at the end it's about a third of the way in." (T42-43, 24 October 2011) 163We have earlier related the difficulties associated with the "carrot video". The explanation by the appellant to the Court as to why the second or full "carrot video" should have been tendered at trial does not address the difficulties there identified. This is particularly so when count 14 was specifically based on the appellant's possession of Exhibit D, the "carrot video" which was tendered at trial. The tender of an even longer and probably more explicit "carrot video" would have done nothing to advance the appellant's case. It appears that the appellant eventually saw the point of its tender on appeal as showing that SB was incorrect in saying that he had been told by the appellant to refer to the appellant coming at the end, because that was not said at the end but part way through. We do not regard that as satisfying the requirements for admission of fresh evidence. 164In relation to item (vi), the appellant said - "Yes. Okay, now in 1998 after I'd reported [CB] to the police for the serious assault and after I'd caught DM on a security video, hidden video, masturbating at the computer they made these fake pictures to set me up in 1998 and that was the White Bridge High photographs that I tendered before Judge Norrish on 16 July and that is why my instructions to Mr Webb put the pictures and put the White Bridge High photos into evidence so that they can freely see that I'd been set up because DM denies the pictures were made and [CB] says they were. So that is basically those White Bridge High photos had to go in to see that - to show that hey, DM says these were never made, they're not real, and [CB] says they are real. But they're not, they're fake photos that [CB] had made up with DM to set me up in 1998." (T43.33, 24.10.2011) 165While the appellant's explanation provides no basis for the tender of this item, some information as to its content can be found elsewhere in the appeal papers. Items were produced by the appellant at his bail application following the trial, and the Crown arranged for the contents of the floppy disks to be transferred to a DVD (AB2292-2298). The transcript of the bail application reveals that many of the images on these floppy disks were identical to those on other CDs produced by the appellant. Although the appellant claimed that the images on these disks were made by CB and DM in 1998 in order to set him up, he conceded in his evidence on the bail application that neither CB nor DM had ever produced these disks or photographs to anyone (AB2297). The source of these disks appears to have been the appellant. From what was said on the bail application, there appears to be nothing on the disks to support the appellant's assertion that they were made by CB or DM, or that they were made with the intention of setting him up. No basis has been established by the appellant for the tender of this item. 166Item (vii) was the Todd Ellis video. We have earlier referred to it. The Court rejected its tender on the first day of the appeal (T55 - 56, 14 October 2011). 167The appellant has not established any basis for the admissibility of items (i) - (vii). None of those items could be regarded as "fresh evidence". Even if that problem could be overcome, none of the items go close to satisfying the Gallagher and Mickelberg tests in that none of those items, either individually or together, taken in combination with the evidence given at trial, would have been likely to cause the jury to entertain a reasonable doubt about the guilt of the appellant. Two of the items were not provided to counsel or his instructing solicitors and so they cannot be criticised for not tendering them at trial. In relation to all of the items, either individually or in combination, there were or would have been sound forensic reasons for them not being tendered. 168The tender of this evidence on the appeal is rejected. This ground of appeal is not made out. Ground of Appeal 2(a) and (c): A miscarriage of justice was caused by the Crown; a. failing to call upon Crown Witnesses to give evidence ... c. breached its duty of disclosure in concealing exculpatory evidence from the Court 169The appellant's submissions appeared to run the two matters together: the breach of the duty of disclosure was the failure to call witnesses in the Crown case. Before examining the particular submissions made in relation to the claimed miscarriage of justice, it is necessary to set out relevant principles determining a Crown Prosecutor's responsibility. 170In Richardson v The Queen (1974) 131 CLR 116 at 119, the Court (Barwick CJ, McTiernan and Mason JJ), addressed the question of the calling of witnesses and, in particular, both the role and the responsibility of a prosecutor as well as the powers of a trial judge in that respect. Their Honours there stated - "Any discussion of the role of the Crown Prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and, in the course of discharging that responsibility, it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called, he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few. What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in light of those factors, to identify the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context, the word 'discretion' signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned." 171In R v Apostilides (1984) 154 CLR 563 at 575 the Court (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ) set out some general propositions concerning the conduct of criminal trials in Australia. Included amongst the six propositions were - · The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. · When charging the jury, the trial judge may make such comment as the judge then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. · A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. 172In considering these aspects of ground of appeal 2, the following factors may be material - (1) Whether the evidence of a particular witness was essential to the unfolding of the Crown case. (2) Whether the evidence of the witness was otherwise appropriately called in the Crown case; (3) Whether the evidence of the witness would be regarded as credible and truthful. (4) Whether in the interests of justice the witness should be subject to cross-examination by the Crown. (5) Whether the evidence should be called consistently with the dictates of fairness to the accused. 173In the light of all the relevant factors, and in the context of this case, the appellant has the onus of establishing that there was an obligation upon the Crown to call the witnesses in question. To this end, the appellant must identify the relevant factors and then establish, consistently with the above principles, a failure by the Crown Prosecutor to discharge her responsibility in deciding what witnesses were to be called at trial. 174We do not consider that the submissions made by the appellant as to the claimed failure to call particular witnesses have shown a failure involving any breach of the responsibility of the Crown Prosecutor. 175The appellant contended that the Crown Prosecutor failed to call nine witnesses identified in his submissions. 176TR, BH, DM, TH and JH were all listed in the Crown's tendency and coincidence notice but were not complainants in the proceedings at trial. The trial judge refused the Crown's application to call the tendency evidence, and the five witnesses were consequentially not called in the Crown case. 177As to the remaining witnesses of which the appellant complains, witness statements of each were taken by police and the statements in the possession of the Crown were served on the defence. The Crown formed the view that those remaining witnesses would be of limited, if any, relevance. Importantly, as the Crown put in submissions, there was never any suggestion by the defence to the contrary (and no alibi notice was served for the purposes of the trial). 178During the trial the Crown provided a typed list of witnesses which it intended to call. The list was updated and was provided to the defence. No request was ever made by the defence to call or make available a witness that the Crown had indicated it was not proposing to call. 179Defence counsel had attended at the Crown Prosecutor's chambers where there was an inspection of relevant documents to ensure that all that was in the possession of the Crown was available to the defence. 180The appellant's contention that the Crown failed in its duty in not calling the witnesses is mere assertion, there being no attempt in the written or oral submissions to develop a proper basis for establishing any particular breach of responsibility by the Crown Prosecutor in the decision not to call witnesses. There is no substance in the allegation that the Crown concealed evidence or breached its duty of disclosure. 181These sub-grounds of appeal have not been established. Ground of Appeal 2(d): A miscarriage of justice was caused by the Crown; d. misstating the true state of the evidence during the trial and in Her summing-up to the jury 182The appellant's Second Further Amended Submissions (appellant's submissions pp 35 - 40) contained a number of references to the transcript to support this ground. However, it is relevant that the trial judge's directions to the jury included (AB113) - "Of course, the submissions themselves are not evidence in the case. Sometimes counsel have specifically referred to a particular piece of evidence or used evidence as an illustration of a particular point, but ultimately the submissions are precisely that and what weight you give them depends upon your view of the evidence." 183We have examined each of the complaints concerning statements made by the Crown Prosecutor, and do not consider it necessary to set out the detail raised by the appellant and responded to by the Crown. Subject to what follows, there is nothing worthy of discussion. Save possibly for one matter, it is sufficient to say that we do not consider that matters raised by way of complaint could, in any way, have had any material effect on the course of the trial or the jury's deliberations. The closing address by the Crown Prosecutor, in particular, was subject to the trial judge's summing-up, and in relation to the particular matters of complaint there is no suggestion that the trial judge's summing-up relevantly erred or misstated the position. In other words, the summing-up by the trial judge can be accepted in relation to those particular matters as having accurately stated the facts. The jury were aware of the nature and function of closing submissions and were instructed that they were to listen to and comply with the trial judge's summing-up. 184One complaint was to the effect that the Crown Prosecutor should not have referred to the appellant's son B and SC so many times in her address, because this may have left the jury to infer or ponder why they did not give evidence. The Crown submitted that the only references by the Crown Prosecutor to either of those persons in her closing address were, " peripheral ones " , and reflected the evidence during the trial when they were mentioned (see AB2064, 2093, 2098, 2099) and were not contentious. In our view that is correct, and nothing was said which would have caused the jury to infer or ponder why those persons did not give evidence. The Crown correctly pointed out that defence counsel in his closing address and the trial judge in his summing-up also made reference to the two persons referred to above where relevant to the unfolding of events. 185The one matter which may be in a somewhat different category is a mistaken reference by the Crown Prosecutor where she said "there's the letter from DOCs saying it was 12 weeks before 1 July". It was acknowledged by the Crown that the Crown Prosecutor should have said "there's the letter to DOCs saying it was 12 weeks before 1 July". The only reason it may be in a different category is that on the appellant's evidence the letter was material to when SB came to stay with him. However, any materiality was the date of the letter, 12 July 2004, not whether it was to or from DOCS. Further, two days prior to the Crown's closing address the letter was the subject of cross-examination, and it would have been clear to the jury that the letter was one that had been written by the appellant to DOCS. There is no suggestion that the trial judge made any such error in the course of his summing-up. We do not think that the error was of any significance in the overall context of the trial. Ground of Appeal 2(b) and (e): A miscarriage of justice was caused by the Crown; b. becoming emotionally involved in the trial ... e. caused unfair prejudice to the accused in cross-examination by casting aspersions against his character in that he had lied to the court when in fact the appellant had told the truth and the Crown had evidence to support this. 186No particular submissions addressed sub-ground (b) beyond those apparently directed to sub-ground (e). The submissions appeared to be those in which it was said that the Crown Prosecutor cast aspersions against the appellant's character "in that he lied to the court when in fact he told the truth and the Crown had evidence to support this" (appellant's submissions p 31). Reference was made to a passage in the transcript of the appellant's cross-examination (AB1912 sqq) of which the central part is - "Q. Are you seriously suggesting that these young boys when they were children would have download child pornography? A. Madam Crown they would - Q. No, listen to my question. Are you seriously suggesting that? A. SB and DB have already admitted that. Q. Mr C that is an absolute lie." 187The trial judge rebuked the Crown Prosecutor, who withdrew what she had said; his Honour said that she and counsel for the appellant "are not here to make comments". (It may be noted that in later cross-examination SB's evidence was put to the appellant; SB had only admitted to downloading images of "sheilas ... over the age of 18" (AB2033-2066).) 