Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. HARRISON CJ at CL: Neil Futcher stood trial in the District Court at Sydney before her Honour Judge Girdham SC and a jury between 16 August 2016 and 14 September 2016 on an indictment charging 22 offences. The charges all related to historical sexual offending by Mr Futcher against six young male complainants in the period 1974 to 1981 when Mr Futcher was employed as a teacher and as a swimming coach. In summary, those charges were compendiously described as follows:

* 10 counts of "indecent assault on a male" contrary to s 81 of the Crimes Act 1900 (Counts 1, 3, 8, 9, 10, 12, 15, 18, 19, 20);

* 8 counts of "buggery" contrary to s 79 of the Crimes Act 1900 (Counts 2, 4, 6, 7, 13, 14, 16, 17);

* 2 counts of "procure act of indecency by male person with another male person" contrary to s 81A Crimes Act 1900 (Counts 5, 21);

* 1 count of "attempt to procure act of indecency by male person with another male person" contrary to s 81A Crimes Act 1900 (Count 11); and

* 1 count of "assault with intent to commit an act of buggery" contrary to s 80 Crimes Act 1900 (Count 2).

The key issue at the trial was whether the Crown had established beyond reasonable doubt whether any of the alleged sexual acts occurred. Mr Futcher gave evidence and denied sexual activity with any of the complainants. On 14 September 2016, the jury returned verdicts of guilty on all counts.

3. On 27 January 2017, her Honour sentenced Mr Futcher to an aggregate term of imprisonment of 18 years and 4 months with a non-parole period of 11 years to date from 14 September 2016. Mr Futcher is first eligible for release on parole on 13 September 2027.

4. Mr Futcher appeals to this Court on the following grounds:

Ground 1: Mr Futcher was denied a fair trial.

Ground 2: The learned trial judge erred in allowing surveillance device evidence that amounted to a miscarriage of justice.

Ground 3: A miscarriage of justice was occasioned by the failure to call all witnesses to give evidence at trial.

Ground 4: The verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence.

Ground 5: The learned trial judge erred in failing adequately and properly to direct the jury in relation to the consecutive outbursts of three witnesses during the trial.

Ground 6: Fresh exculpatory evidence provides inconsistencies to the Crown case and direct evidence.

5. Mr Futcher requires leave to appeal in respect of each of these grounds: s 5(1)(b) of the Criminal Appeal Act 1912. As presently framed, none of the grounds of appeal involves a question of law alone.

6. Mr Futcher also appeals against the severity of his sentence on a single ground as follows:

Ground 7: Mr Futcher appeals [against] his sentence pursuant to COVID lock-ins.

7. It is common ground that the appeal is out of time. Mr Futcher filed a Notice of Intention to Appeal on 10 February 2017. The expiry date was extended on 16 January 2018 until 30 March 2018. A Notice of Appeal was filed on 23 March 2018. After a series of mentions in relation to the status of Mr Futcher's legal representation, the matter was closed on 16 August 2018 as no final grounds or submissions had been filed. On 15 March 2021, Mr Futcher filed a Notice of Appeal. On 25 March 2021, the matter was directed to return to Notice of Intention to Appeal status. The current Notice of Appeal was filed on 20 August 2024, approximately 7.5 years after Mr Futcher was sentenced.

8. Mr Futcher filed an application for release on bail on 24 December 2024. That application is referred to later in these reasons.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197e2e4e7a63859306bba122)

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