Casey v The Queen

[2020] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Casey v R [2020] NSWCCA 177

Hearing dates:

10 July 2020

Decision date:

29 July 2020

Before:

Hoeben CJ at CL at [1];
Adamson J at [2];
Bellew J at [177]

Decision:

(1) If leave be required to rely on ground 1, grant leave under rule 4 of the Criminal Appeal Rules in respect of that ground.

(2)   Grant leave to appeal on grounds 1, 2, 3 and 4.

(3)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against conviction —miscarriage of justice — directions to jury — failure to give full Markuleski direction

CRIME — appeals — appeal against conviction — miscarriage of justice — where jury hung on several counts at initial trial — where applicant sought stay of all hung counts — where retrial on certain counts occurred — where evidence of complainants in second trial was edited to remove evidence relating to stayed counts and counts in respect of which accused was acquitted at first trial — whether continued prosecution constituted abuse of process occasioning miscarriage of justice

EVIDENCE — tendency evidence — criminal proceedings — evidence of tendency witness relating to uncharged acts — whether evidence has substantial probative value

CRIME — appeals — appeal against conviction — unreasonable verdict

Legislation Cited:

Crimes Act 1900 (NSW), ss 61D, 61E, 78K

Criminal Appeal Act 1912 (NSW), ss 5, 5F

Criminal Appeal Rules, r 4

Criminal Procedure Act1986 (NSW), ss 130A, 293, 306I, 306J

Evidence Act 1995 (NSW), ss 97, 98, 101

Cases Cited:

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

DF v R [2012] NSWCCA 171; (2012) A Crim R 178

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63

McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Onassis v Vergottis [1968] 2 Lloyd’s Rep 403

Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394

R v Ford [2006] QCA 142

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Strickland (a pseudonym) v Director of Public Prosecutions(Cth) [2018] HCA 53; (2018) 272 A Crim R 69

The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846

Category:

Principal judgment

Parties:

John Patrick Casey (Applicant)
Regina

Representation:

Counsel:
P Boulten SC / P Lange / C Parkin (Applicant)
G Newton (Crown)

Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2015/201591

Publication restriction:

Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

30 August 2018

Before:

Huggett DCJ

File Number(s):

2015/201591

Judgment

1. HOEBEN CJ at CL: I agree with Adamson J and the orders she proposes. In particular I have read the evidence and made my own assessment of it.

2. ADAMSON J: John Casey (the applicant) seeks leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against two convictions, after trial by jury, for sexual offences committed in the late 1980’s against two brothers, AB and JB.

The grounds of appeal

3. If leave is granted, the applicant relies on the following grounds:

1.    A miscarriage of justice was occasioned by reason of the trial judge’s failure to direct the jury that they could take into account any reasonable doubt they may have on one count in their assessment of the evidence on the other counts.

2.    The continued prosecution of the Applicant constituted an abuse of process giving rise to a miscarriage of justice.

3.    The admission of the evidence of AL as tendency evidence was wrong in law and/or gave rise to a miscarriage of justice.

4.    The jury’s verdicts were unreasonable.

The procedural background

4. Because of the matters raised by grounds 2 and 3, it is necessary to set out in summary form what occurred in a previous trial of the applicant.

The 2016 trial

5. On 27 June 2016, the applicant was arraigned before English DCJ at Lismore on an indictment that charged 27 counts, 9 of which were in the alternative. The complainant for count 1 was DB. The complainants for all remaining counts were either AB (counts 2-8) or JB (counts 9-27). Each of the counts under s 61E(1) of the Crimes Act 1900 (NSW) was followed by an alternative count alleging an alternative offence under s 61E(1A). These counts were: 2 and 3; 4 and 5; 7 and 8; 9 and 10; 11 and 12; 13 and 14; 16 and 17; 19 and 20; 22 and 23; and 26 and 27. The reason for the alternative counts was that s 61E of the Crimes Act was amended with effect from 23 March 1986 and the evidence of the complainants was not sufficient to establish whether the offences occurred before or after that date. Thus, there were, in effect, only 22 substantive counts, since 10 of the counts were paired with alternative counts for this reason.

6. On 4 July 2016, English DCJ purported to rule on the evidence of AL, which was to the effect that in 1978 or 1979 (seven or eight years prior to the charges concerning JB and AB) the applicant had massaged AL (who was then 12) and in the course of that massage, masturbated him to ejaculation. The first issue that arose was whether the Crown was entitled to rely on AL’s evidence in circumstances where his evidence had not been disclosed in accordance with the requirements for pre-trial disclosure in the Criminal Procedure Act 1986 (NSW). In her Honour’s reasons she set out the evidence which explained why AL’s statement had not been provided earlier. In about 2014 AL had contacted the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) and had also, in August 2015, contacted NSW Police. However, he had not been prepared to make a statement until June 2016. Ultimately a statement was taken from AL by police on 24 June 2016. The statement was provided to the Crown and the defence on that day.

7. In her judgment, her Honour said, of present relevance:

“… The Crown seeks to adduce the evidence as tendency evidence of conduct similar to that complained of in the current proceedings; namely, a male child of approximately 12 years of age; the incident occurring in Church premises; the child in the care of the accused at the time; an incident associated with showering; and the touching of the penis of the child on this occasion until he ejaculated.

On behalf of the accused, it is argued that this evidence takes them by surprise; they have not had adequate time in which to investigate the allegation or to attempt to make contact with a person said to have been present at the time; that there has, in effect, been a non-disclosure in accordance with the provisions of the Criminal Procedure Act, and the accused could not possibly investigate the allegation in the time permitted, the trial having now commenced.

… The witness is an important witness in the Crown case in terms of tendency evidence, if the application to adduce tendency evidence is successful. Assuming for the moment that the tendency application is successful, this witness is, as I have said, an important witness in that regard, given the nature of the evidence sought to be adduced; evidence which has, on its face, significant probative value in terms of the Crown case.

... Any unfairness to the accused is ameliorated by the time available between the disclosure of the witness by the Crown and the statement served; and when it is anticipated the Crown will call the witness - as I have said, perhaps some three weeks hence.

I decline to exercise my discretion and exclude the evidence of AL.”

[Emphasis added.]

8. It is plain from the reasons that her Honour did not purport to apply s 97 of the Evidence Act 1995 (NSW). All her Honour did on 4 July 2016 was to permit the evidence to be adduced, notwithstanding the late disclosure. Thus the assumption made appears to have been that the evidence could only be adduced if it was held to be admissible under s 97 and was not excluded pursuant to s 101 of the Evidence Act.

9. There was argument on 7 July 2016 about the admissibility of tendency evidence to be relied upon by the Crown, including the evidence of AL. The Crown relied on the similarity between the applicant’s conduct towards AL, JB and AB. The Crown who appeared in this Court adopted these submissions, in support of his arguments in relation to ground 3. The Crown’s submissions will be summarised when ground 3 is considered below.

10. Notwithstanding the terms of the judgment on 4 July 2016, her Honour, in a judgment delivered on 8 July 2016, appeared to have considered that she had made a ruling pursuant to s 97 of the Evidence Act in respect of AL’s evidence in her judgment on 4 July 2016. Her Honour’s misapprehension was relied on in support of ground 3, although it was accepted by Mr Boulten SC, who appeared with Mr Lange and Mr Parkin for the applicant that whether the evidence of AL was admissible as tendency evidence was ultimately a matter for this Court.

11. The jury was empanelled on 11 July 2016. On 14 and 15 July 2016 AB gave evidence and was cross-examined. JB gave evidence and was cross-examined on 15 July, 18 July and 19 July 2016. Her Honour summed up to the jury on Tuesday 9 August 2016. On Friday 12 August 2016, the jury returned verdicts of not guilty in respect of 16 of the counts and was unable to agree on the balance of 11 (the hung counts).

The proposed 2017 trial

12. The Crown proposed to retry the applicant on all 11 hung counts, 5 of which were alternative counts. By notice of motion filed on 7 August 2017, the applicant applied for a stay of all 11 of the hung counts. On 9 August 2017 the applicant was arraigned before Townsden DCJ on an indictment which consisted of 11 counts.

13. On 13 August 2017, the Crown served a tendency notice pursuant to s 97 of the Evidence Act which identified evidence which had been given at the first trial by JB, AB and AL which was to be relied on in support of the tendency of the applicant to act in a particular way, namely:

“sexually assault young pubescent boys or to have a particular state of mind, namely a predilection for young boys which caused him to sexually assault young pubescent boys.”

14. A similar notice was served by the Crown on 13 August 2017 pursuant to s 98(1) of the Evidence Act (the s 98 notice). The s 98 notice said of present relevance:

“Notice is given that the Prosecution presently intends to adduce ‘coincidence’ evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, i.e. evidence that two or more events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.

1.    The ‘person’ referred to in the preceding paragraph is John Patrick CASEY.

2.    The two or more events which are the subject of the proposed evidence are: that the Accused indecently assaulted prepubescent boys of the age of 9 to 14 years at his address at Mallanganee by a continued washing of their genital areas for an excessive amount of time and or masturbating their penises with his hand.

3.    The evidence is to be tendered to prove that John Patrick CASEY did a particular act, namely Sexual/Indecent Assault or had a particular state of mind, namely a predilection for Sexually or Indecently Assaulting prepubescent boys.”

15. These notices included references to evidence of charges on which the applicant had been acquitted. Subsequently the Crown withdrew its application to adduce evidence which was solely related to the allegations in respect of which the applicant had been acquitted.

16. The applicant applied for an order that the complainants be compelled to give further evidence in accordance with s 306J of the Criminal Procedure Act. The forensic purpose of the application was to permit the applicant’s counsel to cross-examine the complainants about the matters in respect of which the jury in the 2016 trial had acquitted him. On 21 August 2017, his Honour refused the applicant’s application and gave reasons which included the following:

“The mere fact that a differently constituted jury returned verdicts of acquittal on some counts is not of itself something which I am satisfied in this particular case goes to credit. More of [sic, Moreover] the jury would have no knowledge of how the previous jury came to that conclusion. Counsel [for] the accused objects to any evidence being led in respect of that evidence. The fact that a jury differently constituted would not have the benefit of considering that evidence, is not an unusual circumstance in such a situation. In any event, questions put to a complainant on this fact alone without reference to the evidence, nor the basis upon which the verdicts were based could not in my view ‘substantially affect the assessment of the credibility of the witness’.”

17. On 21 August 2017 his Honour refused to stay the six counts (which had been counts 6, 18, 21, 22, 23 and 24 from the original indictment) which were not alternative counts. His Honour rejected the applicant’s submission that the verdicts of acquittal in the 2016 trial affected the complainant’s credibility such that the re-trial would be unfair and said:

“Counsel for the accused has submitted that the jury's acquittals in the first trials go ‘squarely to the credit of both complainants’. As a consequence it would be oppressive to proceed on the remaining counts because any verdicts of guilty would be inconsistent. I have been provided with a document by the Crown which sets out, in its submissions, the distinguishing features which demonstrate the legitimate basis of ‘inconsistencies’ in the verdicts. As noted in my earlier decision, ‘the mere fact that a differently constituted jury returned verdicts of acquittal on some counts, is not of itself something which I am satisfied in this case necessarily is a consequence of the jury rejecting the complainants' evidence because of credibility.’

