BJS v R - [2011] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BJS v Regina [2011] NSWCCA 239
Hearing dates: 19 April 2011, 4 May 2011
Decision date: 03 November 2011
Before: Basten JA at [1];
R S Hulme J at [39];
Hall J at [50]
Decision:
1. Leave to appeal granted
2. Appeal dismissed

Catchwords:
APPEAL - criminal - interlocutory - refusal to grant separate trials in respect of separate complainants - whether evidence in respect of one charge admissible in respect of others - Criminal Appeal Act 1912 (NSW), s 5F(3)

EVIDENCE - criminal proceedings - admissibility of tendency evidence - admissibility of co-incidence evidence - risk of concoction or contamination - evidence of sexual activities by teacher and priest at boarding school involving young boys under his authority - Evidence Act 1995 (NSW), ss 97 and 98
PROCEDURE - criminal proceedings - joinder of offences which are part of a series of offences of a similar character - application for separate trials in respect of separate complainants - whether evidence on one charge admissible on other charges - whether prosecution had negated risk of concoction or contamination - Criminal Procedure Act 1986 (NSW), ss 21 and 29
Legislation Cited: Crimes Act 1900
Crimes (Amendment) Act 1989
Crimes (Child Assault) Amendment Act 1985
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Adam v R (2001) 207 CLR 96
BP v R; R v BP [2010] NSWCCA 303
BRS v The Queen (1997) 191 CLR 275
CGL v DPP (2010) 24 VR 486
Dao v R [2011] NSWCCA 63
De Jesus v The Queen [1986] HCA 65; 61 ALJR 1
FB v Regina [2011] NSWCCA 217
HML v The Queen (2008) 235 CLR 334
Hoch v The Queen (1988) 165 CLR 292
House v The King (1936) 55 CLR 499
Kilbourne v R [1973] AC 729
KRM v The Queen (2001) 206 CLR 221
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158
Papakosmas v The Queen (1999) 196 CLR 297
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; 182 CLR 461
Phillips v R (2006) 225 CLR 303
PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88
R v Ananthanarayanan (1994) 98 Cr App R 1
R v Andrews [2003] NSWCCA 7
R v Boardman [1975] AC 421
R v Colby [1999] NSWCCA 261
R v Dawson-Ryan (2009) 104 SASR 571
R v Ellis (2003) 58 NSWLR 700
R v F [2002] NSWCCA 125; 129 A Crim R 126
R v Folbigg (2005) 152 A Crim R 35
R v Ford (2009) 201 A Crim R 451
R v Glennon (No 2) (2001) 7 VR 631
R v Kray [1970] 1 QB 125
R v Le [2000] NSWCCA 49
R v Lockyer (1996) 89 A Crim R 457
R v OGD (No 2) (2000) 50 NSWLR 433
R v Powch (1988) 14 NSWLR 136; 34 A Crim R 360
R v PWD (2010) 205 A Crim R 75
R v Zhang (2005) 158 A Crim R 504
Saunders v R (1994) 72 A Crim R 347
Sutton v R (1984) 152 CLR 528
Texts Cited: Cross on Evidence (3rd Aust ed, 1986)
J Anderson, N Williams SC and L Clegg, The New Law of Evidence (2nd ed, 2009)
Category: Principal judgment
Parties: BJS
REGINA
Representation: C: C Maxwell QC/N Noman
A: P Boulten SC
C: S Kavanagh
A: Greg Walsh & Co

File Number(s): 2009/192967
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-02-21 00:00:00

Before:

Finnane DCJ

File Number(s):

2009/192967

Judgment

BASTEN JA: The applicant seeks leave to appeal from a judgment of Finnane DCJ in respect of an indictment containing 12 counts, but seven complainants. By notice of motion dated 17 January 2011 the applicant had sought an order for separate trials in respect of each complainant, together with rulings on the admissibility of certain evidence. His Honour severed three counts (involving one complainant), but otherwise refused to order separate trials. That decision was interlocutory and an appeal therefrom lay only with leave, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW).

When the matter came before the primary judge, on 7 February 2011, his Honour heard evidence from each of the witnesses proposed to be called by the prosecution. On 21 February 2011, he ruled that there should be a separate trial in respect of counts 10, 11 and 12; the prosecution abandoned count 9. Accordingly, his Honour ordered that the eight remaining counts (involving six complainants) be heard together. The first two charges, relating to events in 1984, were brought under s 61E(1) of the Crimes Act 1900 (NSW), as then in force. The remaining charges were brought under s 61E(1A), which was introduced by the Crimes (Child Assault) Amendment Act 1985, Sch 2(3). Section 61E was repealed by the Crimes (Amendment) Act 1989, Sch 1(2). Although s 61E was amended from time to time, the changes are not relevant for present purposes. The provisions relied on continued to apply to offences committed before their repeal: Crimes Act, Schedule 11, Part 1, cl 2.

The first two counts each alleged an assault with an act of indecency on a person under 16 years of age; the remaining charges included the further element that the victim was under the authority of the applicant. Throughout the period covered by the charges, the applicant was a priest and teacher resident at St Stanislaus College, Bathurst; the complainants were boys who were boarding at the College. Each charge carried a maximum penalty of 6 years imprisonment.

Nature of application for leave to appeal

Section 5F of the Criminal Appeal Act relevantly provides:

"5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a) proceedings ... for the prosecution of offenders on indictment in the Supreme Court or in the District Court ....

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal ....

...

(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal:

(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and

(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against."

An undoubted line of authority in this Court establishes that a ruling on the admissibility of evidence is not "an interlocutory judgment or order" for the purposes of s 5F: R v Powch (1988) 14 NSWLR 136; 34 A Crim R 360 and other authorities referred to by Spigelman CJ in DAO v R [2011] NSWCCA 63; 278 ALR 765 at [6].

Pursuant to s 29 of the Criminal Procedure Act 1986 (NSW), two or more counts can be joined in the one indictment:

"29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character."

No issue arose as to the power of the prosecution to seek to have the various counts heard together, presumably on the basis that they formed part of "a series of offences of the same or a similar character", within the terms of s 29(1)(c). Rather, the applicant relied on the power of the Court to order separate trials, pursuant to s 21 which, relevantly provides:

"21 Orders for amendment of indictment, separate trial and postponement of trial

...

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

...

(4) An order under this section may be made either before trial or at any stage during the trial.

...

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes."

In Ludlow v Metropolitan Police Commissioner [1971] AC 29, at 39, Lord Pearson cited with approval a statement in Reg v Kray [1970] 1 QB 125 at 130-131:

"... Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."

After referring to that principle, Gibbs CJ in De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 2 noted an established line of authority in cases involving sexual offences that "the charges should not be tried together if the evidence on one count is not admissible on another count": citing Sutton v The Queen [184] HCA 5; 152 CLR 528 at 531. In De Jesus, Brennan J (at 7) and Dawson J (at 10) accepted that approach, without adopting categorical language.

Dawson J in De Jesus noted that the concept of a "series" of offences appeared to impose an additional characteristic beyond the fact that the offences must be of the same or a similar character, while noting that similarity is itself a feature capable of enabling the offences to be described as a series, quoting Lord Pearson in Ludlow at 39.

The general principle that there should be separate trials unless the evidence to be called in respect of one count is admissible in respect of another, was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by a ruling on the admissibility of the evidence. In DAO, Spigelman CJ identified the fact that "what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave": at [16]. However, his Honour also acknowledged a countervailing consideration at [17], namely that:

"... the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial."

There was a further factor militating in favour of a grant of leave in DAO, namely a conflict of authority as to the appropriate test to apply to an appeal from a ruling on the admissibility of tendency evidence: DAO at [18]. It appears that the Chief Justice was significantly influenced in granting leave by the second factor referred to above; Allsop P expressly stated that he would have refused leave had a five judge bench not been assembled not to consider the latter question. Simpson J (with whom Schmidt J agreed) would also have refused leave if the substance of the application had only been an appeal against an evidentiary ruling: at [208]-[209].

Although this case too turns on rulings with respect to evidence, it is, in the words of the Chief Justice in DAO, "of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial": at [17]. In contrast to the circumstances in DAO, the applicant had reasonable prospects of success in demonstrating an erroneous approach by the trial judge with respect to his refusal to admit evidence of media coverage of the applicant's arrest and the charges laid against him. Accordingly, this is an appropriate case to grant leave to appeal.

Tendency and coincidence evidence

There was no challenge to the requirement that the various counts involved a series of offences of the same or a similar character, for the purposes of s 29(1) of the Criminal Procedure Act. Rather, the issue was joined over the proper application of s 21(2), conferring on the Court a power to order separate trials. It was further accepted that the power was engaged wherever evidence admissible in respect of one count was inadmissible in respect of another. Once engaged, it was further accepted that the power should properly be exercised.

In this way, the issues were narrowed to the operation of the rules of evidence with respect to tendency and coincidence evidence. Thus, the prosecution proposed to rely upon evidence which was admissible with respect to one count in relation to each of the other counts, either as demonstrating a tendency on the part of the applicant to act in a particular way or to have a particular state of mind or to demonstrate the improbability that particular events occurred "coincidentally". The rules of evidence impose significant constraints on the admissibility of such evidence, because of its potential to be used impermissibly against an alleged offender.

This case is concerned with what used to be described generally as "similar fact" evidence, prior to the commencement of the Evidence Act 1995 (NSW). That epithet was described in a leading text as "doubly misleading because it describes the exclusionary rule in a phrase more apt to describe one of the principal exceptions to it, and because it suggests a unifying factor between the situations in this area which they do not necessarily possess": D M Byrne QC and J D Heydon, Cross on Evidence (3rd Aust ed, 1986) at [11.1]. The exclusionary rule under the general law related to evidence which tended to discredit the accused by reference to character or reputation, or conduct on occasions other than those the subject of the charge. There were a number of reasons for excluding such evidence, some of which were readily capable of amelioration, but others less so.

One difficulty with such evidence is the risk that the accused might be surprised by the evidence and not be in a position to meet it. That potential unfairness has been addressed by a requirement that the prosecution give reasonable notice in writing of an intention to adduce such evidence: Evidence Act, ss 97(1)(a) and 98(1)(a). Secondly, such evidence could distract from the focus of the trial by requiring the accused to deal with events on other occasions, and possibly numerous other occasions, than the events giving rise to the charge. That concern is of limited significance in circumstances where the conduct on other occasions is itself the subject of charges which the accused will need to meet, if not in the course of the current trial, then at a future time. Thirdly, and critically, there is a risk that such evidence will form the basis of an impermissible chain of reasoning in assessing guilt. That danger can be ameliorated by directions to the jury, but their effectiveness may be contestable: Director of Public Prosecutions v Boardman [1975] AC 421 at 453 (Lord Hailsham).

An exclusionary rule is, of course, premised on the proposition that the evidence could, by a permissible ("rational") process of reasoning, affect the probability of a fact in issue in the proceeding: Evidence Act, s 55(1). If there is no such rational effect, the evidence has no probative value and is inadmissible for that reason: s 56.

The exclusionary rule, as it arose under the general law, placed significant weight on the risk of "prejudice", that is the tendency of such evidence to affect a verdict improperly, whether by unacceptable processes of reasoning, or by working on unconscious prejudices or attitudes: R v Zhang [2005] NSWCCA 437; 227 ALR 311; 196 FLR 152; 158 A Crim R 504 at [41]. As explained in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 488 by Mason CJ, Deane and Dawson JJ:

"Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a high level or degree of cogency."

Indeed, to be admissible, their Honours accepted that such evidence must possess "a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged: at 481, following Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294 (Mason CJ, Wilson and Gaudron JJ). The judgment in Pfennig continued:

"In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged."

