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Court of Criminal Appeal 11 July 2025

Futcher v R

[2025] NSWCCA 102

Sexual offences
CRIME A PPEALS APPEAL AGAINST CONVICTION HISTORICAL SEXUAL OFFENDING SIX COMPLAINANTS ADMISSION OF EVIDENCE AT TRIAL

Citation: Futcher v R [2025] NSWCCA 102
Court: Court of Criminal Appeal, New South Wales
Date: 11 July 2025
Judges: Harrison CJ at CL; Garling J; Yehia J

Background

The appellant was a teacher and swimming coach who was convicted in September 2016 of 22 historical sexual offences against six young male complainants. The offending occurred between 1974 and 1981. The charges included counts of indecent assault, buggery, and procuring acts of indecency, all under now-repealed provisions of the Crimes Act 1900 (NSW).

The trial judge sentenced the appellant in January 2017 to an aggregate term of 18 years and 4 months imprisonment, with a non-parole period of 11 years. The appellant's earliest possible release date is 13 September 2027.

The appellant filed a Notice of Appeal in August 2024, approximately 7.5 years after sentencing, making the appeal out of time. Leave to appeal was required on all seven grounds raised, covering both conviction and sentence.

  • Whether the delay in prosecuting the appellant caused significant forensic disadvantage that denied him a fair trial (Ground 1)
  • Whether the warrants authorising surveillance device recordings were defective, rendering the admission of those recordings a miscarriage of justice (Ground 2)
  • Whether the Crown's failure to call certain witnesses occasioned a miscarriage of justice (Ground 3)
  • Whether the jury's verdicts were unreasonable and could not be supported by the evidence (Ground 4)
  • Whether emotional outbursts and unresponsive answers from three witnesses during the trial caused a substantial miscarriage of justice (Ground 5)
  • Whether five documents relied on by the appellant constituted fresh exculpatory evidence (Ground 6)
  • Whether the COVID-19 pandemic warranted intervention on sentence (Ground 7)

Decision

Ground 1 (Fair trial and forensic disadvantage): The Court held that the delay in bringing the prosecution did not cause significant forensic disadvantage to the appellant. A fair trial does not require a perfect trial. The Court noted that any presumptive prejudice from delay had to be weighed against the substantial public interest in prosecuting child sexual offences. Critically, the appellant was unable to trace the alleged disadvantage to any specific, particular, or unique circumstance that had significantly and adversely affected the conduct of his defence.

Grounds 2 and 3 (Surveillance evidence and witness list): The warrants authorising the recording of conversations satisfied the requirements of s 20(1)(a) of the Surveillance Devices Act 2007, and the recordings were found to have been properly admitted. There was no evidentiary foundation to suggest the admissions were illegally obtained, unreliable, or unfair. On the uncalled witnesses point, the Court found no miscarriage of justice because the prosecutor and defence counsel had agreed on the witness list; the Crown had not refused to call anyone.

Grounds 4 and 5 (Unreasonable verdict and courtroom outbursts): All three judges independently assessed the evidence and concluded the verdicts were not unreasonable. The evidence of the six complainants was described as abundant, and any discrepancies were not fundamental to the critical facts. The emotional outbursts and unresponsive answers from witnesses were characterised as an anticipated feature of a trial of this nature, and did not cause any miscarriage of justice.

Grounds 6 and 7 (Fresh evidence and COVID-19 sentence appeal): The five documents the appellant relied on as fresh evidence were either already available to him before trial or, in the one arguably fresh instance, were highly unlikely to have caused the jury to entertain reasonable doubt. All were rejected. The sentence appeal on COVID-19 grounds failed because the appellant was sentenced in January 2017, well before the pandemic. It was not a matter the sentencing judge could have taken into account, and no other sentencing error was alleged.

Orders Made

• To the extent necessary, grant leave to appeal
• Refuse leave in respect of Ground 2
• Dismiss the appeals against conviction and sentence
• Refuse bail
• Decline to admit as fresh evidence or howsoever otherwise described the annexures to the affidavit of Neil Albert Futcher sworn 9 October 2024

Key Takeaways

  • Presumptive prejudice arising from delay in a historical sexual offence prosecution does not automatically establish forensic disadvantage sufficient to deny a fair trial; the appellant must identify specific circumstances that significantly and adversely affected the conduct of the defence.
  • Under the Surveillance Devices Act 2007 (NSW), a warrant is not defective merely because its identification of the authorised officer is challenged; here, the Court found the relevant requirement under s 20(1)(a) was clearly satisfied.
  • Discrepancies in witness accounts across a multi-complainant trial are not necessarily determinative of a reasonable doubt, particularly where the evidence of each complainant withstood close scrutiny and no fundamental inconsistencies emerged on critical facts.
  • Documents that were available or constructively available to an appellant before or at trial do not qualify as fresh evidence, even if not actually used; only genuinely fresh material is assessed for its likely impact on the jury's verdict.
  • A sentencing judge cannot be faulted for failing to account for the COVID-19 pandemic where the sentence was imposed before the pandemic began; the Court of Criminal Appeal confirmed there is no basis for appeal on that ground in such circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 79, 80, 81, 81A (all repealed)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 165B
- Surveillance Devices Act 2007 (NSW), ss 4, 20(1)(a)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Dawson v R [2024] NSWCCA 98
- Crane v R [2024] NSWCCA 112
- JP v R [2024] NSWCCA 163
- AS v R [2022] NSWCCA 291
- Hanna v R [2023] NSWCCA 182
- Quinn v R [2023] NSWCCA 229
- RA v R [2020] NSWCCA 356