Mr Lange’s first basis of the stay application in my view must also be rejected. Although the jury will hear the same evidence by the complainants, the previous jury were unable to reach a decision in respect of those parts of the evidence relating to the outstanding allegations. The fact that both juries view the same evidence from both complainants relating to these counts is as a consequence of the legislation.”

18. The applicant sought leave to appeal against the decision to refuse the stay but subsequently withdrew his application.

19. On 23 August 2017, his Honour refused to allow the applicant to adduce evidence from AB pursuant to s 293 of the Criminal Procedure Act. The applicant also sought leave to appeal against this decision. His application was later withdrawn.

20. On 24 August 2017, the issues of tendency and coincidence were argued afresh before Townsden DCJ, his Honour having determined, pursuant to s 130A of the Criminal Procedure Act that it was in the interests of justice for the Court not to be bound by any rulings made by English DCJ in relation to tendency and coincidence. His Honour allowed the evidence as tendency evidence but declined to admit it as coincidence evidence.

21. In his judgment of 24 August 2017, his Honour noted the “significant difference” between the notices before him and the notices before English DCJ:

“Notwithstanding the similarities where the incidents took place, I am not persuaded the similarities are such that it has significant probative value. The evidence is not admitted on that basis. However, as previously decided, I am satisfied, that the evidence is admissible as tendency evidence, namely to particular state of mind, namely a predilection for young boys which caused him to sexually assault young pubescent boys. In doing so, the tendency evidence sought to be adduced bears upon the fact in issue including that the accused sexually or indecently assaulted pubescent boys at his place of residence in Mallanganee whilst he was the parish priest for that period or area between 1981 and 1987. I am satisfied the probative value of the tendency evidence sought to be adduced substantially outweighs any prejudicial effect it may have on the accused.”

[Emphasis added to indicate the words on which the applicant relied in support of ground 3.]

22. On 29 August 2017 his Honour stayed the alternative counts (which had been 3, 5, 10, 17 and 20 on the original indictment and which were 1, 2, 4, 5 and 7 on the new indictment). The reason for the stay was that, in respect of each, the jury had acquitted the applicant on the first of the pair of counts (thereby indicating that it was not satisfied that the offence had occurred in the time period specified in the first of each pair) but had been unable to reach a verdict on the second of the pair (being the later time period). It is apparent from the following passage from the reasons for judgment that his Honour was concerned to protect the applicant from the potential jeopardy of being cross-examined in a second trial by reference to his own evidence in the first trial in respect of matters relating to counts of which he had been acquitted.

23. His Honour was also concerned that, if the alternative counts to the counts in respect of which the applicant had been acquitted were allowed to proceed, this would tend to deprive him of the full benefit of those acquittals. His Honour said:

“The decision to prosecute is a matter for the ‘executive government and the court should not interfere except where such prosecution will result in a trial which is unfair’ (R v H [2002] NSWCCA 355). However, for the accused to be tried again in respect to what were the alternative counts necessarily requires the same facts and circumstances to be considered again, and not just considerations as to the time. The accused at the first trial had to meet the Crown case in respect to all the elements and make decisions accordingly.

In respect to counts 1, 2, 4, 5 and 7 on the present indictment, which were originally tried as the alternative counts in the first trial, I am satisfied that the accused will be denied the full benefit of his acquittals if this trial were to proceed in respect to those counts. I am satisfied that for the trial to proceed in respect of these counts would be unfair. In doing so I am mindful the Court’s requirement to balance the accused right ‘against the right of the community to expect that persons charged with serious criminal offences are brought to trial and the grant of a stay of proceedings is discretionary and the circumstances usually will have to be extreme for such relief to be given.’ (Jago v District Court of New South Wales (1989) 168 CLR 23.) I would accept that it is unfortunate that this issue was not addressed, it would appear, in the first trial.

However, in the circumstances I am satisfied that proceedings should be permanently stayed in respect to those counts.”

24. The Crown appealed pursuant to s 5F of the Criminal Appeal Act against the decision to stay the alternative counts. This led, on 31 August 2017, to the vacation of the trial. His Honour gave a certificate pursuant to s 5F(3)(b) of the Criminal Appeal Act. The Crown appeal was subsequently withdrawn.

The 2018 trial

25. On 31 July 2018 the applicant was arraigned before Huggett DCJ in the District Court on an indictment that charged the remaining six counts which had not been stayed by Townsden DCJ. The jury was empanelled on 1 August 2018. The Crown played an edited recording of the complainants’ evidence from the 2016 trial in reliance on s 306I of the Criminal Procedure Act. The complainants’ evidence in respect of all counts other than the six in the indictment had been removed before it was played to the jury. This involved substantial editing of the examination in chief and some editing of the cross-examination. Almost all references to the Royal Commission were also removed. The transcript for the retrial was prepared (and presumably the recording) in such a way as to make it appear seamless. The pages were numbered sequentially and there were no gaps to indicate that anything had been removed from it. It was prepared collaboratively by the Crown and the defence.

25. On 14 August 2018 when the Crown case had closed, the trial judge directed a verdict of not guilty in respect of count 3. On 30 August 2018 the jury returned verdicts of guilty to counts 1 and 4 and not guilty to counts 2 and 5. The jury was unable to reach a verdict with respect to count 6. On 31 August 2018, her Honour gave a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. Later that day the jury returned a verdict of not guilty to count 6.

26. The counts, particulars and the verdicts are summarised in the table below. Those of which the applicant was convicted are highlighted in bold:

Counts on indictment		Verdict
1	Sexual assault of AB, a person under the age of 16 years without consent contrary to 61D(1) of the Crimes Act 1900 (During the course of washing AB in the shower, the applicant inserted his finger into AB’s anus.)	Guilty
2	Homosexual intercourse with JB, a person under the age of 18 years, contrary to 78K of the Crimes Act 1900 (The applicant grabbed JB, took him into a bedroom and placed his penis in JB’s mouth.)	Not guilty
3	Homosexual intercourse with JB, a person under the age of 18 years, contrary to 78K of the Crimes Act 1900 (The applicant pushed JB’s head back onto his penis when JB tried to pull away.)	Not guilty – directed verdict
4	Indecent assault of JB, a person under 16 years, contrary to 61E(2) of the Crimes Act 1900 (JB moved his head away and AB ejaculated towards JB.)	Guilty
5	Incite JB to commit an act of indecency, a person under 16 years, contrary to 61E(2) of the Crimes Act 1900 (The applicant told JB to “kiss him”, which was a reference to an instruction to kiss his penis after he had ejaculated.)	Not guilty
6	Homosexual intercourse with JB, a person under the age of 18 years, contrary to 78K of the Crimes Act 1900 (The applicant put his own mouth on JB’s penis.)	Not guilty

28. On 30 October 2018, the applicant was sentenced to a term of imprisonment commencing on 30 May 2018 for 4 years and 10 months with a non-parole period of 3 years. The non-parole period is due to expire on 29 May 2021 and the total term will expire on 29 March 2023. There is no application for leave to appeal against sentence.

The Crown case

29. An outline of the Crown case is set out below. A more detailed account is necessary for a consideration of ground 4 of the appeal, which is based on the contention that the verdicts were unreasonable and cannot be supported having regard to the evidence. Such an account will be given when ground 4 is addressed.

30. The applicant was the parish priest for the Catholic Church at the parish of Mallanganee. At that time, IB, the father of AB and JB, the two complainants, was the Anglican Minister for the area. A friendship developed between the two priests which led to the complainants visiting the applicant and, on occasion, staying overnight at the presbytery.

31. The Crown alleged that, on one such occasion, the applicant washed AB in the shower and inserted his finger into AB’s anus (count 1).

32. The Crown alleged that, on either the same or another such occasion, JB wet the bed. When he got out of the bed, the applicant grabbed him, took him into a bedroom and placed his penis in JB’s mouth (count 2). The applicant then pushed JB’s head back onto his penis when JB tried to pull away (count 3). JB moved his head away and the applicant ejaculated towards him (count 4). The applicant then told JB to kiss him, which was a reference to kissing his penis after he had ejaculated (count 5). Finally, the applicant then put his own mouth on JB’s penis (count 6).

33. The Crown case substantially depended on the evidence of AB and JB. The Crown also relied on evidence of complaint from the complainants’ parents, IB and HB, and sister, TB, as well as a generalised complaint which had been made by JB to Heather, a volunteer with the Church of the Good Shepherd. The Crown also called Timothy O’Reilly, a school counsellor to whom AB said he had made a contemporaneous complaint. However, Mr O’Reilly denied any recollection of AB, or, indeed, any child making such a complaint. The Crown relied on the evidence on counts 2-6 (which concerned JB) as tendency evidence for count 1 (which concerned AB) and vice versa. The Crown also called AL who gave evidence that, 7 or 8 years prior to the alleged offending against AB and JB, when he was about 12, the applicant had massaged and masturbated him.

The applicant’s case at trial

34. The applicant denied the charges in his Electronic Record of Interview with Suspected Person (ERISP) and in his sworn evidence. He also called several character witnesses. As was evident from defence counsel’s cross-examination of the complainants, the applicant’s case was that their evidence was unreliable. Mr Boulten summed up defence counsel’s approach to the complainants as: “If you are not lying, you are mistaken.”

The summing up

35. Before the summing up, which was given in the course of 23 August 2018, defence counsel requested a Markuleski direction, the content and provenance of which will be addressed below, so-called after R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. There was no opposition to this request by either the Crown or the trial judge.

The directions given

36. The directions her Honour gave which were potentially relevant to ground 1 are as follows:

“The fact the charges are tried together does not relieve you of your responsibility of considering each count separately and the particular evidence relevant to that count. Nor does it relieve the Crown of its responsibility of proving the elements for the offence alleged in each count on the basis of the evidence relevant to that count.

Normally the effect of a direction that you must consider each count separately is that when you are considering a count referable to one complainant you would be required to ignore both the fact of and the content of any allegation made against the accused by any other person. However, in this trial circumstances might arise when that general rule would not apply. These circumstances relate to what you have referred to as tendency reasoning.

…

You would no doubt appreciate that different issues arise in relation to different complainants and counts. It follows that it would be completely wrong to reason that simply because you found the accused guilty or not guilty of one count means he must be guilty or not guilty, as the case may be, of any other count. You must determine in relation to each count, one by one, whether the evidence relevant to that count and the complainant named therein, has satisfied you all beyond reasonable doubt that the accused is guilty of the particular offence alleged in that count.”

(SU, pages 11-12)

37. Later in the summing up, the trial judge gave two further directions as follows:

“Understand in relation to the evidence of the complainant [AB], if you were to determine that he had been deliberately dishonest in relation to all of the evidence he gave, it would follow that you would reject his evidence and you would acquit the accused of count 1.

In relation to the complainant [JB], if you were to determine that he had been deliberately dishonest in relation to all of his evidence, it would follow that you would reject his evidence and you would acquit the accused of counts 2, 4, 5 and 6.