As will be noted shortly, that test no longer applies under the Evidence Act. However, in addition to the inherent cogency required of propensity evidence, the general law also required that it not be subject to inherent weakness which would potentially preclude its acceptance. That proposition was illustrated by Hoch, which, in circumstances not entirely dissimilar to the present case, involved a student teacher employed at an institution for young boys who was charged with separate offences of indecency involving each of three boys. After referring to a passage in the opinion of Lord Wilberforce in Boardman, Mason CJ, Wilson and Gaudron JJ accepted that "the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible": at 296. Their Honours explained why that approach was adopted in the following passage at 296:

"In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility."

As mentioned above, the general law principles have been varied by the Evidence Act. That Act deals separately with what is described as "the tendency rule" and "the coincidence rule". Each has been described as a "contingent exclusionary rule": see J Anderson, N Williams SC and L Clegg, The New Law of Evidence (2nd ed, 2009), par 97.2. In each case, the exclusion, subject to exceptions, is set out in ss 97 and 98 respectively, but is subject to a further restriction imposed by s 101. Those provisions, so far as relevant, are as follows:

"97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency ... 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.

...

98 The coincidence rule

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

...

(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.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

The language of ss 97(1)(b) and 98(1)(b), each referring to the evidence having "significant" probative value is not consistent with the requirement that there be no rational explanation for the evidence, apart from its cogency in respect of the charge. Further, the balancing test required by s 101(2) is also inconsistent with a general requirement as to probative value in terms of the Pfennig test. As explained by Spigelman CJ (with whom Sully, O'Keefe, Hidden agreed) in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]:

"The 'no rational explanation' test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s 101(2) to that effect."

As explained in Hoch, the rejection of propensity evidence on the basis that there is a reasonable possibility of concoction followed logically from the proposition that the evidence was inadmissible if there were any reasonable explanation for it, inconsistent with the guilt of the accused. The conclusion that the general principle is inconsistent with the Evidence Act must mean that, at least as a general rule, the subsidiary principle falls away. No doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the "prejudicial effect" of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case: cf Ellis at [96].

That approach is consistent with the approach preferred by Hulme J in R v Le [2000] NSWCCA 49 at [115] (Hidden J agreeing) and in R v Andrews [2003] NSWCCA 7 at [16] (Heydon JA noting the issue as one not requiring resolution). On the other hand, there is a line of authority to the contrary, requiring that the principles adopted in Hoch be applied in trials conducted in accordance with the Evidence Act: R v Colby [1999] NSWCCA 261 at [107] (Mason P, Grove and Dunford JJ agreeing), applied in R v OGD [No 2] [2000] NSWCCA 404; 50 NSWLR 433 at [74] and [112] (Mason P and Dowd J agreeing) and R v F [2002] NSWCCA 125; 129 A Crim R 126 at [23]-[27] and [48] (Wood CJ at CL, Meagher JA and Bell J agreeing). The authority of this category of cases has been removed by the decision of a five judge Court in Ellis, which post-dated each of them.

There are, however, authorities subsequent to Ellis which continued to apply the approach adopted in Colby and its progeny: BP v R; R v BP [2010] NSWCCA 303, and, most recently, FB v Regina [2011] NSWCCA 217 at [35] (Whealy JA, Buddin and Harrison JJ agreeing). In BP, Hodgson JA (with the agreement of Price and Fullerton JJ) stated:

"[109] The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue .... An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis ... at [94]-[95]. ...

[110] 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 is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch .... However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby ..., R v OGD (No 2) .... The onus is on the Crown to negate the 'real chance' of concoction: OGD at [74], R v F ... at [48]."

The statements at [109] and in the first sentence of [110] are unimpeachable; the second and third sentences (relying on Hoch and Colby) at [110] are, in my view, inconsistent with Ellis and should not be applied as a general rule.

Application of principles

The trial judge set out at [9]-[11] critical passages from the joint judgment in Hoch (recognising that it was handed down before the commencement of the Evidence Act) and from the judgment of Hodgson JA in BP, including [106]-[111]. He applied those principles in addressing the motion for separate trials. In adopting that course, his Honour acted in accordance with the authority of this Court in BP; by applying the strictness of the principle articulated in Hoch, he approached the matter on a basis which was, according to the analysis set out above, likely to be more favourable to the accused than the law required. However, because the prosecution did not challenge the correctness of that approach as a matter of law, either in the Court below or before this Court, the appeal should be approached on the basis of the principle articulated in Hoch.

There is a further live issue, not authoritatively resolved in this Court, as to the nature of the exercise to be undertaken by this Court on an appeal under s 5F. To the extent that the order on a motion seeking a separate trial is discretionary, pursuant to s 21(2), there is no doubt that the intensity of scrutiny is constrained by the principles in House v The King [1936] HCA 40; 55 CLR 499. In the present case, however, there appears to have been no element of discretionary judgment in the refusal to grant separate trials: the outcome was controlled by the finding with respect to the admissibility of the evidence. Relevantly, the appeal was limited to that issue. As explained by Spigelman CJ in Ellis (with the concurrence of the other four members of the Court) s 101(2) "requires the Court to make a judgment, rather than to exercise a discretion": at [95]. That view was confirmed by a further five judge Court in DAO v R [2011] NSWCCA 63 at [40] (Spigelman CJ); [98] cf at [171]-[173] (Simpson J).

In principle, the distinction between the exercise of a discretionary power and the formation of an evaluative judgment is clear: in respect of a discretionary power, mandatory, permissible and impermissible considerations are generally derived by implication from the subject matter, scope and purpose of the statutory provision conferring the power. In relation to an evaluative judgment, the criterion is identified (with greater or less precision) by the applicable statute or the general law. Further, a discretionary power may permit a decision as to where the appropriate judgment of the court should settle, within a range or, alternatively, it may permit only a binary decision. (The power under s 21 fell into the latter category, there being a choice only to accept or reject the application for separate trials.) Further, a discretionary power may be linked more or less directly, to the formation of an evaluative judgment.

These considerations lead, not to a rejection of the validity of the distinction, but to the adoption of a functional approach in respect of the intensity of scrutiny of what is, in substance, a ruling on evidence, for the purposes of an interlocutory determination of a procedural application. In DAO, the whole Court appears to have accepted that the test to be applied involved a level of constraint close to, if not precisely equivalent to, the principles stated in House v The King. However, even on a less constrained approach, no error was identified: at [205]. Again, the resolution of this somewhat technical question is unnecessary: for the reasons explained by Hall J and for the further reasons given below, the trial judge erroneously rejected a volume of evidence tendered by the applicant.

To determine whether the error was material, it is necessary to reconsider the evaluative exercise undertaken by the trial judge. On the assumption, accepted by Allsop P in DAO at [83], that the appeal is by way of rehearing, as explained in Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 at [11]-[13] and in R v Ford [2009] NSWCCA 306; 273 ALR 286; 201 A Crim R 451 at [69]-[72] (Campbell JA), it is open to this Court to re-exercise the powers available to his Honour. That can be done in such a case as the present, as no issue of credibility arose from his Honour's findings with respect to the oral testimony before him and, indeed, his findings as to primary fact are undisputed. The exercise is thus reduced to an assessment of the factual material and the formation of the relevant evaluative judgments for the purposes of ss 97, 98 and 101 of the Evidence Act.

Erroneous rejection of evidence

The trial judge heard evidence from each of the witnesses intended to be called by the prosecution at a joint trial of the various charges. The witnesses were cross-examined as to the circumstances in which they came to give statements to the police, their knowledge of material published in the media in respect of the applicant and whether they had obtained access to information about complaints made against him by others available on the internet and, if so, when such access was obtained. Inquiry was also made as to the extent to which the complainants and other witnesses may have had contact with each other or with other complainants.

The manner in which his Honour addressed the application may be understood from two perspectives, namely the findings with respect to MB and CB and the findings with respect to the other witnesses. With respect to the brothers, MB and CB, his Honour noted that, according to CB, who was to be a witness, there had been a discussion between them before MB made his statement to the police. His Honour continued at [25]:

"In that statement, he claims to have been indecently assaulted during confession. [CB] in his evidence said that [MB] had first thought he was assaulted in a group prayer session and [CB] told him that it was in confession. Subsequently, [MB] made his police statement. In those circumstances, I am of the opinion that the Crown has not excluded the real possibility of concoction of evidence by [MB] and for that reason I exclude the evidence of [MB] as a complainant in the trial and of his brother, [CB] as a tendency witness in the trial."

In respect of the other witnesses and complainants, his Honour set out in a table at the end of his judgment the access to public reports about the applicant, his arrest and surrounding circumstances, which each witness conceded in his evidence: at [21]. His Honour then continued at [22]:

"There is no evidence that any of the complainants or the tendency or coincidence witnesses in giving statements to the police and in giving evidence before me, were affected by anything in the media, nor that any media coverage had any relevance to any memory any of them had about what happened."

The applicant tendered on his motion a large bundle of material involving publicly available statements, either from the traditional media, including newspapers and newssheets with more limited circulation, or from the internet. In respect of any suggestion of direct collaboration between witnesses (including complainants) his Honour was no doubt entitled to rely upon the apparently credible and unimpeached evidence of those called before him. However, in respect of publicly available materials generally, to restrict consideration to those materials which the witnesses acknowledged they had seen, or may have seen, at a relevant time, is to impose an undue fetter on the inquiry. First, it is easy for people to forget what they have read or heard in the media. Especially is that so in circumstances where their statements were made some time prior to the hearing and some time after likely observation of material in the media. Secondly, memories may be influenced by a process of infection which is partly or wholly subconscious. The fact that a witness denied such a process would not be conclusive as to the absence of any such influence.

The applicant was entitled to have the trial judge take into account all of the material which might reasonably have been available to the witnesses at relevant times. If a particular story appeared only in one newspaper and a witness gave evidence that he never read that newspaper, the judge might well be persuaded that the article was irrelevant in respect of his evidence. On the other hand, if the story appeared in all major newspapers at a particular time, and the witness was not able to say affirmatively that he never read any newspapers, a different assessment would be required. Such an assessment might need to take account of where the articles appeared, the nature of the headlines and so on. That exercise could not be undertaken in full, without access to the material. That material should have been admitted in evidence and taken into account as the circumstances required.

That step not having been taken, as it appears from his Honour's reasons, there should be a grant of leave to appeal and this Court should undertake that exercise itself. In carrying out that exercise, no reason has been demonstrated to interfere with the conclusions reached by the trial judge. In this regard, I agree with the assessment undertaken by Hall J in respect of grounds 3, 4, 5 and 6, and having regard to the schedules to his reasons. Accordingly, the appeal should be dismissed.

RS HULME J: In this matter I have had the advantage of reading the reasons for Judgment of Basten JA and Hall J and I can accordingly be brief.

Ground 1

I agree with their Honours that Mr Walsh's Affidavit sworn 17 February 2011, and the material exhibited to it, was admissible and with their Honours' reasons for that conclusion.

Ground 2

Undoubtedly there are passages in the reasons for Judgment of Finnane DCJ which tend, at times strongly, to indicate that his Honour did not apply the test concerning the risk of concoction set out in Hoch v The Queen (1988) 165 CLR 292 and BP v R; R v BP [2010] NSWCCA 303. Nevertheless, when his Honour's reasons are considered in totality, I am satisfied he did.

I agree with Basten JA that the approach to tendency and coincidence evidence for which Hoch (supra) stands as authority is not consistent with the terms of s 97 and s 98 of The Evidence Act 1995. However, as his Honour observed, Finnane DCJ's use of the Hoch test did not disadvantage the Applicant and in the absence of a challenge as to its correctness it is appropriate to proceed on the assumption it is correct.

Grounds 3 and 4

Central to the Applicant's arguments in support of these grounds was the statement by Mason CJ, Wilson and Gaudron JJ in Hoch (supra) at 297:-

"If the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible."