188We do not think that this incident, in the course of a lengthy trial, has any significance in relation to a miscarriage of justice. From our further reading of the transcript, we see nothing to indicate that the Crown Prosecutor was diverted from her proper role by an emotional involvement in the trial. The Crown Prosecutor was entitled, if not obliged, to cross-examine the appellant in accordance with the Crown case, if necessary by expressly putting (rather than commenting) that he had lied. 189These sub-grounds have not been established. Ground of Appeal 3: The learned trial judge erred and/or misled the jury as to the true state of the evidence in his Honour's summing-up, this led to a miscarriage of justice 190The appellant made a considerable number of complaints in support of Ground of Appeal 3. As the Crown observed, Rule 4 of the Criminal Appeal Rules applies to each of these complaints. We will return to Rule 4 below. 191The appellant's individual complaints are identified in the Second Further Amended Submissions in paras (a) to (v) (appellant's submissions pp 48-54). We address each in turn. (a) An allegedly ambiguous statement which would have led to confusion on the part of some, if not all, jurors as to the state of the evidence concerning the complainants 192The particular statement in the summing-up was the trial judge's statement that "... there is one complainant giving evidence of matters denied by the accused". 193When this statement is read in context, no ambiguity or confusion can possibly arise. In the more full passage (AB122) the trial judge referred to the fact that, in relation to each count "... the case depends very much on a direct conflict between the evidence of the accused and the complainant". His Honour referred to particular exhibits, and then said - "In terms of establishing the guilt of the accused as having done certain things such as to constitute a particular crime, there is one complainant giving evidence of matters denied by the accused. Thus we have what I have said is this direct conflict." 194In context, the trial judge's statement emphasised the importance of the jury determining, in each case, whether they accepted the complainant over the appellant or the appellant over the complainant. No ambiguity arises. There is no likely confusion as alleged. (b) That the trial judge "transferred the burden of proof from the Crown to the appellant" 195The transcript reads (AB123) "... but that does not relieve you of resolving the issue of whether the accused (?) has proved its case beyond reasonable doubt". The particular passage in which this appears ends with the need to consider "whether the prosecution has proved it's case to the requisite standard". 196There was either a typographical error or a slip by his Honour. It is clear in context that the word " accused" was incorrect. However, there could have been no possible doubt in light of the passage as a whole and the preceding comprehensive directions given as to the onus of proof (AB120 sqq). The jury would have clearly understood that the burden of proof lay with the Crown. 197There is no substance to this complaint. (c) Propensity and tendency direction 198The appellant's complaint is not easy to understand. The trial judge directed (AB124) the jury against using propensity or tendency reasoning, as was both appropriate and favourable to the appellant. The appellant complained that the direction "led the jury to believe that [he sexually assaulted young males and perverted the course of justice] when one considers the fact that the judge is misstating the evidence in the trial see below". 199There was no error in the direction. There is no substance to this complaint. (d) The age of SB at the time of the offence 200The offence the subject of count 12 was alleged to have been committed in the latter part of 2003 when SB was living with the appellant; the living with the appellant was the basis for the element in the count that SB was under the appellant's authority. The appellant contended that SB came to live with him in May 2004. As best we understand it, the complaint was that the trial judge did not direct the jury that SB could not have come to live with him when 12 years old and in year 9, as he had said in his evidence in chief, and so the offence (which the appellant denied) could not have been committed in 2003 when SB was living with him. 201The offences under counts 12 and 13 contained as an element sexual intercourse with someone under 16 years but, as the Crown Prosecutor emphasised in her closing address, the circumstance of aggravation in relation to those two counts was that SB was under authority at the time. A person in authority who breaches the trust relationship aggravates the offence. SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. 202No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint. (e) Typographical error re evidence by the accused 203The appellant complained of a mistake in the summing-up which he said was likely to have affected the jury. In the transcript the trial judge is recorded as saying, "The choice by the accused not to give evidence does not mean that the evidence he gave was necessarily true" (emphasis added). 204The first "not" was obviously either said in error or a typing mistake. The full passage (AB180-181) was a careful and appropriate direction concerning the appellant having given evidence but the burden of proof remaining on the Crown. The jury saw and heard the appellant give evidence and would have understood the "not", if it was said, as a slip. 205There is no substance in this complaint. (f) Evidence by DM 206The trial judge said, according to the transcript (AB181), "Now in respect of the allegation of DM, the accused first gave evidence about exhibit B". The appellant said that this was wrong, and that it was DM who first gave evidence about the exhibit. He further said that the transcripts of Exhibit B were incorrect. 207When what the trial judge said is read in context, his Honour was dealing with the appellant's evidence. There was no error, certainly not one which would have misled the jury. It was not established that the transcripts were wrong, and they were tendered and admitted without objection (AB1879-1880). The jury had the video recording, and were told that the transcripts were simply an aid and may not be entirely accurate. 208We do not consider that this complaint is of any substance. (g) Support for CB's evidence 209The statement complained of was, "You will note in relation to CB's evidence that his allegations were not supported by any other independent evidence ..." (AB190). The appellant said that the trial judge was mistaken, because DM gave evidence to support CB's allegation that the appellant had stayed at a Mayfield motel. He further said that the Crown concealed evidence that the appellant had never stayed at the motel with CB or DM. (Some inconsistency may be seen in these complaints.) 210As the Crown pointed out in relation to CB's evidence, the statement in question was immediately followed by, "You will bear in mind in relation to his evidence his account of what happened at Mayfield, although it is not the subject of a particular charge, it is not materially supported by DM so far as he alleges an impropriety by the accused against him in the bed whilst DM was in the room". The statement complained of was not as to staying at the motel, but as to what occurred there. We do not believe this complaint raises a matter of any substance that could have affected the jury's consideration. Further, there is no evidence that the Crown concealed evidence that the appellant did not stay at the motel. From the affidavit of Ms Boulous sworn on 29 September 2011, the material in its possession was disclosed. 211Again, there is no substance in the complaint. (h) A misstatement in the evidence 212In the course of the summing-up the trial judge referred (AB171) to - "... the accused having C4 and blowing up a car with people inside, and those sort of things, and taking $100,000 to a funeral parlour ..." There was a subsequent reference to $100,000 (AB195). The appellant complained that the judge misstated the evidence by stating an amount of $100,000 instead of $10,000 when referring to evidence of CC of what DB had told him about the appellant. 213The evidence of CC in this respect was peripheral, and for such relevance as it had an error in referring to $100,000 rather than $10,000 was not material. We do not think the jury can have been materially misled, or that there was any risk that they would have misused the reference to $100,000 in lieu of $10,000. (i) No evidence to support summing-up statement concerning Exhibit D 214Under this sub-ground, the appellant contends that there was no evidence to support what the trial judge said in the summing-up (AB210) - "In relation to Exhibit D, he made no mention, when he was shown that video in May 2007, of his reasons for saying on the video, '[DB, P's] coming home' or words to that effect. He made no reference in that statement to P telling him to say those words and it was suggested to him that this account that he gave in the trial was a recent invention on his part. In his statement to police he claimed that he told Uncle Don about the making of the video, Exhibit D, and how it was made and what happened." 215The appellant says that SB stated that he had never seen the "carrot video" and did not want to see it; and further, that there was no police statement in evidence at the trial. 216The trial judge had referred to count 14 and an alternative count, and to the circumstances in which SB claimed that Exhibit D was made (AB203). His Honour was summarising the cross-examination of SB by defence counsel. The evidence of SB as to whether he had seen Exhibit D, or where he had seen it or how much of it he had seen, was to an extent unclear. However, there was no dispute that SB claimed to have had a recollection of what he said on the video. The police statement of SB concerning Exhibit D was not tendered in evidence, but defence counsel specifically cross-examined SB about what he said in that statement (AB1153-1156). 217The appellant's submission was to the effect that the trial judge misled the jury in what he said about Exhibit D and SB. That is not correct. There is no merit to this sub-ground of appeal. (j) The evidence of Sergeant Rumbel 218The relevant passage appears at AB217, in the following terms - "And finally Sergeant Rumbel gave short evidence of attending upon a motor accident in Maitland on 6 July 2005 when a motor vehicle had collided with a power pole and he had taken a statement of [the appellant] and SB. He later took a second statement of SB at Raymond Terrace." 219The appellant contended that Sergeant Rumbel took a statement from him and Sergeant Rumbel's partner took a statement from SB, and that Sergeant Rumbel did not take a second statement of SB. 220The evidence was that Sergeant Rumbel attended the accident with Constable Newton; he took a statement from the appellant and Constable Newton took a statement from SB; and Sergeant Rumbel at a later time became aware that SB had made a second statement at Raymond Terrace but had not seen that statement (AB1769-1770). 221There was a discrepancy in the trial judge's reference to the evidence, but it was of no materiality and could not possibly constitute or contribute to a miscarriage of justice. (k) A mistaken reference to the appellant instead of DB 222The passage in the summing-up on which the appellant relied was concerned with the evidence of DB. His Honour said (AB221) - "Now that does not mean to say that the evidence that he gives in this court is truthful under the protection of that certificate. But you should bear in mind that the accused has been given a certificate in respect of the evidence he gives about what happened at Taree and what happened at Port Macquarie and the purpose of that certificate is to ensure that he is not prosecuted for perjury or some other offence relating to what he claims to be now the false evidence he gave at the District Court and the Local Court, as that evidence relates respectively to count 22 and count 21." (emphasis added) 223The reference to "the accused" was incorrect; it should have been to DB. The appellant submitted that the trial judge "discredited the appellant and seriously caused (a) gross miscarriage of justice", that his Honour "transferred [the] immunity from prosecutions certificate to the appellant", and that in doing so his Honour created in the mind of the jury that he had sought or had been given a "certificate from prosecution". That had in fact never been the case. 224The trial judge commenced his discussion of the evidence of DB at AB220. His Honour told the jury that they would have to assess DB's evidence very carefully. He then addressed the evidence given by DB in relation to counts 21 and 22. In the paragraph preceding the paragraph on which the appellant relied the trial judge stated - "I should tell you that in respect of the evidence he has given about falsehoods given at Taree and Port Macquarie courts I gave him in your absence a certificate under the Evidence Act. That certificate is a protection against him for being prosecuted for perjury or giving false evidence on previous occasions ... ". 225When the passage in question is seen in context, it is clear the jury would have understood that the trial judge meant to refer to DB and that the protection given by the certificate operated in favour of DB and not the appellant. There had been no prior discussion or suggestion that such a certificate had ever been issued to the appellant. What was under discussion was the evidence of DB, and the mistaken reference to the appellant would have been understood in that context. 