If you were to find that either or both complainants had been deliberately dishonest regarding only part of the evidence he gave, you would have to consider the remainder of his evidence in the light of the adverse finding you made regarding his honesty in that one respect. That is because if you found that you had a doubt regarding the honesty of either or both complainants in one respect, that may mean you would have trouble accepting other things he said or indeed anything he said in his evidence.

If you were to conclude that a witness was doing his or her best to be honest, you [w]ould need to consider the next aspect of reliability which relates to accuracy. A witness might be honest but might be totally unreliable because he or she might have a completely poor memory or be completely wrong.”

(SU, pages 31-32)

38. The trial judge also gave the following directions:

“Understand in relation to the witness [AB], if you were to find that his evidence regarding what he says the accused did to him at the time alleged in count 1 was not sufficiently accurate evidence in vital respects, it would follow that you would have a reasonable doubt about the reliability of an essential part of his evidence and you would acquit the accused of count 1.

If however, you were to find that he was not accurate in his evidence regarding a fact or circumstance not essential to proof of count 1, you might nevertheless be able to conclude that his evidence regarding matters essential for count 1 was sufficiently reliable, or you might not.

Likewise, if you were to find that JB's evidence regarding what he alleges the accused did to him as alleged in counts 2, 4, 5 and 6 on the indictment was not accurate in vital respects, it would follow that you would have a reasonable doubt about the reliability of an essential part of his evidence and you would acquit the accused of the corresponding count.

If, however, you were to find that he was not accurate in his evidence regarding a fact or circumstance not essential to proof of one of those counts, you might nevertheless be able to conclude that his evidence regarding matters essential for proof of counts 2, 4, 5 and/or 6 was sufficiently reliable, or of course you might not.

Ultimately it is for you, the jury, to decide how much or how little [of] the evidence of a witness you accept. You may believe and act upon all of the evidence of a witness. You may believe only some parts of a witness' evidence and act upon those parts while rejecting other parts, or you might reject and put to one side completely all of the evidence of a witness.”

(SU, pages 34-35)

39. Later in the summing up (at SU pages 41-42), defence counsel asked for a Markuleski direction to which the trial judge responded that she had “done that twice”. Her Honour said, “I said if you have a doubt about honesty then if [sic] you have a doubt about accuracy.” Defence counsel accepted what her Honour had said. After this request, however, her Honour also said:

“Giving separate consideration to each count means that you are entitled to bring in different verdicts provided there exists in your mind a logical reason for such a result and that it is not compromised or more or less a random, capricious approach. There needs to be some logical reason in your minds. When you are asked to deliver your verdict your spokesperson simply says the word ‘guilty’ or the words ‘not guilty’. You are not asked for your reasons, but of course it is important that in your mind you have a logical approach.”

(SU, pages 41-42)

40. A further separate consideration direction was given (at SU pages 72-73):

“I have directed you earlier that you need to give separate consideration to each of the five counts on the indictment. That may mean that your verdicts are the same or different, and as I have said, that makes sense because different issues are presented in the evidence in relation to the two complainants. So different verdicts for different counts is of course subject to that overriding qualification that it has got to be done because you have thought about it and there is a reason in your minds for that, obviously not flipping a coin or seeking to break disagreement by saying guilty, not guilty, guilty, not guilty. I know you will not do that.

…

I have directed you that in considering each complainant's evidence, and whether the Crown has satisfied you as to the honesty and essential accuracy of his evidence, you are entitled to consider whether each complainant's evidence is supported by any other evidence before you. Such other evidence includes whether any of the evidence relevant to complaint provides support for a complainant, which I referred to before lunch, and it also includes the method of reasoning you have heard called tendency reasoning.”

41. Her Honour also said (at SU, page 81):

“Let me remind you of course that irrespective of what you determine in relation to tendency reasoning, before the accused can be convicted of any offence alleged in the indictment, you must be sufficiently satisfied as to the truthfulness and essential accuracy of the complainant named within that count. Even if you were satisfied beyond reasonable doubt as to the existence of the tendency alleged by Crown in para 5, that fact may lend support to the evidence of a complainant but could never be a replacement for the evidence of a complainant should you all form a view that he has been deliberately dishonest in relation to his evidence and/or unreliable in critical respects.”

42. Her Honour added, towards the end of that part of her summing up which contained directions (at SU, page 85):

“When you are carrying out that careful consideration, you do not have to look at that witness' evidence completely in a vacuum isolated from other evidence before you. You are entitled to consider whether there is other evidence that provides support or tends to provide support for an essential witness, and I have given you directions about evidence and reasoning processes that the Crown contends does support or tends to support the evidence of [AB] and [JB] - namely complaint evidence and tendency reasoning.”

Ground 1: alleged miscarriage due to failure to give a Markuleski direction

43. The applicant contended that the trial judge had failed to give a Markuleski direction to the jury and that the failure had occasioned a miscarriage of justice. In the present case, the trial judge did not refer to the interconnection of credibility issues in her directions to the jury. The applicant submitted that her Honour’s directions to the jury on its separate consideration of the charges were not sufficient to draw to the jury's attention the relevance of a doubt about one aspect of the complainant's evidence to its assessment of the complainant's credibility generally. JB’s credibility was a principal issue in the jury’s consideration of counts 2, 4, 5 and 6.

44. Mr Boulten submitted that in dealing with the issue of dishonesty, her Honour failed to deal with the issue of unreliability, which was the other major factor affecting credibility. He contended, in particular, that the trial judge’s reminder to the jury that they could rely on tendency and complaint evidence in support of the Crown case created a degree of unfairness when it was not coupled with a direction that if they were not satisfied of the applicant’s guilt on a particular count, that could be taken into account in the applicant’s favour on the other counts.

45. Although the applicant’s primary submission was that leave under rule 4 of the Criminal Appeal Rules did not apply as defence counsel had raised the need for the Markuleski direction, he contended, in the alternative, that leave ought be granted if the Court was satisfied that the applicant had lost a real chance of an acquittal having regard to the alleged error, in combination with other errors alleged in the further grounds.

46. In order to address this ground it is necessary to identify the content and purpose of a Markuleski direction and whether the trial judge’s omission to give a complete direction in terms of the authority has resulted in a miscarriage of justice.

47. In Markuleski Spigelman CJ considered the effect of Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 (Jones) in which the majority (Gaudron, McHugh and Gummow JJ) said at 453:

“It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.”

[Emphasis added by Spigelman CJ in Markuleski at [66].]

48. Spigelman CJ expressed concern that Jones had, incorrectly, been interpreted as standing for the proposition that “in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant’s evidence”: [65]. His Honour emphasised the words highlighted in the passage above and considered that they required an appellate court to consider “all the facts of the case”: [66].

49. The Markuleski direction includes a direction to the jury to assess the credibility and reliability of a complainant's evidence on all counts, having regard to any doubts the jury might experience in relation to the complainant’s credibility or reliability with respect to any one count. In Markuleski, Spigelman CJ set out the provenance of, the principles relating to, and the basis for, such a direction as follows:

“[185]   ... [T]he case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

[186]   In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

[187]    Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies ‘as a general rule’. Its absence is not necessarily fatal (as it was not in Davies itself)...

[188]    It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.

[189]    On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

[190]    Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

[191]    The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.”

[Emphasis added.]

50. The unfairness which a Markuleski direction is designed to ameliorate was described in R v Ford [2006] QCA 142 at [124] by Keane JA, in a passage which was approved by this Court (Hoeben JA, Johnson and Button JJ agreeing) in DF v R [2012] NSWCCA 171; (2012) A Crim R 178 at [28]:

“[124]    ... In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred.

[125]    It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer ‘to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.’ (Markuleski at [121]). The purpose of such a reference is to ensure fairness to the accused ‘in a word against word case’ (Markuleski at [121]) by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count.”

[Emphasis added.]

51. When considering the content and purpose of a direction about the complainants’ credibility, it is important to bear in mind that a verdict of “not guilty” does not necessarily imply any “want of confidence” in the complainant but “may simply reflect a cautious approach to the discharge of a heavy responsibility”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ); see also [219]-[221] (Wood CJ at CL). Thus, it does not follow from an acquittal on one count that the jury did not find the complainant to be a reliable and accurate witness.

52. The real question raised by ground 1 is whether the risk to the applicant identified in Markuleski ensued in the present case, which was accepted to be a case of “word against word” based on the evidence of a single complainant, JB, about a number of offences (counts 2, 4, 5 and 6) arising out of one episode of wrongdoing by a single accused. To answer this question it is relevant to ask whether there were aspects of the evidence which could have led a reasonable jury to acquit the applicant on counts 2, 5 and 6, and convict him on count 4. While the applicant has expressly alleged inconsistency of verdicts as a basis for ground 4, it is also relevant in respect of ground 1, for the reasons given above.

Whether the verdicts on counts 2, 5 and 6 were inconsistent with the verdict on count 4

53. The trial judge’s explanation for the verdicts in respect of counts 2, 4, 5 and 6 appears from the following passage in her Honour’s sentencing judgment:

“The jury's verdict of guilty on count 1 indicates an acceptance as to the reliability of [AB's] evidence. The jury’s verdict of guilty on count 4 indicates an acceptance as to the reliability of [JB's] evidence regarding the conduct proven to have occurred in count 4.

The jury's view of each of the complainants' evidence in that regard accords very much with my impression of both complainants, who I observed and found to be honest and frank witnesses. The jury's verdicts of not guilty to counts 2, 5 and 6 are capable of being understood in the light of at least the following matters: The offender gave evidence that he never wore pyjamas; however, it was [JB's] evidence that the offender's penis became erect and was poking out the fly of his pyjama pants. And in those circumstances the offender told [JB] to kiss his, that is the offender's penis, and then put his penis into [JB's] mouth, as alleged in count 2.

In relation to count 5 and 6, a submission was made on the offender's behalf that after the offender had masturbated his own penis and ejaculated, as the jury found proven in count 4, it made no sense to suggest that the offender would thereafter instruct [JB] to kiss the offender's penis as alleged in count 5, nor that he would have placed his own mouth around [JB's] penis and suck it as alleged in count 6.”

54. I consider that the trial judge’s explanation is sufficient to explain why the jury, properly directed, could have arrived at the verdicts in respect of counts 2, 4, 5 and 6 that it did. The observations made by Wood CJ at CL in Markuleski are apposite. His Honour said, after referring to the authorities, including Jones:

“[219]   These passages, to my mind, underline the importance of not assuming too readily that a difference between the verdicts returned demonstrates inevitably a want of credibility in the complainant or central witness. I would add that it may well be that the use of the term ‘inconsistent verdicts’, to describe the situation where an accused has been convicted on some counts and acquitted on others, may itself be a misnomer, and part of the reason why too much has been read into Jones. In truth, a difference in verdicts may not involve any inconsistency at all, when the case is considered as a whole.

…

[221]    In the context of a system of justice that requires proof of criminality beyond reasonable doubt, the occurrence of different verdicts is entirely to be expected and is understandable. As is often said of such a system, acquittal does not amount to a positive finding that the act alleged did not occur, or that the evidence of the complainant or central witness concerning it was rejected as a lie, or as lacking in credibility: R v Girgines (Supreme Court of Victoria, Court of Appeal, 26 March 1996, unreported).

