District Court New South Wales Medium Neutral Citation: R v ANNING [2013] NSWDC 285 Hearing dates: 28/11/2013 Decision date: 18 December 2013 Jurisdiction: Criminal Before: S Norrish QC Decision: Counts 1, 2, 3,4,6,7,9,10 and 13 - guilty Counts 5 and 11 - guilty of attempting to commit. Counts 8, 12 and 14 - not guilty. Catchwords: CRIMINAL - Trial by judge alone, sexual assault, delay in complaint, tendency evidence, context evidence. Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Crimes Act 1900 Cases Cited: R v VN [2006] VSCA 111 R v Z (2000) 3 All E R 385 R v Howard [2005] VSCA 235 R v Mai (1992) 26 NSWLR 371 Giorgianni v The Queen (1985) 156 CLR 473 Fleming v The Queen (1998) 197 CLR 250 The Queen v Storey & Anor (1978) 140 CLR 364 Rogers v The Queen (1994) 181 CLR 251 R v Carroll (2002) 213 CLR 635 R v Fletcher (2005) 156 A Crim R 308 R v DAO [2011] NSWCCA 63 Colby v The Queen [1999] NSWCCA 261 BP v R [2010] NSWCCA 303 R v Shamouil (2006) 66 NSWLR 228 R v PWD [2010] NSWCCA 209 DPP v Dupas [2012] VSCA 328 R v Ford [2009] NSWCCA 306 R v Li [2003] NSWCCA 407 HML v The Queen (2008) 235 CLR 334 King v The Queen (1986) 161 CLR 423 Texts Cited: Criminal Law in NSW, LBC (1971) - Watson and Purnell Vol 1 Category: Principal judgment Parties: Crown Henry Alfred Anning - offender Representation: Ms K Trail - Crown Mr A Norrie - offender Director of Public Prosecutions Newtons Law File Number(s): 2007/13848/15937 Judgment Introduction 1The accused was arraigned on 28 October 2013 on 14 counts in an indictment. To all counts he pleaded that he was 'not guilty'. The specific counts or charges brought against him allege: Count 1: That he between 30 September 1975 and 31 December 1977 at Morisset in the State of New South Wales did commit the crime of buggery with NG. Count 2: That he between 30 September 1975 and 31 December 1977 at Morisset in the State of New South Wales did commit the crime of buggery with NG. Count 3: That he between 1 January 1976 and 31 December 1977 at Morisset in the State of New South Wales did commit an act of indecency with FG, a male. Count 4: That he between 1 January 1978 and 31 December 1978 at Morisset in the State of New South Wales did commit the crime of buggery with KW. Count 5: That he between 1 January 1981 and 31 December 1982 at Wyee in the State of New South Wales did commit an act of bestiality with a dog. Count 6: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales did commit an act of gross indecency with DC, being then under the age of 18 years. Count 7: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years. Count 8: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales you did commit an act of gross indecency with DC, being then under the age of 18 years. Count 9: That he between 1 December 1985 and 1 March 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years. Count 10: That he between 1 December 1985 and 1 March 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years. Count 11: That he between 1 January 1986 and 31 May 1987 at Wyee in the State of New South Wales did have homosexual intercourse with RR, being then between the age of 10 and 18 years. Count 12: That he between 1 January 1987 and 31 December 1988 at Freemans Waterhole in the State of New South Wales did have homosexual intercourse with GG, being then between the age of 10 and 18 years. Count 13: That he between 1 January 1987 and 31 December 1988 at Freemans Waterhole in the State of New South Wales did commit an act of gross indecency with GG, being then under the age of 18 years. Count 14: That he between 1 January 1990 and 31 December 1990 at Warnervale in the State of New South Wales did assault GG. 2These 14 counts represent the surviving counts of an indictment presented against the accused in respect of a 'special hearing' conducted in 2009 before Acting Judge Maguire. His Honour at that special hearing found the accused not guilty of 17 of the 31 counts in the indictment. The reasons for those acquittals are to some extent relevant to aspects of the way in which the Crown conducted this trial, which is a trial by Judge alone pursuant to s 132 Criminal Procedure Act. 3This trial has been conducted on the basis that at the conclusion of the evidence in the course of adjudicating upon its verdicts the Court will consider the relevance for tendency purposes of specific allegations made by particular complainants or witnesses in proof of guilt of specific allegations made by other complainants, as well as consider allegations not the subject of specific counts in the indictment as relationship or contextual evidence. Thus, all the evidence has been heard together by consent without the Court being required as a threshold issue to determine the relevance of particular evidence concerning one complainant, and/or specific counts relating to that complainant, to proof of guilt of the accused in respect of counts concerning another complainant or complainants. 4This judgment in part is to be considered in the context of a number of judgements that have been delivered by myself in respect of interlocutory issues raised by the parties from the time that it first came before this Court in April 2013. The Crown case in outline 5The accused was born in December 1932 and is alleged to have committed offences against six complainants over a period of time between approximately 1975 and 1990. In this period he lived in the western Lake Macquarie area, in or near Morisset. The various complainants met the accused as school boys, some attending local schools and living locally. However, the first two complainants in time came to the area from Argenton, to the north of the 'Lake Macquarie' area on the fringe of suburban Newcastle. They were friends of the accused's son TA, who lived with his mother at Argenton. She was by 1975 separated from the accused. The accused was known as 'Harry' to all the complainants and other people as well and was referred to as such throughout the evidence. 6Because of the breadth of the Crown case the number of counts and the number of complainants bringing allegations over a 15 year period, to understand the prosecution in this matter it is appropriate to provide an overview of the witnesses and evidence upon which the prosecution relied. The particular complainants in respect of particular counts are, with two exceptions, the primary witnesses in proof of the charges. The exceptions are in count 11, where the complainant is deceased and the only direct evidence is from DC, the complainant in relation to counts 6 to 10. In respect of count 12, where GG is the complainant, on one view of the evidence DC is also an eyewitness to the commission of that offence. All the complainants were aged between 11 and about 15 years of age when it is alleged that the accused commenced sexually assaulting them. 7Dealing with the counts in chronological order, the witnesses relevant to counts 1 and 2 are the complainant NG (a school friend of the accused's son TA), FG (the complainant in count 3), DA (the nephew of the accused and son of his brother John) and GW, who is the older brother of KW the complainant in respect of counts 4 and 5. Other evidence relevant to these counts includes the contents of exhibits B, D, H, part of exhibit J, M, M1, O, Q, 1A, 5,6,7,8 and 10. A number of these exhibits were medical reports or other records tendered by both prosecution and defence relating to the accused with 'relevance' to all counts, save perhaps for count 14. 8In relation to count 3 the primary witness is FG (a school friend of NG and TA) with evidence from NG, DA and GW of relevance. In relation to this witness there was evidence concerning complaints made by him some years after relevant events from Angela Burgess, Brett and Ingrid Field (friends of his) and his wife, SD. Some of the relevant exhibits to his evidence include exhibits B, C, D part of exhibit J, part of exhibit L, 2, and the medical reports earlier mentioned. 9In respect of counts 4 and 5, the complainant KW, the primary witness, is the younger brother of GW who gives some background evidence to the counts. DA gives relevant evidence to these counts, as to some background matters and as to alleged tendency. There is evidence of complaint by KW to his wife, NW, and in a statement obtained from a church counsellor Brett Sturgess, which is part of exhibit L. Other exhibits tendered relating to these counts were exhibits B, B1, F, G and 3, as well as the medical reports. 10In respect of counts 6 to 10 the complainant DC is the primary witness but evidence relevant to some of these counts comes from KW, a school friend MS and Meaghan Barr (a former girlfriend). Evidence relevant to the relationship between DC and the accused was given by the complainant's older half siblings, Terrance Foreman, Jennifer Redwood, Lynda Foreman and Allan Foreman. There is evidence in the statements of his mother, Patricia Heaton and step-father Ronald Heaton concerning the relationship of DC to the accused and DC's visit to the police to make a statement regarding the accused in late 1987. Ronald Heaton provides evidence of complaint by DC about the accused "having sex with (him)" and the accused "sexually abusing him" in about 1987 or 1988. Evidence relevant to a complaint made to police in a formal statement given December 1987 was given by retired Inspector John Scott. GG also gave evidence of the relationship between DC and the accused after the period covered by counts 6 - 10. GG was about three and a half years younger than DC. They were not previously known to one another. KA, a niece of the accused and the sister of DA, lived with and married DC in the 1990s. She gave evidence of delayed complaint and of aspects of the relationship between DC and the accused from about 1990 onwards. 11Apart from exhibits of general relevance to all counts, parts of exhibit J and exhibit L, exhibits K, M, M1, N and 4 were relevant to the counts and evidence concerning DC. DC gave evidence in relation to count 11 and part of exhibit J was relevant to RR. GG also gave evidence of relationship between RR and the accused. In relation to counts 12 to 14, apart from the principal witness GG, relevant witnesses were DC and to a lesser extent, KA, who, some years after separating from DC commenced a relationship with GG. Statements were tendered from his parents, PG and NG (part of exhibit L) of complaints made at about the time that he made statements to police, school records, birth certificate, a statement from an ex-employer to date the alleged common assault and statements from Max Cluff, a psychologist, and Dr Di Dio, to both of whom the complainant made general complaints of sexual abuse in December 1999 (all part of exhibit J). His claim for victims' compensation in 2003 is reflected in exhibit N1. 12The accused in the mid 1970s lived on a property at Bridge Street Morisset with his elderly parents. He was in his 40s and had a number of siblings, some older, one of whom Geoffrey John, known as 'John', lived on the property in a caravan with his family in or about 1976 or 1977. John's children included DA and KA, witnesses in the trial. This property has been variously described by a number of witnesses as comprising a house, in which the accused's parents lived until his father's death in July 1976, a shed, a workshop and a 'humpy', as it was described by some witnesses, in which the accused allegedly resided or slept from time to time. The accused gave this residence a somewhat different description to other witnesses. The brother John and his family moved to a nearby property on Bridge Street Morisset where he had built the house in the late 1970s. 13The accused's mother apparently was not at the property staying in the house all the time in the late 70s. No detail in relation to her movements was given by the accused in his evidence. No issue was raised as to this matter. The accused is alleged to have sexually assaulted, in the manner pleaded, NG, FG and KW at the Morisset property. There was no issue at the trial having regard to the evidence of the complainants and documentary evidence in support (such as school records etc) as to dates pleaded for particular counts. The Crown alleges that the accused befriended NG through his own son TA who lived not far from NG when NG was in year 6 and year 7 at High School. The accused through NG and/or TA later, within months, befriended FG and his friend TM and the three boys were regular visitors to the Morisset for a period of over 12 months from 1976. NG was born on 6 April 1963. FG was born on 19 September 1963. TA was approximately 18 months to 2 years older than NG. 14In respect of each of these complainants and TM (who did not give evidence in the trial) it is alleged that the accused groomed them in a range of ways, such as taking them to the 'Newcastle Speedway' at Tomago, buying them food and drinks whilst there or on the property at Morisset, allowing them to drive cars and motorbikes on a makeshift track at the Morisset property and allowing them to sleep in the humpy where there were two spare beds in one section and a double bed in a bedroom where the accused usually slept when he was not sleeping in the house. The sexual assaults alleged by NG and FG, whether pleaded or relied upon for contextual purposes, allegedly occurred in the double bed in the humpy or in a bedroom in the main house when the accused's mother was absent. 15As to the particular allegations in relation to NG it is alleged that after taking him with his son TA to the speedway one evening, he slept with the two boys in his double bed in the shed or 'humpy' that he occupied from time to time on his parents property at Morisset. On the first occasion he grabbed NG's pants and tried to pull them down. On the second occasion about a week later, when sleeping with the two boys after going to the speedway, the accused inserted his penis in the anus of the complainant (P 60). This was the substance of count 1 in the indictment. 16In relation to count 2, the complainant NG was again sleeping in the accused's double bed in the humpy or shed with TA, after going to the speedway and again the accused inserted his penis into NG's anus (P 63 - 65). NG alleged that sexual assaults of this character continued for about 12 to 18 months, the accused use 'Vaseline' that he kept beside the bed as a lubricant. Other sexual assaults over this time included oral sex, masturbation and having NG penetrate the accused's anus, which occurred approximately 6 months after he was first sexually assaulted by the accused. The Crown case was that the accused eventually lost interest in NG over time and turned his attention to FG. There is no evidence that he sexually assaulted TM. Sometimes all three boys slept in the humpy, NG in the double bed, the other two boys in single beds in another 'room'. Later FG slept in the double bed and NG elsewhere, when the accused was not sleeping in the 'house' of his parents. There were occasions where he "sexually assaulted" either boy in the main bedroom of the house. 17FG and TM commenced visiting the property and staying overnight a couple of months after NG started visiting. FG alleged that approximately 6 to 9 months after first staying overnight at the property he slept with the accused in the double bed in the shed or humpy instead of NG. He was masturbated by the accused and he masturbated the accused and they fellated each other. The accused being masturbated by FG is the essence of count 3 (p 170 - 171). He alleges regular sexual activity with the accused from late 1976 or early 1977 for approximately 6 to 9 months. 18These three boys stopped attending the Morisset property by late 1977. In 1977 a local Morisset boy, GW, attended with his father to buy some spare parts from the accused at the Bridge Street property. The property had many car parts, motor vehicles (complete and incomplete) and tyres on it. The accused conducted some sort of business both there and later at other properties dealing in car parts and tyres. GW allegedly worked for the accused through 1977 until he was involved in a car accident with the accused in which he badly broke his leg on 28 February 1978. He was hospitalised for over 2 months. His younger brother KW, who was born on 27 September 1967 and who occasionally attended the property at Bridge Street with his family beforehand, became a regular visitor at that property after his brother's accident and was sexually assaulted at that property in the manner pleaded in count 4. KW continued a relationship with the accused from early 1978 until he was approximately 17 or 18 years of age. 19DA, the nephew of the accused who was born on 21 January 1967, gave evidence of meeting NG, FG and TM at Bridge Street Morisset, when he lived locally with his father. He gave evidence also of the accused sleeping with him in 1978 after going to the speedway with him and touching him on his penis in the bed. He got up and left the bed. This is relied upon as tendency evidence .DA also met KW in the presence of the accused. He remembered the accused purchasing a motor vehicle for KW. 20The accused moved his residence from Bridge Street to 501 Freeman's Drive Wyee in the late 70's or early 1980s. This property was described as a semi-rural property with a residence on it and a shed with a type of racing track and other motorcycle tracks running through the bush. It was at this property in 1982 that the allegation of bestiality in count 5 is alleged to be committed, in the context of the accused's ongoing sexual relationship with KW. KW alleged sexual assaults occurring at the Wyee property and at other locations in the area, sometimes isolated roads. 21KW alleged in relation to count 4 that before he reached puberty when he was in year 5 at Morisset Public School (1978) he was in bed with the accused at the Bridge Street property and the accused put his penis in his anus with the use of Vaseline as a lubricant (p.274-6). In relation to count 5 he alleged that at the property at Wyee the accused, firstly, tried to have his German Shepherd dog penetrate KW's anus and that when KW refused, the accused knelt down in front of the dog, removed his pants, masturbated the dog and the dog mounted him. The dog appeared to be having sex with the accused, the accused later telling KW that the dog had penetrated him (pp 287 - 289). 22At the Wyee property in 1985 the accused met DC, MS and later RR. DC lived in the 'Mecca Caravan Park', which was apparently a few kilometres to the southeast at Wyee Point with his mother and stepfather. DC was born on 11 July 1970, MS was born on 12 October 1970 and RR was born on 21 January 1971. The accused, as with KW and the other earlier complainants, offered work and promises of payment to DC, MS and RR, although MS only visited for a short period of time and is not the subject of any counts in the indictment. MS, who also lived at Mecca Caravan Park, gave evidence that on one occasion he slept overnight, the accused got into bed with him and "cuddled up" to him, "spooned (me)", because it "was cold". No one else was present. He too was offered money to work on the property and given cars to drive on the property. The accused allegedly encouraged the continuing relationship with DC and RR by allowing them to drive cars and bikes on his property, to stay overnight on his property and on those occasions at various times offering them alcohol, access to motoring and "pornographic" magazines, leading to sexual assaults of various types. 23With regard to DC, in relation to count 6, he alleged that when he was 15, whilst on the Wyee property, he was given Tooheys beer, car magazines, then Playboy and Penthouse magazines. The accused rubbed his penis until it became erect, asked DC to rub his penis until there was mutual masturbation, told DC to take off his pants, knelt down in front of him and performed oral sex on DC, and then had DC masturbate him until he ejaculated (P552 - 554). The masturbation of the accused by DC is the act of "gross indecency". 24Counts 7 and 8 are related in time and are alleged to have occurred at the Wyee property approximately 2 weeks after the events giving rise to count 6. One day MS had been working on the property with DC. After MS left, DC was given about four cans of beer, Playboy and Penthouse magazines and then in the bedroom the accused directed DC to put Vaseline on his anus. They lay on the bed and the accused performed a number of sexual acts including masturbating DC to ejaculation (count 8), performing oral sex on him and subsequently trying to put his penis into DC's anus and penetrating him partially (count 7) finally ejaculating between DC's legs (P556 - 561, 567 - 568). What was alleged by DC as constituting count 8 and the timing of that act is the subject of some controversy, being the only count where it is submitted that there is no identifiable evidence that may sustain it based upon the concessions made in cross examination by the complainant (p713). The prosecution opened its case on the basis that the act of gross indecency occurred after the commission of the act of buggery alleged in count 7 (pp 1163-1164). 25Count 9 is concerned with an allegation by DC that during the school holidays of 1985-6 after driving a motor vehicle around in the afternoon and obtaining some takeaway food, he stayed at the accused's property at Wyee for the night. He was given Bourbon and Coke to drink, whilst the accused drank Malibu and milk. DC watched TV and then went to bed and "passed out" from the alcohol. When he awoke the accused was trying to put his penis in his anus, his shorts and underpants were around his knees, he felt lubricant in the area of his anus and on this occasion the accused fully penetrated him. Further, DC alleged the accused masturbated him. The accused ejaculated into his anus and masturbated DC until he ejaculated on the bed, telling DC that it "felt great, like a virgin" and that "there are people in Sydney who will pay $500 for the same thing" (P570 - 573). The next morning DC alleged the accused endeavoured to penetrate him again in the anus and when he said it hurt the accused stopped. DC then penetrated the accused's anus with his penis and DC ejaculated into the accused's anus. DC was told by the accused that he had to "relax" so that the accused could penetrate him. 26Count 10 involves an allegation of penile penetration of the complainant's anus, amongst other sexual acts, during the school holidays at the Wyee property between December 1985 and March 1986. This is alleged to have occurred approximately 2 weeks after the events giving rise to count 9. The complainant stayed overnight, was given Bourbon and Coke and eventually felt "pretty drunk". In the bedroom after his clothes were taken off, the accused performed oral sex on him, he was asked to perform anal sex on the accused and masturbate the accused's penis. The accused then put lubricant on his anus and DC was told to "relax". The accused performed anal sex on him and masturbated him at the same time. The accused ejaculated into his anus and afterwards told him that he was "just like a virgin" but that he needed to "relax" (P576 - 579, 608 - 609). 