Turning to the evidence, the Applicant's submissions might not unfairly be summarised as follows. The students on whose evidence the Crown seeks to rely attended the same school. As a result, they had shared experiences and would have had a special interest in media and other, e.g. internet, reports about the Applicant's offending. They became aware of the allegations of sexual or indecent assaults by the Applicant. Some of the reports were bizarre, graphic and prejudicial. Therefore there was the sufficient relationship, opportunity and motive for concoction of which the High Court spoke.

As a matter of simple logic and some worldly experience, I am unable to accept that this conclusion flows, certainly unless one gives to the terms relationship, opportunity and motive an operation vastly different from anything Mason CJ, Wilson and Gaudron JJ can have intended.

In any event, having read the statements of the relevant complainants, one is struck by the differences between their individual accounts and the differences between those accounts and the material exhibited to Mr Walsh's Affidavit.

The differences are such as to provide compelling proof of a lack of concoction or contamination by the accounts of others. A fortiori is this so when regard is had also to the evidence of the complainants before Finnane DCJ, evidence his Honour seems to have accepted.

Grounds 5, 6, 7 and 8

I agree with the conclusions Hall J has reached concerning these grounds and generally with his Honour's reasons. I would merely add this. I have referred to above and relied heavily on the differences between the accounts given by the complainants. Those differences do not detract from the fact that the accounts all provide significant support for the tendencies and lack of coincidence relied on by the Crown.

Resolution of the Application

I agree with Basten JA and Hall J that leave to appeal should be granted and the appeal dismissed.

HALL J: By notice dated 21 February 2011, the applicant seeks leave to appeal pursuant to s.5F(3) of the Criminal Appeal Act 1912 in respect of judgments of the District Court (Finnane DCJ) given on 21 and 22 February 2011 refusing to separate the counts on an indictment, apart from Counts 10, 11 and 12.

The order sought in the Notice is that there be separate trials in relation to each complainant.

The applicant relies upon the following grounds of appeal:-

"Ground 1: His Honour erred by rejecting relevant evidence in the application.

Ground 2: His Honour erred by applying an inappropriate test concerning the risk of concoction.

Ground 3: His Honour erred by finding that there was no relevant evidence of contamination, concoction or fabrication in the cases of any of the witnesses other than [MB] and [CB].

Ground 4: His Honour erred by failing to find that there was a real chance of contamination or concoction on the part of all of the witnesses except [MB] and [CB].

Ground 5: His Honour erred by finding that the contended tendency evidence of each complainant had significant probative value.

Ground 6: His Honour erred by finding that the probative value of the contended tendency evidence substantially outweighed its prejudicial effect.

Ground 7: His Honour erred by finding that the contended coincidence evidence had similarities in both the events and the circumstances in which they occurred which made it improbable that the events occurred coincidentally.

Ground 8: His Honour erred by finding that the contended coincidence evidence substantially outweighed its prejudicial effect."

Background

The applicant was committed for trial in relation to a number of counts of alleged child sexual assault dating from 1 January 1971 through to 31 October 1990.

On 1 April 2010, the Director of Public Prosecutions filed an indictment containing 146 counts involving 31 complainants.

On 27 August 2010, the Director indicated that, in lieu of that indictment, multiple trials would be brought against the applicant on several different indictments.

In the period 29 September 2010 to 29 October 2010, various pre-trial applications in relation to the indictment were determined by Finnane DCJ.

On 2 November 2010, a jury was empanelled in relation to that indictment.

The applicant pleaded not guilty to all counts and the trial continued until 20 November 2010. On the latter date, the jury returned verdicts of guilty in relation to Counts 5, 6 and 11.

On 30 November 2010, the jury delivered further guilty verdicts in relation to Counts 1, 2, 7, 8, 9 and 10.

The jury were unable to reach agreement in relation to Counts 3 and 4 and were discharged in relation to those counts.

The applicant is yet to be sentenced in relation to the offences that resulted in convictions.

On 25 November 2010, an indictment was filed containing 30 counts involving eight male complainants. This indictment was the first of a number involving allegations of child sexual abuse upon students at St Stanislaus College, Bathurst ("the College") allegedly committed by the applicant when he was employed at the school and that are relevant to the present proceedings.

That indictment was subsequently withdrawn and the current indictment (the subject of the present application) was filed containing 14 counts involving seven complainants.

An application for severance of counts and separate trials

The applicant filed a Notice of Motion dated 17 January 2011 seeking the following orders:-

(1) That there be separate trials in respect of each of the counts in respect of each of the complainants referred to in the indictment.

(2) That there be a ruling as to the admissibility of tendency evidence pursuant to s.97 of the Evidence Act and coincidence evidence pursuant to s.98 of that Act as specified in the Notices served on him by the Crown.

Mr P Boulten SC appeared on behalf of the applicant on the present application.

It was contended on behalf of the applicant that the evidence of each complainant was inadmissible in a joint trial because their evidence failed the tests arising from or imposed by s.97, s.98 and s.101 of the Evidence Act. It was also argued that the evidence was not otherwise admissible and that the counts should be severed from the indictment and that separate trials be ordered.

An order was also sought for the exclusion of evidence from five "non-complainant" tendency and coincidence witnesses whose evidence was to be led in respect of each count. It was submitted that the evidence of those persons also failed "the test" arising in terms of s.97, s.98 and s.101 of the Evidence Act and that their evidence was not otherwise admissible.

The Crown's contention in opposition was that all of the complainants' evidence and that of the "non-complainant" witnesses was admissible in relation to each count because their evidence constituted tendency and/or coincidence evidence.

The hearing of the notice of motion took place before Finnane DCJ over a number of days between 27 January 2011 and 21 February 2011. For the purpose of conducting the voir dire, the applicant was arraigned on an indictment containing 12 counts of sexual offences concerning seven complainants.

On 21 February 2011, orders were made in relation to the Notice of Motion as follows:-

(1) That counts relating to the complainant, MB, be severed from the indictment and that the evidence of MB and his brother, CB, not be admitted at the trial.

(2) That the Notice of Motion otherwise be dismissed.

A further judgment in respect of the above rulings was delivered on 22 February 2011 (discussed below).

Accordingly, the position as it presently stands is that the current trial will proceed in relation to all the remaining counts (that is, 9 in total).

The present application does not require the determination of an issue in respect of the proposed evidence of the five "non-complainant" tendency and coincidence witnesses.

The indictment

The Crown intends, following the judgment of Finnane DCJ, to proceed with the indictment in relation to the following counts:-

(1) Count 1 - 1 February 1984 to 31 December 1984: s.61E(1), Crimes Act 1900 (complainant: AM).

(2) Count 2 - 1 September 1984 to 31 December 1984: s.61E(1), Crimes Act (complainant: PK).

(3) Count 3 - 1 April 1986 to 31 August 1986: s.61E(1A), Crimes Act (complainant: GS).

(4) Count 4 - 1 May 1986 to 15 July 1996: s.61E(1A), Crimes Act (complainant: DJS).

(5) Counts 5, 6 and 7 - 1 April 1988 to 31 August 1988: s.61E(1A), Crimes Act (complainant: DS).

(6) Count 8 - 1 September 1988 to 31 December 1988: s.61E(1A), Crimes Act (complainant: AK).

Tendency and coincidence notices

The prosecution served a Notice of Tendency Evidence pursuant to s.97 of the Evidence Act and a Notice of Coincidence Evidence pursuant to s.98 of the Evidence Act. During the proceedings, there was some amendment to these notices in order to reflect the fact that the prosecution had reduced the number of counts on the indictment and this resulted in a reduction of the number of complainants.

The notices disclosed that the Director of Public Prosecutions sought to prove that the applicant had four tendencies:-

· To have a sexual interest in 11 to 14 year old boys.

· To engage in sexual activities with 11 to 14 year old boys.

· To use his pastoral relationships with 11 to 14 year old boys so that he could engage in sexual activities with them.

· To use his position of authority to obtain access to 11 to 14 year old boys so that he could engage in sexual activities with them.

The Tendency Notice then listed a number of activities which alleged the applicant had engaged in and which were said to demonstrate the four tendencies set out above.

The Notice of Coincidence Evidence identified three complainants who the applicant was alleged to have indecently assaulted whilst in his bed. The Notice made it apparent that it extended to four of the complainants and five others (who were also tendency witnesses).

The evidence of each of the complainants was relied upon as tendency evidence concerning the other counts on the indictment in respect of each of the other complainants. The evidence of the seven other witnesses was relied upon to support the alleged tendency for all counts.

The Notice of Coincidence Evidence stipulated that the evidence related to the actions involved in Counts 3 and 4-5 which allegedly concerned three separate complainants. However, the body of the document clarified that one other complainant (Counts 1 and 4) of the tendency witnesses were also relevant and to be included. The Crown annexed to its submissions a coloured schedule identifying the complainants, the witnesses as to tendency only and the witnesses as to both tendency and coincidence.

The Crown case in relation to the above counts is that the applicant, at the relevant times, was a priest who held the position of chaplain at the College, a boarding school. The alleged victims were boarders who were under the age of 16 years. The offences charged allegedly occurred in the period 1984 to 1989. The applicant was arrested in May 2008. He made a number of appearances at Court during 2008.

There were reports in the media of the arrests of the applicant and others. Each complainant was aware, at least in a general way, of at least one or more of those media reports. Some also looked at the internet and saw the applicant's name. Some accessed a website entitled "Catholic Cover Up". The website had extensive material on it. The relevant facts as to these matters is discussed below.

The application under s.5F, Criminal Appeal Act 1912

The Crown acknowledged that this Court has jurisdiction to entertain the application under s.5F: Dao v R [2011] NSWCCA 63; Saunders v R (1994) 72 A Crim R 347. However, it submitted that, although jurisdiction lies, leave should not be granted: Crown's written submissions at [16].

The Crown observed that the substance of the application (as in Dao (supra)) concerns a ruling on the admissibility of evidence, noting that it was the admission of the evidence as tendency/coincidence evidence that formed the basis of the ruling that the counts not be severed. In this respect, the Crown relied upon the observations of Simpson J in Dao (supra) at [126] and [209] that leave ought not be readily granted where the appeal concerns an evidentiary ruling of a trial judge.

The issues before the trial judge

In general terms, the following matters were relied upon in support of the application made to the trial judge:-

(1) That the probative value of the evidence of the complainants and the proposed tendency/coincidence witnesses was significantly diminished as there was a real risk that their evidence had been affected by their knowledge of the nature and the multiplicity of similar allegations made against the applicant (the issue of publicity and commentary).

(2) That there was a risk of concoction sufficient to justify the exclusion of the evidence. That risk, it was submitted, went to the substance of the witnesses' testimony and not merely to incidental details of no materiality. Accordingly, the evidence lacked the significant probative value required by s.97 and s.98 of the Evidence Act and such value as it had did not substantially outweigh its prejudicial effect: s.101 of the Evidence Act.

(3) That there was insufficient similarities between the alleged conduct of the applicant on each occasion to render the evidence of each witness of sufficient probative value to meet the requirements of s.97, s.98 and s.101 of the Evidence Act.

The Crown submitted, inter alia, that:-

(1) None of the witnesses had had any prior contact with each other (hence there was no risk of contamination).

(2) The evidence did not demonstrate that any of the witnesses had been relevantly affected by the publicity referred to in the submissions for the applicant.

(3) The evidence of each witness demonstrated the tendencies contended for.

(4) In respect of witnesses said to constitute coincidence evidence, there was a reliable basis for coincidence reasoning.

(5) That the requirements of s.97, s.98 and s.101 of the Evidence Act were met.