[222]    What it can involve is proof falling short of satisfaction beyond reasonable doubt of one or more of the elements of the offence charged. …”

55. The not guilty verdict for count 2 is explicable on the basis that the jury accepted the applicant’s evidence that he never wore pyjamas which raised a doubt as to the reliability of JB’s recollection of the acts that were said to constitute count 2. The guilty verdict for count 4 reflected the jury’s satisfaction beyond reasonable doubt that the applicant had ejaculated towards JB. The not guilty verdicts for counts 5 and 6 could reflect the jury’s concern arising from the sequence of events and the matters raised by the applicant’s counsel in closing address: that it would have been unlikely for the applicant, who had already satisfied himself sexually by ejaculating, to do the acts attributed to him by JB in the order which JB recalled them to have occurred. In a case such as the present, as Wood CJ at CL said in the passage extracted above, “the occurrence of different verdicts is entirely to be expected and is understandable”.

The effect of the alleged inadequacy

56. It is relevant to ask: what, in these circumstances, would a Markuleski direction have added? Its purpose, as Spigelman CJ said in the seminal passage set out above, arose from the difficulty in appeals from convictions in sexual abuse cases where there was a single complainant on the basis that verdicts were said to be inconsistent. Although Mr Boulten contended that ground 1 was not dependent on any inconsistency between the verdicts, it is difficult to see what the further direction would have added to what her Honour said. It will be recalled that Spigelman CJ at [185] said that “it may appear obvious that a reasonable doubt about one aspect of a complainant’s evidence ought be taken into account when assessing the witness’s evidence on other matters”. Markuleski does not stand for the proposition that an accused accrues bonus points for each count for which he or she is acquitted which can be used to counter the prospect that he or she will be found guilty on other counts. In essence, the part of the Markuleski direction which Mr Boulten contended was missing was the part whereby a jury would be directed that, to borrow Spigelman CJ’s words from Markuleski:

“any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts”.

57. In my view, the directions to the jury were sufficient to indicate the importance of the credibility of the complainants to the jury’s deliberations. The jury’s verdicts showed that they were satisfied that, in relation to count 4, the evidence established the offence beyond reasonable doubt, but that they retained a reasonable doubt with respect to the other counts based on the same incident. Their doubts with respect to counts 2, 5 and 6 are explicable in the manner elucidated by the trial judge in the sentencing judgment.

58. Further, it is significant that, in Markuleski itself, Spigelman CJ considered, at [195], that if the circumstance that the jury were not directed that any reasonable doubt with respect to the complainant’s evidence on any count ought be taken into account on the complainant’s evidence generally were the only inadequacy in the summing up, the appeal would not have been allowed. In my view, this is the only inadequacy (if it be such) in the summing up. I am not persuaded that its omission made, or had the potential to make, any difference to the jury’s deliberations. The present case is to be distinguished from RWC v R [2013] NSWCCA 58 where the trial judge made no reference to what Latham J (McClellan CJ at CL and I agreeing) described as “the interconnection of credibility issues” and failed to supplement the direction about considering the charges separately with a direction that the jury could take into account a doubt about one aspect of the complainant's evidence when assessing credibility generally.

Other matters relevant to ground 1

59. I do not accept Mr Boulten’s submission that, by referring specifically to the complainant’s honesty, the trial judge can be taken to have excluded the complainant’s accuracy or reliability. A fair reading of the directions given indicates that the jury was appropriately directed as to what use they could make of a situation where they were not satisfied beyond reasonable doubt of one or more of the counts in respect of JB. The verdicts returned are consistent with the jury having understood her Honour’s directions that they could return different verdicts in respect of counts derived from the same incident if they found the complainant’s evidence insufficiently reliable to establish a particular count beyond reasonable doubt.

Whether leave under rule 4 is required and, if so, whether it ought be granted

60. I accept Mr Boulten’s submissions that, while defence counsel could have done more to articulate his grievance about the direction, he endeavoured to raise the suggested omission with her Honour. Defence counsel took the point, although not in sufficiently precise terms to alert her Honour to the issue presently pressed. If leave under rule 4 is required, I am persuaded that this is an appropriate case to grant it. I am not, however, persuaded that ground 1 has been made out.

61. Before leaving ground 1, it is important to emphasise the crucial role of trial counsel in assisting the judge in the summing up. While it appears to have been common ground that a Markuleski direction was appropriate, and her Honour considered she had given one, defence counsel was correct to suggest that it had not been given in quite the terms set out in Markuleski itself. Counsel ought not be deterred from raising such issues with trial judges, even those who consider they have dealt with a point, as part of the discharge of the important duties they owe to the court.

Ground 2: miscarriage of justice occasioned by alleged abuse of process

62. The applicant relied on three matters in support of ground 2: first, that in both the 2016 and the 2018 trials the credibility of AB and JB was significant to the jury’s verdicts; second, that at the 2016 trial the applicant would, in accordance with Markuleski, have been entitled to have the jury take into account in his favour the acquittals on some counts in assessing the evidence in support of the remaining counts; and, thirdly, there was no difference between the complainants’ evidence in the 2016 trial and the 2018 trial since, as referred to above, the Crown played a recording of their evidence in reliance on s 306I of the Criminal Procedure Act.

63. In support of ground 2, the applicant read an affidavit of Bryan Wrench sworn 1 July 2020, to which was annexed the transcript of the complainants’ evidence in the 2016 trial. The purpose of the tender was to demonstrate to this Court the differences between the evidence at the 2016 trial and the evidence at the 2018 trial and the alleged prejudice to the applicant in having the portions relating to the counts on which he was acquitted or the associated counts in respect of which the jury was hung excised from the consideration of the jury in the 2018 trial. The Crown accepted that the affidavit was relevant on this limited basis.

64. Mr Boulten contended that the applicant was prejudiced in the 2018 trial because the jury was deprived of material which was highly germane to assessment of the complainants’ credibility, namely: the complainants had made several other allegations against the applicant; another jury had rejected those allegations; and the testing of the complainants in relation to the other allegations was excised from the recording which was played in the 2018 trial.

65. The applicant accepted that, in the circumstances of the retrial in 2018, the Crown would not have been entitled to tender material which was relevant to the charges of which the applicant had been acquitted but complained that by “tendering a sanitised version of the complainants’ evidence, the jury was not provided with the complete picture”. The applicant contended that this expurgation effectively bolstered the complainants’ credibility by removing what another jury had found to be the unreliable parts (as evidenced by the not-guilty verdicts returned for those counts or the circumstance that the jury was hung in relation to those counts). Mr Boulten submitted in writing:

“This anomalous and unfair outcome is entirely the product of the provisions of the Criminal Procedure Act governing the evidence of complainants in retrials.”

66. Mr Boulten contended that there were two available methods to ameliorate the prejudice, each of which would have caused prejudice to the applicant. The first way would have been for the applicant to lead evidence of the acquittals. However, Mr Boulten submitted that this would have been unacceptable for three reasons. First, the jury would have also had to be told that the previous jury had been hung in respect of the remaining charges. Secondly, the evidence of there being other allegations would have been highly prejudicial to the applicant. Thirdly, the evidence would have had to have been led by someone other than the complainants, who were not compellable to give evidence on a retrial: s 306J of the Criminal Procedure Act.

67. The second way would have been for the applicant to consent to the admission in the 2018 trial of the evidence of charges of which he had been acquitted following the 2016 trial. Mr Boulten contended that this course would have occasioned irremediable prejudice to the applicant because it would have led to the entirety of the complainants’ evidence in the 2016 trial being led in the 2018 trial. This would have bolstered the Crown case that the applicant had a tendency to act on his sexual interest in pubescent boys by sexually assaulting them and would also have meant that the evidence of other acts would have swamped the evidence of the charged acts, since the acquittals in the 2016 trial substantially outnumbered the remaining charges on the indictment for the 2018 trial.

68. For these reasons, the applicant submitted that the 2018 trial constituted an abuse of process because the applicant could not have a fair trial in the circumstances outlined above.

69. The Crown submitted that, although the fairness of the 2018 trial could be assessed in hindsight and was not to be adjudged merely from the standpoint of the refusal by Townsden DCJ of the stay of the remaining non-alternative charges, it was nonetheless relevant that the applicant had withdrawn his application for leave to appeal against the stay. It submitted that the applicant, as was his right, must be taken to have decided to see what would happen in the 2018 trial before he tested the point on appeal. The Crown submitted that the fact that Townsden DCJ had stayed the alternative counts conferred a substantial benefit on the applicant since he, in effect, obtained an acquittal for those counts in respect of which the jury had been hung. The Crown contended that this course was taken to ensure that the subsequent trial was fair and to avoid any prejudice arising to the applicant from a retrial.

70. In Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 272 A Crim R 69, Gageler J summarised the effect of the authorities on a permanent stay as follows:

“[166]    Ordering a permanent stay of criminal proceedings as an abuse of process, even on the ground of irremediable unfairness, has repeatedly been described as a ‘drastic remedy’ to be confined to a case that is ‘exceptional’ or ‘extreme’. If the ordering of a permanent stay of criminal proceedings were ever to become other than exceptional, ‘it would not be long before courts would forfeit public confidence’.”

[Footnotes omitted.]

71. I am not persuaded that there was any irremediable prejudice to the applicant in having the 2018 trial proceed in the way in which it did. The advantage to the applicant in the evidence being expurgated was that the jury for the 2018 trial was not aware of the other incidents about which the complainants or DB (being the complainant in count 1 of the 2016 trial) had given evidence.

72. Thus, there was a substantial amount of evidence which could otherwise have been adduced by the Crown as tendency evidence which was not adduced at all in the 2018 trial. This gave the applicant a significant forensic advantage.

73. Further, defence counsel had cross-examined the complainants in the 2016 trial by impugning their credit generally. A relatively small portion of the cross-examination went to the specific details of the evidence they had given in support of the particular counts. The principal challenge made to JB about counts 2-6 was that the applicant never wore pyjamas. AB was hardly cross-examined about the evidence he had given relating to count 1. The effect of the editing of the complainants’ recorded evidence for the 2018 trial was therefore to exclude much of the context evidence surrounding counts 1-6. However, relatively little needed to be edited out of the cross-examination of the complainants by reason of the way defence counsel conducted the 2016 trial.

74. The jury in the 2018 trial was not aware that a previous jury had not been satisfied that JB and AB’s evidence, in combination with the other evidence in the trial, established the numerous counts to the requisite standard. However, I am not persuaded that this disadvantaged the applicant. As Wood CJ at CL said at [221] in the passage extracted from Markuleski above, a finding of not guilty does not mean that the act alleged did not occur, or that the complainant’s evidence was rejected as a lie or as lacking in credibility. Thus, it is possible that the jury in the 2016 trial was satisfied, in respect of all of the counts, that the applicant was probably guilty, but was not satisfied beyond reasonable doubt that he was guilty of any of them. In respect of the counts where the jury was hung, there was plainly a disagreement about whether the Crown had established the commission of the offence to the requisite standard within the relevant time period.