226There is no basis for a miscarriage of justice by reason of the trial judge's incorrect reference to the appellant. (l) Reference to SB in the appellant's care in 2006 227The complaint was as to a reference in the summing-up to documents that had been obtained from the Department of Community Services "showing that the complainant was in [the appellant's] care in 2006". The complainant was SB. The appellant said that the trial judge was mistaken, because SB was not in his care in 2006. 228The trial judge was referring to Detective Hatchwell's evidence, and his Honour said that the evidence was, inter alia, that he had obtained some documents from the Department of Community Services showing that the complainant was in the appellant's care in 2006 (AB222). This was incorrect. However, shortly afterwards the Crown Prosecutor reminded the trial judge, in the presence of the jury, that the documents disclosed that the correct year was 2004 and not 2006 (AB 224). His Honour confirmed to the jury that he had meant the year 2004. There is no substance to this sub-ground of appeal. (m) Evidence of CB 229The appellant's complaint appears to relate to the evidence of CB rather than what was said in the summing-up. The trial judge referred to evidence of CB to the effect that he was given a copy of his statement a week before the trial. The appellant's point appears to be that this was incorrect, and further that evidence was available but not tendered (part of a transcript of the Port Macquarie proceedings) showing that CB had read his police statements at that time (December 2006). 230CB gave evidence (AB864) that he had been given a copy of his statement in 2006 and had a copy available whilst he was in custody. He was later given a copy when he came to court, that being the occasion to which the trial judge referred. It was not his evidence that he had not been shown his police statements until a week before the trial. There is no substance in this complaint. (n) Reference to the witness H 231The appellant's complaint relates to part of the trial judge's summing-up concerning count 18. H was the elder sister of SB. For count 18, it was the Crown case that the appellant picked SB up from H's place having telephoned to see whether he wished to go for a drive, and they drove up north. The particular passage in the summing-up was recorded - " ... she described it, 'there was just [P] and he, and they went up past Maclean'." 232The complaint was that H had not given this evidence and "she" should have been "he". That is correct. Again, either there was a typing error or there was a slip by the trial judge. However, when read in context it was clear, and it would have been clear to the jury, that the trial judge was referring to the evidence of DB and not evidence of H. The statement was made as part of describing DB's account of the circumstances that gave rise to count 18. In any event, the jury acquitted the appellant on that count. There is no substance in the complaint. (o) Reference to drinking alcohol 233In relation to count 18 the trial judge's reference to SB's evidence is recorded in the transcript - "They stayed at a motel, it was in a town, he did not know the name of the town it was 'near Lismore or something'. 'Both of us' just drank alcohol, he said, they did not eat anything. He drank some spirits, he said he was 'pretty pissed'. They slept on the double bed." 234The appellant said that the evidence of DB was that he (DB) and he alone drank alcohol. He said that what the trial judge said would or could have been misinterpreted by the jury and "cross-pollinate[d] the other complainant's evidence", because the appellant was a non-drinker. 235The evidence of DB was (AB1324-1325) - "Q. Whereabouts was the motel? A. In a town. Q. Which town? A. I don't know, near Lismore or something. Q. Do you remember what time that you got to the motel? A. Yeah it was night time, pretty late. Q. How many motel rooms were booked? A. Just that one. Q. Who stayed in that motel room? A. Both of us. Q. Did you have anything to eat or drink in the motel? A. Didn't eat anything, just alcohol. Q. What alcohol did you have? A. Some spirits. Q. Who bought you those spirits? A. [The appellant] did." 236The trial judge was plainly repeating the evidence, although the punctuation as what was said is recorded does not fully reflect that. It was not clear that the appellant consumed alcohol, probably the evidence was to be understood that he did not, but that was the evidence. In any event, whether the appellant consumed alcohol was not an issue at trial. 237There is nothing in this complaint. (p) Discount on sentence for DB 238The trial judge told the jury that DB "agreed that he obtained a discount" on a sentence for an offence of reckless wounding (glassing). The appellant said that this was "in relation to DB's offer to police that if he gave a statement alleging the appellant sexually assaulted him" his sentence may be reduced, and that it was reduced; he said that the Crown knew that fact but it was not brought up in the Crown's case, or when DB gave evidence or was cross-examined. 239This was not a complaint as to the summing-up, but as to the conduct of the trial. DB had pleaded not guilty in the Local Court to a charge of reckless wounding. He was found guilty and was sentenced to imprisonment for a non-parole period of 18 months with an additional term of 6 months. He appealed to the District Court, and the sentence was varied to one of 12 months imprisonment which was then suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. DB provided a statement to police complaining about the appellant while he was in custody pending his appeal. 240These circumstances were disclosed by the Crown to the Court and to the defence (AB1311), and Mr Webb cross-examined SB on the issue at length (AB 1377-1383; 1401). The trial judge referred to this (AB244-245) and gave the jury a direction under s 165 of the Evidence Act 1995. 241There is no merit in this sub-ground of appeal. (q) A related issue to sub-ground (p) 242The trial judge's reference to DB's glassing offence and discount included (AB244) that DB had said that - " ... the glassing of this other individual was a mistake. He agreed that he obtained a discount although he could not get a letter of support in relation to the matter from the police. He was asserting that he had not deliberately injured this other person. Of course you bear in mind DB is not on trial in relation to that allegation. The circumstances of that allegation are relevant to understanding the circumstances in which his statement making allegations against the accused came into existence baring in mind he had been interviewed by police in July 2007 and had not volunteered any wrong doing on the part of the accused at that point ... ". (emphasis added) 243The appellant said DB had been convicted so it was no longer an allegation, and that the jury "could perceive that his Honour is on the complainant's side". 244There is no substance to this sub-ground of appeal. It was made clear to the jury, by the evidence and submissions, that DB had been convicted and sentenced, initially in the Local Court and subsequently by the District Court although the sentence had been reduced by the last mentioned court. The use of the word "allegation" in that context does not carry any weight. The circumstances giving rise to the offence involving DB were clearly made known to the jury, and the charge brought against him and its disposition were also the subject of detailed evidence. It was appropriate to tell the jury that it was not a matter for them to be concerned with the criminal liability of DB in relation to the "glassing" incident. (r) Reference to motor vehicle accident near a wine bar in Taree 245The statement in the summing-up the subject of complaint was (AB248) - "In relation to DB, the accused's evidence was concerning counts 21 and 24, as it relates to MH, that he was hit by a motor vehicle near a wine bar in Taree." 246The appellant said there was no evidence of any "wine bar", and that the reference to it by the trial judge was a mistake; further, that the jury could misuse the statement and the other evidence identified in relation to sub-ground (m) to believe that the appellant was a drinker; he said that "the appellant's character has been tainted". 247The evidence as to the incident was that it was near premises referred to as "Saltwater Wine". There was no evidence as to the nature of the business conducted at those premises. However, there was evidence or suggestion that the appellant had been to or was going to those premises. There was no basis for an inference, from what was said by the trial judge in the summing-up or on the evidence, that the appellant may have been a drinker. We also repeat that the appellant's drinking habits were not an issue at trial. 248There is nothing in this complaint. (s) Complaint concerning appellant's assistance to StB 249SB was an older brother in the B family. The trial judge said, referring to the appellant's evidence, that the appellant "had taught [StB] or assisted him with reading at some stage". The appellant's evidence had been of helping DB with reading (AB2008). 250As the Crown submitted, the trial judge's slip was a minor matter. StB was not a complainant in the trial, nor did he give any evidence suggesting sexual impropriety on the part of the appellant. The jury can not have been diverted from proper attention to the appellant's guilt or innocence. (t) Calling witnesses in the TR2 proceedings 251The trial judge stated (AB250), in relation to the cross-examination of the appellant about calling DB as a witness - "The accused said he was concerned about the people that said they saw the accident giving evidence. He was concerned for their safety. He believes he said in cross-examination, that there were five witnesses. He didn't know all their names and it was in the cross-examination he spoke of seeing a woman and her daughter for a few days later at Wingham and he took a statement in writing from them. He said that the reason he did not call them to given evidence was the same reason as he didn't call MH and Todd Ellis to give evidence. He wanted to just rely upon DB." 252The appellant said that this was not the evidence and that he "had always intended to call MH, Todd Ellis and DB as there were two matters running against TR2 at the same time". This is not easy to understand, but it was a correct summation of the evidence and it was not the appellant's evidence at the trial that he always intended to call the three persons mentioned. In fact he called DB alone. (u) The date of the conversation between TB and Pastor Hodson 253Exhibit L was an agreed statement of facts as to TB's disclosure of certain matters to Pastor Hodson and his wife. The appellant said that the trial judge incorrectly said (AB265) that the date of the conversation was 2 December 2006, when it should have been 2 December 2008, and that it was a serious error because the credibility of TB was "advanced" by a complaint shortly after the alleged event. 254Exhibit L recorded the date of the conversation as 2 December 2008. It was read out to the jury with the correct date. TB gave evidence that he spoke to the Pastor in late 2008. 255Earlier in the summing-up the trial judge told the jury (AB157) - " ... TB first approached the authorities after speaking to Pastor Hodson in early December 2008. But for reasons which I need not go into and nobody has made much about, he did not make a statement to police until February 2009 ...". 256In the passage complained of the trial judge reminded the jury of the agreed facts, saying - " ... the agreed facts relate that TB on 2 December 2006 in the course of a conversation with Pastor Glen Hodson and his wife ... told them that [the appellant] had threatened to harm his sister. That agreed fact is based upon the detail of the recording that was made by Mrs Hodson and passed onto the police. You might remember that the chronology was that TB went to the Pastor, some notes were taken of what he was alleging. Those notes were typed up and emailed or passed on to one of the detectives, although the detectives did not get around to taking a statement from him until February of the following year." 257It would have been clear to the jury that the trial judge was intending to refer to 2008, not 2006, in the summing-up. There had been earlier reference to 2008, and his Honour immediately went on to tell the jury that the Pastor's notes were typed up or emailed or passed on to one of the detectives although there was delay in a statement being taken until February of the following year, 2009. There is no basis upon which the mistaken reference to 2006 could give rise to or contribute to a miscarriage of justice. (v) Photographic evidence 258In the summing-up the trial judge emphasised the importance of the criminal standard of proof beyond reasonable doubt in the jury's assessment of the evidence before any findings could be made. His Honour went on (AB122) - "In this regard you must bear in mind in relation to this case that in respect of each complainant, in respect of each count concerning a particular complainant, the case depends very much on a direct conflict between the evidence of the accused and the complainant. There is, apart from of course the film, evidence of the videos which are relevant to count 6 and 11 and 15 and Exhibit 1, relevant to Exhibit E, in respect of count 15, and of course for the film which has been called the 'carrot video' and the related video if I might call it that Exhibit 2, of which there is direct photographic evidence, in terms of establishing the guilt of the accused as having done certain things such as to constitute a particular crime, there is one complainant giving evidence of mattes denied by the accused. Thus we have what I have said is this direct conflict." (emphasis added) 259It was contended by the appellant that the reference to "direct photographic evidence" was very damning and extremely serious. In that respect the appellant said - "Fact the 'carrot video' was tendered by the appellant before Garling DCJ [Port Macquarie proceedings] to show that I had been set up. His Honour has turned the defence exhibit as DNA and made it finite to prove the guilt of the accused when this was not the case. It was up to the jury to decide this fact." 260As the Crown observed, it appears that the appellant asserted that the "carrot video" was a defence exhibit because it was produced by him at the Port Macquarie proceedings, and that it should not have been referred to by his Honour as something "finite" to prove the appellant's guilt. However, the Crown relied on the "carrot video" in relation to count 14, and its relevance was dealt with in the summing-up at AB141-143; 156-157. 