Ruling on the issue of concoction or contamination of evidence

The trial judge, in his judgment delivered on 21 February 2011, determined:-

(1) With the exception of the brothers MB and CB, he was not satisfied that any of the other witnesses had spoken to one another about the crimes they allege the applicant had perpetrated on them.

(2) Each of the witnesses were, to some extent, aware of the publicity surrounding the arrest of the applicant. However, the trial judge was not convinced that any were affected by the publicity or media.

(3) The trial judge was of the opinion that there was no relevant evidence of contamination, concoction or fabrication in the case of any of the witnesses other than with the brothers MB and CB.

In his judgment delivered on 22 February 2011, his Honour concluded and found:-

(1) There was no evidence that any of the witnesses were affected by anything in the media.

(2) There was no evidence that any media coverage had any relevance to any memory any of them had about what happened.

Accordingly, the applicant's argument to the effect that there was a real chance of contamination as a result of the witnesses' exposure to the media was rejected.

Finnane DCJ concluded that the evidence claimed to constitute coincidence evidence had striking similarities justifying admission as coincidence evidence.

In accordance with his Honour's determination and rulings, orders were made removing MB as a complainant. CB evidence was ordered to be excluded.

The findings as to a risk of contamination

The trial judge referred in his judgment of 21 February 2011 to events that occurred after the applicant's arrest in 2008. His Honour noted the arrest was followed by considerable publicity in the print media, in television news programmes and on radio news programmes. He also noted that there were a number of web sites that contained material about the charges against the accused.

The submissions in support of the application by the accused for a series of separate trials, his Honour observed, emphasised that the Crown presented seven separate indictments so that the complainants would each give evidence at trial in relation to the relevant charge with the accused facing multiple counts only in trials concerning the complainants DS, AK and MB.

On the application, the Crown called each of the complainants and the tendency and coincidence witnesses, tendered their statements and each was examined and cross-examined.

His Honour noted in his judgment of 26 February 2011, that the argument advanced on behalf of the accused was that because the trial concerned sexual offences, where the Crown was relying on the evidence of more than one complainant (at [14]):-

"... consideration had to be given to the question whether there was a reasonable possibility of concoction/contamination between a complainant or other witnesses after he became aware of some like event or allegation by another complainant or witness. It was also contended that there might have been concoction or contamination because the complainant or the tendency/coincidence witness may have been affected by what he saw or heard in the media, including the Internet ..."

The trial judge noted that the accused, at relevant times, was a priest holding the position at the College as chaplain and that the witnesses the Crown intended to call as tendency or coincidence witnesses were, at the relevant times, boarders at the school. His Honour noted at [15]:-

"... Each of them knew [the accused], but with the exception of [CB] and [MB], they did not know each other complainant or tendency/coincidence witness [sic]."

Following a consideration of the evidence given on the voir dire by the complainants and each of the tendency/coincidence witnesses, his Honour stated at [16]:-

"... Each of them, including [the brothers, CB and MB], said they had not ever spoken to any other pupil about these assaults; nor had they sought to speak to anyone who had been a pupil at the school at any time after they left the school."

His Honour then observed:-

"17. Some had spoken to family members after there was widespread news of the arrest of the accused and the laying of charges against him and other men who had worked at the school in the 1980s.

18. ...

19. Each complainant was aware in at least a general way of some media reporting of the arrests of the accused and others. Some of them looked at the Internet and saw the name of '[the accused]'. Some got access to a website entitled 'Catholic Cover up'. This website was created by a former pupil called Nielson, whom none of the complainants knew. The witnesses called as tendency and coincidence witnesses did not know him.

20. The website has extensive material on it.

21. I set out in this judgment a table setting out the contact of the witnesses who gave evidence before me claimed to have had with media reports. It can be seen from looking at this material that each of these persons had very little contact with the media.

22. There is no evidence that any of the complainants or the tendency or coincidence witnesses in giving statements to the police and in giving evidence before me, were affected by anything in the media, nor that any media coverage had any relevance to any memory any of them had about what happened."

Finnane DCJ referred to the contention by Mr Boulten that there was "... a real chance that all of the witnesses were influenced by the publicity such that their evidence was contaminated or concocted": at [23]. His Honour further stated at [23]:-

"... I have carefully examined the evidence of each of the witnesses and, in my opinion, there was no real chance that the evidence of any of them, with the exception of the brothers [CB and MB], was contaminated or concocted. The evidence of [the brothers CB and MB] was not affected by any publicity in the media or on the Internet."

His Honour proceeded to state that the claim as to the "real chance" of contamination could not be accepted (at [24]):-

"... because there is no evidence that any of the witnesses to whom I have referred were affected in their evidence by reading anything or listening to anything. There must always be a bare possibility that one or other of these witnesses did have greater regard to media reports than he claimed to have, but that would not be sufficient to show a 'real chance' of contamination. There is no evidence at all from which any conclusion could be drawn that any of the witnesses concocted their statements to the police or that any of them were influenced in any way by any media or Internet material to give a false or exaggerated account to the police or to this Court."

The learned judge subsequently concluded at [26]:-

"With the exception of the two witnesses, [MB] and [CB] who are brothers, I am satisfied that none of the other witnesses spoke to one another about the crimes they alleged that the accused had perpetrated on them. I am satisfied that each of them, to some extent, was aware of the publicity surrounding the arrest of the accused but I am unconvinced that any of them was in any way affected in the making of a police statement or giving evidence before me by the publicity. In my opinion, there is no relevant evidence of contamination, concoction or fabrication in the case of any of the witnesses other than [MB] and [CB]."

His Honour then stated that he proposed to allow the evidence of each of the complainants to be given as tendency evidence in relation to each other count in the indictment, with the exception that he would not allow the evidence of MB or his brother, CB, to be given as evidence in the trial at [27]). His Honour stated that he was satisfied that the evidence had significant probative value that substantially outweighed any prejudicial effect it may have on the accused (at [28]).

The ruling as to similarities in the evidence

His Honour proceeded to deal with the proposal by the Crown to lead the evidence of AM, GS, DS and AK as coincidence evidence in the case of each other's complaints as well as the proposal to call the evidence of FD, LC, FVA and PW as coincidence witnesses in the case of those four complainants only.

The submission for the applicant was that those witnesses should not be called as coincidence witnesses because the similarities in their evidence may be explained by concoction/contamination arising from the excessive media coverage of the group prayer session and the alleged abuse that occurred therein. In any event, it was submitted to his Honour there was nothing remarkable or noteworthy in the complainant seeking the presence of boys in his room because he was the Chaplain: at [30].

It was further argued for the applicant that there was no underlying unity in the evidence that would warrant its admission as coincidence evidence. The submission to that effect was supported by reference to the analysis of the Victorian Court of Appeal in PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88.

His Honour rejected that submission, stating at [35]-[36]:-

"The complaint witnesses all speak of sexual assaults in the room of the accused, which served as his office and his bedroom. The assaults allegedly occurred during night prayers in his room. These sessions happened during weekdays after the night study period was over and after the conclusion of the normal night prayers in the Chapel. The room of the accused was away from that of other priests.

In my opinion, the circumstances could not be equated to that of children in a juvenile detention centre. The accused was a Chaplain, the children (allegedly) abused were not captive and there is something quite striking about the abuse occurring at a time of night when other boys were in bed and its being carried out the Chaplain's room under the guise of it being part of a prayer session."

His Honour subsequently stated at [37] that the similarities had to be considered carefully, and concluded :-

"... In my opinion, the evidence of the coincidence witnesses has a striking similarity and an underlying unity and it should be admitted as coincidence evidence at the trial."

His Honour also concluded that the similarities in the accounts of the witnesses in question made it improbable that the events spoken about by each of them happened coincidentally. He again expressed the opinion that there was significant probative value in the evidence which outweighed any prejudicial effect.

Accordingly, the trial judge rejected the application for separate trials.

The grounds of appeal

Before turning to the individual grounds of appeal, I will set out the general submissions made on behalf of the applicant.

Mr Boulten acknowledged that the House v King (1936) 55 CLR 499 principles are applicable in this appeal. He submitted that there were errors in the trial judge's reasons which fell within those principles. In particular, it was contended that his Honour had acted on wrong principle in determining the application.

In rejecting relevant material, namely, the Walsh affidavit (including the exhibited material), it was submitted that his Honour ignored relevant facts and thereby failed to take into account relevant considerations that were "enlivened by the evidence".

It was further contended that, in material respects, his Honour had failed to reveal his reasons as to how s.101 of the Evidence Act operated in the exercise of his discretion.

The "centre point" of the applicant's challenge, Mr Boulten emphasised, was the risk of contamination of evidence. That risk was a matter of central importance in determining "significant probative value" in terms of s.97, s.98 and, on the issue of "probative value", in the context of s.101 of the Evidence Act.

Mr Boulten contended that the nature of the publicity provided "the source of potential adverse motive, whether it be adverse motive deliberately hatched to maliciously giving false testimony or whether it was the sort of publicity which in its graphic detail and prejudicial flavour was likely to shape a person's attitude more subtly" (transcript, 19 April 2011 at p.4)

It was, however, accepted in argument that not all publicity of the fact that a person had been charged with an offence would give rise to "such passion and feeling as to change a person's attitude ..." (transcript, 19 April 2011 at p.5). However, it was submitted:-

"... but when one looks at what was actually published in this case, this shows that this was not an ordinary case and the publicity was not artificial publicity, which is why it is important to look at the evidence that was received by his Honour and the evidence that his Honour rejected as being irrelevant. We say that there was such prejudicial publicity that was designed almost certainly to inflame people's passions against the accused in a way which almost certainly was prejudicial in an unfair sense, in a way that would be likely to raise the sorts of problems that judges must guard against or jurors, if they were exposed to this sort of publicity. But in this instance it was the witnesses who were exposed to it in a period before they made their allegations to the police and, indeed, in some instances, it was demonstrated in the evidence, contrary to his Honour's broad findings, that the publicity itself changed the manner of the witness or witnesses concerned."

Ground 1: His Honour erred by rejecting relevant evidence on the application

Applicant's submissions

In support of the application, the applicant sought to rely upon the affidavit of his solicitor, Gregory Alexander Walsh, sworn 17 February 2010 ("the Walsh affidavit"). That affidavit exhibited copies of media reports and commentary including internet material concerning the applicant's alleged offending.

In his affidavit, Mr Walsh stated that the applicant had been arrested on 22 May 2008 and charged with 33 offences in respect of alleged (historical) sexual assaults involving five named complainants.

Mr Walsh, on information and belief, stated that in the period 22 May 2008 to 8 September 2008, there was extensive publicity concerning the arrest and charging of the applicant and other former members of the same order of priests who taught at the College. Mr Walsh exhibited to his affidavit extensive extracts from various sources. He identified, in particular, the internet site entitled "The Catholic Cover-Up" and a number of well-known newspapers and radio and television channels as having reported on the above events.

Mr Walsh stated, again on information and belief, that certain representations had continuously been made on the Catholic Cover-Up website since it was set up in August 2001. He stated that certain of the representations made by a Mr Tor Nielsen were directed against the applicant.

Mr Walsh referred in his affidavit to the fact that investigating police had caused a media release to be published in August 2008.

On 17 February 2011, Mr Boulten sought to read Mr Walsh's affidavit. The trial judge stated that he would admit it subject to relevance (transcript, 17 February 2011, p.311).

The affidavit was marked as Exhibit 4. On 21 February 2011, the trial judge ruled that the material in the affidavit was irrelevant and excluded it (transcript, 21 February 2011, p.2).

The Crown objected to the admission of the material exhibited to the Walsh affidavit on the basis that it was irrelevant. As noted above, the trial judge said that he would "admit it subject to relevance" (transcript, p.311). He stated "I can't judge anything until I see what it is exactly".

Accordingly, the affidavit of Mr Walsh and the exhibited material was received conditionally. The Crown's objection to the affidavit was ultimately upheld.