75. Further, while it may be accepted that the jury in the 2016 trial was able to use the circumstance that it was not satisfied of particular counts (which led to the return of verdicts of not guilty), there is no sound basis to permit a verdict of acquittal in one trial to be used forensically in a subsequent trial to the benefit of the accused. The reason for this is that a verdict of acquittal does not mean that the accused person did not in fact commit the offence, but merely that the Crown could not persuade a jury, unanimously, or with a single dissenter (in the case of a majority verdict), that the accused had committed the offence beyond reasonable doubt. Thus, in those circumstances, the presumption of innocence (which applies only in the context of criminal proceedings) has not been displaced and the accused person cannot be prosecuted again for the same offence.

71. Further, the legislature authorises evidence of a complainant which has been recorded in the first trial to be played to the jury in any subsequent trial: s 306I of the Criminal Procedure Act. This authorisation shows that it was within the contemplation of the legislature that a different jury could convict an accused on the same evidence (as far as the complainant’s evidence is concerned) which resulted in the jury being hung on the relevant count in an earlier trial. While it is for the courts and not the legislature to determine whether a trial is fair, it is not for this Court to decide that an aspect of criminal procedure authorised by Parliament necessarily creates such unfairness that a trial ought be stayed. This issue need not be further addressed in the present case since, having reviewed the unexpurgated evidence of the complainants in the 2016 trial and the matters referred to above, I am not satisfied that the 2018 trial was not fair to the applicant or otherwise constituted an abuse of process. The exceptional remedy of a permanent stay of the remaining charges was not warranted in all the circumstances. The point raised by ground 2 warrants a grant of leave, although the ground has not been made out.

Ground 3: alleged error in admitting tendency evidence

77. The applicant contended that the evidence of AL ought not to have been admitted and that English DCJ, in a pre-trial ruling given on 4 July 2016, had failed to apply s 97 of the Evidence Act. It is apparent from the narrative set out above that her Honour did not purport to rule on the admissibility of AL on 4 July 2016; rather, her Honour ruled that the Crown could rely on it, notwithstanding late disclosure, subject to a later determination of its admissibility. It does not appear that English DCJ made any such later determination.

78. Nonetheless, Townsden DCJ considered the tendency issue afresh, there being a substantial difference in the tendency evidence relied upon in the 2016 trial and the tendency evidence to be relied on in the 2017 trial (which, as referred to above, was vacated and became the 2018 trial). Mr Boulten argued that the highlighted words “as previously decided” in Townsden DCJ’s judgment of 24 August 2017 were sufficient to indicate that his Honour had been influenced by the misapprehension that English DCJ had decided that AL’s evidence was admissible under ss 97 and 101 of the Evidence Act.

79. Even if the applicant was deprived of a ruling on the evidence of AL by English DCJ (which I accept he was) and even if Townsden DCJ was influenced by the assumed ruling by English DCJ (which I do not accept), this would not alter the position which was accepted by Mr Boulten, which is that it is for this Court to determine the admissibility of the tendency evidence, having regard to ss 97 and 101 of the Evidence Act. So much has been authoritatively held in The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):

“The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.”

[Footnotes omitted.]

80. The applicant contended that this case was on all fours with McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 (McPhillamy). In McPhillamy the appellant was convicted of 6 sexual offences alleged to have been committed in 1995-1996 against A, an 11-year-old altar boy under the appellant’s supervision on two Saturday nights before mass when the appellant followed him into the church’s public toilet. The Crown led tendency evidence from two men, B and C, who, in 1985, were about 13 years old and were boarding at the college where the appellant was assistant housemaster. They gave evidence that when they had become homesick they had sought out the appellant who had comforted them in his room before committing sexual acts on them. The Crown relied on B and C’s evidence to demonstrate the appellant’s sexual interest in young male teenagers who were under his supervision.

81. The High Court allowed the appeal on the basis that, although the evidence was probative, it did not have substantial probative value. The Court said at [31]:

“Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over “A”, an altar boy, when the two were at the Cathedral for services in 1995–1996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with “A”’s account that the appellant followed him into a public toilet and molested him.”

82. Mr Boulten argued that all that was relied on by the Crown was a bare tendency to act on a sexual interest in young pubescent boys and that this, while relevant, was insufficient to establish the substantial probative value required for the evidence to be admissible. Mr Boulten accepted that AB, JB and AL were all of a similar age at the time of the alleged offending and that they fell within the “young pubescent” period, but submitted that the hallmarks of the alleged offending against AL were significantly different from the alleged offending against AB and JB.

83. Mr Boulten contended that the features of the alleged assault against AL were that he was with a group of other boys for an overnight stay at a holiday house when the applicant singled him out during the day and masturbated him on a veranda when there was a risk that he would be discovered by the other boys. He submitted that JB and AB were both assaulted when each was alone with the applicant in the applicant’s home and, in the case of the assaults against JB, the other complainant was asleep.

84. The Crown submitted, before English DCJ, Townsden DCJ and this Court, that the applicant’s conduct in the evidence sought to be admitted as tendency evidence was overwhelmingly similar although it was not required to be in order to be admissible under ss 97 and 101 of the Evidence Act. The Crown submitted that the evidence showed that the applicant had not only a particular state of mind – a sexual preference for pubescent boys – but that he had a tendency to act on it and his means of perpetrating these assaults was similar.

85. I accept the Crown’s submission. In each case, the applicant used his position as a Catholic priest to befriend the pubescent boy and to engineer a situation where the boy, with another or others, stayed overnight in premises over which the applicant had control in that he was the only adult present. In each case, the applicant arranged to be alone with the boy prior to the sexual assault, although there was another boy (in the case of JB and AB) or other boys (in the case of AL) present in the vicinity who were either asleep or otherwise diverted. I am satisfied that these matters go beyond merely a tendency to have a sexual preference for pubescent boys (as in McPhillamy) and establish a tendency to act on his sexual preference by sexually assaulting pubescent boys in a materially similar way. These additional common features are sufficient to give the evidence substantial probative value and make it admissible under ss 97 and 101 of the Evidence Act: The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [58]. Accordingly, I am satisfied that the tendency evidence was admissible in the applicant’s 2018 trial. Ground 3 has not been made out.

Ground 4: alleged unreasonable verdict

The relevant principles

86. In addressing ground 4, that the convictions are unreasonable and cannot be supported by the evidence, the Court is required to ask itself the following question (which was stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 and followed in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13):

“... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

87. In answering that question:

“... the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

88. In order to answer this question, the Court is obliged to undertake an independent assessment of the quality and sufficiency of the evidence. It is not, however, for this Court to form a view about the credibility of the complainants or any other witness. As the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 (Pell):

“[37]    … [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

…

[39]    The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

89. As referred to above, for the purposes of addressing this ground, it is necessary to expand on the outline of the Crown case that appears earlier in these reasons. The following account, which is largely chronological, is drawn from evidence given in the Crown case and is not intended to constitute any findings of disputed fact.

The Crown case

90. The Crown case comprised evidence of the two complainants, AB and JB; tendency evidence given by AL; and complaint evidence given by IB, the complainants’ father; HB, the complainants’ mother; TB, the complainants’ sister and Heather, a volunteer with the Church of the Good Shepherd. The Crown also called Timothy O’Reilly, the school counsellor to whom AB said he reported the abuse, who did not recall any such complaint having been made.

Count 1

91. As referred to above, an expurgated version of AB’s evidence in the 2016 trial was played to the jury in the 2018 trial. Except where otherwise stated, the matters set out below derive from AB’s evidence.

92. AB was 42 at the time of giving evidence in 2016, having been born in 1974. He had an older brother (OB), an older sister and a younger brother, JB. AB’s father, IB, became an Anglican minister. The family moved from North Queensland to New South Wales so that IB could complete his training. There were various further moves, including to Gosford. AB recalled JB being hit by a car at around this time when the family lived in Gosford. AB was not aware and did not accept that JB had deliberately put himself in the car’s path.

93. In about 1984 the family moved from Gosford to Bonalbo, a town west of Lismore. By that stage, OB had left home and AB was in his last year of primary school. AB identified two photographs which were taken in 1985 and 1986 at the Bonalbo Public School. AB had special needs and was being tutored by a woman who lived in the town. AB recalled JB being bitten by cattle dogs at Bonalbo. He did not recall JB taking pills.

94. When AB was about 9, his mother introduced him to the applicant at the local fair where he was selling tickets which entitled holders to a toy. It was an agreed fact that the Bonalbo show was held on 11 and 12 April 1986. AB was particularly taken by a white seal, which was one of the stuffed toys on display. AB learned that the applicant was the Catholic priest at the neighbouring town of Mallanganee. AB and JB helped the applicant sell tickets. AB recalled that his mother was cross with him and JB for helping the applicant sell tickets because she considered that it encouraged gambling.

95. Subsequently, the applicant visited AB’s family home and he, JB and their father visited the applicant’s home. On at least one occasion AB and JB stayed overnight at the applicant’s house. There was a pool in the backyard where, at dusk, AB and JB swam and were joined by the applicant. All three were wearing Speedos. The applicant was “a bit touchy feely” and touched AB’s inner leg and inner thigh with his hands. When AB asked the applicant about the toys from the stall at the fairground, including the white seal, the applicant offered to show him a white seal among the toys which were in a shed. After AB had seen the toys, he and the applicant returned to the pool where JB had been throughout.

96. After the swim they went back to the house and the applicant suggested that they get out of their wet clothes and have a shower. AB took off his costume and wrapped a towel around him while he was waiting for JB to have a shower, which was over a bath tub. When JB got out of the shower, AB got into the shower. While he was under the shower, the applicant got into the shower and washed him down without soap by placing his hands on AB’s chest and back. The applicant, who was fully clothed and standing on the bathroom floor behind him, placed his hand between AB’s legs and inserted his finger into his anus which caused AB to say “Ouch” from the pain. The applicant then told him to get out of the shower. AB dried himself and then had dinner before going to the applicant’s room. AB was not sure how old he was at that time but he could have been 9 or 10. AB and JB were with the applicant in his room, lying on the bed. AB felt “[p]robably a little bit strange, but [he] was there for [his] brother, then”.

97. The following day, AB and JB’s father picked them up from the applicant’s house. The applicant hugged AB when he left and winked at him.

98. At about this time, AB and JB fell out and fought like “cats and dogs”. According to TB, the relationship between AB and JB was poor from the time they were at Bonalbo. According to HB, when the family moved to Bonalbo AB and JB were “like twins to begin with and then something just happened and they parted”. JB became “clingy” to her whereas in the past “you couldn’t separate” JB and AB.

99. The family moved from Bonalbo to Coraki. According to TB, she, Wendy (who boarded with the family) and AB were in her bedroom in the family home in Coraki playing with her collection of stuffed toys. At one point, she threw a white seal at AB, who put his hands up and refused to catch it. AB then picked it up and pulled at it roughly. TB told him to grow up and asked him to leave her bedroom.

100. AB did not tell anyone what had happened until he was in year 7 or 8 at Trinity College, a high school in Lismore. He went to see the school counsellor because he was being teased because he was thought to have problems with dyslexia which required him to wear blue-tinted glasses and write on yellow paper. When the counsellor asked him what else was going on he told the counsellor that he had been sexually molested by the applicant, whom he identified by name and said was a Catholic priest. AB got the impression that the counsellor did not want to talk about that matter because he ignored the report and quickly moved onto the topic of dyslexia.