27The relationship with RR was relatively shortly lived. The accused's initial sexual assault of him is represented in count 11. This count arises from evidence of DC that he and the other complainant were together and they were given alcohol. RR was drinking 'Southern Comfort'. DC was drinking Bourbon and Coke and the accused was drinking Malibu and milk. They had earlier been working on a motor vehicle that day and it was about June or July 1986. RR and the accused were looking at Penthouse magazines. DC then saw the accused masturbating the complainant. They were sitting on a bed. The accused masturbated DC at the same time. He said to DC of RR, "look at the size of his weapon", referring to the complainant's penis. DC "saw" the accused have anal intercourse with the complainant, at which time the complainant said it was hurting him. He watched the accused moving behind the complainant, DC was in front of the both of them and the accused was asking him to masturbate the complainant. He said that he saw the accused ejaculate into RR's anus and he made a moaning noise. The complainant said that it "hurt" but was told by the accused to "relax" and it would not hurt. 28RR gave statements to police in late 2001 and early 2002, in particular in the first statement, relating to the events giving rise to count 11 and generally describing an ongoing sexual relationship for a period of time. He died after giving his statements to police and has never given any evidence in previous proceedings. I excluded his statements which were tendered pursuant to s.65 Evidence Act 1995. The basis of that decision is set out in my judgment of 25 November 2013. GG gave evidence of sexual activity between himself, the accused and RR at Bonnells Bay at which DC was present as well. 29DC continued to have a 'relationship' with the accused from 1985 until about 1994 or 1995. The Crown alleges that not only DC was sexually assaulted in the manner described in counts 6, 7, 8, 9 and 10, but also that the accused continued having a sexual relationship with him beyond him turning 18. This sexual relationship included sexual assaults up until the time he was 16 of the type particularised in relation to the counts in the indictment. DC was given access to motor vehicles and motorbikes to ride on the accused's property and also was encouraged to race motorcycles in various events including "gymkhanas", as they were described, and "motocross" events, amongst other motor racing activities. He was apparently taken by the accused to events around New South Wales and outside the State. On one occasion when the accused and DC travelled to Queensland to recover a motor vehicle that DC had left for repairs in Beaudesert the accused is alleged to have sexually assaulted him in a motel in that town. 30DC made complaint to some of his half siblings and his step-father about the accused's conduct towards him in 1987 and went to speak to a police officer, Inspector Scott, at Toronto Police Station in the company of some of these family members and with their encouragement. On 9 December 1987 Inspector Scott made an entry in his Duty Book on this matter. DC made a statement to the Inspector which has since been lost, alleging that he had been sexually assaulted by the accused but the details of which are no longer available. One of his half sisters (Jennifer Redwood) also passed a rented property in the Lake Macquarie area that she had occupied over to the accused, where she said the accused and DC lived together for a period of time from 24 June 1987. She said that in late 1987 DC complained to her that the accused had been having sex with him, giving him alcohol and showing him pornographic magazines. He also made a complaint of sexual abuse to his friend Meaghan Barr in 1988 who gave evidence of DC's close association with the accused in 1986 - 1988, and that DC was living with the accused in a caravan at Freemans Waterhole in about that period. DC in October 1988 damaged by a deliberately lit fire the property of the accused at his property at Wyee in company with other young men. This was claimed to be 'payback', he claimed, for the 'abuse' by the accused. The Crown relied on the 'Statement of Facts' tendered in relation to a co-accused, Desmond Dunning. After he lit the fire, DC's other half sister who gave evidence (Ms Foreman) said that he told her he lit the fire to get back at the accused for "abusing him sexually". When in Mt Penang Detention Centre serving a non-parole period for related offences between May and September 1989, DC was visited by the accused in company of GG. The accused was seen there by Ms Redwood and he admitted that he had visited DC there. Although his visit and continuing friendship with the person who was responsible for what was claimed to be $50,000 damage to his property does not of itself prove anything, it is a quite strange situation. GG alleged a number of occasions that he, DC and the accused jointly participated in sexual activity from 1988 onwards. 31The accused allegedly continued to have a sexual relationship with DC at the time he began sexually assaulting GG at Freemans Waterhole in early 1988, on occasions in the presence of DC. As with DC, the accused offered GG work on his property which like the other properties had large quantities of tyres and car parts that required sorting and moving. He gave GG access to motor vehicles and motorcycles to ride and, as with DC, purchased specialised motorbikes for motocross and like events for him to use. They each allege financial arrangements whereby they believed they were purchasing motorbikes from him. The motorcycles the accused purchased from specialist dealers, usually in Wyong. A number of photographs of some of those motorcycles and vehicles that the accused owned at various times were tendered as exhibit K (and as part if Exhibit J). 32GG was born on 9 January 1974 and met the accused in late 1987, or early 1988 at a racetrack at Awaba near Lake Macquarie when the accused provided him with assistance in getting his motorbike started. He was invited to visit the accused at his property at Freemans Waterhole which was also located on 'Freemans Drive' (at number or 'Lot' 222), but further to the west of the Wyee property. 33GG alleged that after he started going to the accused's property at Freemans Waterhole very shortly after their first meeting. Initially the accused sexually assaulted him by performing what he described as a "hothead", that is, blowing " hot air" with his mouth over the complainant's penis covered by his tracksuit pants, at least on the first occasion it happened, which occurred in the caravan on the property in which the accused lived when no one else was present. The second occasion that the accused performed a "hothead" the accused also masturbated himself, asked GG to play with his testicles, touched GG's penis and testicles and performed fellatio upon GG, as well was masturbating himself until he ejaculated. The Crown alleges that the fellating of GG and masturbation of him constitutes count 13. GG said he was 13 at the time. 34The following weekend after the second "hothead" GG alleges that he and the accused were at the Freemans Waterhole property with DC. After working during the morning DC and GG were given beers and GG said he felt "lightheaded". GG went to the bed in the caravan, he and the accused took their clothes off, the accused put his hand on GG's penis and masturbated him and put lubricant on his anus and pushed his penis into GG's anus. DC was in the room sitting on a chair at the base of the bed. GG told the accused that it "hurt" and was told to "relax", the accused eventually ejaculated into his anus. GG said that his anus was "stinging". He went outside to the toilet, when he came back he saw the accused and DC together and he told the accused that his anus "hurt a lot". He thought DC was in the room at the time on a chair near the base of the bed. This penetration of the complainant by the accused is the substance of count 12 (pp 441 - 443). DC gave evidence of an incident in which he was present at Freemans Waterhole with GG and the accused, he saw the accused having anal sex, masturbation and oral sex with GG, he was asked to join in and he had anal sex with GG whilst the accused had anal sex with him. He went to the 'bathroom' and when he returned he saw the accused having anal sex with GG (p 638). This was the first occasion that DC gave in evidence of having observed the accused involved in sexual activity with the complainant GG. On this day he alleged that the accused told him that he had "got" at GG while DC had been away in Queensland in the period beforehand. 35In 1990 a dispute developed between the accused and GG concerning money owed on a motorcycle purchased by the accused for GG to use in motorcycle events. GG alleges that there was a confrontation at the accused's then property at Warnervale, where he and DC alleged that other sexual assaults by the accused, or sexual activity with him, occurred. Count 14 is an allegation of common assault when the complainant went to the accused's property to get back a motorbike that he believed he own in company with a friend called Gabriel Gousmae (sic). The accused told him that he owed $1800 for the bike. GG thought that he owed less money, there was a heated argument and the complainant alleged that he was king hit and he "dropped to the floor". Then he was kicked by the accused in the ribs. His father came out to the property at a later time and confronted the accused about the motorbike and a complaint by the complainant that he had been assaulted (p 460-63). GG ceased to have contact with the accused after this incident. The motorbike was recovered by the complainant, or his father, after payment of the money claimed to be owned by the accused. 36DC continued his relationship with the accused after this time. Some other significant events that occurred during that relationship between 1986 and about 1990 included, a fatal motor vehicle accident on 29 April 1988 when DC drove a motor vehicle and two friends were killed. DC referred to a dispute with the accused on the occasion of his 18th birthday on 11 July 1988 over sex, which led to DC moving out of the accused's property at Freemans Waterhole for a period of time. 37FG, KW, DC and GG in various ways made "complaints" to various people before they gave statements to police some of which were briefly referred to earlier. None of the complaint evidence contains representations available for a hearsay purpose. They are not relevantly 'fresh in the memory' or else lack relevant particularity. Although there is acknowledged delay of varying lengths in complaint being made the Crown relies upon the fact of complaint and/or the terms of complaint as relevant to the assessment of the credibility of the particular complainant who made complaint. The evidence from those relevant witnesses and of the complainants about those complaints will be referred to later. Some has been earlier cited. The Crown relies upon the course of sexual contact with particular complainants, even though many acts are not the subject of charges, as evidence of the true context of the offending behaviour of the accused. 38Further, as earlier stated, the Crown relies upon evidence given by each of the complainants concerning their treatment by the accused, including their grooming, their contact with the accused and their sexual activity with the accused, amongst other matters, as evidence revealing a tendency on the part of the accused relevant to proof of the accused's guilt in respect of other allegations by other complaints. Again, this matter will be referred to in greater detail later in the judgement. DA, MS and, to a less extent, GW give evidence relied upon by the prosecution for tendency purposes. The Accused's case in outline 39The accused gave evidence denying any sexual assaults or sexual relationship with any of the complainants, their friends or other people, such as DA, who alleged inappropriate sexual contact. He did not deny knowing individual complainants and living at the various properties that were described at about the times alleged, although he disputed the accuracy of some of the descriptions of his properties, particularly the Bridge Street property and the Wyee property. 40In summary, putting aside issues relied upon by the accused arising from the cross examination in the Crown case, the matters raised in the accused's evidence included general denials of the specific allegations and evidence of physical and other impairments that made it impossible for him to have committed the sexual acts alleged by the complainant's in his oral evidence and in medical reports tendered as exhibits. The Crown also tendered some medical reports on this topic. The accused disputed the claim of KW that he had a German Shepherd dog at the time of the alleged offence in 1982, stating that he owned a Tasmanian Shepherd dog at that time, which was a female and no bigger than a 'Blue Heeler' dog. He denied paying any of the complainants or anyone referred to in the evidence for work done on his property. He denied purchasing motorbikes or cars for particular people, asserting that bikes and motorcars he purchased were for the benefit of any people invited to his property. He denied having Penthouse or Playboy magazines and supplying them to the children. He denied supplying alcohol to any of the complainants and denied initially that any of the complainants had ever slept at the properties with which he had connection, although in cross examination he conceded that they may have stayed overnight but not in his bed. Some of the matters arising from his evidence, particularly in cross examination, will be referred to in the course of dealing with the respective submissions (see paragraph 68 below). SUBMISSIONS 41In summarising the submissions I have referred to some of the factual matters adverted to in detail to pick up some matters not referred to or only briefly noted above in the summaries of the cases. Crown's closing submissions 42The prosecution submitted that there were a number of matters not in dispute, including the fact that the accused knew all the complainants, that they were each aged between 11 and 15 or 16 when they met him that they were at school when that he had befriended them and sometimes their families. He provided them with various incentives including cars and motorbikes, offered payment of money for work done, allowed them to drive cars and motorbikes on his property and otherwise encouraged them to visit and stay at his properties. 43The prosecution went through the evidence that related to each of the complainants to summarise the evidence relevant to particular counts and also to point out the relationship of particular witnesses to one another. NG on his account first met the accused when he was about twelve and in sixth class in 1976, in company with the accused's son TA who was slightly older and went to school with him. The Crown submits that he is a truthful witness whose contact with the accused is supported by the evidence of FG and GW. 44The Crown submits that the evidence of NG clearly supported proof of counts 1 and 2 and that a number of events that are described by the witness as occurring to him are supported by what the Crown says is the tendency of the accused, shown in part by excursions to the speedway, access to motor vehicles and motorbikes, paid work and meals and the like whilst staying at the accused's home. The evidence in exhibit M showing licence details held by the RTA (and its predecessors in title) shows the accused was living at the Bridge Street property where the sexual assaults are alleged to have occurred and the description of the property is consistent with what is generally known about it. 45The timeline of NG's visits to the property at Bridge Street Morisset, by reference to the evidence of the death of the accused's father in July 1976, the evidence of FG and GW and to other independent evidence of GW's schooling, support the claim by NG of the opportunity for him to have been sexually assaulted as he alleges, although the evidence from FG and GW would be relevant only to provide some contextual evidence. 46A number of inconsistencies or other issues arising from the evidence of the witness, particularly in cross-examination, were referred to, but these were said to be only 'minor' or otherwise of no consequence, having regard to the otherwise general reliability of this evidence. So far as his failure to complain and the absence of complaint evidence, particular reference was made to the fact that when first approached in 2002 he denied that any sexual assault had occurred when interviewed by police and did not disclose any sexual assaults until 2006. This was said to be understandable given his shame and the other reasons he gave in his evidence. The prosecution's submissions on counts 1 and 2 are at pp 1108 - 1113. 47With regard to FG and count 3, his evidence was supported by NG so far as his opportunity to visit the Bridge Street property at Morisset and, like NG, he was supported by GW and his memory of the three boys (including TM) being at the property when he first went there in 1977. He gave evidence that he was groomed similarly to NG. Although no anal intercourse was performed on him, he became the centre of the accused's affection when the accused had lost interest in NG. He supported NG's account of ceasing to attend upon the accused's property and being picked up by his parents. FG's account of ceasing to visit the accused with TM was generally supported by GW's recollection of the three young people being there and then ceasing to come. The evidence of NG and FG as to the accused's attraction to them is said to be supported by the evidence of DA of his sleeping with the accused at the Morisset property after going to the speedway at Tomago. 48It was submitted that FG's credibility was supported because of the evidence of complaint from his wife SD, who gave evidence of complaints made between 1990 and or 1993 and his identification of the accused to her in the street at Morisset. He also made complaint to Brett and Ingrid Field who gave evidence. Before he was married he had made complaint to Angela Burgess (a girlfriend of his friend) in 1985 of being sexually assaulted as a child and being lured to a place where there were tyres and bikes et cetera. He was in part supported by the newspaper article showing the photograph of the accused (Exhibit C) because he said it was in the late 1990s when he saw the accused's picture in the paper and he became upset that he may have been molesting other children and was being made out to be a "hero". He made statements to police in late 2001 and early 2002 and had been to see a counsellor Don Steadman in the late 1990s and complained of being molested. He described mutual masturbation and fellatio in that consultation as he described later to police. As with NG it was submitted that there was no concoction. The only contact with NG was to tell him that the police would visit him. He had employed GW in the mid 2000s, but by then he had made his statements and he did not discuss the matter with GW. 49Again the Crown referred to what is anticipated would be claims of inconsistencies and submitted that these may reflect simply his memory improving with greater concentration on relevant events, but he was adamant that he had been molested by the accused. The Crown submitted that in relation to NG, none of the counts upon which the accused had been acquitted at the special hearing were the subject of evidence in this trial and similarly, this was the case for FG. In the original indictment there were five counts relating to NG, counts 1 to 5, the accused was acquitted of counts 3 to 5. In relation to FG there were four counts, of which the accused was acquitted of three counts being counts 6,8 and 9. The prosecution's submissions in relation to count 3 are at pp 1113 - 1124. 50 KW's evidence was the main evidence to support counts 4 and 5. It was conceded that he did not actually see the dog penetrate the accused. In the previous indictment the acquittal of count 11 in that indictment alleging the accused tried to get his dog to have anal penetration of the complainant (an allegation of 'bestiality') was because the offence could not be established at law, not that the trial judge disbelieved KW. KW began working for the accused when he was in year five at school in 1978 after his brother had been involved in the motor vehicle accident in February 1978. He had a relationship with the accused until he was 18 years of age in about 1985. He likewise, it was submitted, was supported by the evidence of GW and by the evidence of DC. 51In relation to count 5 GW supported the existence of the accused having a German Shepherd with whom the accused allegedly committed the crime of bestiality. There was no doubt that KW visited the Morisset property and the Wyee property. There was evidence of a fire on the accused's property in December 1982 and the alleged events of count 5 occurred about six months before. The events in relation to count 4 occurred when the accused was living at the Morisset property after the death of his father. Further, the evidence of KW indicated a history of sexual contact after these events with sexual activity occurring at various locations. KW was encouraged to continue the relationship by incentives such as driving motor vehicles on the accused properties, payment for work, trips to the speedway, being provided with motorbikes et cetera. He was groomed and then encouraged to maintain a relationship by the offer of incentives. He had made complaint at his church to some type of church counsellor, Brett Sturgess, and then made complaint to his wife after revealing sexual abuse in general terms to Mr Sturgess and Sturgess' wife. He explained the delay in complaint as being caused by him knowing that he had been taken advantage of, but because he wanted the material 'advantages' given by the accused to continue and because there was a stigma in telling anybody about what had happened. 52There was no 'contamination' as KW did not know NG or FG and had not spoken to DC or GG. It was noted by the Crown that KW, as with NG and FG had not sought medical assistance, nor claimed any medical problems after the sexual assaults. The prosecution submitted that in KW's instance it would have been hard for an 11-year-old to go to a doctor and also the accused had used Vaseline as he had with NG. The prosecutor dealt with matters that arose from the cross examination of the witness, noting that evidence that might be seen as a recent invention could be explained by him retrieving memories as he concentrated on traumatic events. The prosecutor said that he was an impressive witness who was 'matter of fact', not moved in cross examination and was very clear in his evidence. His claim of the German Shepherd being at Wyee is supported (indirectly) by the evidence of his brother GW. The prosecution's submissions in relation to counts 4-5 are at pp 1133 - 1149. 53With regard to GW he was born in May 1962 and met the accused in 1977 through his father, as earlier mentioned. His evidence supported the presence of NG and FG at the Morisset property and had had no contact with any of the witnesses, except for KW who started going to the accused property when GW had his motor vehicle accident and FG at work. He supported the evidence of KW as to the circumstances of him first coming to the property. Although he worked with FG in the early part of the 21st Century he denied any concoction. Prosecution submissions on these counts appear at pp 1149 - 1150 of the transcript. 54DC gave evidence of his relationship with the accused from 1985 onwards when he was about 15 years of age. He was born in July 1970, and first met the accused in the presence of MS who was born in October 1970. It was submitted that his evidence clearly supported counts 6, 7 and 8 (although they were in different order as he gave evidence), 9 and 10. He was groomed by the offer of alcohol on different occasions, car magazines, Playboy and Penthouse magazines, opportunity to drive cars and ride motorbikes, with "similarities" in the character of the sexual assaults committed upon NG and KW, particularly. 55In relation to count 10 the events relating to this allegation occurred two weeks after the events concerning count 9, and occurred after MS had been present at the Wyee property. The Crown relied upon DC's evidence to support count 11 concerning RR, and particularly his observation of the accused appearing to perform anal intercourse with the complainant as well as contemporaneous statements made by the complainant and the accused as establishing that relevant intercourse occurred. 