261The paragraph in which appeared the statement of which the appellant complained was part of a general reference to the conflict between the evidence of the complainants and that of the appellant, but with mention of evidence by way of film or video constituting what the trial judge referred to as "direct photographic evidence". In the passage in question his Honour was indicating that the film and video evidence was part of the Crown case, all of which was contested by the appellant. There is no basis for a miscarriage of justice in relation to this sub-ground of appeal. 262Taking all of the complaints in (a) to (v) together, in our opinion no miscarriage of justice has been established. 263In relation to the complaints in (a) to (v), we have earlier indicated that Rule 4 arises. 264Rule 4 specifies - "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 of 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." 265There was no application made at trial in respect of the matters that have been raised in complaints (a) to (v) above. In considering whether or not leave ought to be granted now to argue these matters of complaint, the Court is entitled to have regard to the substance of the complaints and their materiality to the proceedings as a whole and whether or not they raise matters of significance such as to potentially result in a miscarriage of justice. 266We have taken into account each of those matters. We are firmly of the opinion that leave should not be granted under Rule 4. 267Accordingly, this ground of appeal should be dismissed. Ground 4: The learned trial Judge cast an unjustifiable aspersion against the appellant which was highly prejudicial this led to a miscarriage of justice 268In his written submissions the appellant set out the passage in the course of his cross-examination which we have already set out in relation to ground of appeal 1(e); for convenience, we repeat it in part. The subject-matter was SB coming to live with the appellant. The passage was - " Q. So it would be correct to say he was living with you in April 2004 wouldn't it? A. Well I believe what I should have put is - no - if you read my letter. 'SB has now been in my care for some weeks twelve weeks.' Probably I should have put, approximately twelve weeks and I can give you a statement here that gives you the exact date SB came into my care, the day I took him to DOCS, you've got it in your files Miss. His Honour: No, no please Mr C. Witness: Sorry. His Honour: Don't volunteer things that you say people have got because they may not have them - I don't know. Witness: They served on you your Honour. His Honour: No, you maybe a mind reader for all I know, but you can't keep on asserting that people have got things right, Mr C I'm not going to ask you again. I'm going to have to cut you off because it's not an answer to the question." 269The appellant submitted that he was justified in answering and had a "fundamental right" to answer as he did, as the material to which he referred had been served on him and his counsel as part of the Crown brief of evidence and was part of his "comprehensive defence portfolio given to his counsel". He further submitted - "... that the jury would have inferred that the appellant was lying, making up the matters inter alia ' being set ' up and that the files did not exist when in fact they did. Especially since the appellant's counsel did not rectify the aspersion against his character." 270We have referred at [120] to the many occasions on which the trial judge warned the appellant not to volunteer information which was not responsive and to listen carefully to each question. The appellant did not pay heed to the warnings. The trial judge was, with respect, correct in his observations in relation to that part of the appellant's answer to the question in cross-examination which stated "... and I can give you a statement here that gives you the exact date SB came into my care ...". That statement was not responsive to the question asked. 271The appellant was in the position of a witness being cross-examined, and it was not open to him to answer a question by offering to provide a statement that he said he had available to him. It was for that reason that the trial judge stated " Don't volunteer things that you say people have got ...". When the trial judge further stated, "I'm going to have to cut you off because it's not an answer to the question", it was a correct and proper ruling on a purported answer by the appellant. 272There is no basis for the contention that the statements made by the trial judge in some way constituted "an unjustifiable aspersion against the appellant which was highly prejudicial ...". It may be noted that Mr Webb gave evidence in the appeal (affidavit of 14 June 2011, pp 51-2) that he saw the trial judge's remark as to the appellant being a "mind reader" as "made ... in the context of forbearance", and not in his view at the time occasioning any significant prejudice to the appellant. 273There is no substance to this ground of appeal. Ground of Appeal 5: The appellant was mentally ill shortly before and during the trial which led to a miscarriage of justice 274Particulars of this ground were set out in the appellant's submissions. The appellant said that he was "mentally ill" due to the effects of medication that he was taking prior to and during the trial, namely Efexor, an anti-depressant drug. The appellant was taken into custody on 8 April 2009, and was transferred to the MRRC where he said he was seen by a nurse. He said that he advised the nurse that he had, in the past, been treated with Efexor but had discontinued it because of his forthcoming trial. He further said that over the next few days the nurse provided him with Efexor in high dosages. He claimed that the "normal dose" of Efexor was 75 mg per day. He claimed that he was "forced" to take double the normal dose, namely, 150 mg per day. 275In his submissions, the appellant asserted that over the next few days he experienced severe headaches which he attributed to the Efexor, and could feel himself becoming "grandiose, irrational and hypo manic". He said that during the trial, the effect was that - "[he had] absolutely no fear of the consequences when his [sic] is on such a high dose of the medication. Through out [sic] the trial the appellant was unable to focus and give rational instructions to his counsel". 276The submissions included - "(l) Because of the medication and the threats, the appellant in his grandiose state decided to make sure he was found guilty in the trial to protect his children and grandchildren deliberately compromising his defence. See ... T 1437, 18." 277This related to the question of " threats" and "duress" which arises for separate consideration under ground of appeal 8. The reference to T 1437 was to the trial judge's observation in connection with the exposure of genitalia episode that he had warned the appellant "so many times how unhelpful it is for him to think he is smart in volunteering information, which the jury will quite clearly see is merely prevarication and obfuscation and grandstanding on his part" (although his Honour continued, "but that's - he's made a considered judgment about that because I've given him so many warnings to protect him from himself"). 278In summary, the appellant contended that the dosage of Efexor (of the order of 150 mg on a daily basis) led him in some way deliberately to compromise his trial, to make sure that he was found guilty so as to be found as "some kind of martyr". He said in his submissions - "... It is submitted that Justice Health in forcing the appellant to take the high dose of medication without seeing a doctor has compromised the appellant's chance of a fair trial. Therefore, the appeal should succeed on this ground as justice has miscarried ..." 279At the conclusion of the trial, whilst the jury were deliberating, the appellant sent counsel a document headed "Trial compromised" (appellant's submissions p 149). In that document he claimed that he had returned to normal after not being on the medication for five or six days, and that his ability to properly instruct and obtain a fair trial had been "gravely compromised " . 280For the reasons which follow, we do not accept that the appellant's mental state was such that there was any miscarriage of justice. 281The appellant was examined by Dr Allnutt, consultant psychiatrist, on two occasions. Dr Allnutt produced three reports, the first dated 14 April 2009, the second dated 16 December 2009 and the third dated 22 October 2010. (It will be recalled that the trial commenced on 11 May 2009 and continued until the jury returned guilty verdicts on 26 June 2009.) Dr Allnutt swore an affidavit dated 30 September 2011 which was read in the appeal. Copies of the reports were annexures A, B and C to the affidavit. Dr Allnutt made corrections to typographical errors in a report and, having done so, concluded - "None of these changes affect my opinion of his fitness to stand trial as expressed in that report dated 22 October 2010 (Annexure C)." 282In the report of 14 April 2009, Dr Allnutt's opinion was that the appellant was fit to stand trial and that it was unlikely that he was mentally ill at the time of the commission of the offences. Dr Allnutt noted that, whilst the appellant reported difficulties concentrating on matters such as television, he nonetheless "... maintained focus on his criminal and civil Court cases ...". The appellant had reported to Dr Allnutt that, since initially being diagnosed in about 1997 with depression and commencing at that time to take Efexor, he had continued to take Efexor "on and off since then" and that this had helped his depression. The appellant observed that Efexor "... made him confident so that, by 2001, he felt 'super confident'". Dr Allnutt noted that the appellant's speech was clear and coherent, and he observed - "He did not manifest evidence of side effect to psychiatric medication or neurological illness. He spoke in a clear and coherent manner. There was no significant evidence of psychosis. He endorsed a depressed mood with some mild neurovegetative symptoms of depression but none of mania or hypomania. He manifested adequate cognitive capacity and capacity for insight and judgment." 283For the report of 16 December 2009, the appellant gave Dr Allnutt a history that, after he was incarcerated, he felt "forced " to take Efexor commencing on 16 April 2009 at a dose of 150 mg which he continued to take during the course of his trial. It was noted in the report - "... He was given 150 mg in the morning by a nurse; he tried to refuse it and was told that he could not refuse it; he was told this by the nursing officer if he refused he was going to be 'thrown in a dry cell'." 284The appellant's history at that time included that Justice Health had contacted his general practitioner who advised them that the appellant was on Efexor. The report again noted "He felt coerced, so he took the medication; he denied at the time that he was feeling any depressive conditions ...". 285No precise factual account was recorded by Dr Allnutt to support the statement that the appellant "felt" coerced. 286Dr Allnutt recorded that the appellant took the Efexor at a dose of 150 mg a day for four to six weeks prior to the trial and during the trial until three weeks before the end of the trial. He recorded that during the course of the trial when the appellant was taking the Efexor "... he said he began to feel invincible; these symptoms took about three to four weeks to emerge after commencing the Efexor ...". The report also recorded - "He thought he could run his own trial; he was also distracted and had difficulty focussing on what was going on with the trial and recalled frequently making inappropriate comments in the Court; three days prior to the end of the trial the medication was discontinued and he came 'crashing down'; he said he felt different and began to feel less confident ..." 287Dr Allnutt reported - "I have reviewed the transcript of his evidence and until near the end of his evidence of the 17 June 2009, I was unable to identify significant evidence of symptoms consistent with hypomania expect [sic: accept] that his Honour noted on occasion that he seemed to become tangential; however, it appears that despite this observations, he was able to be re-directed to answer the questions put to him; in addition, there was an incident when he wrote something on a note that he said was a joke." 288Dr Allnutt conducted a documentation review of notes from the appellant's general practitioner between February 2005 and November 2009. This revealed that for periods in 2005, 2006 and 2008 he had been prescribed Efexor at dosages of 150 mg twice daily. 