In the course of oral submissions to this Court, Mr Boulten stated that the exclusion of the Walsh affidavit was a "central feature of our argument about the judge's failure to have regard or sufficient regard to the evidence about publicity" (transcript, 4 May 2011, p.7). It was contended that at material times there was a "campaign" which in submissions he described as (transcript, 4 May 2011, p.9):-

"... a massive media campaign in graphic and highly prejudicial terms over a period of many months and a witness says, yeah I saw some of that but I can't remember which parts but I remember seeing things about the accused, about him sexually assaulting boys, about him being charged, about him conducting ritual religious practices that were opportunistic attempts to get access to victims, et cetera, then if there is evidence that there was such publicity then that's relevant especially if they say they saw such publicity."

It was contended that the widespread publicity at the relevant times resulted in the witnesses being exposed to "highly prejudicial media articles and internet sites which was a crucial factor to be considered in determining whether there was, in any case, a real risk that a witnesses' evidence was contaminated".

It was argued that, although a particular witness could not recall exactly what information he had seen, nonetheless the material in the Walsh affidavit established the detail as to the nature and type of publicity to which it was likely the witnesses had been exposed. This was significant given that it would be impossible now to ascertain precisely what particular articles or news bulletins they had seen.

The material exhibited to Mr Walsh's affidavit, it was submitted, was directly relevant to fact-finding by the trial judge. Exclusion of the material amounted to error insofar as:-

"... his Honour's fact finding occurred without reference to the nature of the evidence concerning the publicity that was seen or likely to have been seen by the witnesses. His Honour determined the application based on the assertions of the witnesses that they were not affected by the publicity. He did not adequately consider the potential risks of contamination of witnesses' testimony as a result of their exposure to the media because, in part, he rejected the tender of the relevant evidence." (Written submissions at [32])

It was argued for the applicant at [28] of the written submissions that:-

"Most of the witnesses had seen publicity about the applicant's alleged offending in the media and/or had accessed internet sites containing commentary about the applicant and his alleged offending ... In some circumstances witnesses were able to identify particular articles in newspapers that they had read or at least perused. In those cases, the relevant articles were admitted into evidence ..."

It was additionally submitted that, for reasons discussed, "the witnesses' exposure to highly prejudicial media articles and internet sites was a crucial factor to be considered in determining where there was, in any case, a real risk that a witness' evidence was contaminated" (at [29].

Through media reports, it was argued, some witnesses had become aware of invitations by investigating police to former students to come forward with further allegations. Media reports containing such invitations as well as press releases by police were therefore said to be relevant material.

The finding by the trial judge that his Honour was "... unconvinced that any of (the witnesses) was in any way affected by the publicity" (judgment, 22 February 2011 at [26]) and his Honours conclusion that there was no evidence that any of the complainants or tendency/coincidence witnesses were affected by anything in the media, it was submitted, were made without reference to the nature of the evidence concerning the publicity that was seen or "likely to have been seen by the witnesses" (at [32] of the applicant's written submissions). Accordingly, so the submission went, that findings of that nature were flawed as they failed to take into account relevant material.

The findings were further criticised on the basis:-

(1) That they were made without an adequate consideration of "the potential risks of contamination of witnesses testimony as a result of their exposure to the media because, in part, he (the trial judge) rejected the tender of the relevant material" (at [32] of the applicant's written submissions).

(2) They were founded on assertions by the witnesses that they had not been affected by publicity.

Crown submissions

The Crown observed that certain articles were identified by witnesses as having either been seen by them or they were similar to articles they had read. Articles of that kind were tendered and became Exhibits 1 to 3 on the voir dire.

The Crown also observed that many of the annexures to Mr Walsh's affidavit sworn 17 February 2011 (Exhibit 4 on the voir dire) constituting "media and internet publicity" had been identified as having been seen by some of the witnesses. Accordingly, the evidence concerning them went only so far as to prove that they were in circulation. Some of them, the Crown noted, were not generally available. These included media releases and statements made by police.

It was contended that the trial judge's determination that the evidence was not relevant was correct. His Honour had been assisted by witnesses identifying what they had been exposed to in various media forms. Where there was no evidence that any witnesses had had access to or seen such, the same such material could not possibly have been of assistance in determining the issues on the voir dire: Crown submissions at [27].

The Crown submitted that the trial judge had appropriate regard to the evidence that was admitted concerning media publicity and specifically referred to the same at [19] to [21] and the table annexed to the judgment.

Consideration

The trial judge was required to consider two matters. First, did some or all of the witnesses read material of the kind referred to and described in the applicant's submissions (by way of radio, television, print media and/or on the internet)?

Second, if some or all of the witnesses did read the material, was the content of it such as to give rise to a real risk that it would affect or influence the individual complainants and witnesses?

The evidence before the learned judge established that there was considerable public interest in and media exposure of the fact that the accused (and others) had been charged and that the charges related to allegations of sexual abuse of former school boys at the College.

Not surprisingly, it would have been difficult for many witnesses to identify the particular media reports and articles that they had actually read or heard. I consider, however, that the material exhibited to Mr Walsh's affidavit ought nonetheless have been admitted into evidence. It constituted material, some of which at least, is likely to have come to the attention of one or more of the Crown witnesses, having regard to the prominence that had been accorded by the print and electronic media to the matter. The judge was required to assess the risk of possible influence from widely publicised material. By reason of the widespread media coverage of the above matters and the fact that many of the witnesses agreed that they had read or heard media reports (and, in two instances, had read internet commentary), the risk had to be assessed against the nature and extent of the publicity.

Mr Walsh's affidavit evidence established that there had been significant publicity. It was relevant in that it was quite possible that the complainants and other witnesses had seen or heard much of it. However, given that the evidence as a whole could not establish exactly the full extent of what a particular complainant or tendency/coincidence witness had read or heard, that fact itself would clearly reduce the weight that could be accorded to it.

I have concluded that the copies of the media news reports or articles published at and after the laying of the charges in question against the accused were relevant under s.55 of the Evidence Act on the basis discussed above. In other words, it constituted evidence which, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a face in issue, namely, innocent contamination. (The issue of contamination is discussed below in relation to other grounds of appeal.) Accordingly, I consider that error, as asserted in Ground 1, has been made out.

It remains a matter for determination as to whether or not that error was one of any consequence to the ultimate decision and ruling made by the trial judge. That aspect is considered below.

Ground 2: His Honour erred by applying an inappropriate test concerning the risk of concoction

It was not contended in the present proceedings that there had existed either relationships or "circumstances of association" between the complainants and/or the tendency and coincidence witnesses which led to any of them getting together to discuss the charges. The risk of contamination was principally argued on the basis of a risk arising from of a prejudicial effect said to have arisen from media reporting of charges that had been brought against the applicant and from other publicity concerning events that allegedly took place in the relevant period at the College.

This ground raises the question as to whether the trial judge applied an "inappropriate test" or whether his Honour correctly determined the question of alleged "concoction" or "contamination" by inquiring whether there was a real chance or a real possibility of concoction or contamination. In paragraph [11] of the judgment of 22 February 2011, his Honour quoted at length from the judgment of Hodgson JA in BP v R; R v BP [2010] NSWCCA 303. In paragraph [110], Hodgson JA stated that tendency evidence will not be of sufficient probative value to be admitted where there is a "real" chance, as opposed to a "speculative chance" of concoction. At [111], his Honour noted that:-

"Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely, relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111]-[112]."

Before turning to how his Honour concluded that there was no evidence of contamination, I set out the submissions of the parties.

Applicant's submissions

On behalf of the applicant it was submitted:-

(1) The terms of the judgment of 22 February 2011 indicates that the trial judge approached the issue upon the basis that it was for the applicant to positively prove that the witnesses were affected by the publicity.

(2) That there was a need for the applicant to prove that there was actual evidence of contamination, concoction or fabrication.

It was further argued that his Honour "misguided himself because he required proof of actual contamination. This error was compounded when he rejected the tender of evidence of the media to which the witnesses were likely exposed (Ground 1) ..." (written submissions at [38]).

Accordingly, it was submitted that the trial judge's ruling was grounded in an approach which required the applicant to demonstrate or prove that the complainants and the other witnesses were confabulating their evidence rather than considering whether the prosecution had negatived a real chance that they were.

Finally, it was submitted that the trial judge seemed to consider that the witnesses' denials that they were influenced by the media was decisive but that he failed to consider the real potential of the media to influence a witnesses' approach.

Crown submissions

On behalf of the Crown, it was submitted that his Honour had determined that there was no evidence from which it could be concluded that there had been concoction. Accordingly, that there was no real chance of concoction or contamination as distinct from a bare possibility. It was contended that the evidence called on the voir dire supported a finding to that effect.

The Crown also observed that his Honour specifically cited (at [11]) the relevant passages from BP (supra) which included reference to the fact that the onus was on the Crown to negate a real chance of concoction.

Accordingly, the trial judge, it was submitted, had utilised the correct approach or test in determining the issue of contamination.

Consideration

The passages in the judgment referred to in the written submissions for the applicant must be read in the context of the judgment. There can be no doubt that the trial judge was conscious of the correct approach, having set out at length the relevant observations of the High Court in Hoch v The Queen (1988) 165 CLR 292 and of Hodgson JA in BP (supra). This is reflected in the trial judge's observations at [14] as follows:-

"... consideration had to be given to the question whether there was a reasonable possibility of concoction/contamination between the complainant or other witnesses after he became aware of some like event or allegation by another complainant or witness. It was also contended that there might have been concoction or contamination because the complainant or the tendency/ coincident witness may have been affected by what he saw or heard in the media, including the Internet." (emphasis added)

His Honour, firstly, proceeded to deal with the question of concoction by referring to the evidence which established that there was no "relationship" between the complainants or the tendency/coincidence witnesses. The evidence in that respect clearly established that each had not spoken to any other former pupils of the College on the subject of alleged sexual assaults: at [16].

His Honour also referred, at [21], to the table in his judgment which set out the extent to which the witnesses who gave evidence before him claimed to have seen media reports. His Honour concluded that it could be seen from looking at the material that each of the persons concerned had "... very little contact with the media". Having read the statements and evidence given by the witnesses, that finding was certainly open. I will deal with the evidence on that aspect below.

In my assessment, the detail and the nature of the accounts included in the statement of AK do not reflect the descriptive material exhibited to Mr Walsh's affidavit.

AK contacted police in February 2009. Approximately six months before he spoke to police he saw a newspaper article which spoke of allegations against the applicant abusing boys at the College.

(7) FD - non-complainant witness

FD commenced at the College in 1985 and remained there until the end of Year 9 in 1987.

He said he attended prayer meetings arranged by the applicant in his room. He referred to various details such as religious music, candles, a scent in the room as well as the applicant allegedly chanting and praying in Latin. He provided a detailed account of what he alleges were occasions involving physical contact. He described the nature of the contact allegedly made by the applicant with him (paragraph [28] and [29]) and the applicant's alleged manner of greeting him which allegedly involved a display of intimacy (paragraph [31]) (kissing on the mouth and "welcome kisses" on the cheek on entering the room).

FD also included in the statement references to the applicant's alleged conduct towards other students. He referred to a particular occasion during Year 7 in which he alleged that the applicant placed him in the applicant's bed. He stated he could not recall anything else happening on that occasion. The statement does not contain descriptions of graphic or overt sexual activity and does not reflect the intimate detail in material exhibited to Mr Walsh's affidavit or, in particular, that contained in the Daily Telegraph article.

FD was alerted to allegations against the applicant by Ms Withers. He subsequently heard a long radio broadcast and news bulletin regarding the applicant being charged with inappropriately dealing with students at the school.

FD stated that he had not visited or viewed any websites that mentioned or outlined allegations against former priests or teachers at the College.