56The Crown also relied upon detailed evidence of relationship between the accused and the complainant, particularly in relation to the arrangements between them for the purchase of motorcycles and the continuation of the relationship by DC because of what was described as his "passion" for motorcycles that he could only satisfy that by continuing a sexual relationship with the accused. Reference was made to events occurring when the accused for a period of some months lived in a house at Bonnells Bay, which lease he took over from DC's 'half' sister and the evidence from DC and his half sister concerning the accused living with DC at that address for some period. By early 1988, the accused had moved to Freemans Waterhole, and in early 1988 had met GG. DC supported this as he was present at the time. He was also present when the accused had sex with GG in his presence and he joined in, he having anal sex with GG whilst the accused tried to have anal sex with him. He left the room or caravan and returning to see the accused having anal sex with GG. This, it was submitted, supported the evidence of GG. 57The Crown relied upon the evidence of Meaghan Barr, who met DC when she was 13 or 14. She was born in November 1972. She was his girlfriend for a short time and became a good friend. She confirmed a complaint made to her over a period of time in 1988 of being sexually abused by the accused. Before that she had seen the complainant sleep in the accused's caravan, when she stayed on the accused's property for a period of about a month having run away from home. She had slept outside the caravan as conceded by the accused but in slightly different circumstances. 58The Crown also referred to the evidence of retired Inspector Scott that he saw the complainant on 9 December 1987 and took a statement from him which he chased up on 26 December 1987, but after then heard nothing more. It was submitted that this account fits in with the evidence contained within the statement of Ronald Heaton as to a complaint of being abused by the accused being taken up by the complainant at the police station at Toronto, and the general accounts of the complainant's half-brothers Terrence Foreman and Alan Foreman. The Crown also relied upon the evidence of the complainant that the accused had seen him in the street at Morisset and threatened him, which caused him to withdraw his statement, as an explanation for delay in bringing the matter forward to the authorities. 59The fire lit by DC in company with others in October 1988, which destroyed chattels on the accused's property at Wyee said to be worth $50,000, was submitted to be lit out of frustration, anger and as 'payback', consistent with being sexually assaulted. The prosecution relied upon the 'statement of facts' tendered in the proceedings involving a co-accused which showed that a co-accused became involved to 'get back' at the accused for abusing DC. Although no objection was made about that 'statement of facts' (which forms part of the bundle of statements, certificates, photographs and other material relating to each of the complainants in exhibit J), neither was there much comment. Its second or third hand hearsay character deprives it of any real probative value. 60The prosecution also relied upon evidence of DC of his sexual relationship with GG and his description of acts of sex occurring in his presence between the accused and GG. The Crown submitted that the relationship of DC with the accused continued through until about 1995 notwithstanding continued 'abuse', because of the commercial advantage for DC and his desire to ride bikes provided to him by the accused. 61KA is relied upon by the prosecution to establish the continuing relationship with the accused by DC. She was born in 1972 and was the sister of DA and was a niece of the accused who had lived on the Bridge Street property when his parents were alive. She met DC when she was 18 and ended up marrying him and had children to him. She was told by Jennifer Redwood of DC's complaints and gave evidence of DC being reluctant to discuss the matter until, in the late 1990s, he 'blew up' and blurted out that the accused had sexually assaulted him by "fucking him up the arse". She gave evidence of the various commercial arrangements between the accused and DC. She entered into a relationship with GG in 2011 and had known him in the 1990s. It was submitted she had not facilitated any concoction between GG and DC. MS was relied upon by the Crown as confirming the early contact between DC the accused and providing evidence of a tendency for the accused to sleep with young boys in his bed. 62The Crown went through arguments that it anticipated from the defence. It is submitted that any inconsistencies in DC's evidence were minor. The complainant DC was nervous and anxious and had recount thousands of sexual acts and thus may have made mistakes. As a 15-year-old he could not have been expected to go to a doctor to be medically examined. Apparent inconsistencies arose from confusion given the large number of events involving himself in the accused, amongst other matters. The evidence of relationship given in this trial was the same evidence of relationship in the previous special hearing. The prosecution's submissions in relation to counts 6-10 and 11, in relation to RR, are at pp 1150 - 1194. 63With regard to GG it was submitted that his account of meeting the accused was supported by DC. The Crown took the Court through the grooming of the complainant, including to acts of performing a "hothead" upon him, the details relevant to count 13, when the Crown alleged that the gross indecency was the accused fellating the complainant and masturbating him as well as count 12, which was the first act of anal intercourse committed by the accused upon the complainant. This involved partial penetration whilst DC was present. Reference was also made to further acts of sexual assault committed by the accused showing the true nature of the relationship, including the incident at Bonnells Bay when the complainant was involved in performing sexual acts with RR in the presence of the accused and DC. 64The Crown, in some detail, referred to other evidence of relationship, particularly the incident after the purchase of a 1990 Honda 125 cc motorcycle and the celebration of a sponsorship earned by DC when alcohol was consumed and GG and the accused performed sexual acts. With regard to count 14, the Crown submitted that complainant's evidence of being struck in the head and kicked was clear evidence of assault, and was supported by the detail of the statement of GG's father who confronted the accused. The father came out to the accused's property at Warnervale and put allegations to the accused concerning his son being assaulted and confirmed the existence of a commercial dispute over money owed on a motor bike. It was submitted that his evidence supported the credibility of the complainant. Further, the credibility of the complainant was enhanced, it was submitted, by complaints made to a solicitor in 1995, who did not give evidence, and general complaints made to a doctor and a psychologist in 1999, followed by more detailed complaints to the doctor in March and April 2001 and to the psychologist on 10 July 2001, about seven days before he signed his first statement to the police which was given on 21 July 2001. Crown submitted that there was no evidence of any concoction between DC in GG, even though they knew one another. It was submitted that there was no real possibility of any connection between any other complainant witness in the case and GG, or DC, other than KW. 65It was submitted that any criticisms of GG arising from inconsistencies in his evidence were concerned with minor matters and there explanations for small inconsistencies. His absence of memory of particular sexual acts by the accused can be explained by the frequency of sexual contact with the accused. GG in fact saw some blood after going to the toilet which is consistent with being sexually penetrated, but because he did not go to a doctor does not mean that the sexual assaults did not occur. In any event, the absence of injury could be explained by the use Vaseline and any injury or discomfort would not be reported given the reluctance to tell anybody as to what had happened. Nothing arose from the claims for compensation of GG and DC. GG made his claim in 2003, but DC did not make a claim until 2009, after he had given evidence of the special hearing. There was nothing sinister about the fact that they used the same solicitor, particularly given the gap in time between the two claims. The submissions in relation to counts 12 -14 are at pp 1194 - 1214. 66In relation to the accused's case it was submitted by the Crown Prosecutor that his evidence is to be given little weight, he was evasive, garrulous and/or untruthful. Alternatively, he contradicted himself and there were a number of internal inconsistencies. The Crown particularly referred to his initial denial that any of the boys had ever slept at any of his properties, apart from "out in the scrub" but then his movement to the concession that boys slept at the Bridge Street property when he was living there as well as other properties. The Crown submitted the accused was discursive and sometimes incomprehensible and that his evidence could not be accepted given all evidence in the case. 67The prosecution referring to the accused's evidence, particularised matters arising in the prosecution case which were confirmed by the accused, either from the outset or ultimately. These matters, of course, are particularised in the transcript of the Crown Prosecutor's submissions, but in summary include the following: the accused agreed that at relevant times NG stayed with TA at the Morisset property, NG, FG and TM slept at the Morisset property, NG had breakfast at the accused mother's place, NG FG and TM slept in the annex to the shed or the 'humpy' at the Morisset property and they had slept in single beds that were inside the annex of the humpy. The accused knew all the complainants at about the time that they said they met him as well as other relevant witnesses. The accused had purchased motorbikes or cars for the use of particular complainants, such as FG, KW, DC and GG. As well, the accused conceded he lived at various properties at about the time it is alleged, including Bridge Street, Wyee, Bonnells Bay, Freemans Waterhole and Warnervale (which details were generally confirmed in exhibit M except for the Bonnells Bay address). He confirmed the sleeping arrangements at Bridge Street and at Wyee, that Meaghan Barr had stayed at his property at Freemans Waterhole, that he had bought motor bikes to be used by some of the complainants at 'Woody's', a motorcycle dealership at Wyong, (also confirmed in the statement of Peter Wood the owner), there were agreements for the payment for bikes, the accused had gone to New Zealand with KW's family and that NG's father had picked NG up from the accused's property and NG never came back. He agreed that NG, FG, KW and TM were taken to the speedway at Newcastle, that he had provided food to NG and FG, that NG, FG and KW drove cars at his various properties, that the accused had been to speedway and other events with DC and GG, that he had met GG at the Awaba speedway racing track and that he had seen DC on his 18th birthday and had gone to his 18th birthday party. 68The prosecution submitted that the accused's changes in his evidence concerning matters such as whether the complainants had ever slept at his properties amounted to 'lies', reflecting a consciousness of guilt. The prosecution further submitted that the claims by the accused concerning his impotence or his erectile dysfunction were not established by the medical evidence in the various medical reports tendered by the defence and the prosecution. It submitted that there was no basis for concluding that the accused could not possibly have sexually assaulted the complainants because of any alleged erectile dysfunction. Nor could his claims of back pain and treatment for back problems support a claim that he was otherwise physically incapable of sexually assaulting the complainants as he alleged. The prosecution's submissions in relation to the accused's evidence and his case are at pp 1215 - 1242. 69Specific submissions were made concerning the differing accounts of DC and GG of the first occasion that the accused sexually assaulted GG in the presence of DC (count 12). Ultimately, the Crown's position was that although DC described the first event involving sexual penetration by the accused of GG in his presence, the Court could not be relevantly satisfied that he was describing the same incident that GG described as the first sexual assault committed upon him when DC was present. Thus, the inconsistencies were of no moment. Those submissions are at pp 1243 - 1251. 70The Crown submitted that in respect of particular matters the subject of evidence by either GG or DC, which had earlier been the subject of acquittals at the special hearing, the circumstances of those acquittals were such but no issue of autrefois acquit or issue estoppel arose to preclude reliance upon the relevant evidence as 'context' evidence in this trial, relying upon the Victorian decision of VN and a 2000 House of Lords judgment, R v Z (cited later at paragraphs 112-118). 71The prosecution relying upon its various written submissions also submitted that evidence of each of the complainants, as well as other witnesses in the case, such as GW, DA and MS was available as evidence of relevant tendency pursuant to s 97 Evidence Act 1995.The prosecutor set out the relevant tendency or tendencies sought to be established and the particulars or characteristics of the evidence arising from the particular witnesses at pp 1255 - 1257. Legal issues raised in the submissions are generally dealt with later. Accused's closing submissions 72Counsel for the accused went through various legal directions that were submitted were required in this matter which need not be reiterated at this point given the detail of legal principles to be applied elsewhere in the judgment. Most of the matters identified were uncontroversial, the major matters requiring resolution by the Court relating to the appropriateness of a direction pursuant to s 165B Evidence Act 1995 (the 'Longman' direction), the availability of tendency evidence and the availability of context evidence in the trial in relation to matters the subject of acquittal at the special hearing. There were some other minor legal matters in dispute between the parties and the resolution of those matters can be taken from the findings on this judgment. 73Counsel for the accused conceded on the evidence in the trial that from the various complainants there was evidence given from each of them, in respect of particular counts where each of them was a complainant, that was available to establish the offences as pleaded in respect of counts 1 - 7 and counts 9 - 14. But not so in relation to count 8, because no relevant sexual assault had occurred in the circumstances upon which the Crown had opened its case. Detailed submissions in relation to counts 7 and 8 are at pp 1288 - 1312. 74Counsel for the accused submitted that at the heart of the consideration of the Crown case was the fact that each witness alleging criminal conduct on the part of the accused, or matters relevant to proof of that criminal conduct arising from other conduct that may reflect of tendency on the part of the accused, had to be scrutinised with great care. Further, in respect of every complainant there was significant delay between the alleged acts of the accused giving rise to complaint and the making of complaint, either privately to relatives, friends or counsellors, or to the police. Varying from 30 years between alleged events and first complaint in the case of NG, and months (1987) or years (2001) in the case of DC. Certainly, putting aside claims of private complaint, the lapse in time between relevant events and bringing matters forward to the notice of the police to permit prosecution was at least 11 or 12 years in the case of GG and longer in the case of other witnesses. It may be true that DC made a statement to police on 9 December 1987, but it was submitted that DC contacted the police to indicate he did not wish to pursue the matter, the statement is lost (although the officer who took the statement gave evidence of that fact that a statement was given and the date that occurred from his duty book) and no details survive. 75Counsel for the accused then went through the various complainants' evidence pointing to various matters that were submitted to reflect adversely upon their credibility and/or truthfulness to raise a reasonable doubt, at least, as to the guilt of the accused in respect of the matters about which those witnesses gave evidence. In the case of NG reference was made to the considerable delay in making complaint referred to above, the concession by NG that his 2002 statement denied the fact that sexual assaults occurred, but conceded that all other details were correct and inconsistencies and/or inaccuracies in the detail of the evidence. These were matters such as the time that TA came to the Morisset property with him, when TM and FG were present in relation to TA's presence, the circumstances of sleeping in the humpy and the house at Bridge Street, the period of time over which sexual assaults allegedly occurred and where they occurred, the circumstances of changes in sleeping arrangements, amongst other matters. 76Further, with regard to NG, reference was made to the fact that his statements as revealed in cross-examination suggested specific recall of the timing of events which was not consistent given the significant delay in complaint without any diary or notes to assist him to recollect particular events. When giving evidence in 2013 there were inconsistencies with his statement of 2006 which reflected adversely upon his credibility, including what were alleged to be differences in the number of times that he anally penetrated the accused, amongst other matters. It was suggested that he had made no reference to the use of lubricant at the time he was anally penetrated, however it was pointed out to him by the Court part of his evidence (at p 67) was capable of suggesting otherwise. It was also submitted that the Court could not exclude the reasonable possibility of concoction between NG and FG. Although FG gave evidence of a significant difference between the sexual assaults committed upon him and that alleged by NG this did not rule out concoction. The submissions of counsel for the accused in relation to counts 1 - 2 are at 1264 - 1272, with submissions on the issue of "concoction" between the complainants at pp 1272 - 1280. 77With regard to FG reference was made to the delay in making private complaint of sexual abuse up to 9 years and significantly longer delay in taking the matter to the police and providing details. Further, it was submitted that the credibility of FG's version was damaged by the volunteering of the performance of oral sex upon him in his evidence when he had not previously disclosed that at the special hearing or in his statement. This was a significant "recent invention". There were dissimilarities between the alleged sexual assault of FG and NG as well as other complainants in a range of ways that weakened the claim of tendency arising from other evidence. In respect of FG's allegation, there was no suggestion of alcohol being offered to induce him to perform sexual acts, being provided with magazines or being purchased cars or motorbikes. Those submissions are generally set out between pp 1280 and 1285. 78With regard to KW reference was made to the delay in complaint, the absence of any disclosure of masturbation in relation to count 4 when making his statement to police in 2001, amongst other matters. In respect of count 5, it was submitted that the description of the penis of the dog was not specific but was a general description of little evidentiary value and that KW's evidence was not supported by GW as to the sex of the dog. GW remembered the accused at a slightly earlier time had a German Shepherd dog but did not know the gender. The submissions in relation to counts 4 - 5 are at pp 1285 - 1288. 79With regard to DC, there were no specific submissions made in relation to count 6, but in relation to count 7, it was submitted that there were inconsistencies between the evidence in the trial and earlier evidence of the special hearing as to the nature of the alcohol that the witness had drunk before being allegedly sexually assaulted, which was said to be a significant matter, given that was the first time that the witness had drunk alcohol on his version. With regard to count 8 a specific submission was put that the accused should be acquitted because there was in effect no evidence of a relevant act in respect of the way the prosecution had opened its case. Particularly it was submitted that by the conclusion of cross examination upon this count (at p 713) the complainant asserted that no masturbation had occurred after the first penetration of him by the accused, although there was partial penetration of his anus. The Crown had opened its case on the basis that the relevant act of gross indecency occurred after the penetration just described. Reliance was had upon the decision of the Victorian Court of Appeal in R v Howard [2005] VSCA 235, particularly at [28] - [30]. It was also submitted that the order of events in relation to counts 7 and 8 were inconsistent with previous accounts, particularly as to the circumstances in which the accused produced Vaseline as a lubricant for anal intercourse. It was conceded on reflection that the considerations that arose in Howard and the authorities therein cited were somewhat different than the considerations that arose in this trial, being a trial by judge alone. Ultimately, it was submitted the issue to be determined given the conflicts in the evidence and the changes to the way the Crown conducted its case was more pertinently be concerned with the credibility of the witness. 80Counsel for the accused had no specific submissions to make in relation to the evidence relevant to count 9, but in relation to count 10 submitted that there were a number of inconsistencies in the account given by the complainant that reflected adversely on his credibility. These included his evidence as to the alcohol that he drank and inconsistencies with evidence given on a previous occasion, inconsistencies in relation to the nature and order of sexual acts performed and, importantly, initially not giving evidence of the accused performing anal sex on him and then correcting that evidence on the next day he gave evidence (at p 608). Further, his position at this trial of mutual anal penetration was a version that he had not previously given, and was raised for the first time in this trial. The witness had conceded it was possible that he was confused or wrong in relation to his recollection of relevant events. This was submitted to be very relevant in assessing his reliability as to whether the offence had been committed. 81In relation to the evidence of DC upon which the Crown relied to establish count 11 concerning RR, it was submitted that the detail of his evidence demonstrated that he could not see whether the accused actually penetrated the complainant the subject of that count. It was conceded that having regard to the evidence of the witness that an alternative count of "attempting" to commit the substantive offence would be available pursuant to the relevant statutory provisions. Similarly, it was conceded, that in respect of count 5 an alternative count of attempting to commit the crime of bestiality may be available on the evidence of the trial. 