289In the report of 16 December 2009, which was prepared for the purposes of the sentencing proceedings, Dr Allnutt expressed the opinion that the appellant did not manifest any significant symptoms of major mental illness, and observed - "... there is some objective evidence to support his report to me that Efexor induces a change in his mood consistent with hypomania. On this basis, there are grounds to raise concern that he has an underlying vulnerability to mood fluctuations and raises the possibility that he has experienced hypomania induced by Efexor in the past." 290In the report of 22 October 2010, Dr Allnutt stated that at the time he saw the appellant in April 2010 he thought he had some residual symptoms of a mild depression probably more consistent with an adjustment disorder with a depressed mood, and that the antidepressant that he was taking at the time (Efexor 37.5 mg daily) were ameliorating his depressive conditions. In that report Dr Allnutt expressed the view that, while the appellant may have acted in a manner that was not in his interests and even if he had been dis-inhibited due to mild symptoms of hypomania, he retained capacity based on Presser criteria. Accordingly, Dr Allnutt considered that he would have been fit to stand trial on the evidence provided to him. Dr Allnutt was prepared to accept that Efexor had induced a change in the appellant's mood consistent with hypomania, but said that "... the information provided suggested these symptoms were likely relatively mild" (referring to symptoms of hypomania, over-confidence and dis-inhibition). 291Leaving to one side the allegations that he was, in effect, forced or pressured into the daily dosage of Efexor, the medical opinion does not support the appellant's submissions as to the effect of the drug upon him. 292Whilst Dr Allnutt accepted that Efexor had induced a change in the appellant's mood (consistent with hypomania), he stated that the information indicated that such symptoms were "likely relatively mild". There is no warrant from Dr Allnutt's reports for concluding that the ingestion of Efexor by the appellant not only affected his mood, but also caused him to be "irrational" or "... unable to focus and give rational instructions to his counsel". There is no support from Dr Allnutt's reports for the proposition that Efexor had produced such an effect as to interfere or impair his cognitive processes to the point that he became irrational during the course of the trial or was unable to properly give instructions. 293It is not necessary further to consider and determine the appellant's account to Dr Allnutt that Justice Health "forced" him to take the higher dosages of Efexor without him having seen a doctor. The important question is whether or not there is evidence, in particular, expert medical opinion, from which it should be concluded that Efexor materially impaired or affected his cognitive processes so as to materially interfere with his ability to provide rational instructions and to otherwise act rationally. It may be said that apart from the appellant's general allegation of having been "forced" to take doses of 150 mg of Efexor daily, there is no direct evidence to establish that the dosages given to him were either excessive or were forced upon him. 294In oral submissions the appellant submitted that Dr Allnutt had erred in his assessment of him through applying the Presser standard; instead, it was argued that the test espoused in M'Naghten's Case (1843) 1 Car & Kir 130n; (1843) 4 State Tr NS 847; [1843-60] All ER 229; (1843) 10 Cl & Fin 200; (1843) 8 ER 718 applied. 295The Presser test was expressed by Smith J in R v Presser [1958] VR 45, wherein his Honour said at 48 - "He needs ... to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand ... the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 296The Presser test has in recent years been considered by this Court in Clarkson v R [2007] NSWCCA 70; (2007) 171 A Crim R 1. See, in particular, the judgment of Beazley JA at [127] - [144]. 297We do not consider there is any substance to the submission that Dr Allnutt erred in his assessment of the appellant by application of the Presser standard. It is relevant to note that, in the course of his submissions, the appellant conceded (T54, 24 October 2011) - "... [Dr Allnutt's] affidavits refer mainly to Presser. Clearly I agree that I was capable of satisfying Presser, but when it comes to the McNaughton [sic] test and the intoxication and the defaults in judgments, that's where I think Dr Allnutt would be able to give his opinion on what sort of effects and how it would affect one's judgment." 298On the issue of the appellant's mental state, it is also relevant for this Court to have regard to the evidence of the appellant's counsel Mr Webb and that of his solicitor Mr Roff. The effect of their evidence was strongly against the proposition that the appellant suffered an apparent impairment of his cognitive processes during the course of the trial; it is destructive of any basis for the contention that the appellant laboured under a mental state during the course of the trial which compromised his ability to give rational instructions. 299Mr Roff said in cross-examination before this Court by the appellant in respect of his mental state prior to and during the trial (T9, 14 October 2011) - "Q. I wanted to take you back to before the trial and during the trial and Mr Webb commenting on my behaviour or my demeanour and ringing Dr Allnutt as the trial started and he had a problem with whatever was going on, some problem with me, and that is why he rang Dr Allnutt because something was going on with me. Can you elaborate why he rang Dr Allnutt or whether he had a conversation with you to that effect? A. I did have a conversation with Dr Webb about a conversation he had had with Dr Allnutt wherein according to Dr Webb he discussed what he thought was an interesting finding of Dr Allnutt that you were capable of giving instructions and Dr Webb said to me that Dr Allnutt's response was well, he may seem crazy and indeed he may seem like he goes up and down but he knows exactly what he is doing. Q. During the trial you mentioned at the end of the trail [sic] the difference in my demeanour when I was on the medication and not. Do you recall you noticed a difference in me? A. I do recall that at times you would be more insisting upon particular courses of action and at other times less insistent about those courses of action." 300Mr Roff was cross-examined by the appellant on a file note dated 17 June 2009. It contained the comment "wants to bring up a few things ... about SB and the Public Trustee ... too unstable". In cross-examination before this Court (T11-12, 14 October 2011) the following was said - "Q. If you read down to where it says 'Too unstable' is that referring to the evidence or me? A. I am sorry referring to? Q. In the first paragraph with the asterisk 'Wants to bring up a few things' and the 'Public Trustee. Not advisable. Too unstable' is referring to the evidence or to me, that I am too unstable at the time? A. That note would refer to the fact we were unsure what it was you would say in evidence if you were called. Q. You are saying I was too unstable? A. I am saying looking back at what that note would refer to in its context that your evidence would in effect be unstable, not necessarily you." 301In his affidavit sworn on 14 June 2011 Mr Webb referred to the occasion on which the appellant gave him instructions, in effect, to not proceed with severance applications and separate trial applications, and that all complainants were to proceed in the one trial with tendency and coincidence evidence. He said that he asked the appellant whether he was sure that he wanted to proceed in that way, saying to him, "It is my belief that you will be taking on a significant disadvantage in terms of your prospects of success by doing this". Mr Webb said that that evening he drafted written instructions which were signed by the appellant in the presence of Mr Roff the following day. Mr Webb then indicated to the trial judge that the severance and separate trial applications would not be pursued, and the trial then commenced with the empanelment of the jury the following Monday. 302In the affidavit Mr Webb deposed - "27. In my mind, the decision to execute [the appellant's] instructions was a very serious matter by way of the abandonment of separate trial and severance applications. Before doing so, I was satisfied in my mind as to the following - (i) That [the appellant] was of sound mind in terms of his ability to provide proper instructions. Prior to the trial commencing, I had requested and was in receipt of a psychiatric report provided by Dr Allnutt addressing the issues that he was fit to plead, fit to provide proper instructions, and did not present as having any relevant mental illness at times material to the alleged allegations. (ii) That [the appellant] had been given clear and forceful advice as to the undesirability, in my opinion, of taking such a course. (iii) That [the appellant] believed there to be a tactical advantage to him in taking the course of having all complainants in the one trial. (iv) That a record of [the appellant's] instructions be obtained by way of written instructions as to wishing to take course that he had indicated." 303In the same affidavit, in responding to some of the applicant's written submissions, Mr Webb said that he did have difficulty in understanding the appellant's instructions. In particular, in his mind, he said that the appellant's instructions often appeared to be antithetical to his own interests. He said that, although he was in receipt of Dr Allnutt's report diagnosing the appellant as fit to plead well before the commencement of the trial, on two occasions after the trial proper commenced, he telephoned Dr Allnutt with a view to seeking his medical opinion on the fitness issue. He said that the two calls were about two weeks apart and occurred in May 2009 during the Crown case. He said that in one of the telephone conversations with Dr Allnutt, he asked - "Dr Allnutt, I am concerned about [the appellant] in relation to the instructions that he is providing me with in this trial. On the one hand he seems quite intelligent. But on the other hand, his instructions do not make much sense to me. He wants me to tender things and place matters in issue which are very bad for him in the trial." 304He said that Dr Allnutt replied, "[the appellant's] problems are not fitness problems". 305In cross-examination the appellant put to Mr Webb (T36-37, 14 October 2011) - "Q. I want to take you back before the trial started and when you contacted Dr Allnutt in relation to my medical abilities? A. Yes. Q. Prior to the trial, would you say I was acting just normally like this with you? A. Yes. Q. And then subsequently, or just before the trial started, a day or two whenever we were speaking to you, that's when my demeanour changed? A. I don't agree there was a change within the terms you have suggested. Q. But you did contact Dr Allnutt. Why did you contact Dr Allnutt? There must have been a reason you contacted him twice? A. I contacted him twice during the course of the trial about two weeks apart in May when the trial got under way, prior to that I spoke with Dr Allnutt before the trial commenced in respect of the matter of a report. Q. But you were concerned when you rang him those two times that I may not be fit to give instructions? A. Yes, I was. Q. And what led you to think I wasn't fit to give instructions? A. Because in my mind there was an incongruence between, on the one hand what appeared to me to be your intelligence and on the other hand the instructions you were providing which in many respects I thought were antithetical to your interests." 306A little later the appellant put to Mr Webb (T37, 14 October 2011) - Q. I am putting this to you: One of the reasons you rang Dr Allnutt was because I was speaking too fast, I was pressuring my instructions upon you, and it was in an over assertive manner, not aggressive but wasn't in a normal fashion like I am talking to you now. That's why you rang Dr Allnutt because of my demeanour. I wasn't rational, I was talking too fast, pressured speech. Would you agree with that? A. No, your [sic] were never aggressive in your demeanour. Q. No. Overassertive, saying pressured speech, forcing my instructions upon you? A. No." 307A little later, the appellant questioned Mr Webb as follows (T38, 14 October 2011) - "Q. At any time during the trial did you notice I had pressured speech? A. No." 308Having regard to all the evidence, in our opinion this ground of appeal has not been made out. 309It may be noted that when in the post-conviction bail hearing the appellant asserted that the reason he had not given evidence about a matter was "probably because of the medication", the trial judge said (AB2213) - "Mr C as the tribunal of fact, not just the innocent bystander or a legal advisor or a judge of law, I have to put on the record that I saw no hint in your evidence nor in your participation in the proceedings of you being adversely affected by any medication. I'm not saying you weren't on medication. I'm not saying you weren't on medication, but I didn't see anything at all that reflected a lack of judgment on your part. A. Right. Q. I have to put that on the record. In fact you might remember from time to time when I addressed you directly when it was permissible for me to do so, usually I spoke through your counsel, on a number of occasions you made comments, not inappropriate comments, but you made comments that seemed to suggest to me that you were fully alert and aware of your circumstances?" 310In his reasons on the bail application, his Honour said - "I must confess, although I hasten to say I have no proper qualification to make a definitive judgment, I saw no evidence of the applicant being unable to instruct his counsel or exhibiting inappropriate behaviour consistent with what psychiatrists might describe as a psychotic state or some manifestation of mental illness that made the applicant incapable of considering the issues that were arising at trial. No issue of this nature was raised with me during the trial. The applicant gave evidence of course over a period of time. He appeared to understand the questions that were asked of him and was well capable of answering each of the questions that were asked of him. On several occasions the applicant would volunteer information not responsive to questions asked of him but which, in my view, related to material that the applicant thought at the time was advantageous to his position in the trial. I make no criticism of him for doing that. Every witness will do that from time to time. Thus on the medical evidence, my observations of the applicant and other matters concerning the conduct of the trial, including matters said in the presence of the applicant by the applicant's legal representative about the applicant's condition. I could not be persuaded on the material that any ground in relation to the applicant's mental state during the trial would likely be successful." 