His account in evidence was that, after having been contacted about the matter, he initially did not have a very good memory of the circumstances in which he dealt with the applicant at the College other than being in the choir with him. It was when he went to the police station and told the police that he did not recall too much that the year books were laid out in relation to the time he was in attendance at the College. He said it was from going through the year books that he actually started to get some memories back which he mentioned to the officer.

(8) LC - non-complainant witness

LC attended the College in Year 10 in 1988 and was aged 16 years. He started in the fourth term of 1988.

His statement to police dated 10 September 2008 contains an account of a specific occasion that occurred on a Saturday night in the second term in 1989. He said that, whilst in the dormitory, some boys had jumped on top of him. He flung the bedcovers off and took off to get away from them. He found his way to the applicant's room and knocked on this door.

LC then set out an account of particular activity by the applicant (paragraphs [13] to [15]).

He alleged that the applicant took hold of him and allegedly attempted to kiss him on more than one occasion. He also described the applicant allegedly pulling him down on top of him and kissing him passionately on the mouth. LC also alleged that under the bedcovers he was holding him down and could feel the applicant thrusting up and down against his body using the lower half of his body. At this time he alleged that the applicant was holding him firmly and kissing him. He said that he was unable to pull himself away from the applicant. He alleged that this continued for almost 30 minutes or so. In his statement, LC said that the applicant seemed to him to be disassociated with himself as he was doing the activities described. LC did not described any other sexual activity and recalled the applicant stopping his actions, letting go of him and getting out of the bed. He recalled him allegedly getting a mattress from out of his bed and placing it on the floor near the lounge and told him to sleep on that.

The account does not contain any other graphic or overt descriptions of sexual activity. LC statement to police does not, in my assessment, suggest an account affected by contamination from the exhibited material.

LC gave an account of having attended prayer sessions but stated that he did not recall anything out of place occurring.

LC contacted police after viewing extensive publicity. He saw television reports and his wife brought his attention to an article in the local paper which spoke of the allegations and included an image of the applicant. LC made numerous internet searches and read up on media about the sexual assault charges being brought against the applicant. He also located the accounts of the first person who made allegations. LC recalled reading articles which suggested that victims were herded into prayer rooms by the applicant chanting hypnotic spells in tongues and that boarders were forced to assault each other.

It is to be noted that LC was older than certain of the other witnesses (then 16 years). The description of the alleged activities of the applicant, whilst clearly being of a sexual nature, were not as specific or as grave as the account, for example, provided by GS.

(9) FVA - non-complainant witness

FVA commenced at the College in Year 8 in 1985 as a boarding student.

His statement refers to his attendance at prayer groups in the applicant's room. He described events at those meetings but stated that he did not see anything occur whilst he was in attendance.

His statement referred specifically to one occasion when he was in the applicant's room. He could not recall the year and could not recall why he was there, but that it was during the daytime. He alleged that the applicant hugged and kissed him. He also alleged that, on that occasion, the applicant led him to his bed and they lay down on the bed. The applicant allegedly made, what was described as, strange noises, like heavy breathing and that the applicant allegedly moved in a thrusting motion. He did not describe any other activity having occurred on that occasion.

The statement does not, in my assessment, suggest contamination arising from published material such as that exhibited to Mr Walsh's affidavit.

FVA had become aware that the applicant had been charged with sexually assaulting former students at the College before police approached him. Prior to making his statement to police, he conducted some internet searches in relation to the applicant. He recalled reading an article which talked about allegations of chanting, orgies in prayer sessions, speaking in tongues and laying of hands. He said that this article brought back memories of things he had never thought of since he was a school boy. He also saw the website entitled "Catholic Cover Up" and he saw articles about ex-students which contained allegations of abuse by the applicant during prayer groups where chanting was used to hypnotise students.

(10) PW - non-complainant witness

PW commenced at the College in Year 8 at the beginning of the school year in 1987. He was 13 years of age at that time.

He said that he attended on the applicant on a number of occasions. These attendances allegedly occurred in the applicant's bedroom. He stated that he also went to some prayer group meetings at night in the applicant's room.

He described a particular occasion when he attended on the applicant in the applicant's room (paragraph [18]). He alleged that the applicant kissed him. PW alleged that on this occasion, the applicant placed his hands on either side of his face and said "you know I love you, you can come to me any time". He then alleged that the applicant kissed him on the lips. He stated he did not know what to do and was in shock.

His next few visits to the applicant's room, he said, were normal and no adverse event occurred.

PW gave an account of a further incident when he said he attended upon the applicant in his room. PW alleged that, on this occasion, the applicant kissed him and told him to sit on the bed and then lay on the bed. He alleges that the applicant got onto the bed and lay behind him, curled up around his back. He said "I don't remember anything else happening". He said he fell asleep and when he woke up he left the room.

PW statement (paragraph [21]) alleges that the alleged kissing by the applicant became more frequent. He described the alleged sequence of events as the saying of a prayer and that the applicant would then allegedly place his hands on either side of his face and kiss him on the mouth and would make him sit with his legs either side of him so that he was facing him in a straddled position. He further alleged that the applicant pulled him closer to his body and he realised that the applicant had an erection when so sitting. There was no other description of any overt sexual act and PW stated that he could not particularise any incident "... as the same thing happened each time" (paragraph [21]).

The statement does not contain graphic references to matters referred to in the internet commentary exhibited to Mr Walsh's affidavit. In my assessment, the statements does not reflect contamination based upon the exhibited material.

PW saw publicity about the applicant being involved in a number of sexual allegations in the late 1980's at the College through national news reports before he made his statement.

(11) SP - non-complainant witness

SP attended the College as a full-time boarder from 1983 to 1988.

He referred to having attended prayer meetings at night and that the applicant ran the sessions.

SP referred to one particular occasion at such a group meeting allegedly sitting on the applicant's knee. Although he alleges that the applicant instigated physical contact with him using his left hand, he stated he did not touch his genitals. He said that he did not return to the applicant's room thereafter.

The statement does not, in my assessment, reflect or convey contamination from the exhibited material.

Six to nine months before making his initial statement to police, SP had seen a news story on the television which said that the applicant had been arrested and was charged with indecent assaults on former students at the College.

BJS v REGINA - 2009/192967

SCHEDULE 2 TO JUDGMENT

Evidence regarding access of witnesses to media reports and internet commentary

Publication

Reference

Synopsis

Media viewed re Statement

16.9.08: "Facing trial by the media", Western Advocate

Exhibit 1

Article stated that BJS is facing 93 charges. No further relevant detail provided (news paper story not complete).
Provides a contemporaneous picture of BJS.

AM - Agreed that he saw this article (t.202).
DS - Found this article online after being told about it by his mother, and prior to making a statement to police (t.100). Stated that the article only stated that the accused had been charged with sexual assault offences, but gave no particulars thereof (t.100-101).
LC - Stated that he saw media coverage in the local paper, but which paper it was was not identified in the transcript. He saw the paper a week prior to his statement (t.168). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179)

27.8.08: "Darkest Secrets: 40 victims of sex abuse ring", The Daily Telegraph

Exhibit 2

The article mentions that BJS has been charged with 33 counts of "sexual assault and gross acts of indecency". It alleges there was a paedophile ring made up of staff and teachers.
The article reports that two victims told the Telegraph that "they were headed into a prayer room by a priest chanting 'hypnotic' spells in tongues... [and] said they were subjected to horrendous sexual abuse or forced to assault each other".
One of the victims stated that he alleged the abuse began when a priest took him aside for private tutoring, and a group of 8 or 12 students was mentioned.
The victims are reported to have said "It was like an orgy" and a second victim stated "You'd pass out ... they spoke in tongues ... another element was called laying on hands, that was the basis on which he would engage in physical contact".
The article stated that it had confirmed with police that 13 victims had come forward.

AM - Shown the document, stated that he could not recall it specifically, but confirmed that he had seen similar references (t.203-204).
PK - Did not see any articles prior to Statement (t.18, 21).
GS - Recalls Telegraph article, but does not think that it was this one, but does state that he recalls it saying similar things (prayer room, speaking in tongues etc) (t.242-242).
DJS - No media exposure at any time (t.272).
DS - Denied reading this article (Western Advocate only) (t.104).
AK - Agreed that had seen a Telegraph article, which could have been this one. Some detail from the article remembered. Stated that he may have seen further articles, but cannot recall what they were (t.6-7).
FD - No television or print news exposure (only 2GB radio station) (t.131).
LC - Remembers viewing articles that contain similar content to the present, but cannot recall which ones (t.173).
FVA - Agreed that he read this article (t.149).
PW - Only saw TV coverage (t.118-120)
SP - Only saw TV coverage prior to making statement (t.227).

6-7.9.08: "Old boy calls school a pedophile [sic] paradise", Sydney Morning Herald

Exhibit 3

Recites the views of a student called "John", whom "recalled priests 'grooming' pupils with pornographic magazines, students hiding from staff members when they came 'hunting' for first and second formers, and a teacher he knew by the nickname of 'Toad' who was notorious for grabbing pupils by their privates if they answered questions incorrectly in class".
The article mentions that BJS was charged with 93 offences whist at the school.
Provides a periodical picture of BJS.

AM - Stated that he saw and read this article in the SMH (t.202)

Annexures to the Affidavit of Gregory Walsh dated 17.2.11

Exhibit 4

Media Advisory's from NSW Police regarding sexual assault claims at "Bathurst Schools"

Tab 1

Noted that "We are continuing to follow up and thoroughly investigate information surrounding sexual assault allegations at the college around this period": 27 August 2008
Reports that priests and/or teachers were arrested and charged with the sexual assault of a number of boys at two Bathurst Schools: 3 September 2008 (x 3).
Noted that one of the men arrested was an assistant dorm master: 15 December 2008.
On 4 May 2009, a man was arrested and charged with "attempt homosexual intercourse of a student by a teacher, gross act of indecency and supply a prohibited drug": 5 May 2009

No suggestion that any of the complainants or tendency witnesses saw or read these releases.

Extract from the Catholic Cover-up

Tab 2

States that ex-priest BJS was arrested on 33 charges "relating to allegations made on this website": 22 May 2008

AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202).
GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250).
LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179).
FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151).

Extract from Catholic Cover-up

Tab 3

Not pressed at hearing.

Extract from the Catholic Cover-up

Tab 4

This extract purports to recount in part the proceedings before Magistrate Thomas Hodgson at Bathurst Local Court. The following comments were made:-
"The charges against [BJS] include six allegations of homosexual sexual intercourse as a teacher at the college with pupils aged 11, 12 and 13.
The former priest is facing 18 counts alleging he engaged in acts of gross indecency with the pupils he allegedly solicited and incited to commit gross act [sic] indecency.
Other allegations against [BJS] relate to male to male sexual intercourse with person from 10 years to 16 years-of-age under authority": 22 July 2008.

Extract from the Catholic Cover-up (by Gemma Jones)

Tab 5

Reproduces Exhibit 2: 26 August 2008.

Extract from the Catholic Cover-up (by Gemma Jones)

Tabs 6, 7

Tab 6 reproduces another article contained in Exhibit 2 that contains no detail of the offending: 26 August 2008.
Tab 7 contains the same information, printed from the Daily Telegraph website: 26 August 2008.

Extract from the Catholic Cover-up

Tab 8

Entitled "widespread sex abuse alleged at school", this extract notes that the Seven Network reported on the relevant allegations at the school and that around 40 children have made complaints that they were victims of sexual assault. It was also stated that Macquarie Radio reported some of the abuse dated back some two decades.

28.8.08:
"Catholic community in shock", Central Western Daily

Tab 9

The article makes mention of a paedophile ring and that a police probe currently in operation concerns three former staff members. It also named the applicant, and stated that 13 former students had come forth regarding abuse in the 1970's and 1980's.