82In relation to other sexual activity involving the accused relied upon by the prosecution as context evidence it was submitted that the evidence of DC was unreliable on a number of respects, such as the conflicts between his evidence in this trial and previous statements about the length of time that he was involved in sexual activity with the accused RR (varying between six weeks and 12 months), his admitted confusion about that period of time as well is other important details such as the events concerning counts 8 and 10. 83Counsel for the accused also analysed the detail of the evidence given by the complainant in relation to the first occasion that he was present when the accused allegedly anally penetrated GG. He pointed to the different order of events between the two versions and particularly the fact that he alleged he was a participant when GG said in respect of count 12 DC was a spectator. Counsel also pointed to the differences in the order of events as alleged by DC in relation to this incident. He relied upon the inconsistencies between the evidence in this Court and the statement he gave to the police in 2001, when he discussed the same incident which counsel for the accused submitted was a reference to the first occasion he was present when GG was anally penetrated. He submitted that the conflicts between DC and GG may lead the Court to different conclusions about the credibility of each witness, but that ultimately the Crown had not excluded the possibility that the evidence relied upon to establish count 12 from GG was unreliable and was concerned with a different event to that which the Crown relied upon to establish that count. 84Counsel for the accused also referred to inconsistencies in the recollection of DC to that of Inspector Scott as to when the complainant had visited Toronto Police Station to make a statement, that he had exaggerated the length of the statement and that he had given different reasons and explanations for not proceeding with the matter. It was submitted that the reason he gave his brother Terrance Foreman for not pursuing the matter related to his concern about what other people would think of him and embarrassment. Yet in court he alleged he had been threatened by the accused when told that his life would "not be worth living". It was submitted that the account he gave of being threatened by the accused was not truthful or reliable and this reflected adversely upon his credibility. Further, his account in this trial was at odds with the recollection of the Inspector who believed that the matter lapsed and had no recollection of being contacted by the complainant. 85Counsel referred to the evidence concerning his motive for lighting the fire that destroyed the property of the accused in 1988. In this trial he said was that he was angry, frustrated and wanted to 'pay back' the accused for blackmailing him into sexual activity by giving him bikes. Reference was to what was suggested were inconsistencies in previous statements as to his motives, which reflected adversely upon his credibility. The complainant had previously said there were the two reasons outlined in this trial, but also had said there was one reason. It was suggested that these different accounts were inconsistent. 86Both relevant to his credibility and also to the claimed tendencies raised by the prosecution, it was submitted that an analysis of the evidence of DC and its conflict with the evidence of GG about their discussions concerning giving a statement to the police in the 1990s indicated concoction or contamination on their part. The complainant DC said that he only spoke to GG about going to the police once, in about 1999. Whereas GG could remember at least four occasions when they discussed the matter, usually at the home of DC, between 1992 and 1999. It was submitted that in order for them to discuss giving a statement to the police they must have been discussing matters relating to allegations of the accused sexually assaulting them. It is submitted that would be the sole purpose of having such a discussion and their denials of concoction and or detailed discussions about the allegations were untrue. The submissions in relation to DC's evidence regarding counts 6 - 12 are at pp 1288 - 1337. 87It was submitted that ultimately there had been significant delay in DC coming forward with the current allegations, notwithstanding the fact that he may have spoken to Inspector Scott in December 1987. Further submissions were made concerning the delay on the part of GG, FG and KW to complain. With regard to FG it was submitted that if he had privately complained to a friend in 1985 and then subsequently to his wife, it was not a "great step" to take the matter to the police. He claimed to have gone to Charlestown Police Station in 1998, but not having gone through with it. It was submitted this is not reflect favourably upon his credibility. 88With regard to GG it was submitted that there were a number of inconsistencies in his evidence in this trial and previous statements he made or between his evidence in chief and cross examination. These included the circumstances of him meeting the accused in early 1988 being invited out to Freemans Waterhole, the circumstances of the first "hothead" and how he got to Freemans Waterhole, the timing of his second visit to the property and similar matters. As with other inconsistencies adverted to in the submissions, whilst it was conceded that first blush that these inconsistencies may appear minor, the Court was reminded that GG, like the other witnesses, had no notes or diary to assist his recollection yet gave detailed statements to the police in respect of their allegations. In the case of GG he had conceded in evidence that he gave a detailed second statement in order to address the "timeline" related matters, yet had contradicted himself in relation to this timeline that he had created without any contemporaneous records to assist him. 89It was submitted in relation to GG, for the same reasons advanced in relation to DC, that there was evidence upon which the court could conclude that they had concocted their accounts. It was also submitted in this context that both complainants had an axe to grind against the accused. In the case of GG his last contact with the accused involved a physical assault upon him and placed complainant's claimed commercial disputes were involved in the break up of their relationship of the accused. DC had had a number of disputes with the accused over ownership or payment for bikes and GG claimed that the accused had demanded more money than was his due for handing over a particular motorbike. 90With regard to count 14, it was submitted that the complainant GG had changed his ground in relation to the character of the dispute and how much he owed to the accused and also that there were inconsistencies in his evidence as to the side of the face he was struck, when his father came out to confront the accused and the circumstances of his father's involvement. There was no explanation for the delay in reporting this assault because there was no issue of humiliation on the part of the complainant. It was submitted that his relationship of the accused was severed so there was no risk for him in taking the matter to the police, nor any reason not so to do. 91Submissions were also made in relation to GG that he was the only witness who noticed blood on his anus when he went to the toilet and there was no cogent explanation for him not seeking medical treatment or at least seeking guidance from his family or someone else about whether he had suffered any injury. 92It was generally submitted that each of the complainants who alleged anal penetration, given their version of the circumstances of initial anal penetration, were unreliable or untruthful as to that penetration, because of their failure either to seek assistance medically, or because of the absence of any noticeable injury given that injury must have been occasioned on their version of the pain they suffered on the occasion of the first act or subsequent acts of anal intercourse. It was also submitted that the account of DC of 1000 or so sexual acts with the accused, 100 by GG, 100 by NG etc were exaggerations and had to be considered also the context of the medical evidence produced by the accused. 93Counsel for the accused submitted that the Court would need to give itself warnings as to the reliability of witnesses such as GG and DC having regard to the inconsistencies in their evidence (as with the other complainants), their antipathy to the accused, the delays in bringing forward the matters that they alleged against the accused to the notice of the authorities and the other criticisms. The submissions in relation to GG and issues that arose out of his evidence are at pp 1335 - 1353. 94With regard to the evidence of his client, it was submitted that the accused's evidence that he did not own a German Shepherd in 1982, that his father had owned such a dog before he died in 1976 and that in 1982 he owned a similar looking but smaller breed, called a 'Tasmanian Shepherd' dog, showed that KW was either untruthful or unreliable. KW was not assisted by the evidence of his brother GW because, whilst identifying the accused having a German Shepherd dog, GW did not know the sex. In any event their recollection of the breed of dogs and the like, arose many years after the event and they may have been an error on the part of GW that he in fact had seen a German Shepherd, as opposed to some other breed. 95Counsel for the accused relied upon the evidence of the accused as to his medical conditions, including physical conditions such as heart difficulties, his claim of erectile dysfunction and impotence, back problems and the like. It was submitted that it was clear that the accused had many medical problems over the period of time covered by the charges. Although there was no direct medical evidence pointing to erectile dysfunction this was submitted to be because he was not in a relationship having separated from his wife a number of years before 1975. There was no need for him to seek assistance in relation to this matter and that when he did seek assistance in relation of the matter he did so knowing that these various allegations were being made. The making of the allegations made are relevant for him to seek medical assistance about this topic, but not in a sinister way. The prosecution had not excluded the possibility that it was physically impossible is the accused claim to perform the sex acts alleged. In any event it was alleged against the accused the commission of thousands of sex acts which are not consistent with the accused's physical condition as revealed in his oral evidence and the medical evidence. It was also submitted that there was forensic disadvantage in this context, because if these allegations had been made in a more timely manner the accused may have been able to obtain medical evidence that was itself timely to the alleged occurrences to assist him in relation to the existence of his erectile dysfunction. Either out of embarrassment, or lack of need to seek assistance, he may not have sought medical treatment for this particular condition although it was present. 96Counsel for the accused went through the matters that were asserted by the accused about which he was adamant, including his denial of paying money to any boys for work done, his denial of possession of Penthouse and Playboy magazines and providing them to complainants, his denial of providing them with alcohol and related matters. It was submitted that although the accused may have appeared garrulous and expressed his frustration during the giving of evidence, this did not reflect adversely upon his credibility because he was an elderly man having difficulty remembering particular events, because of the time that elapsed. Also, there were the circumstances of giving evidence from custody, having been in custody for over four years with the attendant difficulties of getting access to material that might have been in possession on a previous occasion. I note in relation to this aspect of the submissions that I draw no conclusion or inference adverse to the accused on the basis of his presentation and I have taken into account in his favour the difficulties of giving evidence at his age, in circumstances where he has been in custody for over four years, has previously sat through a special hearing and has a number of physical difficulties, including difficulties with hearing. He gave evidence in court and had access to a hearing loop and no claim is made that he could not hear what was asked of him. But there is no doubt in giving evidence he was confronted with a number of difficulties which most witnesses ordinarily would not be concerned. The submissions of counsel for the accused in relation to the accused's evidence are at pp 1354 - 1356. 97Finally, counsel made submissions about the availability of evidence in relation to counts for which the accused was acquitted at the special hearing, which are summarised in the section of the judgement dealing with the treatment of legal principles. Although it was conceded in submission that this only arose in relation to the evidence of DC and GG and that there was a great deal of other contextual evidence given by those witnesses that was not relevant to the counts for which they were acquitted. Submissions were also made about the admissibility of evidence for tendency purposes, with counsel for the accused conceding that the strongest basis for excluding evidence given for that purpose would arise from the inference of concoction between DC and GG the subject of earlier submission. Counsel for the accused also submitted that this was not an appropriate case for an 'Edwards' direction in respect of the issue of lies. This is a submission with which I agree given that the particular matters identified by the Crown arising from conflicts between the evidence in chief of the accused and the cross examination, could not reasonably be clearly established as 'lies', being more appropriately viewed as inconsistencies or concessions. In this matter the physical health of the accused and the difficulties for the accused in giving evidence many years after relevant events militates against the use of any evidence given by the accused that might be found to be untruthful or unreliable as relevant "lies" (see pp 1364 - 1377). Prosecution's submissions in reply 98The prosecution brought to the attention of the Court Acting Judge McGuire's judgment in 2009 on tendency and coincidence evidence and s 130A Evidence Act 1995. LEGAL PRINCIPLES TO BE APPLIED 99The matters outlined below are primarily related to matters addressed upon. Not a great deal of attention was taken by the parties to legal issues except the issues of tendency and context evidence, as most legal issues appeared to be agreed amongst the parties at the end of the evidence, particularly on fundamental issues. The legal principles set out below and elsewhere referred to in the judgment on discrete evidentiary matters have to be considered in conjunction with the rulings made in the course of the trial. Onus and standard of proof 100The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution. The accused bears no onus of proof. The accused is presumed to be innocent until such time as the prosecution can prove his guilt of a relevant count in the indictment. 101The prosecution must prove each and all essential ingredients or elements of a relevant charge for consideration 'beyond reasonable doubt'. Those words are to be given their ordinary, everyday meaning. The accused bears no onus in relation to any matters requiring proof by the prosecution. If any reasonable doubt exists in relation to matters which the prosecution must prove then I must acquit the accused. In this matter the accused gave evidence. He was under no obligation to give evidence or prove anything. His evidence forms part of the totality of evidence upon which a determination of guilt, or otherwise, is made. Elements of the counts in the indictment 102The following are the essential elements of the counts in the indictment which require proof by the prosecution beyond reasonable doubt in the context of the relevant particulars for each count as to date and place of each alleged offence. The essential elements for a particular count are recounted as the prosecution has conducted its case. On the evidence at trial the particulars in this respect are not in dispute. Counts 1, 2 and 4 (i) The accused penetrated the anus of NG (in relation to counts 1 and 2) and KW (in relation to count 4) (ii) by his penis. Count 3 The accused committed, or participated in, (i) an act of indecency (ii) with another male person, FG. An act of indecency is an act that is contrary to the ordinary standards of respectable people in this community. It is for the tribunal of fact to determine the standards prevailing in the community when deciding whether the prosecution has satisfied it beyond reasonable doubt that the act alleged was indecent. An act of indecency must have a sexual connotation or overtone. There was no issue at trial that particular acts alleged had prima facie established acts of indecency, or 'gross indecency', as alleged in counts 6 and 8 Count 5 The accused participated in (i) an act of anal penetration (ii) with an animal. It can be proven by the accused penetrating an animal (Criminal Law in New South Wales, LBC (1971) - Watson and Purnell Volume 1, p120, [340], fn 6). Count 6 (i) The accused committed an act of "gross indecency" (ii) with another male (iii) under the age of 18 and above the age of 10. Counts 7, 9 10 11 and 12 That the accused (i) had homosexual intercourse (ii) with a male person (iii) between the age of 10 and 18 years. Homosexual intercourse means that the accused had sexual connection with a complainant occasioned by the penetration of the relevant complainant's anus by his penis; or the continuation of that form of intercourse .It may have a wider meaning but that is not relevant in these matters. Consent is no defence. Count 8 The accused committed: (i) an act of gross indecency (ii) with another male (DC) (iii) under the age of 18. Count 14 The accused a) intentionally inflicted unlawful force on or against or towards GG b) without the consent of GG. 103Alternative verdicts are realistically available in relation to counts 5 and 11, having regard to the evidence at trial (s 162 Criminal Procedure Act 1986; s 427 Crimes Act 1900( repealed), s 344A Crimes Act 1900). Attempt to commit an offence requires proof of an intention to commit the completed offence and proof of an act, or acts, done with that intention, which is more than mere preparation to commit the offence and which cannot be reasonably regarded as having any purpose other than the commission of the crime intended (R v Mai (1992) 26 NSWLR 371: Giorgianni v The Queen (1985) 156 CLR 473). Trial by judge alone 104The trial is a trial by judge alone in accordance with the provisions of the Criminal Procedure Act (see s 132, 133 Criminal Procedure Act 1986). A trial by judge alone in accordance with the relevant provisions of s 132, 133 Criminal Procedure Act 1986 requires the trial judge not just to state bare principles of law that are applied and findings of fact that are made, but also to expose the "reasoning process" justifying the findings of fact and ultimately the verdict. 105All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state where appropriate, notwithstanding the appropriate warnings or the consequences of them, why a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250). Conflict in prosecution and defence cases 106When a case involves a conflict between the evidence of a witness for the prosecution and evidence called on behalf of the accused, it is commonplace for the tribunal of fact to ask itself the question "who is to be believed?". It is essential to ensure that, if the answer to that question is adverse to the accused, that is not to be taken as concluding the issue of whether the prosecution has proven beyond reasonable doubt the issues for which it bears the onus. A verdict of guilty should not be returned unless the Court is satisfied beyond reasonable doubt of the truth of the evidence relied upon by the prosecution to prove the accused's guilt in respect of the particular count under consideration. Each count to be considered separately 107Only evidence that is relevant to a particular count can be considered in determining whether the accused is guilty or not guilty of that particular count. Each count must be considered separately with regard to the relevant evidence to that particular count. Evidence that is only relevant to a particular count cannot be considered in determining whether the accused is guilty of any other count. However, there will be evidence that is common to the prosecution (and defence) case in relation to more than one count. Scrutinising the complainants' evidence 108Where the prosecution case is entirely dependant upon the truthfulness and reliability of a particular complainant I must scrutinise that evidence with great care before a conclusion is arrived that a verdict of guilty should be returned in relation to a relevant count. 109A reasonable doubt as to the truth of a particular complainant's evidence as to a particular count can be taken into account in assessing the credibility of that complainant's evidence in relation to another count for which that complainant's evidence is relevant. Context evidence 110In relation to all the complainants, with the exception of RR, the Crown has led evidence from them of sexual activity between them and the accused which, on the Crown case, may be categorised generally as incidents of sexual assault but which are not the subject of specific counts in the indictment. As earlier mentioned, the accused was arraigned at the special hearing on 31 counts of which the current 14 counts survive. The prosecution wishes to lead evidence of sexual activity between the accused and relevant complainants, not the subject of counts in the indictment, as evidence providing a context for the alleged commission of relevant offences. It also wishes to rely on evidence of observations of particular complainants that the accused was engaged in sexual activity with other complainants as both contextual evidence, such as GG in relation to activities involving DC and RR, and as direct evidence of a particular count, or potentially so, such as that of DC in relation to sexual activity involving the accused and RR and GG on different occasions. 111Objection is taken to any evidence given by a particular complainant in respect of a matter the subject of acquittal at the special hearing on the general basis that the acquittal serves as a bar, or issue estoppel, to the further prosecution of any matters upon the same facts. It is submitted that this extends to the use of that evidence as evidence of context or relationship, as those terms are generally understood, between the relevant complainant and the accused. Both the Crown and the defence made oral submissions in relation to this matter. The Crown provided written submissions referring the Court principally to two decisions, R v VN [2006] VSCA 111 and a decision of the House of Lords, R v Z (2000) 3 All E R 385. The defence primarily cited Storey v The Queen (1978) 140 CLR 364 and Rogers v The Queen (1994) 181 CLR 251. Some of the context evidence is also relied upon by the Crown as manifestation of the claim of tendency that the Crown seeks to establish in order to prove the guilt of the accused in respect of particular counts upon the relevant evidence from complainants other than the particular complainant named in a particular count. 