311The Crown referred to these observations by the trial judge. Their evidentiary status is not clear. We come to our conclusion without regard to them. If they are properly to be taken into account, they support that conclusion. Ground of Appeal 6: The appellant was under duress that if he exposed that the complainants had set him up, his family would be gravely endangered this led to a miscarriage of justice 312This ground of appeal is framed in terms of "duress". The concept of duress is ordinarily understood as raising a defence to the commission of a crime: R v Abusafiah (1991) 24 NSWLR 531 at 541 (Hunt J, as his Honour then was). The appellant sought to invoke the concept of "duress " in a different way. The central allegation by him was that, on a number of occasions, he had been threatened with harm to himself and to his family by some of the complainants or people connected with one or more of them. In this context, the appellant's contention can be understood as asserting that he was subject to intimidatory threats with the aim of having him refrain from maintaining a defence or giving evidence to the effect that he had been "set up" by one or more of the complainants in question. 313The appellant relied upon the following alleged circumstances supportive of his "duress" claim - (1) In approximately May 1997, he was robbed and assaulted by TR. (2) In the latter half of 1998, he was robbed by CB. (3) In 1999, that an extortion note was given to him claiming that his daughter would be hurt if money was not paid. (4) Between 1999 and 2003, various threats were made by TB. (5) In November 2003, the father of TR attempted to run him over. (6) In late 2003 or early 2004, a letter was handed to the appellant's daughter threatening one of his grandchildren; it was made and delivered by DM and SB. (7) In November 2007, he was attacked by the uncle of MH whilst in custody. (8) In late 2008, DB threatened his grandchildren; no details of these threats were provided. (9) In early 2009, he was pushed by SB, who threatened the appellant's grandchild if he mentioned SB in connection with child pornography; around the same time he was "crash tackled" by MH. (10) At some point in transit between the MRRC and the Court, DM yelled at the appellant, "How's [K] and [B] " , referring to the appellant's daughter and grandson respectively. 314These assertions emerged late. The Crown's written submissions included - "16. The appellant also gave evidence on his bail application to the effect that he was prevented from giving evidence about his case because of his fear of the complainants, and because of threats allegedly made to his children and grandchildren (see AB2239 & 2267). The appellant however conceded that the alleged threat to his grandson was made in 2003, some six years prior to the trial (AB2267.10). It is clear, so it is submitted, that the transcript of the trial, particularly the cross examination of the complainants, discloses none of the fears or hesitation, or a holding back of direct questions, complained of by the appellant." 315The Crown's submissions accurately described the effect of the appellant's evidence. The evidence given on the bail application was not of the above series of circumstances. The appellant said he was fearful for his grandson but he did not know who made the threats against the grandson until 2006, and (in a general statement) that CB had "tried to have me killed in custody". 316In seeking to establish "duress", the evidentiary onus to establish the same rested with the appellant. That onus would require the appellant to establish that the alleged threats were present and operating at the time of the trial and further that they did in fact operate to impede or restrain the presentation of the appellant's defence case. There is little first hand evidence, and no satisfactory evidence, to establish the threats that were allegedly made, and substantial periods of time elapsed between most of the alleged threats and the trial. 317It is well accepted that one element in establishing a defence of duress is that "the threat was present and continuing, imminent and pending ... ", R v Hurley & Murray [1967] VR 526 at 543 per Smith J. In addition, as that case establishes, it is necessary for a person alleging duress to establish by evidence that the threat operated so as to induce the person subject to it to commit a crime. In the context of the present case, the appellant had the onus of establishing that he instructed counsel not to pursue the complainants who allegedly made the threats with appropriate vigour by reason of the alleged threats. 318There are many difficulties in accepting that duress or intimidation affected the appellant's defence of the charges against him. 319First, the appellant's submissions included, in the context of evidence not used by counsel, a letter said to have been written by DM and placed in the appellant's daughter's letterbox by SB in 2003. It said "Back off or [grandson] won't make seven". Mr Webb gave evidence (affidavit sworn 14 June 2011, pp 59-60) that he raised with the appellant that the letter was written by use of a stencil and that other material in his brief from the appellant utilised a stencil of and apparently similar size and kind. The appellant said, "OK, I will not rely on the threatening letter". This does not bring confidence in the appellant's assertions. 320Secondly, as recounted in Mr Webb's affidavit of 14 June 2011 the appellant provided materials to his lawyers of which he said, "You will be able to intimidate the witnesses by telling them that I have pictures of them and videos of them doing things in my house. You will be able to intimidate them and get them to admit anything". Counsel declined. The proposal to intimidate witnesses is not consistent with fear of antagonising the complainants. 321Thirdly, elsewhere in his written submissions (appellant's submissions p 916) the appellant said that he instructed counsel "words to the effect to use 'Shock and Awe' Iraq-Bush, to put to the complainants that their allegation was fact then strategically point out the truth". This also is not consistent with fear of antagonising the complainants. 322Fourthly, from our reading of it we accept the Crown's submission that the transcript, and in particular the cross-examination of the complainants, "shows none of the fears or hesitation, or a holding back of direct questions, complained of by the appellant". Nor does the barrage of written instructions given by the appellant to his lawyers show any inhibition on challenging the complaints. 323There is stark inconsistency in the appellant's position. In one of his affidavits the appellant states that he instructed counsel not to "antagonise" SB and DM because they threatened his grandson and "tried to kill me to stop me giving evidence against them", but that counsel ignored his instructions and "launched into vicious attack on the complainants" (appellant's submissions p 93). From this, any fear of antagonising the complainants had no effect on the conduct of the defence. On the other hand, the thrust of the appellant's complaints on appeal that counsel did not properly conduct his defence was that the complainants were not challenged with the vigour the appellant required, and in particular were not challenged on the basis of conspiring together to set him up; that is, the appellant contended that (despite the alleged threats) his instructions were to pursue the complainants with vigour. 324We do not consider that the evidence establishes that the appellant was prevented, through fear for himself and/or his family, from instructing his counsel to pursue his defence in a vigorous manner. We are unable to accept the appellant's assertions that he acted under duress, or that his defence was hampered by any concern for himself or his family at the hands of the complainants or anyone acting in their supposed interests. 325In our opinion, there is no substance to ground of appeal 6. Ground of Appeal 7: The prosecutions were malicious carried out by police who were defendants in the appellant's statement of claims for malicious prosecution this led to a miscarriage of justice 326The appellant's submissions asserted a number of historical matters including the fact that in 1998 he filed a statement of claim for malicious prosecution in respect of an alleged soliciting of a bribe from the appellant by a police officer. The submissions set out a number of facts concerning those proceedings, those facts not being material to the issues arising in respect of the counts upon which guilty verdicts were returned. They asserted the taking of a statement by a Detective Muxlow from a person referred to as CDB in relation to matters pertaining to the appellant, with the complaint was that this was done despite that person being a defendant to the proceedings for malicious prosecution. They refer also to statements having been taken from two complainants in an interview conducted by a Detective Stone, and it is asserted that in early 2008 the appellant joined Detective Stone as a defendant in the proceedings. 327The Crown's submissions accepted that the appellant had brought civil proceedings. It said that one of the proceedings had been struck out for abuse of process ( [C] v State of New South Wales [2006] NSWSC 673) and that the others were unresolved. However, there was no satisfactory evidence of the proceedings, let alone of matters alleged in them against police officers or others. 328The central submission made by the appellant was that the prosecutions were "malicious", in that some police officers had been joined as defendants to his civil proceedings and that, by reason of the involvement of those police officers in particular by interviewing and taking statements from complainants, those officers acted in investigations concerning the appellant's offences whilst they were affected by a conflict of interest. 329The mere existence of the civil proceedings could not lead to a miscarriage of justice, and the jury came to their verdicts on the evidence before them whatever had happened in the course of police investigations and bringing the proceedings. In the Crown submissions it was said that ground of appeal 7 appeared to raise an issue that no evidence was led at the trial disclosing that the appellant had "issued statements of claim alleging various matters against various police officers and civilians". In our view this correctly saw the issue raised by this ground of appeal. 330Even if it could be said that the fact that the particular police officers had been joined by the appellant in civil proceedings gave rise to a potential conflict of interest, it does not follow that there was thereby any miscarriage of justice. It was open for that to be explored at the trial, but the prospect of any advantage to the appellant's defence is no more than speculative. 331If the appellant's factual assertions are to be regarded as further evidence sought to be relied on on appeal, they do not meet the tests for admissibility to which we have earlier referred. In particular, that the civil proceedings had been brought by the appellant was known at the time of the trial and the appellant's counsel plainly considered, as was in our opinion a sound forensic judgment, that there was no advantage in pursuing any question of conflict of interest. It is evident from the trial transcript (AB1632, 1658) that it was agreed that no reference be made to the civil proceedings, and Mr Webb gave evidence (affidavit 14 June 2011 p 49) that the appellant agreed not to introduce evidence of "his statements of claim as against [TR], [TR2] and the New South Wales Police". 332There is no substance in this ground of appeal. Ground of Appeal 8: That the verdicts of the jury on all counts which the appellant was found guilty by the jury were unsafe and/or unreasonable and/or unsatisfactory and/or inconsistent having regard to the whole evidence at the trial. And the learned trial Judge had reservations about the guilty verdicts of the Jury; see his Honours remarks, sentencing and bail transcripts 4 days, December 2009. 