None of the witnesses specifically recognised this article.

28.8.08:
"33 charges for ex-Stan's priest", CathNews

Tab 10

This internet publication cites an article from the Australia to the effect of "The NSW police sex crimes squad has been called in to investigate a flood of new abuse claims involving St Stanislaus College as a former college boarder subjected to horrific late night prayer sessions told his story yesterday".
Further, "Mr McInerney yesterday described the 'unorthodox' prayer sessions as filled with 'chanting, music, no electric lighting, the whole atmosphere was one of sedation".
It also reports that children were given a recommended reading list including the publication "Penthouse", a pornographic magazine.
The article mentions BJS by name.

None of the witnesses specifically recognised this article.

28.8.08:
"Sex crimes squad sent to Bathurst", ABC News (post)

Tab 11

States that police are investigating and have charged BJS with sexual assault and gross acts of indecency. No further detail given.

GS - Although the witnesses does not make mention of this release specifically, he does note that he saw an ABC News story on the issue.

28.8.08:
"Priest faces 33 college sex charges", ABC News (post)

Tab 12

The article states that BJS is accused of repeatedly raping the students under his charge. It notes that a former pupil blew the whistle on BJS.

None of the witnesses specifically recognised this article.

29.8.08:
"Bathurst sex abuser now helping police", The Daily Telegraph

Tab 13

This article makes mention of a man, Mr Stephen Wade, who was previously convicted of offending of a similar nature, but was released. It is asserted that he is assisting police.
The article also states "Alleged victims have made claims of horrific sexual abuse in late night chanting sessions in the school's prayer room in the mid 1980's".
The article mentions BJS by name.

AM - Stated that he had seen articles from the Daily Telegraph (t.202).
GS - Stated that he had seen articles from the Daily Telegraph (t.241-242).
AK - Stated that he had seen articles from the Daily Telegraph (t.4).
LC - Said he saw numerous articles, but did not identify which publication (t.173).
FVA - Said that he saw articles in the Daily Telegraph and identified a specific article, but not this one (t.144, 147).

3.9.08:
Extract from the Catholic Cover-up (by Katelyn John and Eoin Blackwell), entitled "Welcome to the Catholic cover up"

Tab 14

This publication names BJS.
The article notes "Former students of St Stanislaus' College at Bathurst in central west New South Wales have alleged that boys were sexually abused during hypnotic late-night prayer and chanting sessions".
It also quotes Detective Superintendent Michael Goodwin to say "I encourage anyone that may consider themselves a victim of sexual abuse at a school in Bathurst to make contact with the police".

5.9.08:
"Strike force Belle's investigation widens", Western Advocate
Also reproduced on the Catholic Cover-up website

Tab 15

This article mentions that police are investigating a "Paedophile ring at St Stanislaus' College". It also calls for people to come forward if they have further information.

AM - Stated that he had seen articles from the Western Advocate (t.202).
DS - Viewed an article by the Western Advocate, having been referred to it by his mother (t.100).
LC - Viewed a "local paper", unnamed (t.168). He did, however, view a number of publications (t.173).

Collection of various transcripts of television news broadcasts

Tabs 16, 17

The transcripts purport to cover news from Channel 7, Channel 9, Channel 10, SKY News Australia, Prime Organ, WIN Orange, NBN Coffs Harbour and ABC1 from 22 May 2008 to 27 August 2008.
The news coverage variously mentions the following:-
● The name of the applicant.
● The name of the school and that a paedophile ring there was being investigated.
● That the abuse was of a sexual nature, or gross indecent assault.
● That the abuse occurred in or around 1980's.
● That nearly 100 charges have been brought, with over 40 alleged victims.
● "It is claimed staff chanted hypnotic spells while raping students".
● "Former students say they were raped by former staff and were forced to abuse each other".

Extract from the Catholic Cover-up
Statement of Tor Steven Nielsen given to police, dated 6.9.07

Tab 18
Tab 19

The Catholic Cover-Up
This extract is a personal recount of the creator of website the Catholic Cover-up, although the story itself is unsigned. The following are relevant extracts:-
"The story outlines the constant 20 year battle between the power and influence of a corrupted Catholic Church and an innocent Victim of circumstances who's only crime was to wake up from hypnoses during a rape at boarding school at the age of 13 in 1986.
Because the Vincentian Fathers (who are still at large) are masters of hypnosis, my memory at different stages of my life became distorted".
He goes on to describe one method of hypnosis:-
"Mr Haynes told me to forget staring at the light and to never stare at it again.
I don't know what happened that day but I have since learnt that is one technique that is used for mind control".
...
"[BJS] put his hands on either sides of my body and started to press his fingers into my ribs.
Then [BJS] started to chant. He was chanting the words "char char char" over and over again.
[BJS] asked me to chant with him. After a while he started chanting softer and slower until he finally stopped.
When he finished he put my hand on his penis and used my hand to masturbate himself. I did not know what was happening when he started moving faster I let go.
[BJS] looked at me and started chanting again and I drifted off to sleep".
The applicant described a number of scenes similar to this one.
He also recounted an encounter with a de-identified science teacher in which he went to his house and played "strip poker". He went on to state:-
"... [the teacher] said that if I lost the next hand he would give me a headjob. At the time I did not know what a headjob was.
I lost the next hand and [the teacher] started sucking my penis. Then he sat back on his bed and masturbated himself until he came".
He also stated that similar acts were committed in the teacher's office at school.
The author described the night prayer sessions as follows:-
"When we got to [BJS] room we all sat on the floor and waited for [BJS] to start prayers.
[BJS] stood up in front of all of us and started to chant the words 'cha cha cha'.
We all drifted off to sleep when we woke up we were lying on the floor. After that we left [BJS] room and went back to the dormitory".
On another occasion, the author asserts the following occurrence:-
"I remember another occasion in [BJS] room when I woke up on my knees and I was crying.
I heard [BJS] saying something like 'so your going to cry are you' it wasn't until he said that I realized that he was inside me physically raping me.
All of the other boys in the room started crying as well".
The author also describes a situation where between 50 and 100 students attended a large gathering in a hall and were asked to chant in unison. He states that he refused to chant, but was eventually told to and did after some coercion by BJS. He states that he remembers nothing thereafter, but the following day, he thought that the gathering in the hall had been some time ago (the inference being that he had been hypnotised).
Despite a large volume of other material, the above is the relevant portion regarding what could be considered evidence that could contaminate other witnesses.
In respect of the Police Statement, the detail provided therein is substantively similar to that recounted in the Extract from the Catholic Cover-up.

AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202).
GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250).
LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179).
FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151).

Further statement of Tor Nielsen

Tab 20

Not pressed

Extract from the Website (or a link thereof) entitled "The Cover up"

Tab 21

This appears to be a document of the Catholic Cover-up website. It contains the insignia of the NSW Police and the Commonwealth DPP.
The document suggests that the author had referred a teacher, Mr Steven Wade (a science teacher) to the police regarding a number of sexual assaults. It suggested that nothing had been done in that respect.
It alleged at one point that the teacher sat on the penis of the author, causing him some damage.
The author states that the school, in assessing "[his] claim" instructed a psychologist, Dr Wendy Roberts, who wrote a report. He states that upon reading that report, he "had a breakdown and got flashbacks about [BJS] is [sic] it not been for the report I would not have remembered about [BJS] at all ...".

Decision last updated: 11 June 2014

Medium Neutral Citation:	BJS v Regina [2011] NSWCCA 239
Hearing dates:	19 April 2011, 4 May 2011
Decision date:	03 November 2011
Before:	Basten JA at [1]; R S Hulme J at [39]; Hall J at [50]
Decision:	1. Leave to appeal granted 2. Appeal dismissed
Catchwords:	APPEAL - criminal - interlocutory - refusal to grant separate trials in respect of separate complainants - whether evidence in respect of one charge admissible in respect of others - Criminal Appeal Act 1912 (NSW), s 5F(3) EVIDENCE - criminal proceedings - admissibility of tendency evidence - admissibility of co-incidence evidence - risk of concoction or contamination - evidence of sexual activities by teacher and priest at boarding school involving young boys under his authority - Evidence Act 1995 (NSW), ss 97 and 98 PROCEDURE - criminal proceedings - joinder of offences which are part of a series of offences of a similar character - application for separate trials in respect of separate complainants - whether evidence on one charge admissible on other charges - whether prosecution had negated risk of concoction or contamination - Criminal Procedure Act 1986 (NSW), ss 21 and 29
Legislation Cited:	Crimes Act 1900 Crimes (Amendment) Act 1989 Crimes (Child Assault) Amendment Act 1985 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Adam v R (2001) 207 CLR 96 BP v R; R v BP [2010] NSWCCA 303 BRS v The Queen (1997) 191 CLR 275 CGL v DPP (2010) 24 VR 486 Dao v R [2011] NSWCCA 63 De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 FB v Regina [2011] NSWCCA 217 HML v The Queen (2008) 235 CLR 334 Hoch v The Queen (1988) 165 CLR 292 House v The King (1936) 55 CLR 499 Kilbourne v R [1973] AC 729 KRM v The Queen (2001) 206 CLR 221 Ludlow v Metropolitan Police Commissioner [1971] AC 29 Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 Papakosmas v The Queen (1999) 196 CLR 297 Perry v The Queen (1982) 150 CLR 580 Pfennig v The Queen [1995] HCA 7; 182 CLR 461 Phillips v R (2006) 225 CLR 303 PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88 R v Ananthanarayanan (1994) 98 Cr App R 1 R v Andrews [2003] NSWCCA 7 R v Boardman [1975] AC 421 R v Colby [1999] NSWCCA 261 R v Dawson-Ryan (2009) 104 SASR 571 R v Ellis (2003) 58 NSWLR 700 R v F [2002] NSWCCA 125; 129 A Crim R 126 R v Folbigg (2005) 152 A Crim R 35 R v Ford (2009) 201 A Crim R 451 R v Glennon (No 2) (2001) 7 VR 631 R v Kray [1970] 1 QB 125 R v Le [2000] NSWCCA 49 R v Lockyer (1996) 89 A Crim R 457 R v OGD (No 2) (2000) 50 NSWLR 433 R v Powch (1988) 14 NSWLR 136; 34 A Crim R 360 R v PWD (2010) 205 A Crim R 75 R v Zhang (2005) 158 A Crim R 504 Saunders v R (1994) 72 A Crim R 347 Sutton v R (1984) 152 CLR 528
Texts Cited:	Cross on Evidence (3rd Aust ed, 1986) J Anderson, N Williams SC and L Clegg, The New Law of Evidence (2nd ed, 2009)
Category:	Principal judgment
Parties:	BJS REGINA
Representation:	C: C Maxwell QC/N Noman A: P Boulten SC C: S Kavanagh A: Greg Walsh & Co
File Number(s):	2009/192967
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-02-21 00:00:00 Before: Finnane DCJ File Number(s): 2009/192967