112No objection is taken to evidence of sexual activity between the accused and a relevant complainant that was not the subject of a count in the earlier trial, or special hearing, as 'context' evidence. Clearly this evidence is relevant for this purpose. As the evidence emerged in the trial the evidence given by NG and FG of other sexual acts was not directed at particular counts previously the subject of acquittal. In relation to KW there was a count in the previous indictment relating to the attempt by the accused to have the dog penetrate KW before the act of bestiality alleged in respect of count 5 in this indictment. The judge at the special hearing ruled that no offence was disclosed at law by the evidence given by the complainant in respect of the then pleaded count of attempted bestiality for which the accused was acquitted. 113There was, however, evidence given by GG which could be categorised as being relevant to some counts for which the accused was acquitted. The discussion about that matter appears at pp 1200 - 1203: 1252 - 1253 of the transcript. No counts relating to DC for which the accused was acquitted are identified as the subject of evidence in this trial. 114In VN the Victorian Court of Appeal concluded that evidence given at a previous trial that led to an acquittal was admissible at a subsequent trial, notwithstanding the previous acquittals, because the basis upon which the accused had been acquitted was that no specific offence had been identified in that evidence and thus the plea of autrefois acquit could not be called in aid( at [78]). The Court approved the decision of the House of Lords in R v Z, per Lord Hutton, that the finality of the verdict of acquittal is not controverted where evidence is introduced on a subsequent prosecution which relates to the subject of the acquittal but which is relied upon as evidence to support a verdict of guilty in respect of another charge. No issue estoppel arose because the relevance of the evidence was not to establish the guilt of an accused person in respect of a charge for which he had been acquitted, but rather for another purpose. 115In VN, as here, in part the reasons for the acquittal at the earlier trial of particular counts arose because of insufficient particularity in the evidence of the relevant complainant to prove the individual counts for which the accused was acquitted. The judge at the special hearing also found the accused not guilty on some of the counts because the offences were not established at law by the evidence. He reached no decision adverse to the complainants as to the truthfulness of their evidence in respect of matters the subject of acquittal. As Justice Redlich pointed out in VN : "... The verdicts of acquittal (at the previous proceedings) were based upon the failure of the prosecution to identify which of the many acts of indecent assault that fell within the period specified in the count was the offence charged" (at [78]). 116In R v Carroll (2002) 213 CLR 635 at 651, Gleeson CJ and Hayne J observed: "Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of the accused, evidence of conduct may be adduced, even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct (citing amongst other cases, R v Z) are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial." These observations were cited with approval by Redlich J in VN. 117Consistent with these authorities, where evidence has been adduced in relation to matters for which the accused was acquitted, noting that there are very limited instances of this in this trial, that evidence is admissible as evidence of context and relevant to proof of guilt of the accused in relation to counts relating to the same complainant. Even if particular evidence was excluded there was a body of other contextual evidence from KW, DC and GG. 118Counsel for the accused referred the Court to two authorities, The Queen v Storey and Anor (1978) 140 CLR 364 and Rogers v The Queen (1994) 181 CLR 251. As it transpired in discussion with learned counsel for the accused it was pointed out to him that obiter observations of Barwick CJ (at 372), Gibbs J (387) and Mason J (at 396 - 397) did not assist the position of the accused in resisting use of the evidence as suggested by the Crown. These eminent judges noted that evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused is guilty of an offence for which (the accused) has been acquitted, so long as it does not challenge or diminish the benefit to the accused of the acquittal, to paraphrase the words of the Chief Justice in that matter. Such evidence must only be allowed to use or support another charge, or negative a defence, so long as the other charge is not substantially the same as the charge upon which the accused has been previously acquitted. Of course, the 'jury', that is myself, must be warned in an appropriate matter that, amongst other things, the previous acquittal must be accepted and the evidence cannot be used to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal. 119Thus, the prosecution is permitted to rely upon evidence given by each of the complainants concerning surrounding events of a sexual nature to those particularised in the indictment, some antecedent some subsequent to alleged offences. These other alleged events of a "sexual nature" are allegations by a particular complainant that the prosecution relies upon as evidence of "context", to relate or explain the circumstances in which the events giving rise to specific charges arise or explain why no immediate complaint was made. This evidence is relied upon by the prosecution to make the evidence of each relevant complainant more understandable and to explain, if needs be, why a particular complainant acted as he did on particular occasions. This contextual evidence given by a particular complainant does not establish that the accused had a tendency to sexually assault that complainant, subject to some later findings. The relevant tendency evidence is identified below. Much of the context evidence has no 'tendency' purpose or relevance. The context evidence must not be used to substitute for evidence relied upon by the prosecution to establish a particular offence. It is borne in mind that the evidence in relation to these matters is evidence that comes from the particular complainant upon whom the Crown is dependant to establish the guilt of the accused of the particular counts particularised in the indictment relating to that complainant. Prior inconsistent statements 120'Prior inconsistent' statements, or representations made on previous occasions in earlier evidence or in statements, may be relied upon to establish inconsistencies between those accounts and the evidence of a witness in this Court. What is said by a witness on a previous occasion is not itself evidence of the fact unless, of course, the previous statement is adopted in this Court. If there is an inconsistency between a previous statement or evidence and evidence in this Court it may be taken into account in either assessing the credibility of the particular witness in relation to that particular matter or in assessing the credibility of the witness generally. In considering such inconsistencies one may, if satisfied that there are inconsistencies, regard those matters as reflecting adversely upon the truthfulness of the witness or his or her credibility. The significance of these matters in relation to a particular witness may depend upon the significance of the inconsistency, the number of inconsistencies and of course the significance of the witness in the case. Tendency 121The prosecution wishes to rely upon the evidence of each of the respective complainants and other witnesses in the case, including DA and MS to establish a tendency on the part of the accused relevant to establish the guilt of the accused in respect of particular counts relating to other complainants. GW is relied upon to show aspects of a course of conduct that in combination with other evidence establishes the tendency urged by the prosecution. In other words the prosecution relies upon the evidence of NG in material respects, to prove the relevant tendency on the part of the accused, which is relevant to proof of guilt of the accused in respect of the remaining counts in the indictment (save for count 14, which is an allegation of common assault and is not assisted by the alleged tendency evidence in a material sense and count 5). Likewise FG is relied upon to provide evidence of a tendency that is said to be relevant to proof of guilt of the remaining counts in the indictment not involving him, with the exception of count 14, and so on in respect of the remaining complainants. GW, DA and MS as well provided relevant evidence on this aspect on the Crown's contention. The prosecution, both in its written submissions prepared in April when this trial was supposed to start and in this trial commencing in late October, sought to rely upon the same evidence as evidence of coincidence. Given that the identity of the accused is not in dispute and that there are similarities between the various sexual assaults, these are not 'striking' similarities. Not that this aspect is necessary for a claim of relevant coincidence. I have concluded that the evidence relied upon by the prosecution has insufficient probative value to serve as coincidence evidence. In oral submissions from the prosecution the matter was barely pressed by the prosecution. I deal with aspect later. 122The 'tendency' that the prosecution alleges pursuant to s 97 Evidence Act 1995, is the accused's "state of mind" that "he had a sexual attraction to male children aged between 11 and 17 years (sic)". The prosecution submits that there was a clear pattern of behaviour or "modus operandi" on the part of the accused that underlies the evidence of all the complainants. The Crown submits that the particular evidence it identifies, set out below, has significant probative value that outweighs the prejudicial effect of the evidence, with the probative value of the evidence largely determined by the degree to which it is either "strikingly similar" to the features of the offence charged or displays on the part of the accused a pattern of behaviour (or underlying unity) or "modus operandi", citing R v Fletcher (2005) 156 A Crim R 308, at [50] and [59] - [60] and R v DAO [2011] NSWCCA 63. It is submitted that the similarities in the various sexual assaults and the behaviour of the accused is not limited to the manner of the sexual assaults, but the way in which the accused used his position to gain access to and the trust of the complainants (Fletcher at [65]). Further, there was no real possibility of concoction between the complainants. That possibility must be a "real", as distinct from a speculative possibility (Colby v The Queen [1999] NSWCCA 261). Factors such as relationship, opportunity and motive alone would not be enough to found a finding of concoction (BP v R [2010] NSWCCA 303). 123In this case the Crown says that the conduct of the accused that establishes a tendency to behave in a relevant way or have a particular state of mind can be demonstrated by ten features, or a pattern of behaviour. As submitted, but not necessarily in order of importance, they were: (1)that the accused had large properties with dirt tracks, or race tracks, at the time of the alleged offences and he invited all complainants to his properties to use those dirt tracks, race tracks, (2)the accused took all complainants to speedway races and encouraged their interest in bikes and cars, (3)that the accused was able to build a rapport with the complainants through their interest in bikes and cars, (4)the accused purchased cars and bikes for the use of these young boys on his properties, or at racetracks and gave them bikes or cars as gifts or to pay off (5)the accused offered all complainants money to work on his various properties as inducement to keep them coming back to pay off these bikes and cars, (6)the complainants were all young males in the age range from 11 to 17(sic), (7)the accused developed a special relationship with all the complainants by offering them motor bikes, cars, and work, and taking them to the speedway, (8)the complainants were all local boys who lived nearby the properties, (9)the accused allowed all these young boys to ride the bikes and motor vehicles around his property prior to them having a licence or being legally able to drive and that in relation to DC, GG and KW the accused offered pornographic material to them, and specifically, relating to GG and DC, the accused offered alcohol, (10)in relation to all of them the accused engaged in inappropriate sexual contact with them, including anal intercourse; oral intercourse, and/or masturbation. A number of these matters, on reflection, overlap in various ways. Some are not applicable to all complainants. 124Dealing with the defence submissions on the issue of tendency, it was submitted in writing that the evidence does not have significant probative value because the various acts the subject of counts in the indictment are different, the gap in time between the acts alleged in relation to the "earlier complainants" (NG, FG and KW) and the later complainants (DC and GG) is significant, the evidence relied upon in respect of the issue of tendency is disputed and there was a possibility of concoction between various complainants. It was submitted further that if the Court felt that the evidence had significant probative value, that did not outweigh the 'prejudicial effect' of the evidence. Submission was made in anticipation of a trial by jury that the jury may overestimate the probative value of the relevant evidence, a submission that has no great relevance in this trial. In oral submissions counsel for the accused concentrated more upon the 'real possibility of concoction', particularly between DC and GG. It was not expressly considered by counsel for the accused, but impliedly so given the evidence in the case, but such contact as may have existed between NG, FG, TM, GW and KW (although there was almost non-existent contact between KW and the others relevant to subsequent events) could not reasonably establish the relevant 'possibility' of concoction or contamination. With regard to GG and DC it was submitted that there was admitted relevant contact on the part of GG with DC and that it was extensive prior to giving statements to the police. The discussions about 'giving statements to police' raise the real possibility of concoction on their part. The conflict between the evidence of GG and DC as to the circumstances of contact reflected adversely upon the credibility of DC, in so far as he denied any relevant discussions with GG that may give rise to a claim of concoction, but not so GG. 125S 97 Evidence Act 1995 relevantly provides: (1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: .... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." s101 of the Act relevantly provides: (2) Tendency evidence about a defendant, that is adduced by the prosecution, cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." No issue of 'notice' arises in this matter (ss 97(1)(a), 100). 126So far as the written and oral submissions of the parties were concerned, there was no disagreement on the principles to be applied. In fact ultimately on analysis the principles to be applied are largely without controversy notwithstanding some sixteen years of discussion about ss 97 and 101 Evidence Act by the Court of Criminal Appeal and the High Court. 127As to the assessment of the probative value for determining the issue of that aspect for the purposes of assessing whether evidence was available for tendency purposes, I apply the reasoning of the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228 at [53] - [65]. I also note R v PWD [2010] NSWCCA 209 at [57] - [63] and the cases cited therein. 128I am mindful of the fact that in Shamouil the Chief Justice said in effect that the focus of the test for probative value, as defined in the Evidence Act, is on the capability of the evidence to establish a fact that the tribunal of fact is open to conclude. It is not concerned with whether the fact is likely to be established and thus matters of credibility and the like are not matters to be taken into account in assessing the probative value of the evidence. Here, having regard to my later findings, even applying the reasoning in DPP v Dupas [2012] VSCA 328 (cf R v XY [2013] NSWCCA 121) I would not have difficulty ascribing significant probative value to the relevant evidence. 129As was discussed in Fletcher (2005) 156 A Crim R 308, the preliminary task for the judge is to make the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue. Secondly, where the judge concludes that the evidence has that capacity, an assessment and prediction of the probative value that the jury may ascribe to the evidence must be undertaken. The evidence is not to be admitted if the judge concludes that the evidence, either alone, or in conjunction with other evidence already adduced, or to be adduced, would not have significant probative value. The tendency rule is concerned with, "evidence of the character, reputation or conduct of a person, or a tendency that a person had or had", as was emphasised in Fletcher's case, and in R v DAO [2011] NSWCCA 63. 130In DAO, at [180], Simpson J, stated: "... Tendency evidence is no more than a building block or a stepping stone to provide a foundation for an inference that, on occasion relevant to the proceedings, a person behaved in a particular way or at a particular state of mind. If it is not a species of circumstantial evidence, it is analogous thereto ... The tendency evidence may be strong or weak, depending on the nature of the evidence. The only qualification is that, to be admissible, the probative value must not be so weak as to be bereft of 'significance'. The level of the generality of the evidence may affect the significance of its probative value." 131In Fletcher, Simpson J pointed out that there will be cases where the similarities of the particular matters particularised by the Crown are so overwhelming as to amount in what was described in pre-evidence stage to "similar fact evidence", showing "a striking similarity between the acts alleged", and there will be cases where the similarities are of so little moment so as to render the evidence probative of nothing. There will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstances may rationally affect the assessment of a probability of the existence of another fact. It is not necessary for the Crown to establish such a "striking similarity" or "underlying unity". Matters of similarity and dissimilarity will be matters of degree which will be required to be considered in the appropriate assessment (R v Ford [2009] NSWCCA 306). 132It has been held that the tendency rule is not directed at showing a tendency to commit a particular crime, but showing a tendency "to act in a particular way" (R v Li [2003] NSWCCA 407). The evidence need not necessarily have "striking similarity", what is necessary is to show that the evidence "should make more likely, to a significant extent, the facts that make up the elements of the offence charged", (per Campbell JA, R v Ford, at [125]). Similarity, or dissimilarity, is relevant to the assessment of the issue of whether the evidence has significant probative value, and does not depend upon an assessment of its credibility or reliability, nor any prediction of the likelihood that the jury would accept it (Simpson J, DAO at [180] - [181]). The critical question is whether the evidence is capable, to a significant degree, of rationally affecting the assessment by (the jury) of the probability of the existence of a fact in issue (Simpson J at [184]). 133S 101 Evidence Act requires weighing the probative value of the evidence as against the danger of unfair prejudice, which includes improper use of the evidence. That is to be taken by the tribunal of fact "to prove (what) the law seeks to guard against" (HML v The Queen (2008) 235 CLR 334 per Gleeson CJ at [12]). Some of the dangers that arise of unfair prejudice from consideration of the evidence by a jury are not so evident, or pronounced where the tribunal of fact is the trial judge adequately warning him or herself against considering matters that would give rise to the risk of unfair prejudice. 134A particular matter central to consideration of this section in determining the admissibility of 'tendency evidence', as it arises in the application of the accused, is summarised in the judgment of Hodgson JA in BP v The Queen [2010] NSWCCA 159; "One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses reasonably capable of explanation on the basis of concoction then it will not have the necessary probative value (citing Hock v The Queen (1988) 165 CLR 292). However, this will be so only if there is a real chance, rather than a merely speculative chance of concoction (R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; [2000] 50 NSWLR 433 at [74], [112].) The onus is on the Crown to negate the "real chance" of concoction, (citing OGD (No 2) and R v F [2002] NSWCCA 125)." (emphasis added) . 135The very last legal matter raised in the trial, which the Court had not appreciated up until that point, was that our late colleague, Acting Judge McGuire, had ruled at the commencement of the special hearing that the evidence of each of the complainants was available for tendency and coincidence purposes in proof of guilt of the accused in respect of counts in the indictment relevant to other complainants. I note no issue of concoction or contamination was raised in the proceedings. The Crown drew my attention to s 130A Evidence Act 1995, but said it did not wish to be heard to suggest that in this matter I was bound by his Honour's reasoning. That section makes it clear that a court is bound by interlocutory judgements previously made in relation to the same proceedings by another court, unless it is in the interests of justice not so to do. It is not in the interests of justice that I follow, or consider myself bound, by his Honour's findings. 136 The matter of the admissibility and relevance of tendency evidence was litigated in front of him on a different basis that it was before this Court and there was a concession by counsel for the accused at the special hearing that is not made in this trial. In fact the position is argued very differently. The proceedings before his Honour were a special hearing with its obvious limitations for getting instructions and the like. The evidence in this trial relevant to the issue of tendency is different to the evidence available to his Honour, relying as he did upon statements. I have had the opportunity of seeing the witnesses and considering a great deal more material. Further, the decision was made in 2009 and although there have not been significant changes in the interpretation of the relevant provisions there are further authorities that require consideration in this matter. In fact, his Honour did not refer to any authorities at all and paraphrased the relevant terms of the legislation. His Honour's conclusion that the relevant evidence was available for 'coincidence' purposes is somewhat baffling as he does not identify how it has significant probative value in that respect. The Crown is not ultimately seeking that in this matter. The identification of the accused is not at issue by either Crown or the defence and the probative value of the evidence for coincidence purposes, as opposed to tendency purposes, could not be considered as 'significant' given the issues to be determined in the trial. 