101. Mr O’Reilly, who was employed as the sole counsellor at Trinity College Lismore when AB was there, had no recollection of ever meeting AB or having been told that he had been sexually assaulted. His records of the relevant period could not be retrieved. In 1987, he did not make notes of every contact with a student. He said that if he had been told such a thing, he would have recalled it and would have acted on it by referring it to the principal. Mr O’Reilly accepted that when he had given evidence previously (in the 2016 trial) he had said that he would have consulted the student about what the student wanted to do and had not said that he would have referred it to the principal.

102. AB and JB remained emotionally distant from each other and did not speak, even at family events. AB became aware that their father, IB, had made a complaint to the authorities about the applicant’s conduct towards AB and JB. AB had not discussed the details of what the applicant did to him with JB or either of his parents. When IB told AB that JB had suggested that the applicant had sexually assaulted not only JB but also AB, AB had denied it.

103. When AB was 21 or 22, he told his first wife that he had been sexually assaulted when he was younger. At about this time, JB told AB that he had been protecting him from the applicant, to which AB responded, “Well, how do you know I didn’t get hurt?”. Until that time, AB was not aware that JB had been assaulted by the applicant and AB had not told JB that he had been assaulted. AB said that his latest falling out with JB happened as a result of the discussion they had when AB was married to his first wife “when it all came back out again”.

104. AB and his first wife divorced when AB was 30. When he was in his thirties he married again. A friend of AB’s second wife told her that she was dating JB and that JB had told her that he had been raped by the applicant. AB confided in her that both he and JB had been raped by the applicant.

105. According to TB, in late 2014, AB told TB and her husband, “Everything [JB] has been saying is correct. I have been abused by [the applicant]”.

106. In late 2014, AB was watching television when he saw that the applicant had presided over the funeral of Phil Hughes, a well-known cricketer. It was the first time he had seen him since the family left Bonalbo. It had “stirred [him] up” because he did not like seeing the applicant “still out there, still, you know, glorified”. This was what motivated him to tell his father for the first time, after having denied to his father that he had suffered abuse. During the broadcast, AB rang his father and told him for the first time what had happened. According to IB, when AB rang him, AB said, “I don’t want him to get away with it”.

91. Detective Banfield contacted AB in February 2015 and asked him to give a statement about the applicant. He was reluctant but thought, “I’ve had it in the back of my head, I wasn’t keen for the police to investigate and it’s all come back. I think I may as well, not that I’m happy about it but I guess it’s got to be done”.

92. Subsequently, on 17 May 2015, AB reported the matter to police, knowing that JB had already made at least one statement to police about the applicant’s conduct. On more than one occasion, AB failed to attend pre-arranged meetings with police at Port Macquarie police station because he was reluctant to make a statement. AB felt that JB, IB and other members of his family were putting pressure on him to make the statement. Eventually, he made a statement to police in more than one session. When it was put to AB that he was not certain of what had happened when he made the statement, he said that he “was very certain of some of the things”. AB explained that it had taken him a few occasions to complete the statement because he could not go on as it was “too much”.

93. According to AB’s mother, HB, AB rang her “several years ago” (before her evidence was given in August 2018) and told her that he had spoken to a detective. Although he did not mention the applicant, HB “had an idea then”. Not long afterwards, AB told her that he “just couldn’t let it go any longer” and that he had to “tell the truth that [the applicant] had abused him”.

Counts 2, 4, 5 and 6

110. As referred to above, an expurgated version of JB’s evidence in the 2016 trial was played to the jury in the 2018 trial. Except where otherwise stated, the matters set out below derive from JB’s evidence.

111. JB, who was born in 1975, was the youngest of four children. When the family lived in Gosford, OB repeatedly sexually assaulted JB. These assaults included oral and anal intercourse without consent. The last occasion of anal intercourse without consent had occurred when JB had his head in the toilet and bled as a result. Another man was present who did not do anything to JB. JB did not tell anyone because OB had prohibited it. As a result of these incidents JB attempted suicide by walking in front of a car in Gosford “to stop the pain”. He was with AB at the time. Following JB’s suicide attempt, OB stopped assaulting JB. As far as JB could recall, OB left the family home when they were still living in Gosford.

112. When the family moved from Gosford to Bonalbo in 1985, AB, JB and TB went to the local school. JB was able to identify himself in the school photographs at Bonalbo primary school for 1985 and 1986.

113. The applicant befriended JB’s mother and father and visited their home. AB and JB would also go to the applicant’s home and would sometimes stay overnight. There was an in-ground pool at the applicant’s home in which JB, AB and the applicant would swim. When JB and AB stayed at the applicant’s house, the boys would sleep in one bedroom and the applicant would sleep in the other bedroom.

114. On one occasion when JB was staying overnight at the applicant’s house, he wet the bed. He got up, possibly to find somewhere to wash the sheets, and encountered the applicant, who was wearing pyjamas. He took him into another bedroom and sat down beside JB and played with JB’s hair. He asked him, “Is it your dad that messes with you?” to which JB responded, “No, it’s my brother, [OB]”. The applicant said that it was “okay” because JB was “made for it”. The applicant said that JB was “made for it” a number of times and told him that AB was not. JB described his feelings at the time as follows: “I was scared, I felt like garbage and I, I was only little, man.”

115. JB noticed that the applicant’s penis became erect and came through the fly in his pyjama pants. The applicant told JB that it would make him feel better to kiss it and then grabbed JB’s head while he was playing with him in his groin. The applicant put his penis in JB’s mouth. JB was crying and choking. Every time JB would try to move his head back, the applicant would push it down. At this point, JB got an erection, to which the applicant responded, “You like it, you see, you are made for it”. The applicant told him to be quiet or the applicant would wake AB and repeated that AB was not “made for it” the way JB was. JB said that the applicant was holding JB’s penis as well as his own and the applicant “finished himself” and “then ejaculated”. After the applicant had ejaculated, he told JB to kiss his penis. JB complied. Then the applicant wanted to put JB’s penis in his mouth. JB did not say anything although he wanted to. The applicant said that he would wake AB. JB did not want the applicant to hurt AB. The applicant then put his mouth around JB’s penis and JB kept moving. He then stopped and JB wanted to be sick and asked the applicant for some water but the applicant told him that it would “make it taste bad”.

116. While the family was living in Bonalbo, JB started smoking tobacco and marijuana from about the age of 11. He also engaged in self-harm, including burning and cutting himself, throughout and after his schooling. JB agreed that marijuana can affect short term memory. On one occasion when JB was living in Bonalbo he had taken as many tablets as he could “to put an end to the misery” but had not been taken to the hospital because his father was embarrassed by what had happened. JB said he had once been mauled by dogs in Bonalbo but had enjoyed it because “it was pain”. JB said that he still hurts himself if he gets “too upset”.

117. The next time JB saw the applicant or OB after the assaults was when TB was married by the applicant. JB’s recollection of the event was poor as he got stoned on marijuana at the wedding reception. According to TB, the applicant had not attended her wedding. He had, however, presided over a friend’s wedding.

118. When JB was aged between 18 and 20 he lived in Sydney. When he was 18, he had told his girlfriend, Belinda, that he had been “messed with” as a child. Belinda was not called as a witness. JB and Belinda associated with a Christian church group, as a result of which JB disclosed part of what had happened to him, including to Heather, who was a member of the congregation. Heather advised JB to see a therapist who practised regressive therapy. Accordingly to Heather, JB and Belinda attended the Church of the Good Shepherd in West Ryde between about 1995 and 1997. JB would speak to Heather about what was troubling him and made “reference to past abuse”, which was the reason she referred JB to a counsellor in the Ryde area.

119. According to JB, in the second or third session, the therapist ended the session in what JB considered to be an abrupt manner when he was feeling “raw and exposed” which caused him to cease seeing her. JB told the therapist not just about OB but also about what the applicant had done to him. He was not hypnotised by the therapist and at no stage did he lose consciousness during any of the sessions.

120. When JB told IB that he had been sexually abused by OB and the applicant, his father’s reaction was to say that the regression therapy had probably made him make it up and “it always ends up with the family being blamed”. JB said that at that stage he was not aware that the applicant had already sexually assaulted AB. Subsequently IB told JB that AB had denied that anything had happened to him. IB urged JB to “think of the family” and not to “embarrass the family”. His father subsequently told him that he thought that OB had been “messed with by a Scout leader”.

121. By the time JB moved to Sydney to live, OB lived south of Sydney with his wife and children. JB confronted OB about what he had done to him. JB also spoke to the Department of Community Services (DOCS) because he wanted to report OB and have OB’s children taken away from his care. After he had confronted OB, JB told his father that both OB and “his [father’s] mate, the priest Casey” had abused him when he was a child.

122. Subsequently, JB also told Bianca, his first wife, what the applicant had done to him. Bianca was not called to give evidence. JB and Bianca subsequently divorced.

123. According to IB, JB told him that he and AB had been molested by the applicant in about 2005, when IB was living in Casino. IB felt a mixture of anger, sadness and disbelief and rang AB to ask him about it. AB said, “I don’t want to go there, I don’t want to talk about it”. IB contacted the Lismore Diocese of the Catholic Church and told them that he had just found out that his two sons had been abused by a Catholic priest. IB did not give the details of the abuse because he had never obtained them. IB told JB that nothing would come of the allegations unless AB was prepared to speak up too.

124. HB’s recollection was that when she and her husband lived in Uralla, they were in the car with JB, who was then 21 or 22. JB told them “out of the blue” in an angry voice that he had been assaulted by the applicant. This was the first time HB had been told of this. HB said that she dismissed this remark and asked AB, who denied it. Some time later, when IB and HB separated, AB’s name was also mentioned by JB in this context.

125. When JB was in his thirties, he spoke to AB about what had happened to him as a child. JB felt that the applicant was the reason he did not have a good relationship with AB. According to TB, JB told her for the first time that he had been sexually abused by the applicant in 2007, when JB became a father.

126. In about 2012, JB was counselled twice a week by Paul Johnson, a psychologist, for depression following a work-related accident which had occurred in 2008. Subsequently he saw another counsellor through an organisation which provided services for victims of crime. JB retained lawyers to sue the Catholic Church as a result of the applicant’s conduct because he wanted the applicant to pay for what he had done to him and “wanted him to feel like I feel”. JB confirmed that he also wanted to sue OB and lay a criminal complaint against him.

127. On 17 February 2015 Detective Banfield rang JB as part of her investigation. JB told her that AB was “in denial” and that they had not had a good relationship as brothers “because the abuse totally fucked us up”. Two days later she called him again and told him that AB would give a statement. JB was relieved because he had been worried that he would be “hung out to dry” if AB did not provide a statement. JB did not speak with AB about it.

128. On 18 March 2015, JB went to Lismore police station and began to make a statement to Detective Banfield. The statement, which was prepared over three or four occasions over the period of a fortnight, was ultimately completed on 8 April 2015.