Publication	Reference	Synopsis	Media viewed re Statement
16.9.08: "Facing trial by the media", Western Advocate	Exhibit 1	Article stated that BJS is facing 93 charges. No further relevant detail provided (news paper story not complete). Provides a contemporaneous picture of BJS.	AM - Agreed that he saw this article (t.202). DS - Found this article online after being told about it by his mother, and prior to making a statement to police (t.100). Stated that the article only stated that the accused had been charged with sexual assault offences, but gave no particulars thereof (t.100-101). LC - Stated that he saw media coverage in the local paper, but which paper it was was not identified in the transcript. He saw the paper a week prior to his statement (t.168). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179)
27.8.08: "Darkest Secrets: 40 victims of sex abuse ring", The Daily Telegraph	Exhibit 2	The article mentions that BJS has been charged with 33 counts of "sexual assault and gross acts of indecency". It alleges there was a paedophile ring made up of staff and teachers. The article reports that two victims told the Telegraph that "they were headed into a prayer room by a priest chanting 'hypnotic' spells in tongues... [and] said they were subjected to horrendous sexual abuse or forced to assault each other". One of the victims stated that he alleged the abuse began when a priest took him aside for private tutoring, and a group of 8 or 12 students was mentioned. The victims are reported to have said "It was like an orgy" and a second victim stated "You'd pass out ... they spoke in tongues ... another element was called laying on hands, that was the basis on which he would engage in physical contact". The article stated that it had confirmed with police that 13 victims had come forward.	AM - Shown the document, stated that he could not recall it specifically, but confirmed that he had seen similar references (t.203-204). PK - Did not see any articles prior to Statement (t.18, 21). GS - Recalls Telegraph article, but does not think that it was this one, but does state that he recalls it saying similar things (prayer room, speaking in tongues etc) (t.242-242). DJS - No media exposure at any time (t.272). DS - Denied reading this article (Western Advocate only) (t.104). AK - Agreed that had seen a Telegraph article, which could have been this one. Some detail from the article remembered. Stated that he may have seen further articles, but cannot recall what they were (t.6-7). FD - No television or print news exposure (only 2GB radio station) (t.131). LC - Remembers viewing articles that contain similar content to the present, but cannot recall which ones (t.173). FVA - Agreed that he read this article (t.149). PW - Only saw TV coverage (t.118-120) SP - Only saw TV coverage prior to making statement (t.227).
6-7.9.08: "Old boy calls school a pedophile [sic] paradise", Sydney Morning Herald	Exhibit 3	Recites the views of a student called "John", whom "recalled priests 'grooming' pupils with pornographic magazines, students hiding from staff members when they came 'hunting' for first and second formers, and a teacher he knew by the nickname of 'Toad' who was notorious for grabbing pupils by their privates if they answered questions incorrectly in class". The article mentions that BJS was charged with 93 offences whist at the school. Provides a periodical picture of BJS.	AM - Stated that he saw and read this article in the SMH (t.202)

Annexures to the Affidavit of Gregory Walsh dated 17.2.11	Exhibit 4
Media Advisory's from NSW Police regarding sexual assault claims at "Bathurst Schools"	Tab 1	Noted that "We are continuing to follow up and thoroughly investigate information surrounding sexual assault allegations at the college around this period": 27 August 2008 Reports that priests and/or teachers were arrested and charged with the sexual assault of a number of boys at two Bathurst Schools: 3 September 2008 (x 3). Noted that one of the men arrested was an assistant dorm master: 15 December 2008. On 4 May 2009, a man was arrested and charged with "attempt homosexual intercourse of a student by a teacher, gross act of indecency and supply a prohibited drug": 5 May 2009	No suggestion that any of the complainants or tendency witnesses saw or read these releases.
Extract from the Catholic Cover-up	Tab 2	States that ex-priest BJS was arrested on 33 charges "relating to allegations made on this website": 22 May 2008	AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202). GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250). LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179). FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151).
Extract from Catholic Cover-up	Tab 3	Not pressed at hearing.
Extract from the Catholic Cover-up	Tab 4	This extract purports to recount in part the proceedings before Magistrate Thomas Hodgson at Bathurst Local Court. The following comments were made:- "The charges against [BJS] include six allegations of homosexual sexual intercourse as a teacher at the college with pupils aged 11, 12 and 13. The former priest is facing 18 counts alleging he engaged in acts of gross indecency with the pupils he allegedly solicited and incited to commit gross act [sic] indecency. Other allegations against [BJS] relate to male to male sexual intercourse with person from 10 years to 16 years-of-age under authority": 22 July 2008.
Extract from the Catholic Cover-up (by Gemma Jones)	Tab 5	Reproduces Exhibit 2: 26 August 2008.
Extract from the Catholic Cover-up (by Gemma Jones)	Tabs 6, 7	Tab 6 reproduces another article contained in Exhibit 2 that contains no detail of the offending: 26 August 2008. Tab 7 contains the same information, printed from the Daily Telegraph website: 26 August 2008.
Extract from the Catholic Cover-up	Tab 8	Entitled "widespread sex abuse alleged at school", this extract notes that the Seven Network reported on the relevant allegations at the school and that around 40 children have made complaints that they were victims of sexual assault. It was also stated that Macquarie Radio reported some of the abuse dated back some two decades.
28.8.08: "Catholic community in shock", Central Western Daily	Tab 9	The article makes mention of a paedophile ring and that a police probe currently in operation concerns three former staff members. It also named the applicant, and stated that 13 former students had come forth regarding abuse in the 1970's and 1980's.	None of the witnesses specifically recognised this article.

28.8.08: "33 charges for ex-Stan's priest", CathNews	Tab 10	This internet publication cites an article from the Australia to the effect of "The NSW police sex crimes squad has been called in to investigate a flood of new abuse claims involving St Stanislaus College as a former college boarder subjected to horrific late night prayer sessions told his story yesterday". Further, "Mr McInerney yesterday described the 'unorthodox' prayer sessions as filled with 'chanting, music, no electric lighting, the whole atmosphere was one of sedation". It also reports that children were given a recommended reading list including the publication "Penthouse", a pornographic magazine. The article mentions BJS by name.	None of the witnesses specifically recognised this article.
28.8.08: "Sex crimes squad sent to Bathurst", ABC News (post)	Tab 11	States that police are investigating and have charged BJS with sexual assault and gross acts of indecency. No further detail given.	GS - Although the witnesses does not make mention of this release specifically, he does note that he saw an ABC News story on the issue.
28.8.08: "Priest faces 33 college sex charges", ABC News (post)	Tab 12	The article states that BJS is accused of repeatedly raping the students under his charge. It notes that a former pupil blew the whistle on BJS.	None of the witnesses specifically recognised this article.
29.8.08: "Bathurst sex abuser now helping police", The Daily Telegraph	Tab 13	This article makes mention of a man, Mr Stephen Wade, who was previously convicted of offending of a similar nature, but was released. It is asserted that he is assisting police. The article also states "Alleged victims have made claims of horrific sexual abuse in late night chanting sessions in the school's prayer room in the mid 1980's". The article mentions BJS by name.	AM - Stated that he had seen articles from the Daily Telegraph (t.202). GS - Stated that he had seen articles from the Daily Telegraph (t.241-242). AK - Stated that he had seen articles from the Daily Telegraph (t.4). LC - Said he saw numerous articles, but did not identify which publication (t.173). FVA - Said that he saw articles in the Daily Telegraph and identified a specific article, but not this one (t.144, 147).
3.9.08: Extract from the Catholic Cover-up (by Katelyn John and Eoin Blackwell), entitled "Welcome to the Catholic cover up"	Tab 14	This publication names BJS. The article notes "Former students of St Stanislaus' College at Bathurst in central west New South Wales have alleged that boys were sexually abused during hypnotic late-night prayer and chanting sessions". It also quotes Detective Superintendent Michael Goodwin to say "I encourage anyone that may consider themselves a victim of sexual abuse at a school in Bathurst to make contact with the police".
5.9.08: "Strike force Belle's investigation widens", Western Advocate Also reproduced on the Catholic Cover-up website	Tab 15	This article mentions that police are investigating a "Paedophile ring at St Stanislaus' College". It also calls for people to come forward if they have further information.	AM - Stated that he had seen articles from the Western Advocate (t.202). DS - Viewed an article by the Western Advocate, having been referred to it by his mother (t.100). LC - Viewed a "local paper", unnamed (t.168). He did, however, view a number of publications (t.173).
Collection of various transcripts of television news broadcasts	Tabs 16, 17	The transcripts purport to cover news from Channel 7, Channel 9, Channel 10, SKY News Australia, Prime Organ, WIN Orange, NBN Coffs Harbour and ABC1 from 22 May 2008 to 27 August 2008. The news coverage variously mentions the following:- ● The name of the applicant. ● The name of the school and that a paedophile ring there was being investigated. ● That the abuse was of a sexual nature, or gross indecent assault. ● That the abuse occurred in or around 1980's. ● That nearly 100 charges have been brought, with over 40 alleged victims. ● "It is claimed staff chanted hypnotic spells while raping students". ● "Former students say they were raped by former staff and were forced to abuse each other".
Extract from the Catholic Cover-up Statement of Tor Steven Nielsen given to police, dated 6.9.07	Tab 18 Tab 19	The Catholic Cover-Up This extract is a personal recount of the creator of website the Catholic Cover-up, although the story itself is unsigned. The following are relevant extracts:- "The story outlines the constant 20 year battle between the power and influence of a corrupted Catholic Church and an innocent Victim of circumstances who's only crime was to wake up from hypnoses during a rape at boarding school at the age of 13 in 1986. Because the Vincentian Fathers (who are still at large) are masters of hypnosis, my memory at different stages of my life became distorted". He goes on to describe one method of hypnosis:- "Mr Haynes told me to forget staring at the light and to never stare at it again. I don't know what happened that day but I have since learnt that is one technique that is used for mind control". ... "[BJS] put his hands on either sides of my body and started to press his fingers into my ribs. Then [BJS] started to chant. He was chanting the words "char char char" over and over again. [BJS] asked me to chant with him. After a while he started chanting softer and slower until he finally stopped. When he finished he put my hand on his penis and used my hand to masturbate himself. I did not know what was happening when he started moving faster I let go. [BJS] looked at me and started chanting again and I drifted off to sleep". The applicant described a number of scenes similar to this one. He also recounted an encounter with a de-identified science teacher in which he went to his house and played "strip poker". He went on to state:- "... [the teacher] said that if I lost the next hand he would give me a headjob. At the time I did not know what a headjob was. I lost the next hand and [the teacher] started sucking my penis. Then he sat back on his bed and masturbated himself until he came". He also stated that similar acts were committed in the teacher's office at school. The author described the night prayer sessions as follows:- "When we got to [BJS] room we all sat on the floor and waited for [BJS] to start prayers. [BJS] stood up in front of all of us and started to chant the words 'cha cha cha'. We all drifted off to sleep when we woke up we were lying on the floor. After that we left [BJS] room and went back to the dormitory". On another occasion, the author asserts the following occurrence:- "I remember another occasion in [BJS] room when I woke up on my knees and I was crying. I heard [BJS] saying something like 'so your going to cry are you' it wasn't until he said that I realized that he was inside me physically raping me. All of the other boys in the room started crying as well". The author also describes a situation where between 50 and 100 students attended a large gathering in a hall and were asked to chant in unison. He states that he refused to chant, but was eventually told to and did after some coercion by BJS. He states that he remembers nothing thereafter, but the following day, he thought that the gathering in the hall had been some time ago (the inference being that he had been hypnotised). Despite a large volume of other material, the above is the relevant portion regarding what could be considered evidence that could contaminate other witnesses. In respect of the Police Statement, the detail provided therein is substantively similar to that recounted in the Extract from the Catholic Cover-up.	AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202). GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250). LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179). FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151).
Further statement of Tor Nielsen	Tab 20	Not pressed
Extract from the Website (or a link thereof) entitled "The Cover up"	Tab 21	This appears to be a document of the Catholic Cover-up website. It contains the insignia of the NSW Police and the Commonwealth DPP. The document suggests that the author had referred a teacher, Mr Steven Wade (a science teacher) to the police regarding a number of sexual assaults. It suggested that nothing had been done in that respect. It alleged at one point that the teacher sat on the penis of the author, causing him some damage. The author states that the school, in assessing "[his] claim" instructed a psychologist, Dr Wendy Roberts, who wrote a report. He states that upon reading that report, he "had a breakdown and got flashbacks about [BJS] is [sic] it not been for the report I would not have remembered about [BJS] at all ...".