333The appellant's submissions relied on some observations by the trial judge in his sentencing remarks, as a preliminary to his Honour's factual findings consistent with the jury's verdicts. His Honour said - "In setting out the facts of this case, I must of course only provide a brief summary of all the evidence consistent with the jury's verdicts. I do not propose - given the limitations in time and purpose of these remarks - to raise matters raised by the prisoner that are not consistent with these verdicts. It should be pointed out that the prisoner gave evidence and he raised, in the cross-examination of the complainants, a number of matters said to reflect adversely upon the credibility of the complainants. Many of the matters that arose from the evidence of the complainants, whether it was in-chief and/or cross-examination, were capable potentially of reflecting adversely upon their individual credibility. Some aspects of that matter that might be pointed out in passing, include the facts that it would seem on their version of events that the brothers B did not discuss among themselves the fact that they had been sexually assaulted by the same man over an extended period of time. It is difficult to understand how that could possibly be true. It is also difficult to understand that DB and SB, sexually assaulted as they allege, would not have taken some steps to put TB on notice, or warn him, of the risks of him in being associated with the prisoner. If TB is to be believed, his knowledge of the sexual assaults upon his brothers was the barest knowledge indeed and certainly no attempts were made, on his version of events, to deflect him from Mr C's thrall. This situation is scarcely believable when one has regard to some of the subtext of the allegations of SB and DB including supposed threats made to them, an attempt made - on SB's account - by the prisoner to kill him in a motor vehicle accident, and the like. In relation to the verdicts, it is a somewhat strange affair that the jury might find the accused 'guilty' of count 6 and yet find him 'not guilty' in relation to count 11, involving a recording made at the same time, although involving a different complainant. It is true that, in relation to Mr B, particular warnings had to be given in relation to his evidence. But in that regard I note the warnings may have been in reality more pertinent in respect of the offences alleging sexual assault committed upon him where his evidence stood alone. Count 29 involved allegations by the complainant TB which - amongst other things - claimed certain things happening in a particular area of a supermarket in Taree. When the closed circuit television in relation to that event came to light, it did not support a critical aspect of TB's account. It must be fairly said that none of the brothers B was a particular impressive witness for a range of reasons. However, it is clear that the jury accepted the essential truth of their evidence and the prisoner will be sentenced accordingly. They were, it must be also fairly said, convincing, particularly DB and SB, as to the extent to which the accused would have had them in his thrall, that is, particularly to CB, he was the author of a number of entirely false stories about the accused to other persons. Some of those false stories he denied making albeit that there was evidence independently available of the making of the stories. On the other hand there was an essential truth in their evidence of having a particularly close relationship with the prisoner at the relevant time. The prisoner's account was that this was entirely for altruistic purposes, as was his relationship with the brothers B. In respect of the jury's verdicts, those verdicts must involve a rejection by the jury of that claim, or at the very least certainly a rejection of the existence of a reasonable possibility, that the accused was not guilty by reason of the prisoner having only altruistic motives in his relationship. Any further analysis upon the evidence so far as the credibility of the witnesses in my view would traverse the verdicts of guilty returned by the jury." 334In his submissions, the appellant also said that the evidence was that SB came into his care in 2004, not 2003, and so the offence as charged had not been proved; and that there was inconsistency in that the jury had found him not guilty of counts in the indictment involving CB except for count 7 (using a child for pornographic purposes), but had found him not guilty on count 5 involving DM (also using a child for pornographic purposes). The submissions did not otherwise address in a focussed way any deficiencies in the evidence whereby the jury's verdicts were not open on the evidence. (a) Inconsistent verdicts 335Inconsistency was suggested between the verdicts of guilty on count 6 and not guilty on count 11 (the trial judge's observations), and between the verdicts of guilty on count 7 and not guilty on count 5 (the appellant's submissions). 336The offence the subject of count 6 has been earlier described; it was charged that the appellant did an act intending to pervert the course of justice by tendering in the Port Macquarie proceedings a tape recording of DM making a false statement. Count 11 charged an offence in the same terms save that the tape recording was of CB making a false statement. The "tape recording" was Exhibit B. 337The offence the subject of count 7 has also been earlier described; it was charged that between 1 April and 31 May 1998 the appellant used CB, a child over the age of 14 years and under the age of 18 years, for pornographic purposes. Count 5 was in similar terms, a charge that between 1 March and 30 April 1998 the appellant employed and used DM, a child under the age of 18 years, for pornographic purposes. 338Inconsistency of verdicts is a circumstance in which it may be concluded that the guilty verdict "should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ... or that on any other ground whatsoever there was a miscarriage of justice": Criminal Appeal Act 1912, s 6(1). 339The appellant bears the burden of establishing inconsistency of verdicts, and "it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside": Dungay v R [2010] NSWCCA 82 at [22]; Still v R [2010] NSWCCA 131 at [58]. 340Where factual inconsistency is alleged, for example in acceptance of the evidence of a complainant on some counts but rejection of the complainant's evidence on other counts, and particularly where the evidence concerns different instances, an inference that the trial miscarried is not lightly drawn. In Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284 Basten JA said - 17. ... As explained in the joint judgment Mackenzie [ Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348] at 367 : 'Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.' 18 In some cases, of which the present is an example, the appellant may combine an attack on the inadequacy of the evidence with the appearance of factual inconsistency between verdicts. 19 In Markuleski [ R v Markuleski [2001] NSWCCA 290; [2001] NSWCCA 290; (2001) 52 NSWLR 82], Spigelman CJ rejected the view that Jones [ Jones v R (1997) 191 CLR 439; (1997 98 A Crim R 107], 'established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant's evidence': at [64] and [65]. Where separate incidents are involved, cases which can be described as 'pure word against word' may well be rare. Extraneous circumstances will often provide support in one situation, but not in another. Further, whereas the detail supplied in respect to one incident may differ from that provided in relation to another, being a point of distinction which will be apparent from the transcript, nuances in the manner of describing the events which may readily have been perceptible to the jury will not appear on the transcript. In MFA [ MFA v R [2002] HCA 53; (2002) 213 CLR 606], Gleeson CJ, Hayne and Callinan JJ noted a number of features which may need to be considered in circumstances where juries discriminate between counts, at [34]: 'First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. ... In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. ... A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.' 20 Their Honours identified a third matter namely that "it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only", referring to the reasoning of King CJ in R v Kirkman (1987) 44 SASR 591 at 593. The same passage was referred to by McHugh, Gummow and Kirby JJ in MFA , noting that it had been cited with approval in Mackenzie at 367-368. 21 How much weight should be placed upon the power of a jury to adopt an ameliorative or compassionate role by not convicting in circumstances where they were satisfied that a particular charge was proved is difficult to assess. In Kirkman , King CJ identified the possibility as a reason for caution in concluding that there was a miscarriage where a verdict was adequately supported by the evidence: 44 SASR at 593. He said that he mentioned the point 'as a matter of general observation' but thought it 'unnecessary to look to considerations of that kind in the present case'. Further, it is not clear that there has been a case in which apparent factual inconsistency has been rejected on that basis. That is understandable because such a conclusion would usually be based on pure speculation. Secondly, it would be speculation adverse to the interests of the appellant. In most cases, because juries are not directed that they may acquit on such a basis, that approach would seem to involve an assumption that the jury has not followed its directions. By contrast, there are many circumstances in which a conviction appeal will be dismissed because, despite the weakness of the prosecution case, it is generally to be assumed that the jury applied the directions they were given and were therefore satisfied beyond reasonable doubt: see, eg, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [13] (Gleeson CJ and Gummow J)." 341In Jovanovski v Director of Public Prosecutions (NSW) it was said at [23] that these factors "demonstrate the need for great caution in assuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances and a contrary conclusion in others". In Still v R Johnson J, with whom Basten JA and Rothman J agreed, said at [60] - "60 An appellate court should be cautious before concluding that a jury (as a whole) has acted contrary to its clearly explained duty. There may be many reasons why a jury does not convict on a particular count and an appellate court must allow for the advantage of the jury when considering questions arising under s.6(1) Criminal Appeal Act 1912 : R v TK [2009] NSWCCA 151; 74 NSWLR 299 at 301-302 [6], 331 [194]. Where there is evidence to support the verdict, there is a need for great caution in presuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances, and a contrary conclusion in others: Jovanovksi v Director of Public Prosecutions (NSW) at [23]." 342In the present case the trial judge clearly and appropriately directed the jury as to the Crown's burden of proof, and that the appellant's guilt had to be proved in relation to each count by relying upon the relevant evidence in relation to each count and not through propensity or tendency reasoning. His Honour also directed the jury that in judging witnesses they did not have to accept all of what the witness said, and might accept only some of what was said. 343Counts 6 and 11 were both concerned with tendering Exhibit B in the Port Macquarie proceedings. It was necessary that the jury be satisfied beyond reasonable doubt that DM had made a false statement (count 6) or that CB had made a false statement (count 11). The jury were correctly instructed that unless they were satisfied that the appellant had sexually assaulted DM, as had been charged in counts 1 to 4, or that he had sexually assaulted CB, as charged in counts 8 and 9, they would have a reasonable doubt concerning count 6 or count 11. The jury found the appellant guilty on counts 1 to 4 and found him not guilty on counts 8 and 9. Thus there was no inconsistency in finding the appellant guilty on count 6 and not guilty on count 11. 344Counts 5 and 7 concerned incidents at different times with different complainants. Before going to the asserted inconsistency, all of counts 1 to 5 essentially depended on the evidence of DM, and there is a prior matter of the guilty verdicts on counts 1 to 4 but the not guilty verdict on count 5. 345In the case of the incident the subject of count 5, DM said that the appellant was driving him back to Newcastle, the appellant stopped at the side of the road and asked him to "do more photos for him", and got him to take his clothes off and masturbate and ejaculate on the front of the car while the appellant took photographs. However, when DM was asked for some detail he was unsure of the time of year (even whether it was cold when he took his clothes off) or the time of day, or whether he was given money and the amount. That is not to say that DM's other evidence was given in precise detail, but in our view a reasonably available explanation for the jury's acceptance of DM in relation to other counts but not in relation to count 5 is that, on careful consideration as directed by the trial judge, they were not satisfied to the requisite standard as to the particular incident the subject of count 5; see in particular part of the passage from MFA v The Queen cited in Jovanovksi v Director of Public Prosecutions (NSW) at [19], which bears repeating - "A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." 346Returning to the asserted inconsistency, the not guilty verdict on count 5 meant little if anything for the jury's acceptance of the evidence of the complainant CB in relation to count 7, a different complainant speaking of a different incident (when neither DM nor CB was present at the other incident). In our opinion, miscarriage of justice through inconsistency of verdicts has not been shown. 347We have considered the significance, if any, of the guilty verdict on count 7 (CB and pornographic photos) but not guilty verdicts on counts 8, 9 and 10 (CB sexual assaults). The evidence of CB as to count 7 was supported by evidence of CC. CB told CC that the reason the appellant was giving him money was because he was letting the appellant take pornographic photos of him. He did not mention sexual assault (AB940). It was open to the jury to decline to be satisfied beyond reasonable doubt as to the sexual assaults of which CB gave evidence, but to be satisfied beyond reasonable doubt when there was support through the evidence of CC. 348We have also considered the significance, if any, of the guilty verdicts on counts 16, 17, 19 and 20 (DB sexual assaults) but not guilty verdict on count 18 (DB sexual assault). Here again, the evidence of DB was particularly lacking in detail. In our opinion, that is a reasonably available explanation for the jury declining to accept DB in relation to count 18, while being satisfied beyond reasonable doubt in relation to the other counts. (b) "Unsafe and/or unsatisfactory" 349The ground of appeal in this respect also invokes s 6(1) of the Criminal Appeal Act . The test was originally stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 - "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 350A recent description of the task of this Court may be found in SKA v The Queen [2011] HCA 13, in the joint judgment of French CJ and Gummow and Kiefel JJ - "12. This test has been restated to reflect the terms of s 6(1) of the Criminal Appe a l Act . In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13. The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' ... 