Tendency evidence of AL

129. In 1978, the applicant became the priest at St Patrick’s Church at Ingham in Queensland. AL, who was then about 12, was a student at the Cardinal Gilroy College at Ingham, which was affiliated with St Patrick’s Church. In the summer of 1978/1979, the applicant drove AL, together with boys from two Italian families who lived in the area, to Stone River to swim at a place known as Venables Crossing. AL recalled that the applicant drove a small Gemini car. When the group went to Venables Crossing, the boys would remove their outer clothing and swim in their underpants. They would jump into the water from the applicant’s shoulders.

130. The applicant also took the boys to Forrest Beach which was a small beachside town of about 50 people.

131. The group also visited an old timber house at Forrest Beach which was for the use of the Sisters of Mercy. AL recalled that he went with the applicant and two or three of the Italian boys to stay in the house for two nights. The applicant picked up the boys from their homes on the way to Forrest Beach. There was another beach, Cassidy’s Beach, where AL recalled that the applicant had carved a black Mary into a she-oak tree. In cross-examination AL accepted that it might have been a crucifix which had been carved into the tree and that he might have seen the she-oak on another occasion other than the one on which the applicant had assaulted him.

132. One day, they went for a walk to Cassidy’s Beach, which was not far from the house. When they returned to the house, the boys all showered together. AL noticed that the applicant was standing in the vicinity of the shower, looking in at the boys and talking with them. AL’s recollection was that the boys were wearing their underpants in the shower.

133. Later that day, when the other boys were not in the same room as AL, the applicant approached him and offered to give him a massage. He massaged AL’s back while AL was lying on a bed. When AL turned over, the applicant pulled down his underpants, which were jockettes with a leopard print, and masturbated him until he ejaculated. AL said that when this happened he “was just frozen” and “just felt really dirty and really confused” and “very humiliated”. AL did not tell any of the other boys about what had happened.

134. The first person AL told about the incident was Dr Loyola McLean, a psychiatrist from whom he obtained treatment from 1997 until 2005. He consulted her because, although he was still functioning, he was suffering from anxiety and depression and did not understand why. He saw her on at least 300 occasions between 1997 and 2005 for “other life issues” which were “interrelated” to what had happened with the applicant.

135. AL did not tell anyone else until 2014 when he contacted the Royal Commission to report what had happened. As far as he could recall, the name of the person who assaulted him was Paul Casey. At about that time, AL told his partner that he had been sexually assaulted by the applicant when he was 12 years old and the circumstances of the assault although he did not go into “exact details”.

136. In July 2015, AL returned to Ingham, where he had last been in 1982, to see his father, who was dying. AL saw something in the local newspaper which caused him to contact police at Lismore when he returned home to Victoria three or four weeks later.

137. It took some time for AL to decide to give a statement to police. However, he had prepared a draft statement with a lawyer in Melbourne as he intended to make a claim against the Catholic Church. He signed the statement as a statutory declaration and provided it to the police at Lismore. Police converted the statutory declaration into a police statement and sent it back to him for signing. In neither of those statements had AL described the type of underpants he had been wearing at the time of the alleged assault. In cross-examination in the 2018 trial, AL accepted that he had given evidence at the 2016 trial that he had been wearing shorts at the time of the assault and that there had been no reference to shorts in either of his statements.

138. In August or September 2015, AL told Detective Banfield at Lismore Police Station that he had been sexually assaulted by the applicant but that he did not want to make a complaint. In October 2015, AL gave evidence to the Royal Commission in a 45-minute hearing which was, in substance, the same as his evidence in chief at the 2018 trial.

139. AL had never met either JB or AB. By the time AL gave evidence in the 2018 trial, his claim against the Catholic Church had been finalised by a payment of money.

The accused’s ERISP

140. The applicant was interviewed by police on 9 July 2015. His ERISP was played in the Crown case. He denied each of the allegations.

141. The applicant was born in 1948. He was the Catholic priest for the Mallanganee parish from 1981 to 1988. There were six churches in this area where he would hold services. There was only a small population in the area which left the applicant with spare time to “exercise another one of [his] talents … sculpture”.

142. He would also run a “Lucky Stand” at the town fairs to raise money to keep the parish viable. People would buy tickets and, if they had a lucky ticket, would win a prize. The applicant would buy toys wholesale from a store in Brisbane. The prizes ranged from large soft toys to trinkets. In between fairs, he would keep the soft toys in plastic bags in one of the two sheds at the presbytery (he would use the other one for his sculpture) or in the closed-in veranda. The applicant converted a water tank into a swimming pool by putting it into the ground and installing a motor filter and chlorinating the water. He also constructed a “sculpture wall”. He decorated the tank with mosaics, including one of two doves which was a copy of a mosaic from Ravenna.

143. The applicant recalled that there was an Anglican priest (IB) in the area who asked him to look after his sons “some times”. He recalled that one of IB’s parishioners had complained about the boys helping him with the Lucky Stand because it tended to promote gambling, which was not permitted in the Anglican church, which was unable to raise money using any games of chance. The applicant looked after “their kids at least once or twice when they had, had something away”. He denied that he had any recollection of either AB or JB although he did remember that he “appreciated the trust that they [JB and AB’s parents] had in me and the relationship that we had developed in asking me to look after their kids for a weekend”. The applicant recalled that the boys were in primary school at Bonalbo Public School. He accepted that if they had come in summer they would have gone swimming in his pool.

144. The applicant denied that he had asked the boys to get undressed and said:

“A [387]   No, I wouldn’t have because as I never saw their penises and never touched their penises so ---

Q 388   Mmm Mmm

A   I couldn’t have been in the bathroom with them.

Q 389   Mmm Mmm

A   It wouldn’t be something I’d do.”

145. When AB’s allegations were put to him, the applicant said:

“I have no recollection of, no, look, no because I would not have been in there and showering kids.”

146. When JB’s allegations were put to him, the applicant said:

“I don’t remember any, I don’t remember any traumatic incident, I remember having them, I said on one or two occasions. It seems like two occasions here but I don’t remember anything happening during that period of time and I certainly don’t remember them being upset or needing consolation, needing a hug or needing comfort.”

147. When the details of the assault alleged by JB were put to him, the applicant said that he was not even sure that he had pyjama pants.

The applicant’s case

148. The applicant gave evidence, denying the allegations made by AB, JB and AL. He also called a number of character witnesses. He maintained that what he had said in his ERISP was true.

149. The applicant said that he had no memory of AL. He recalled going to stay at a timber house at Forrest Beach with a group of boys and going swimming there. He denied that he had ever carved a black Mary into a tree but said that he had carved a crucifix into a she-oak in the Forrest Beach area. He was cross-examined about there being a line which was not to be crossed and said:

“It’s more young females. There was a definite line about not being alone with young females. But the line wasn't the same as it is today with males, with youth group activities, et cetera, or going swimming or where there’s a possibility there could be a vocation there amongst those boys or young adults.”

150. The applicant denied AB and JB’s evidence of the assaults. He recalled that one of IB’s sons had sat on his knee at the Bonalbo show. He accepted that it was probable that one of the soft toys at his stall at the show was a white seal. Although the applicant said that he did not recall swimming with AB and JB, he did recall that they had come to stay. He said:

“I have a memory of them coming to visit me, because I spoke about it for so many years with my priest friends and I was proud of it.”

151. Defence counsel asked about this in re-examination. The exchange was as follows:

“Q. One of the things you were asked about and you have talked about is having the [B] children stay at your place you said that you were ‑ or being asked to look after the kids ‑ you were proud of it and you mentioned at one stage that you would tell people. What was it that made you proud and what exactly did you tell people?

A. I was really proud that I had such a good relationship with an Anglican priest. To me there was no difference between him and his priesthood and other Catholic priests in his priesthood. And some priests I get on better than Catholics ‑ I get on better with some other priests. But I really got on well with him and with [HB]. And the fact that they trusted me enough to look after their kids I was proud of that as well and proud to tell my Catholic priest mates that that was the relationship I had there.”

152. The applicant gave detailed evidence about his practice of not wearing pyjamas as follows:

“A. I had not worn pyjamas for many years, not since my college days in Rome and even when I did wear pyjamas I would get my mum to sew up that fly part that could spread open, (Indicated).

Q. Why is it that you have that recollection, that is that you didn't wear pyjamas since your college days in Rome?

A. I know that the other boys in my family didn't wear pyjamas either and I remember just in Rome we only got $150 a year from the church and there is no way I would spend money on pyjamas, especially when I didn't need them. I stopped wearing them and I found underpants much more comfortable. They didn't screw around and choke me and I didn't own pyjamas in the navy and I didn't own pyjamas at Mallanganee. There were pyjamas at home from what was given to me in the navy and they were still wrapped in cellophane and when I was going to hospital years later they were too small for me.”

153. The applicant called a number of character witnesses, including David Brunsdon, who was a friend of the applicant’s youngest brother. Mr Brunsdon was 10 or 11 when he met the applicant. The applicant had not shown any sexual interest in Mr Brunsdon at that, or any other, age. Similar evidence was given by Walter Firth who, at the age of 10, spent a lot of time with the applicant because his home life was disrupted and Brian Grant, who met the applicant when he was still a schoolboy.

154. Mr Boulten accepted that the following passage from defence counsel’s closing submission adequately summarised the defence case as to JB’s credibility:

“So finishing on [JB], the ten points are the observed change in character; general unreliabilities; general unreliability about particular account of events; I would ask you that number four, take into account the first complaint, that is Belinda … and Heather …; number five, his confrontation with [his older brother, OB] and what he said he then did; number six, the complaint as parents have it and which in my respectful submission is inconsistent with what he said he did following confrontation with [OB]; number seven, the complaint or lack thereof or any evidence to the girlfriend, ex‑girlfriend or wife; number eight, the contact he had with [AB] when it was first raised and how that mismatches with what [AB] had said; number nine, the contact with police and, number ten, the financial motive.

When one takes all those into account, the respectful submission is you would have a reasonable doubt with regard to the honesty, truth, reliability, accuracy, et cetera of the evidence of [JB] and, as such, you would acquit on counts 2, 4, 5 and 6.”

155. Defence counsel also challenged the sequence of counts 2, 5 and 6 and suggested that it was implausible, as follows:

“The other thing to factor into it all is this. Of course [the applicant] denies each and every allegation, but another thing is that at some stage, and it might be count 4, [the applicant] is said to masturbate himself to the point of ejaculation. So he does that to the point of ejaculation. Then after that, after that says ‘kiss it’.

Then he's said to have performed fellatio on [JB]. This is all after. That is [the applicant], on [JB’s] account, has ejaculated. What was put to him was that his memory was playing tricks on him and he denied that. But I suggest to you, ladies and gentlemen, that is exactly what was going on.

You need to consider the various aspects of this alleged incident and whether or not you accept any of it really.”

[Emphasis added.]

156. This point formed part of her Honour’s hypothesis as to how the verdicts had been arrived at, which is extracted below from the sentencing judgment.

157. In his final address, defence counsel also sought to impugn the credibility and reliability of AB as follows:

“To summarise [AB]. First point, no change in behaviour at Bonalbo. Second point, he's under pressure to support his brother. Third point is there are various faults in his account. The fourth point is the first complaint to the counsellor, it just didn't happen. The fifth point is we haven't heard from all the ex‑wives. The sixth point is his complaint to [JB]. I respectfully submit to you it doesn't match with what [JB] says or the first time [JB] says it was raised by [AB] with him and the seventh point is the dealings with the police and what appears to be [AB’s] reluctance to get involved.