137In this matter the evidence given by each of the complainants, MS and DA, in combination, is capable of establishing the tendency identified by the prosecution and has significant probative value in respect of proof of matters relevant to the issues to be determined in respect of other complainants. These matters include whether the accused slept with particular complainants, 'groomed' them and engaged in social activity with them at particular ages, which he denies. It should be pointed out that a number of the matters that are particularised by the prosecution above are not in dispute by the accused. Ultimately, the state of his evidence was that he knew all of the relevant witnesses, that by and large (DA may be an exception being a relative living on the property or nearby) they had come to his properties to indulge themselves in use of motorbikes and cars, that at various times (but not as frequently as claimed) they slept at his various properties and attended speedway events with him and that he from time to time purchased food or drink for them. It is to be also pointed out that not all the 'features' identified by the prosecution arose in the evidence of all the witnesses. For example, not all witnesses claimed that they were given magazines to read before sexual activity, or were plied with alcohol. That last aspect of the matter only arises in relation to the allegations relating to RR, DC and GG, coming from the latter two complainants. NG and FG could not be said to live locally, not that means very much in the scheme of things. 138Whilst the common features may not satisfy the test of striking similarity, in respect of the matters pertinent to the claimed tendency there is an underlying unity or modus operandi arising from the course of conduct of the accused, demonstrating clear evidence of a sexual attraction towards boys of a certain age range within which each of the complainants fell. In this matter, even if the Court was required to take into account the credibility of the evidence in assessing its probative value, I would be satisfied that the evidence has significant probative value. Its significance, in part, lies in the fact that the accused denies sleeping with the various complainants which is very much a fact in issue in this trial. In this regard there is no evidence of this activity with GW and ultimately his evidence is not of significant probative value. It is inadmissible in this respect, although it serves other purposes in the case, such as explaining the circumstances in which the accused met KW, contact with NG, FG and TM, the type of dog that the accused had, amongst other matters. 139As to matters pertinent to the consideration of s 101 there is no evidence out of which arises a real possibility of concoction or contamination between NG, FG, KW and DA. However, such is not the case in relation to the relationship between GG and DC. Although I regard their evidence as generally truthful, but not always reliable, I believe that DC deliberately downplayed the extent of his contact with GG prior to going to the police. I have taken this into account in assessing his credibility generally. GG was much more frank about this matter. In so far as he contradicts DC in this regard I prefer his version, as it is relevant to the assessment of the admissibility of this evidence. Primarily because on this subject it is against interest. Of course, DC is quite vital in the investigation of this matter because his statement was the catalyst for police investigations that led to GG and to other complainants, even though DC may not have known a number of the earlier complainants. The connection with DC and GG has continued since they gave their statements to police. 140They have used the same solicitor to lodge their victims' compensation claims. I appreciate that their claims are made six years apart and that the fact that they have made such claims does not reflect adversely upon their credibility so far as their general allegations against the accused are concerned. But it confirms a continuing contact through the course of the litigation consistent with a considerable degree of relevant contact before the matter was brought to the attention of the police. Given their common claimed experiences of sexual abuse with the accused and the concession by GG, at least implicitly, that they discussed matters relevant to determining whether to take the matters to police, the evidence gives rise to a real possibility of concoction or contamination which militates in favour of exclusion for tendency purposes. As their evidence is not available for tendency purposes in relation to each other, it is not available as evidence in support of the allegations of other complainants. GG and DC are relevant witnesses to some of their claims of a sexual relationship with the accused, although GG's observations post date the alleged offending against DC. 141There is however, no real possibility of concoction between either of them and MS. Thus his evidence, although of limited compass, is available as evidence of a relevant tendency with regard to the allegations of GG and DC. He is contemporaneous to the accused's early contact with DC. MS is also relevant in establishing the circumstances in which the accused and DC met and the character of the relationship that developed antecedent to sexual activity occurring with DC and supports DC in that respect. Thus, even if it was not strictly relevant for tendency purposes it in part supports aspects of DC's evidence concerning the development of his relationship with the accused. 142Although on this analysis the evidence of the earlier complainants and DA may be relevant for tendency purposes in proof of guilt of the accused in relation to RR, DC and GG, because of the gap in time between the matters giving rise to the allegations of NG and FG and the circumstances of the accused's contact with DA, in my view only the evidence of KW has relevant temporal connection with the charges relevant to DC, RR and GG to have significant probative value. Therefore the evidence of NG, FG and DA is available for tendency purposes in respect of allegations to each other (DA of course is not a complainant) and as to KW, and vice versa, but not as to DC, RR and GG and their allegations. 143The tendency evidence is available to show a pattern of behaviour that reveals that the accused had a tendency to act with a particular state of mind as earlier particularised. The evidence of tendency can only be used if the court makes two findings beyond reasonable doubt. The first finding is that the prosecution has established beyond reasonable doubt that the accused had done the acts which the Crown alleges demonstrate the relevant tendency. The court must consider all the relevant evidence and ask itself whether it could be satisfied that particular acts relied upon actually took place. If so satisfied, the court must ask itself whether from what has been proven beyond reasonable doubt that the accused had the tendency that the Crown alleges. If that conclusion is not reached, then in respect of the particular count where such reasonable doubts arise, then the suggestion the accused had the relevant tendency must be put aside. 144If satisfied beyond reasonable doubt in relation to a particular count that the accused had the relevant tendency the Court may consider that evidence in considering whether the accused committed the particular offence charged. I must bear in mind that this is just one part of the evidence relied upon by the prosecution and I must give it the weight that it deserves in the context of the evidence available relevant to a particular count considered. The evidence must not be misused. It is wrong to reason that because the accused has committed one particular offence, or other acts of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offence charged. I cannot use the evidence in any way prejudicial to the accused, except in the limited manner permitted if the evidence is admissible for tendency purposes. The evidence led by the prosecution to prove that the accused had a tendency to act in a particular way or have a particular state of mind is separate from the specific allegations in the indictment and cannot be substituted for evidence which the Crown must establish beyond reasonable doubt in order to prove the guilt of the accused. Warnings Pursuant to s 165 Evidence Act 145I am required to warn myself that the evidence of the various complainants may be unreliable in a range of ways that vary from complainant to complainant. The evidence of NG may be unreliable because of the delay in providing details to the police in the absence of any diaries or contemporaneous notes and the absence of any intervening complaints to other people. As with all the complainants' his evidence may be unreliable because of the various inconsistencies which have been pointed to by counsel for the accused, either in cross-examination, or submission. It may be unreliable because when first interviewed by police, although he admitted contact with the accused in various ways, he denied that sexual assaults were committed upon him not making allegations for almost 5 years later. The evidence of FG may be unreliable because of delay in complaint, inconsistencies in his evidence with previous statements and that he kept no contemporaneous records, notwithstanding intervening complaint to friends and family in general terms, sometimes identifying the accused as the person who had sexually abused or assaulted him. The same could be said of the 'non complainant' KW. KW may be unreliable because of such matters and because it would appear on the evidence that he maintained a friendship with the accused after the sexual activity between them had ceased. 146The evidence of DC and GG may be unreliable for the reasons above mentioned in relation to NG, FG and KW, but also because of their discussions concerning the potential to make statements to police before the statements were actually made and because they had commercial disputes with the accused that led, at least in part, to the severance of their relationship with him. GG ceased his relationship of the accused in this context. He also said he was physically assaulted by the accused, which would give him an additional reason for personal antipathy. DC severed his relationship with the accused on a number of occasions between 1987 and the mid 1990's. He went to the police in 1987 to complain that the accused had sexually assaulted him, but on his version withdrew his complaint or indicated that he did not wish to proceed with it, and then recommenced a relationship of the accused that was sexual, personal and professional. In the 1990s he left the State to get away from the accused, entered into a relationship with the accused's niece and then went back and worked with or for the accused in a range of ways. He obtained motorcycles from him, which he used to his own advantage, and entered into further commercial arrangements. It is clear that he had sexual relationship with the accused when he was an adult and was free to terminate the relationship if he wished. I am mindful in his case that he is the first of the complainants to make a statement to the police in relation to the current allegations against the accused setting in train the prosecution of the accused and of course the police investigation which led police to various complainants who have given statements, as well as other witnesses who allege conduct of the part of the accused in support of tendency on his part as alleged by the Crown, or opportunity to commit the crimes alleged. This last aspect is not a matter adverse to DC. The Crown submits that it could be to his credit. But this fact is also to be considered in the context of the character of the relationship be had with the accused up until the final break up of that relationship sometime in about 1995. Lies 147The Crown submitted that the court should direct itself upon lies as "consciousness of guilt". In other words, in respect of particular evidence by the accused the Court should direct itself in accordance with the High Court judgement of Edwards ([1993] HCA 63). I do not propose to do this. If any particular evidence of the accused is not accepted as being untruthful, or put another way, if it is concluded that the accused has told "lies" in his evidence, this matter will be considered in proper context as relevant to the assessment of his credibility, either with regard to the particular issue to which the untruthful evidence relates or generally, depending upon the character of any untruthful evidence, and its relevance to the issues to be decided in the trial. S 165B - 'Longman warning' 148This is a matter where it is appropriate that I should warn myself concerning the forensic disadvantage to the accused of the delay in complaint in respect of all allegations. The relevant delay in complaint is the delay in complaint to the authorities, that is the police, and the resultant preparation of statements that have been provided to the accused which particularise the allegations against him the subject of this trial and the earlier special hearing. This warning I give noting the terms of s 165B Evidence Act 1995. 149It is important that I appreciate fully the effects of delay by the complainants bringing forward these allegations against the accused on the ability of the accused to defend himself, by testing the prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt in respect of the various matters alleged against him. It should be understood that while there are some constant disadvantages for the accused in respect of all the allegations, some of them vary in intensity, given the character of the delay. NG did not make his allegations to the police for over 30 years. The delay in respect of other complainants was shorter, but even then, in respect of FG the delay was approximately 23 or 24 years from the last alleged sexual assault, over 20 years in the case of KW, 11 or 12 years in the case of GG, 13 years in the case of DC and approximately 15 years in the case of RR. 150I accept the submissions made by the accused in particular terms in relation to forensic disadvantage. In this matter that disadvantage has been compounded for this trial by the fact that the accused has been in custody for over four years after the findings at the special hearing. The delay in the commencement of this trial, in various ways, has not operated to the advantage of the accused, putting aside the claims of the Crown as to the accused contributing to the delay from the time he was charged until the time he was found unfit to be trial. The reality is the accused appears from custody. Clearly by reason of the passing of time and his current circumstances he has been denied access to contemporaneous records relating to his movements, his financial arrangements for the purchase of motorbikes and vehicles referred to by a number of the complainants and precise details of his places of residence at particular times. Although RTA licence registration particulars in exhibit M provide some assistance they need not necessarily be completely accurate. Such registration particulars concerning motor vehicles that he had acquired over the relevant time lack a great deal of particularity (see exhibit M1), which does not assist the accused. 151Other aspects of forensic disadvantage for the accused, include an absence of access to contemporaneous observations of the complainants, other than that from evidence of witnesses produced by the prosecution, either 'in their camp' so to speak, or that they have provided to the police to obtain statements, or are otherwise related to them, as well as an absence of access to contemporaneous observations of the accused, other than that given by witnesses produced by the prosecution. It is borne in mind that each of the complainants allege events that relate to the commencement of their relationship with the accused when they were relatively young, yet none of them maintained any form of contemporaneous diary or other records of their movements, or those of the accused. 152These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either by testing it or in bringing forward evidence yourself to establish a reasonable doubt about his guilt or both. The delay means that each of the complainant's evidence cannot be as fully tested as otherwise might have been. Had the allegations been brought to light and commenced as a prosecution much sooner it would be expected that the complainants' memory of details would have been clearer. This may have enabled the evidence of each of the complainants to be checked in relation to those details against independent sources so as to verify it, or disprove it. The complainants' inability in a particular instance to recall precise details of the circumstances surrounding particular incidents makes it difficult for the accused to throw doubt on that evidence by pointing to circumstances which may contradict him. Had the accused learnt of the allegations at a much earlier time his better recall of relevant details which could have been used by his counsel in cross examination of the particular complainant. Had the allegations been made earlier in time in respect of any particular complainant the accused may have been able to find witnesses, or items of evidence, that might have contradicted a particular complainant or supported his case or both. He may have been able to as a younger man, closer to the timing of when the allegations are said to have occurred, recall with some precision what he was doing or where he was at particular times on particular dates and to be able to bring forward evidence to support. He may have lost access to documents that he created in relation to his financial arrangements with individual complainants, particularly RR, DC and GG in relation to the purchase of motorcycles and the like. 153Because the accused has been put into this situation of significant disadvantage he has been prejudiced in the conduct of his defence. As a result I warn myself that before I can convict the accused in relation to a particular count I have to give the prosecution case the most careful scrutiny. When carrying out that scrutiny I must bear in mind the matters I have identified above - the fact that the respective complainants' evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it or to support this case. Complaint evidence 154The prosecution relies upon what particular complainants have said to others before bringing forward their allegations to the police. These complaints were made by FG, KW, DC and GG. The timing of these individual complaints varies by relationship to the incidents about which they complained and many of the complaints made were of a generic nature, alleging sexual assault generally or "sexual abuse". Some complaints by individual complainants did not identify the accused as the perpetrator. None of the terms of the complaint are relied upon by the Crown for hearsay purposes. No challenge has been effectively made, or made at all, that relevant complaint was made. In considering the relevant evidence of complaint from the above complainants I have to be satisfied that the relevant complaint was made in terms consistent made with the allegations in this court and then consider whether the relevant complainant acted in a way that I would expect him to act if he had been assaulted as he said he was. I have to ask myself: is what he did the sort of conduct I would expect of a person in his position at that time? If I think that the complainant has done what I would expect someone in his position to do that may support the Crown case because it makes his evidence more believable. I may find that there is consistency between the complainant's conduct and the allegation he makes against the accused in respect of a particular complaint. This evidence goes only to the consistency of the conduct of the particular complainant and may impact only upon my assessment of his credibility. It only can be used this way. It cannot be used as evidence that the relevant 'sexual assault' actually occurred. If the complainant in question had not acted the way I would have expected someone to act after being assaulted as he described, then that may indicate that the allegation is false. However, there may be good reasons why a complainant did not act in a particular way and/or did not raise complaint immediately and delayed making complaint. A failure to do so does not necessarily mean that relevant allegations are false. Of course, the fact that someone says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions. CONSIDERATION OF THE EVIDENCE 155In determining the verdicts I have had regard to all the evidence of the trial and to the submissions of the parties in respect of both legal and factual matters. I have taken the trouble to set out in some detail, but of necessity in summary, the issues have been raised by the parties. Having taken all matters into account not every issue raised can be referred to, or need be referred to, for an understanding of the bases of the verdicts. In relation to the consideration of whether the prosecution has proven the guilt of the accused in respect of the individual counts there are a considerable number of legal and factual issues to be taken into account relevant to each complainant and each count. Many of these have been noted from the summaries of the cases conducted and the submissions made by the parties. 156That being so there are some general observations that might be made about the evidence in this trial. The complainants NG, FG, KW and the witnesses GW, DA and MS were each impressive witnesses. I note that none of the complainants nor any other material witnesses, including the lay 'complaint' witnesses, kept any diaries or other contemporaneous records of relevant events, their movements or observations of relevant complainants and/or the accused. This obviously must reflect adversely upon the accuracy and reliability of recollection. Such inconsistencies as were drawn or identified by counsel for the accused were not of such significance as to cause the Court to be relevantly satisfied that they were untruthful in respect of the essential matters of which they gave evidence relevant to the particular counts for which their evidence was relevant. GG and RR were generally truthful witnesses in my assessment but were in a number of respects unreliable witnesses, notwithstanding the events they were recalling were closer in time to the conduct of the trial than the events relating to other complainants. I appreciate demeanour and manner of presentation is just part of the assessment of witnesses and that practised liars or professional liars may have the appearance of confident and acceptable witnesses. I also appreciate that witnesses such as FG who gave their evidence emotionally may not be reliable witnesses, or truthful witnesses, notwithstanding the realism of their emotion expressed in their evidence. 157I accept as truthful that the accused sought to groom each of the young men that are complainants in this trial because he was sexually attracted to them and that he sought to develop a sexual relationship with them in various ways. I accept as truthful the evidence given by each of the complainants that he sought, amongst other ways, to have sexual connection with each of the complainants in a variety of ways, but not necessarily the same way. I accept that he engineered the opportunities for him to sleep with individual complainants to engage in sexual activity. I also accept that with the lapse of time between the relevant sexual activity and the recounting of it in various statements and in two " trials" there are inconsistencies that have been identified but which are largely inconsequential and do not detract from the essential truth of the allegations against the accused. On the other hand, in order to establish the guilt of the accused in relation to a particular count the prosecution is obliged to establish beyond reasonable doubt that a specific offence has been committed as it has particularised to the accused. One of the difficulties for the prosecution at the special hearing was that in the majority of allegations it was unable to produce evidence of sufficient specificity or particularly to prove individual counts. 