14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M , Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 351In SKA v The Queen the trial judge had questioned in his remarks on sentence whether the jury should have doubted the complainant's veracity. Their Honours observed at [115] that the trial judge's opinion was based on his assessment of the evidence, being "the very task which it was for the Court of Criminal Appeal to undertake independently for itself", and did not depend on any advantage from seeing and hearing the witnesses. There had been no error in this Court effectively putting aside the trial judge's observations. The appeal was dismissed. 352In the present case the trial judge's observations were largely his Honour's assessment of the evidence, although they included that it "must be fairly said that none of the brothers B was a particularly impressive witness for a range of reasons". But his Honour also said that it was "clear that the jury accepted the essential truth of their evidence", and he referred to them being "convincing" as to the extent the appellant "would have had them in thrall", and to "an essential truth in their evidence of having a particularly close relationship with the prisoner at the relevant time". It is evident, in our view, that his Honour's own impression was one of essential truth in their evidence despite some unimpressive aspects. We do not think that his Honour's observations weigh heavily in the task which we must perform for ourselves. 353The trial judge's observations were nonetheless adopted for his submissions by the appellant. 354One observation was to the effect that it was difficult to understand how it could have been that the brothers B did not discuss the sexual assaults between themselves, or that DB and SB would not have warned TB against the appellant's attentions. 355There was some evidence of SB asking TB whether the appellant had done anything to him, and TB replying that he had not because he did not want SB to laugh and did not want to feel humiliated. There was evidence that when TB spoke to DB before going to the police he was told that DB didn't want to know about it. TB said that he did not complain to anyone after the first incident (count 25) because he was afraid and uncomfortable and did not want anyone to know because they might laugh at him (AB1458) and as to the second indictment (count 26) that he felt humiliated and very embarrassed (AB1461). There was no significant exploration in the evidence of either discussion or absence of discussion between the brothers B, or warning or absence of warning to TB, and no mention of either matter in closing addresses. That may have been because there was a deal of evidence from complainants that they were embarrassed, scared, and tried to put aside what had happened. We refer to some of this evidence at [367] below. Exploration by the appellant's counsel may only have brought out the effect of the appellant's conduct on the brothers, to the appellant's detriment. 356Particularly when nothing had been made of it in the defence case, we do not share the reflection upon the jury's fact finding which may have concerned the trial judge. The jury could readily have seen the brothers B as largely each keeping to himself distressing encounters which he did not fully understand and of which he was ashamed, and it should not be overlooked that the trial judge found the brothers B "convincing, particularly DB and SB, as to the extent to which [the appellant] would have had them in his thrall"; that is, under his influence. 357The trial judge also observed that the CCTV did not support "a critical aspect" of TB's account of occurrences in a supermarket in Taree. This concerned count 29. TB gave evidence of the appellant approaching him in the supermarket about making a video interview, with a first conversation in one of the aisles and a second conversation which he initially said was near the cashiers and later said was back near where he had been first approached; he said he had earlier "muddled up" where the second conversation had been. Stills from the CCTV were then produced (by the Crown) showing the cashiers' area and no conversation; CCTV footage for the aisle area was not available. TB was recalled, and agreed that the stills did not show him and the appellant near the cashiers. 358With respect to his Honour, we do not see this as "a critical aspect" of TB's account. In his evidence, the appellant agreed that he encountered TB in the supermarket on the day in question. The encounter was at the end of one of the aisles. He denied offering money or asking TB to make a video recording: according to the appellant, he told TB that he could not talk to him as he was a Crown witness (although he did give him some money to buy a drink). TB's correction of his evidence was a matter for the jury to take into account, but in our opinion it was well open to the jury to consider that it did not detract from the truth of his account of the encounter with the appellant. 359We go then to the appellant's submissions concerning count 12. There is no substance in his complaint. We have earlier referred to the evidence concerning SB's age and when he was living with the appellant. The Crown Prosecutor drew attention to all the evidence in her closing address, and invited the jury to find that SB had meant October 2003, not October 2004, as was consistent with his father's evidence. This was a matter for the jury, and in our view it was entirely open to the jury to have found that the incident occurred in October 2003, during the period stated in count 12 and while SB was living with the appellant. 360Although without more focussed submissions from the appellant, we must make our independent assessment of the evidence. Having in mind the jury's advantage in seeing and hearing the evidence, we must ask ourselves whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, and we must ask ourselves that question in relation to each of the counts on which a verdict of guilty was returned. We have undertaken that task. 361We have already adverted to the not guilty verdicts on count 5 in relation to DM and the not guilty verdicts on counts 8 and 9, in relation to CB, see at [24] and [27] above. For count 8 it was alleged that at the lookout the appellant performed oral sex on CB to help him arouse himself, after which the photographs were taken. For count 9 it was alleged that when in the appellant's house CB was taken to a spare bedroom where several photographs were taken. The appellant asked CB to perform oral sex for him, CB refused, and the appellant then performed oral sex on CB. There was a verdict by direction on count 10; the evidence concerning that count was then before the court only as context evidence. CB gave evidence of the appellant rubbing his penis between CB's legs while they were in bed at the Mayfield motel. He was confronted with a statement made in February 2006, when he undertook to give evidence and thereby received a discount on a sentence for murder, in which he said that he had been anally penetrated. He said that was untrue. 362It is likely that this caused or contributed to causing the jury's lack of satisfaction beyond reasonable doubt on counts 8 and 9. The trial judge gave the jury a particular warning that CB's evidence may be unreliable because he made the statement on the understanding he would receive a discount on his sentence, and reminded the jury of a number of other matters material to its reliability. We do not think, however, that conviction on count 7 was not open to the jury, who may have been prepared to accept CB's evidence that he was photographed but not the further detail of sexual activity at the time. The jury's lack of satisfaction in counts 8 and 9 does not have the wider effect that conviction on other counts involving other complainants was not open to the jury. 363As to the other complainants, the Crown case on each count depended heavily on the evidence of the relevant complainant, with which the evidence of the appellant directly conflicted. The credibility and reliability of the complainants' evidence was central to the jury's satisfaction of guilt beyond reasonable doubt. 364The jury were given clear and detailed directions as to how they should assess the credibility of the complainants and other witnesses. They were told that it was a matter for them to assess truthfulness, reliability and accuracy. They were warned about the dangers of judging demeanour and the manner in which witnesses gave their evidence. They were directed to take into account the relationship witnesses may have had to one another and any contact or opportunity they may have had to discuss matters that may have affected or contaminated their recollection. They were told to take into account inconsistencies in the evidence of witnesses, and to consider how those inconsistencies might reflect upon their credibility and reliability. They were told that they were not obliged to accept all of what a witness said, and might accept some of what a witness said and other parts of another witness' evidence in order to determine the facts. 365Some of the complainants did not give evidence as upright citizens. Apart from CB being in gaol for murder, DB provided his police statement when he was awaiting sentencing for "glassing", and had received a discount on his sentence. He had gone to prison. Lesser anti-social behaviour of other complainants appeared in the evidence, for example, use of alcohol and illicit substances. 366The complainants were also cross-examined as to delay in going to the police or otherwise complaining, and as to inaccuracies and inconsistencies in their evidence. 367There was varying delay. However, there were explanations of embarrassment and humiliation, and being scared of the appellant. For example, DM said (AB740) "It was embarrassing. It's not something that I talked about. It's something that I tried to put behind me ... ". SB said that he did not go to the police "because I was worried about threats that [the appellant] had given me beforehand and I was scared and embarrassed and I didn't have the courage" (AB1129). MH felt ashamed and was embarrassed; he didn't tell the police in 2006 because his mother was there. We have referred to TB at [355] above. This is not exhaustive. As the trial judge noted, there was "convincing evidence of a profound influence of the appellant over these youths". 368As to inaccuracies and inconsistencies, examples on which the defence relied at trial are that CB said that he was present when the appellant took some photographs of DM, but DM said that no one else was present (the occasion was not the subject of a charge); that DB first told police that he was 95 per cent sure that a photograph shown to him in 2006 was of him in a bath in a Mayfield motel, but it was pointed out by police that the motel did not have baths and he accepted that he was wrong although "I remember being photographed in a bath at one stage" (AB785), "There was a few occasions that he's taken photos and that was a long time ago, its very hard to remember" (AB789); and that SB gave inconsistent versions of a car accident in which he was involved with the appellant. 369However, the complainants were giving evidence some years (up to twelve years) after the events in question, and it is evident from the transcript that some of them found giving evidence difficult if not traumatic. Some inaccuracy and inconsistency is not unexpected in these circumstances, and the observations of McHugh J in M v The Queen at 534 are apposite - "63. It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment." 370The defence also said at trial that DB had said that the evidence he gave under oath for the appellant in the TR2 and Port Macquarie proceedings was false. It was also submitted (in effect) that SB should not be accepted because he did not complain to Dr Akerman, a psychiatrist to whom he was taken by the appellant. (SB had said that he did not say anything because the appellant was either in the room or waiting outside.) 371All these were matters properly for the jury's consideration. There was some third party evidence supportive of the evidence of various of the complainants, for example (apart from CC's evidence concerning pornographic photos of CB) evidence of MM of complaint by SB about the appellant sexually assaulting him and KE of the appellant giving SB papers to memorise for court and SB telling the appellant that he was not going to lie for him. We do not attempt to go into detail or to be exhaustive in these reasons, but have had regard to the evidence as a whole. 372It was starkly a matter for the jury whether they found the complainants' evidence credible and reliable, to the point of satisfaction beyond reasonable doubt. They saw and heard the complainants give their evidence. In our opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on each of the counts on which he was found guilty. 373This ground of appeal has not been established. Ground of Appeal 10: That the appellant is innocent on all counts and justice has miscarried and the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal. 374We do not understand this ground of appeal to carry any independent force or submissions. Order 375The appeal is dismissed. ********** Amendments 13 June 2012 - typographical errors Amended paragraphs: 10, 12, 62, 75, 119, 247, 313, 331, 346, 355, 364, 367 and 371 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2012