So the three big points ultimately with respect to [AB], first that throughout time and time again he denied any inappropriate behaviour at the hands of [the applicant]. That's the first big point. The second big point is that throughout from time to time he denied any inappropriate behaviour in the hands of [the applicant] and the third big point is that from time to time throughout he denied any inappropriate conduct at the hands of [the applicant]. I just ask you to bear all that in mind and the defence position at the end of the day is that you wouldn't accept [AB] as a witness beyond any and all reasonable doubt, and you therefore wouldn't convict on count 1. So that's [AB].”

158. Defence counsel challenged AL’s credibility and referred in his final address to the circumstance that he was giving evidence about something that was said to have happened 40 years previously and that his recollection was incorrect (he referred to AL’s evidence about the black Mary carving, which AL accepted might have been a crucifix; and AL’s recollection that the applicant drove a Gemini but the applicant never drove a Gemini) and inconsistent (AL had referred to underpants in the 2018 trial and shorts in the 2016 trial). Defence counsel also relied on the substantial treatment AL had had in the form of 300 consultations between 1998 and 2005. Defence counsel also relied on the alleged implausibility of AL’s account and said:

“The Crown asks you to accept that what Father Casey did was pull down the pants of a young pubescent, prepubescent, whichever it was, a young boy; masturbated him, and I think the estimate given by [AL] was a couple of minutes, and obviously Father Casey denies this. But he did it within open view of the room.

The evidence is it is a basic verandah, there is eight or nine beds. I think [AL] used the phrase ‘minimalist’. I think he means dreary probably, perhaps and not much there happening other than the beds. It is daylight. The louvres may have been open. And other boys could have been there.

Just have a think about that concept. The Crown says the accused was driven by a powerful force inside him and it was a brazen act. Well what I am going to suggest to you is that if that was done where other boys could have been there, that is an insane act. That is not brazen; that is just madness.”

The applicant’s submissions

159. The applicant contended that there were at least three possibilities that the jury could have taken into account and which were required to be excluded beyond reasonable doubt: that one or both of the complainants was either lying or exaggerating; that the evidence was not the genuine memory of each complainant; or that one or more of the witnesses was dishonest. Further, the applicant contended that the failure to give the Markuleski direction meant that the jury’s verdicts were not entitled to the significant weight they would be, had the correct direction been given.

160. The applicant submitted that the jury’s verdicts on counts 1 and 4 were unreasonable for at least the following three reasons: first, the insufficiency of the evidence adduced by the Crown; secondly, because they were inconsistent with the acquittals on counts 2, 5 and 6; and, thirdly, because they were inconsistent with the acquittals in the 2016 trial. The alleged inconsistency between an acquittal on counts 2, 5 and 6 and the conviction on count 4 has already been the subject of consideration in respect of ground 1.

161. Mr Boulten relied on the fact that many of the persons to whom the complainants said that they reported the complaints had not been called, which left the complainants’ evidence that they had complained substantially uncorroborated. He also relied on the significant delay in complaint and the fact that, for a significant period, AB had denied that the applicant had done anything untoward with him. Nonetheless, Mr Boulten accepted that delay in complaint and difficulty in reporting details of an incident of that nature were “common features” of such cases which might neutralise the effect of delay.

162. Mr Boulten contended that a troubling aspect of the single conviction in respect of the counts relating to JB was that each of the counts related to a single incident, the whole mechanics of which could not have taken longer than half an hour. He submitted that the temporal connection between the counts on which the applicant was acquitted (2, 5 and 6) and the count on which he was convicted (4) was so intertwined that the jury was not entitled to put to one side the acquittals for those counts. Mr Boulten also submitted that if this Court were satisfied that ground 4 had been made out with respect to the applicant’s conviction on count 4, this would also necessarily affect whether the jury’s verdict in respect of count 1 ought stand. He submitted that if the applicant’s conviction for count 4 were quashed by this Court, then he ought also be acquitted of count 1 since it would be unfair to put the applicant up for retrial.

163. I note that Mr Boulten ultimately accepted, in his oral submissions, that this Court could not take into account evidence which was admitted in the 2016 trial on the question whether the verdicts following the 2018 trial were unreasonable. He conceded that the 2016 trial was relevant to ground 2 but not to ground 4 because, in assessing the reasonableness of the jury’s verdicts, this Court was confined to the evidence adduced in the 2018 trial.

Consideration of ground 4

164. The jury had the advantage of seeing AB, JB, AL and the applicant give evidence and was, accordingly, in a position to make a judgment about their credit. As referred to above, the defence case at trial was that the complainants were lying or mistaken about the matters the subject of their evidence. It follows from the jury’s verdicts on counts 1 and 4 that the jury found AB and JB to be reliable and credible witnesses in relation to the conduct the subject of those counts. This Court is obliged to address this ground on that basis: Pell, at [39]. I note that the applicant confirmed in submissions in reply that he did not ask the Court to view the recordings of the complainants’ evidence.

165. Although the Crown was not entitled to ask an accused, “why would the complainant lie?” (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2), it was an obvious question for the jury to ask themselves, having regard to the way the defence case was put. It was open to the jury to exclude the hypothesis that either or both of the complainants (or AL) was lying. The only basis for the suggestion that they were was that they wanted to bring civil claims against the Catholic Church and that they thought it might assist them to obtain compensation. There was significant evidence that it was highly traumatic for the complainants to give their evidence, which the jury might have considered would tell against them doing it for any reason other than that they believed it to be true.

166. The alternative hypothesis put by the defence, which the Crown was required to exclude, was that the complainants were mistaken about what had occurred. This required the jury to analyse the reliability of the complainants’ evidence for internal consistency and consistency with other acts or events, including those which occurred subsequently.

Count 1

167. It was open to the jury to find that AB was an honest, credible witness and to believe that he had only been prompted to disclose what had happened to him to his father and to the police because he had been so outraged by seeing the applicant preside over Phil Hughes’ funeral. The jury might also have regarded IB’s evidence (that when he asked AB whether he had been abused by the applicant, as JB had claimed he had been, AB said, “I don’t want to go there, I don’t want to talk about it”) as corroborative of the proposition that something serious had happened to AB but that he did not want to talk about it. The jury might also have been aware, as is this Court, and as was accepted by Mr Boulten, that delay in complaint, sometimes of several decades is a “common feature” of such cases.

168. There were aspects of the evidence which the jury might have regarded as supporting AB and JB’s credibility. First, the applicant could not identify any reason why either AB or JB would bear him any animus. His evidence was that he was pleased to have them to stay and told his priest friends how proud he was that IB had trusted him sufficiently to allow his sons to stay with him. The applicant’s own evidence supported AB’s evidence in material respects: he described the soft toys which he stored in plastic bags in his shed in his ERISP and also the swimming pool. Also in his ERISP he said that he did not recall “any traumatic incident” and indeed, that he “[didn’t] remember anything happening during that period of time”.

169. Secondly, AB’s extreme, spontaneous and uncharacteristic reaction to having the seal toy thrown at him in his sister’s room at Coraki might have been regarded by the jury as supporting the proposition that, because the white seal was associated with the applicant, he had suffered trauma at the hands of the applicant. The probative value of TB’s evidence of this event was not affected by the circumstance that AB did not give evidence of its occurrence. Although the jury was not privy to the evidence relating to the counts associated with the seal toy which were on the indictment for the 2016 trial (in respect of which either the applicant was acquitted or the charges were stayed by Townsden DCJ), the jury can be taken to have appreciated from AB’s evidence (which on this topic was partially corroborated by the applicant) that he had seen the seal toy at the applicant’s house where the offence the subject of count 1 was committed.

170. Further, the relatively sudden deterioration in the relationship between AB and JB when they were living at Bonalbo at the time of the assaults might also have been regarded by the jury as corroborative of them both having suffered some trauma at the time.

171. Although Mr O’Reilly was unable to recall any complaint of molestation having been made to him, AB’s recollection of the encounter was detailed. His account included the reason why he saw the counsellor (because other children were picking on him because he had to wear blue-tinted glasses and write on yellow paper), how the topic came up (the counsellor asked him what else was going on) and the physical location of the counsellor’s office within the school grounds. Mr O’Reilly’s evidence, by contrast, was vague. He did not keep records and such records which had been kept were not available. Further, it was open to the jury to reason that Mr O’Reilly had an interest in not recalling the report since, if one had been made, he had done nothing about it and could, accordingly, have been criticised. As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, the classic exposition of credibility, “motive is one aspect of probability” (at 431).

172. The jury might also have considered the fact that AB could not give his statement in one session but had to attend the police station on several occasions to be consistent with the recollection of what occurred being traumatic.

173. Further, the jury was entitled to accept AL’s evidence of the applicant’s tendency and reason that, together with other evidence, the hypothesis that AB (or JB) had fabricated their accounts or been mistaken in their recollections could be excluded beyond reasonable doubt. The majority in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40]:

“In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.”

Count 4

174. For the reasons given above in relation to ground 1, I consider the verdicts for the counts relating to JB to be consistent on the basis set out by her Honour in the sentencing judgment. The applicant gave detailed evidence about his aversion to pyjamas which dated from his time in Rome which the jury may well have accepted, and led to the jury not being satisfied of count 2. It is also understandable that the jury may have retained a doubt about counts 5 and 6 because they were said to have occurred after the applicant had ejaculated. Further, the jury might have regarded JB’s overall recollection as less reliable than AB’s because he had been significantly disturbed by what OB had done to him. JB had also been subject to regressive therapy, which the jury might have considered compromised his recollection. Nonetheless, the jury indicated, by its verdict on count 4, that it accepted JB’s evidence on that count. By both of the guilty verdicts the jury indicated that they did not believe the applicant on highly significant matters, although in relation to the counts concerning JB (2, 4, 5 and 6) they may well have accepted his evidence that he did not wear pyjamas.

175. Having read the transcripts and the exhibits in the 2018 trial, I confirm that I do not entertain a doubt about the applicant’s guilt, much less one that the jury might not have been able to resolve, having regard to its advantage of seeing and hearing the witnesses. I am not persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. In my view, it was open to the jury to convict the applicant on counts 1 and 4. For the reasons given above, I am not persuaded that the verdicts of guilty on counts 1 and 4 were unreasonable.

Proposed orders

176. For the reasons given above, I propose the following orders:

1. If leave be required to rely on ground 1, grant leave under rule 4 of the Criminal Appeal Rules in respect of that ground.

2. Grant leave to appeal on grounds 1, 2, 3 and 4.

3. Dismiss the appeal.

177. BELLEW J: I have had the advantage of reading, in draft, the judgment of Adamson J. I agree with her Honour’s conclusions in respect of grounds 1, 2 and 3. In respect of ground 4, I have undertaken my own assessment of the evidence and I agree with her Honour’s conclusion in respect of that ground.

178. I agree with the orders proposed by Adamson J.

**********

Decision last updated: 29 July 2020