158I have made every allowance for the accused's evidence that I have been invited to by his counsel as well as allowances that flow from the legal principles that must be applied, particularly the difficulties for the accused in meeting the Crown case in a range of ways given the lapse of time. These matters included the loss of opportunity to gain access to documents that may be relevant to his business activities at relevant times, lack of memory of his movements and ownership of specific motor vehicles and motorcycles that he may or may not have purchased and where he may have specifically resided at a particular time. It was the fact that he had 'ownership', or at least right of occupancy, of more than one property at one time. Witnesses, or potential witnesses, are dead, particularly his mother and father. Although they would appear to be relevant only in relation to counts 1 to 3. I am also mindful of the accused's age. He is a person with a number of substantial handicaps arising from his age, including some memory deficits, difficulties of expression, methods of expression and the like, which do not assist his presentation. In giving evidence he was garrulous and discursive. But I draw no conclusions adverse to him in that respect. Likewise where he contradicted himself, on matters such as whether any of the witnesses had slept at his properties, I draw not draw the conclusion, as suggested by the Crown, that inconsistencies in his evidence were deliberate lies worthy of an 'Edwards' direction. That is not to say that his credibility was not adversely affected. He was not a particularly credible witness. He was unreliable in a number of self evident ways. I am mindful of the fact that the accused has been in custody serving a limiting term since 2009 and has had to attend this court and gave evidence in circumstances of great difficulty. He can barely walk and has to be moved around by wheelchair. Transport to the Court has been uncomfortable for him and on occasions he has been transported to Court when he was not required to attend personally, which has been frustrating for him and for the Court. These matters I have placed on the record for future reference. That having been said the views of Dr Westmore as to his likelihood of interrupting the proceedings have proven worthless and the accused has by and large been a model accused generally complying with all the requirements of the court within his limitations. 159Given the above matters the accused is left, by or large, with general denials of the allegations, with little in the way of supporting evidence for a number of matters that he asserts. Of course, the accused bears no onus of proof. He was entitled to remain silent if he wished and was under no obligation to give evidence. By giving evidence he in no way subverted the onus of proof resting upon the prosecution from the beginning of the trial until the end. Even if the Court rejected all of his evidence the Crown would still be required to prove his guilt in relation to each count beyond reasonable doubt upon the evidence in the trial that is accepted. 160I do not accept the assertion of the accused that it was physically impossible for him either by reason of erectile dysfunction or because of other physical disabilities or limitations to commit the offences alleged against him. It is 'possible' that he had erectile dysfunction issues from 1975 onwards, but there is no medical evidence to support the existence of such a condition at the relevant times. There is no evidence that he could not perform relevant sexual acts that are alleged. Whilst the accused had back and other physical difficulties he was actively involved in physical pursuits, working on his property in relation to car parts and tyres, driving motor vehicles, sometimes it would seem interstate or intrastate, living relatively rough on his properties and developing them for activities as the newspaper article, exhibit C, makes clear as late as 1998 or 1999. There is nothing in the medical evidence to support a claim of impossibility, or even difficulty, in participating in the sexual acts alleged by the relevant complainants. The claims of the accused are counter balanced by the allegations of the various witnesses in any event. 161The medical evidence produced a suggestion that he sought medical advice on impotence and/or erectile dysfunction in about 2002 because he was aware of allegations of sexual assault brought against him, many years after the last such allegation. His counsel submits that the existence of the condition at the relevant times was the reason that he sought that medical advice after he was charged and there is nothing suspicious about his inquiry of the relevant medical practitioner. That last matter may be so, but even then the enquiry in 2002 did not produce any medical opinion that assists the claims of the accused. They could not be retrospectively proven according to Dr Bruce Hosken in December 2002. That he made the enquiry does not support his assertion that he had the relevant conditions at the relevant time. There are no contemporaneous complaints that support a 'reasonable possibility' that medical conditions affected his sexual performance. The combination of the evidence of the accused and the contents of exhibits O, Q, 5,6,7,8 and 10, do not raise the reasonable possibility that the accused by reason of erectile dysfunction, impotence or any other physical or psychological ailment was incapable of committing any of the sexual acts alleged by any of the complainants. In any event, acts of mutual masturbation, fellatio and other forms of physical touching could not reasonably be seen as having any real relevance to the various ailments claimed by the accused or diagnosed of the accused by the medical practitioners whose reports been tendered. 162Although most, but not all, complainants have at various times made claims for 'victims' compensation' I do not regard this as being a motivation, or basis, for making allegations (false or otherwise) against the accused. DC did not make any application until 2009 which was 8 years after his first statement to police. None of the complainants conceded any such motivation and their denials were convincing. 163With regard to counts 1 and 2, the evidence of NG as to his contact with the accused, the general circumstances of that contact, his presence at the Bridge Street property and his sleeping in residences on that property occupied by the accused is supported by the evidence of NG, GW and the accused himself in varying ways. Although I note he is the only person who gives evidence of the particular sexual assaults giving rise to these counts and that he made no complaint about the conduct of the accused for almost 30 years, in fact he denied that sexual assaults were committed by the accused when he was approached to give a statement in 2002 only revealing the alleged sexual assaults five years later to the police, I regard him as a truthful witness as to what he alleges against the accused. 164I accept his explanations for not revealing the sexual activities of the accused to his parents and his reasons for not revealing to police when initially approached. His account of his contact with the accused, the opportunity for him to be sexually assaulted as he alleged (at least in respect of contextual evidence) and the offering of incentives or attractions in visiting the accused's property and staying overnight, is supported in part by FG, DA and GW to varying degrees. It is also supported, in part, by the evidence of the accused. Although he denies any sexual assault or payment for work done etc. Ultimately, as with FG and KW particularly, their memories of the layout of the accused's relevant residences may vary between each other or with the memory of the accused, but such differences as may appear from the drawn plans and the oral evidence are of minor importance and might reasonably be expected given the length of time between the alleged events and the requirement to remember these details in statements to police, or more particularly in oral evidence in this trial. It is to be pointed out, even making allowance for his physical and cerebral difficulties, that the accused gave somewhat confusing or conflicting evidence about aspects of his domestic residences, particularly at Bridge Street Morisset and Wyee. 165The sexual interest of the accused in NG is supported by the relevant tendency evidence given by FG, DA and KW. Although GW does not allege any sexual assaults and reflects upon a 'business like' relationship, he was similarly concerned with the use of motor vehicles and working on the property at Morisset. Even without the tendency evidence, I would still be satisfied beyond reasonable doubt of the truthfulness and reliability of the witness NG. In reaching this conclusion I have made full allowance for the various warnings that I am required to give in relation to the evidence of NG, particularly the various forms of scrutiny I am required to give the evidence that I have outlined in the legal directions. 166A number of matters were raised on behalf the accused concerning purported inconsistencies or lacunae in the evidence in the trial, compared to the contents of previous evidence at the special hearing and his statement in 2006. These issues included the following: the period of time TA continued to visit the property with NG, the time at which TM and FG started attending the property in relation to the attendance of TA, whether in fact TA could have been present when FG and TM were at the Morisset property, the period of time that NG continuously slept in the humpy as opposed to the main residence and when he did stay in the main residence, the period of time he slept with the accused when FG was also staying overnight in the premises, the number of times the accused had anal sex performed on him by NG, are in combination and singly not significant matters, given the evidence the witness gave of the character of his relationship of the accused. He had numerous sexual encounters with the accused and stayed with him overnight on numerous occasions. I appreciate the very significant delay is a matter that requires close regard and works unfavourably to the accused. But the truth is NG was greatly affected by the accused's conduct, was ashamed of what he had been involved in and wanted to put the matter behind him. When required to remember what had occurred in his statement and in his evidence he was reflecting upon many acts of sexual assault or activity. There is no doubt that he gives evidence of the essential matters required to prove counts 1 and 2. Ultimately, I conclude that he has given that evidence truthfully all matters taken into account and that the counts are established notwithstanding the evidence of the accused. 167As to count 3 I note that FG is supported by the evidence of NG, GW and the accused as to his contact with the accused during the period of time pleaded in the indictment and the circumstances of that contact. NG supports his presence sleeping from time to time at the Bridge Street property in one or other of the residences. He likewise was a truthful witness. His credibility was enhanced to some extent by his disclosures in 1985 to his friend's girlfriend, Ms Burgess, of being sexually abused and the details he gave his wife in the early 1990s identifying the accused as the person who had sexually abused him, before he gave his statement to police. This evidence I accept as true, it was convincing. As with NG, in the context of the character of the relationship he had with the accused, there were good reasons for him not to disclose what the accused had done out of shame, embarrassment and/or wishing to put the matter behind them. There was realistically a belief that they would not be believed, although they did not realistically contemplate bringing the matter forward to the authorities at any time contemporaneous with the activities of the accused or in the period immediately afterwards. I note in relation to FG that he does not allege against the accused the more serious sexual assault of anal penetration as alleged by NG. This to my mind, shows not just an absence of concoction or contamination on the part of himself and NG, but also shows that he, in his recounting of his memory of relevant events, was not prepared to 'gild the lily' so to speak. 168Like NG, he was a matter of fact, straightforward witness. Although FG was the more emotional. I accept beyond reasonable doubt that the accused had with each of them a continuous sexual relationship and that he groomed that relationship in the manner in which they described, including enticing them with trips to the Newcastle Speedway on a regular basis and offering them the excitement of access to motor vehicles and other motorised vehicles, or encouraging them to use motorised vehicles on the Morisset property. The relationship with FG developed after the accused had either grown tired of NG or no longer needed him. The circumstances of the termination of the relationship of NG as claimed by him are very closely supported by the account of FG, without any hint of contamination of each other in their respective recollections. His account of his departure from the thrall of the accused is supported in part by the evidence of GW. 169FG's evidence in relation to count 3 is supported by the evidence of the accused's tendency as asserted by the Crown, but this is not the critical matter for acceptance of him as a witness. I appreciate that whilst his credibility was enhanced to some extent by the complaints made, particularly to Ms Burgess and later his wife (when he first identified the accused as having sexually assaulted him) these were delayed complaints. His credibility is of course not enhanced as greatly as would have been with timely complaint. But, as with NG, he had good reason not to identify the accused or complain about his conduct. Particularly, as with NG and KW, he appreciated that he had been the beneficiary of largess from the accused. It is interesting that in the complaint to Ms Burgess, whilst he did not identify the accused by name (the name would not have meant anything to her in any event as I would understand it), he gave some details of the context in which the assaults occurred consistent with the evidence he gave in this court, in that he identifies the assaults as happening at a time when he had access to cars etc. He also subsequently made disclosure to a counsellor in the late 1990s of sexual abuse and had also told his "two best friends", Brett and Ingrid Field, which would have taken considerable courage. His attempted disclosure to police which he did not follow-through, initially encouraged by reading an article about the accused that caused him concern about other children being assaulted in similar ways had, to my mind, the 'ring of truth'. 170As to other 'tendency' evidence I also regarded DA as a truthful witness, whose evidence supported the existence of the tendency sought to be established by the prosecution and also supported the circumstances in which the accused had access to the complainants NG and FG at the Bridge Street property, although DA is not an eyewitness to sexual assaults committed upon them. 171I am reminded by learned Counsel for the accused that FG volunteered an allegation of oral sex performed upon him by the accused which had not previously been disclosed in his statements to police, having given two extensive statements to police and evidence on a prior occasion. Whilst this may be regarded as a "recent invention", it is not critical to the assessment of his truthfulness and reliability on the count with which I am concerned involving him given the detail of his evidence relevant to that count. This was, apart from matters relating to delay in complaint, the major criticism of the witness and his truthfulness and reliability. I have weighed this against the other evidence and concluded that in respect of the allegation giving rise to the count and the general character of the contextual evidence the witness is truthful and that the count has been established beyond reasonable doubt. Naturally, I have taken into account the evidence of the accused. 172KW was the most impressive of all the witnesses. He gave his evidence without rancour or emotion or bitterness. Throughout his evidence he did his best to truthfully and reliably recall the character of his association with the accused. He was in part supported by his brother, GW, who likewise gave evidence without rancour or emotion. Although the two men are brothers I can find no evidence of contamination in their recollections and in any event, the evidence of GW to support KW was without controversy ultimately in the context of the evidence of the accused. KW did not disclose any sexual abuse by the accused privately until 15 or so years after it had ceased. I accept that there were good reasons for this. I accept there was a feeling of embarrassment and shame that he had been involved in a relationship with the accused. I also accept that KW had regarded that relationship with mixed feelings, having regard to the length of its duration and the fact that he continued to visit the accused's property after any sexual contact had ceased and when the accused had obviously directed his attention to other people. 173But the conduct of the accused was still troubling him in the background. Hence the circumstances in which he sought some general counselling from his church. Like NG and FG, his evidence is supported by the proven tendency on the part of the accused and by the accused's evidence of self-admitted opportunity to have access to the complainant and the admitted involvement of the complainant in various activities in company with the accused. 174I accept on all the evidence that the prosecution has proven count 4. The evidence of the complainant was direct and unequivocal as to the act of penetration. As to count 5, this is a count not supported by the tendency evidence. Because of the character of the offence the tendency evidence is irrelevant. Ultimately, it does not have significant probative value to support that aspect of KW's evidence. However, accepting KW's account of the event and understanding his evidence to be that he drew an inference that the dog had penetrated the accused from what he saw and what he heard the accused say, I am not satisfied beyond reasonable doubt that the dog actually penetrated the accused as the count requires. However, pursuant to s 344 Crimes Act (and/or the repealed s 427 Crimes Act) and/or s 162 Criminal Procedure Act, I am satisfied beyond reasonable doubt that the prosecution has proven an attempt to commit the offence of bestiality. 175Whilst I accept the account of KW as to the events giving rise to count five as truthful, ultimately I would have to be satisfied that the admission made by the accused in the presence of KW was not only made but was truthful and reliable on his part. There is no physical evidence given by KW which establishes beyond reasonable doubt that the admission was truthful. I am satisfied beyond reasonable doubt that the accused attempted, in the legal sense, to commit the act of bestiality with the German Shepherd dog, having tried to have the dog perform anal sex upon KW. The anal sex between a man and an animal may be committed "in any manner", and thus may include the conduct alleged by KW. This issue was without controversy in the trial. It is accepted that an alternative statutory finding of an 'attempted' offence was available, if appropriate, where a substantive offence is pleaded. Because I am reliant upon an admission made by the accused, recounted many years after the event, which may be "unreliable" given its hearsay character and the effluxion of time, I have determined that the accused be found guilty of the statutory alternative to that pleaded in the indictment, the essential factual matters being established beyond reasonable doubt. 176With regard to count 5, I reject the accused's evidence that he did not own a German Shepherd dog in 1982 and his assertion of owning a different breed of dog. His claim that his father owned a German Shepherd that died before his father died (in July 1976 - exhibit J), whilst rather muddled and possibly ambiguous, is contradicted by the evidence of GW who said that the accused had a German Shepherd when he knew him in 1977 -1978. I accept GW's evidence on this matter. As the accused only claimed ownership or contact with one German Shepherd dog, that dog could not have died when the accused claimed it did. More importantly, the evidence of GW in part supports the assertion of KW that such a dog existed in the middle of 1982. The accused asserted that the German Shepherd dog was a female. The fact that GW did not know its sex is neither here nor there. The claim of the accused that the dog was female is contradicted by the evidence of KW as to the act of bestiality or attempted bestiality the subject of count 5. As for GW, the sex of a dog might not be a particularly important matter for a young man more interested in repairing cars and driving them. 177In assessing these matters I am mindful of the matters raised on behalf the accused, including: the delay in relevant complaint until 2001 (noting the absence of any complaint to GW his brother who knew the accused well) and the volunteering of an act of masturbation which has not been previously disclosed in statements made by the witness and in evidence given at the special hearing in May 2009. These are the main matters raised on behalf the accused in criticism of the specific evidence of the complainant. Of course, I bear in mind the evidence of the accused, which I must take into account, that conflicts with KW, as with the other complainants on relevant matters concerning allegations of sexual assault. 178As for the delay in complaint the truth of the matter is that KW had a secretive long-term sexual relationship with the accused over a number of years. KW could not bring himself to reveal that to anybody because of his embarrassment and because for a long time he took what I regard as a rather pragmatic attitude to the character of the relationship, given the benefits that were provided to him by the accused. The evidence of the accused as to the character of his relationship with KW was unconvincing, as was his evidence of the type of dog he owned at the time of the alleged commission of count 5. The accused confirmed that he had travelled with KW and his family on a holiday to New Zealand in either the late 1970's or the early 1980's. KW gave evidence of the accused expressing some jealousy during that trip. I accept this evidence as truthful, although it is not of great significance. The complainant also made a complaint to his wife in delayed fashion, but this is also explained by the matters I have identified above. Even when he disclosed what had happened to him in his childhood the disclosure was reluctant for reasons of embarrassment and shame. He had engaged in many acts of a sexual nature with the accused and if, in relation to count 4, he volunteered an additional action of the accused not previously identified in his statements, rather than being a recent invention that detracted from his credibility, it is explained as a result of having to remember so many sexual acts committed by the accused upon him from an early age. 179In relation to counts 6 - 10 DC was the least impressive of the key witnesses that gave evidence. However, his general credibility is enhanced by his approach to the police in early December 1987, within 2 ½ years of the commencement of continuing sexual conduct of the accused towards him that was ongoing up until the complainant went to the police. Of course, the details of the allegations he made in the statement he gave Inspector Scott are not known. But they comprised allegations of 'sexual abuse' which were consistent with the accused having a sexual involvement with him. The complainant also made private complaint in general terms to members of his family at this time of sexual abuse, in general terms, which enhances his credibility .His family members were honest, straight forward witnesses. The complainant made complaint of a sexual relationship with the accused to Meagan Barr relatively soon after relevant events and there is evidence that supports the complainant's claim that his offences of damaging the accused's property by fire on 21 October 1988 were motivated by 'payback' at the accused's sexual abuse of him, from his half sister Lynda Foreman. One of the difficulties with this evidence concerning the conduct of the complainant in 1987/1988 is that it does not necessarily support the commission of criminal offences between 1985 and 1986, particularly as DC concedes a continuing sexual relationship with the accused as well as a hot and cold commercial relationship with him after he turned 16 up until his mid 20s. There is also the fact that over almost a decade DC would break off his relationship with the accused then re-establish it for his own benefit. That was to gain access to motorbikes that he otherwise would not have been able to have at a time when he was an adult. He had the freedom to pick and choose what relationship he wished to have with the accused from the time he was 18 years of age. 180I do not accept that the accused threatened him in the terms that he claimed after he had made his statement to police in late 1987. Certainly, given the length of time from its occurrence and complaint of it (assuming that was in 2001) I could not conclude that it constitutes an admission of guilt by the accused. I accept that DC voluntarily withdrew the statement, at least in part, out of embarrassment and an unwillingness to have the nature of his relationship with the accused made public beyond his family. There is no basis for concluding that the accused would have known about the statement that DC had given to the police from any source, unless someone in DC's own family told the accused inadvertently, given what I understand to be the close-knit character of the Morisset community in this period of time. There is no suggestion that Inspector Scott told the accused or that the accused had any inside information from the New South Wales Police Force. But even if the accused had caused him to withdraw the statement, the threat did not stop the resumption of the relationship of the complainant with the accused over the next 7 or 8 years. He had other good reasons to withdraw his allegations even if they were true. He would have been embarrassed if 'word' of the sexual activity got out, so to speak. He was also in many ways beholden to the accused. DC may have been in his own view "blackmailed" into maintaining a relationship by the lure of access to motor cycles, but his involvement with the accused was completely voluntary for a number of years. He maintained a relationship with the accused when he was in a relationship with the accused's niece. He had complained to her in general terms of the accused's abuse without particularising when it occurred, even when he disclosed anal intercourse in the late 1990's. She could not understand why he continued the relationship. 181DC's evidence however is supported partially by KW as to the presence of DC at the Wyee property in 1985 and is supported by the evidence of MS, both as to the opportunity for the accused to have a sexual relationship with DC and the tendency so to do. However, the difficulty in relation to this complainant is determining what precisely was the character of the sexual relationship and whether the specific acts alleged by the prosecution to found specific charges were committed by the accused. Also, the evidence of DC conflicts with the account of GG as to the circumstances in which the accused is alleged to have had anal intercourse with GG such as to give rise to count 12 in the indictment. If the Court was satisfied beyond reasonable doubt of the truthfulness of GG's version, then DC's version lacks credibility. That is a matter relevant to the assessment of his credibility in relation to other allegations that he makes. On the other hand, such is the character of the conflict between the two versions that it may be difficult to be satisfied of GG's version beyond reasonable doubt. The critical point is that on GG's account count 12 arose in circumstances where DC was present, but not a participant on the first occasion that the accused had anal penetration, albeit partially, of him. DC gives an account of being present when the accused anally penetrated GG for the first time in his presence, according to his chronology of events, where not only was he an active participant, but where he said he had anal penetration of GG at a time when he was 17 or 18 years of age. GG made no such claim at that time. 182I am required to bear in mind that DC had a consensual sexual relationship with the accused for a number of years after he turned 18. Further, it is clear that DC held a long-standing grudge against the accused for what he regarded as being a commercial betrayal in relation to ownership or equity in motorbikes initially purchased by the accused but given to DC to use competitively and/or privately. I did not regard the evidence of DC regarding his discussions with GG about giving a statement to the police before that actually occurred as accurate and/or truthful. There was really nothing to be untruthful about. Even if he had admitted frequent discussions with GG and the terms of the discussions, that would not necessarily mean that his essential allegations against the accused were untruthful, particularly bearing in mind the timing of his relationship with the accused and the relationship of GG with the accused. 183Taking these matters and the others I am required to consider into account I still accept that from a short time after meeting the accused there was sexual activity between the accused and DC. On the other hand, DC may have lit the fire as 'payback' to the accused but this contemporaneous claim to the fire does not enhance the credibility of his allegations of being sexually assaulted over 2 years before, although it may enhance his credibility as to his claim of an ongoing sexual relationship at that time. 184With regard to DC one matter that supports his account of sexual relationship with the accused is that he was described by Meaghan Barr as sleeping in the same bed as the accused in the month she stayed at the accused's property at Freemans Waterhole. This directly contradicts the evidence of the accused as does the other evidence from the complainant's family of DC's living arrangements in 1986-88. The accommodation was a mere caravan with limited sleeping facilities. She slept outside the caravan on her account and that of the accused. This evidence is supportive of DC and the accused having an ongoing sexual relationship at that time as claimed by him, but after the period covered by the counts as I understand her evidence. She was a convincing witness. 185Although the allegation in count 6 is generally denied by the accused, no particular attack was made upon its particulars from the evidence the complainant. In the context of all relevant matters I am satisfied beyond reasonable doubt this count is made out. The conduct alleged against the accused by the complainant is "gross indecency" given its nature and the age of the victim. 186With regard to count 7, criticism of the particulars supplied by the complainant included conflict in his evidence at trial with his evidence at the special hearing or in statements as to the character of the alcohol drink given to him allegedly by the accused, the order of events, the circumstances in which Vaseline was obtained to permit anal penetration. 187With regard to count 8, in the context of the warnings to be given and the other general criticisms of the evidence of the complainant (which must be taken into account in relation to all counts), the accused points to the change in the Crown case as to what act and when it occurred constituted the act of gross indecency. The Crown opened its case on the basis that the act of gross indecency was committed after the anal penetration by the accused masturbating the complainant until he ejaculated. In his evidence the complainant conceded in cross-examination that there was no masturbation of him after the anal penetration. 188The Crown case at the end was that the act of gross indecency (count 8) occurred before the anal penetration and included masturbation of the complainant and the performance of oral sex upon him. Complaint is made by the accused is that this is a fundamental change in the Crown case in the context of decisions referred to in submission, such as King v The Queen (1986) 161 CLR 423 and The Queen v Howard [2005] VSCA 235 at [28] - [30]). For the reasons outlined in the discussion with learned counsel for the accused the issues that arise in those cases are not directly pertinent to whether the Crown had proven its case in this trial given those authorities are concerned with claims of miscarriage of justice by reason of the change of case alleged. In any event, the change of case in King was a fundamental one which could not be addressed at all by the accused. Such is not the case here. However, I accept that the change in the evidence of the complainant is relevant to the assessment of the complainant's credibility as all inconsistencies or conflicts in the evidence will be to varying degrees. 189On the totality of the evidence, noting everything that is been put on behalf the accused, I am satisfied beyond reasonable doubt that the accused anally penetrated the complainant as he alleged in relation to count 7. The claimed change in the evidence of the complainant whilst adverse to his credibility to a degree, in conjunction with other matters including the accused's evidence, does not raise the reasonable possibility that anal intercourse did not occur. The complainant was engaged in a lengthy sexual relationship with the accused from the age of 15 until well past his 18th birthday in which he and the accused engaged in many sexual acts. Appreciating that in relation to these counts the complainant is the Crown case, the matters Mr Norrie skilfully identifies and which the court may additionally identify reflecting upon the credibility of the complainant and the assessment of his evidence are not such to raise a reasonable doubt of the accused's guilt in relation to count 7. On the other hand, whilst I am satisfied there was other sexual activity at the time of the anal penetration, I am not satisfied beyond reasonable doubt of the particular character of that sexual activity, whether it be the complainant masturbating the accused, the accused masturbating himself or he masturbating the complainant. Thus, all relevant warnings taken into account, I am not satisfied beyond reasonable doubt that count 8 is established. 190No particular criticisms were made by counsel for the accused in respect of the detail of the evidence in relation to count 9. However, in relation to count 10 a number of detailed criticisms were made. These criticisms included matters which reflected what was said to be a "theme respect to this particular complainant ... that there is some confusion about some of the acts that he alleges were performed by the accused on him, including the surrounding circumstances" (Page 1317). Some of the matters that arise in relation to count 10 include confusion on the part of the witness as to what alcohol he drank before he said he was sexually assaulted, having given evidence in the trial that he drank a number of Bourbons and Coke but in his 2001 statement having stated that he drank about six Malibus and milk. In his evidence in chief he initially did not disclose any anal intercourse on this occasion but after a break in his evidence the following day gave evidence of an act of anal intercourse committed upon him by the accused. His evidence in chief had indicated initially that he had anally penetrated the accused and that the accused had not done anything to him, which he corrected by his later evidence in chief. It emerged in cross examination that he had not in his statement in 2001 revealed that on the second occasion that the accused anally penetrated him he had performed anal sex upon the accused, nor had he revealed this in his evidence in 2009. He conceded in cross-examination that the incident where they each performed anal sex on one another possibly could have been one other than that which occurred two weeks after the first act of partial anal intercourse. I accept that there was confusion in the evidence in chief and arising from the cross examination of the witness in respect of the events giving rise to count 10. I accept that this is relevant to the assessment of his reliability. His claim of performing anal penetration of the accused in relation to this event may be categorised as a 'recent invention' which may be adverse to his credibility. But the complainant was trying to remember many sexual acts with the accused over a lengthy period of time. 191 In the context of the evidence of the witness as to the series of events which culminated in the accused performing anal intercourse on him that particular act is not a recent invention. I am satisfied as truthful the evidence of the complainant that there was an act of anal intercourse performed on him by the accused that satisfies count 10 within the period particularised in the indictment. I am satisfied of the truthfulness of this evidence, notwithstanding the reservations I have in relation to count 8 and the above particularised specific criticisms of the evidence of the complainant in relation to count 10, as well as the many other issues I am required to take into account relating to this complainant. This conclusion includes consideration of the evidence of the accused and other relevant matters. 192With regard to count 11 the only admissible evidence relevant to this count comes from DC. There is contextual evidence which is unchallenged that the accused knew RR at a time shortly after he met DC and MS and this is not disputed materially by the accused. There is evidence directly of the fact that the accused had a sexual relationship with RR from GG, at the Bonnells Bay residence. I accept as truthful the evidence of DC that he was present when the accused performed an act consistent with anal penetration with RR. However, the fact of actual penetration is dependent upon the reliability of contemporaneous hearsay representations, it is not a matter that DC can confirm from direct observation. I am also mindful of the inconsistency in the evidence of DC as to the length of time over which he said he was present whilst the accused conducted a sexual relationship with RR in general terms. But in the context of the lengthy period that DC was involved with the accused and the length of time since the relevant events this is not a significant matter. There is no admissible evidence from RR to establish the homosexual intercourse required to be proven. Accepting as truthful the essential evidence of DC, as with count 5, this is a matter where an alternative statutory count of attempted homosexual intercourse has been established beyond reasonable doubt. In relation to this matter there is no evidence of "concoction" or contamination between DC and RR, or that person with any other witness. 193With regard to GG, as with DC, his evidence reveals a real possibility for concoction or contamination which is a matter relevant to the assessment of his credibility. But whilst there was a real possibility of contamination as to the particulars of his sexual relationship with the accused which has implications for the use of his evidence for "tendency" purposes it does not necessarily mean that he should be disbelieved in respect of their evidence of the character of his sexual relationship with the accused. 194Counsel for the accused pointed to some inconsistencies in the evidence of GG with previous versions, particularly in his police statements, in regard to matters such as the circumstances of his first meeting with the accused, how we came to visit the accused's property at Freemans Waterhole, the circumstances of that and subsequent visits, the number of times on the first occasion that he visited the Freemans Waterhole property the accused stopped along the way as he was driving him to it, amongst other matters. These matters were quite minor matters that are not significant. I note that GG had given two statements, both detailed, with one particularly addressing what was described as the "timeline" of events upon which the witness one can assume had concentrated on well before he gave evidence in this trial. I accept the evidence of GG, supported by the evidence of DC, that the accused had the opportunity to sexually assault the complainant in the manner he described over a period of time. This complainant noticed bleeding from his anus after the first penetration. This is supportive of his allegations in that this observation is consistent with him having been anally penetrated. The fact that other complainants did not notice bleeding is not significant, in the context of the accused using lubricant and there being no evidence of any peculiarity of the accused's penis to suggest a pronounced likelihood of injury from penetration. This is so even though every complainant who gave evidence of anal penetration said that on the first occasion and early subsequent occasions the penetration "hurt". I note in passing that DC said that he never bothered to check his anus to see if there was any bleeding when he went to the toilet after the first acts of sexual intercourse. 195I am required to have close regard to the evidence of GG relevant to count 12, to consider whether it is in conflict with the evidence of DC that may relate to count 12, such as to have a reasonable doubt as to the guilt of the accused of that count as it has been pleaded and particularised by the Crown. This was a matter that I squarely raised with the Crown in submissions (pp 1203 - 1206, 1243 - 1251) and was the subject of particular submissions by the accused in the context of my discussion with the Crown (pp 1324-1328, 1350 - 1352). All things taken into account in my view it is at least reasonably possible that the witnesses are endeavouring to describe what is the first alleged anal penetration of this complainant. The significance of this event is that it is the first occasion that it is alleged the accused penetrated the complainant GG with his penis such as to commit that offence of homosexual intercourse. Of course, a common element in both accounts is that the accused anally penetrated the complainant (or appeared to according to DC) which establishes the offence. However, the two versions by the two witnesses are irreconcilable. I conclude that it is at least reasonably possible that they are both attempting to describe the first occasion that the accused had penile penetration of the complainant, because GG says so. DC not only does not describe any previous such occasion but claimed that the accused told him that he had "got at" GG, implying that he had sex with him in some way when DC was away in Beaudesert. This he had done by performing "hotheads" without performing anal penetration upon him. He does not describe any other event where he was present as a spectator watching the accused have anal intercourse with GG beforehand. 196The differences in their accounts are fundamental. DC played no role according to GG. Whereas DC, who had never seen GG anally penetrated by the accused before, had anal intercourse with the complainant whilst the accused has anal intercourse with him. This is a event as recounted by DC is not the subject of evidence by GG. I accept that the accused had a sexual relationship with GG that included anal intercourse at some point. But I cannot, on the totality of the evidence and warning myself appropriately, conclude beyond reasonable doubt that the intercourse occurred in the circumstances described by the complainant such as to establish this count. 197As for count 13, beyond the general attack upon GG's credibility in the context of the various warnings and directions requiring caution and scrutiny of his evidence, there was little in the way of criticism of his account such as to reflect upon the credibility of the detail he gave in relation to this count. Certainly nothing of significance. In any event, there is powerful evidence of the accused knowing GG at the relevant time, having opportunity to sexually assault him including evidence from the accused, and there are other aspects of the matter, such as the general complaint of 'sexual abuse' 11 or so years later in private before going to the police. I appreciate this private complaint evidence does not identify the accused and occurs at a time after the witness has had discussions with DC about going to the police to which I made earlier reference. The fact that the two men discussed going to the police speaks not necessarily of "invention" of sexual misconduct on the part of the accused even if there is a real possibility of concoction or contamination in relation to the detail of that sexual abuse. There is also in support of GG, as with DC, evidence of a previous sexual attraction to boys as contended by the Crown as a tendency from MS and KW. Although the allegations of GG are more distant than those of DC from the evidence in support of the tendency they are not so distant to lack significant probative value. I am satisfied that count 13 has been made out beyond reasonable doubt. I am also satisfied beyond reasonable doubt that the accused in the period of time between early 1988 and 1990 had anal penetration of the complainant but do not have sufficiently reliable particulars in the evidence to conclude that the relevant count in this respect concerning this complainant has been made out. 198In addition to the warnings earlier outlined, the evidence of GG with regard to count 14 must be approached with some caution. He had a commercial grudge against the accused at the time of the end of their relationship and was coming of an age to resent the accused's sexual behaviour towards him. He alleged that the accused had physically assaulted him in the course of a dispute of a commercial nature which was not ultimately resolved to his advantage. Closely regarding the account of the father of the confrontation he had with the accused after the alleged assault, the father does not assert that the accused admitted assaulting his son, although it is clear on the father's evidence there had been some confrontation between his son and the accused over the ownership of a motorcycle and/or the amount of money owed on it by the complainant. The father, however, does not give any evidence of any physical sign of injury on his son, nor that his son gave him any specific particulars of the character of the assault committed upon him. It is to be remembered the GG claims a 'king hit' and being kicked in the ribs by a man obviously bigger than him. The king hit allegedly "dropping him to the floor" without any injury. As the complainant is the only person who asserts these actions by the accused and in the absence of any specific support for that particular allegation (other than the evidence from the accused and the father that supports the existence of a relationship between the parties and that there was a dispute over money owed on a motorcycle that led to the termination of the relationship) and the delay in the making of this allegation, which is not properly explained unlike the sexual contact I am not satisfied beyond reasonable doubt that count 14 is established. CONCLUSION 199For the reasons set out above I have concluded that the accused is guilty of counts 1, 2, 3,4,6,7,9,10 and 13. I am satisfied that the accused is guilty of attempting to commit the crimes particularised in counts 5 and 11. I find the accused not guilty of counts 8, 12 and 14. ********** 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: 24 February 2014