Higgins v R

[2020] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Higgins v R [2020] NSWCCA 149

Hearing dates:

1 June 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Before:

Payne JA at [1]
Rothman J at [181]
Bellew J at [192]

Decision:

(1)   Leave to appeal granted;

(2)   Reject the tender of:

(a)   paragraphs [2] to [15] of the affidavit of Mr Madden affirmed 1 April 2020; and

(b)   the reports of Mr Anastopoulos;

(3)   Appeal allowed;

(4)   Quash the applicant’s convictions;

(5)   Enter verdicts of acquittal on counts 1, 2, 4 and 5 in the indictment.

Catchwords:

EVIDENCE – hearsay – exceptions – admissions – where evidence admitted as a previous representation of a common purpose by former co-accused – whether evidence can only be admitted as a previous representation of the common purpose alleged in the proceedings – whether evidence improperly admitted

CRIMINAL PROCEDURE – trial – judge alone – where applicant gave evidence he does not swear – where applicant slipped and made an exclamation as leaving the witness box – where trial judge alleged he swore – whether trial judge erred in holding that the applicant swore – whether trial judge erred in refusing application to discharge herself

EVIDENCE – corroboration – meaning of corroboration – whether trial judge erred in finding that complainant’s evidence was corroborated

CRIMINAL PROCEDURE – trial – judge alone – directions – where trial judge requested to direct herself to approach evidence with caution due to the witness’ age and ill health – whether trial judge erred in giving no weight to the effect on reliability of the witness’ evidence

CRIMINAL PROCEDURE – trial – judge alone – delay – where 44 year delay in applicant being brought to trial – where trial judge requested to direct herself that applicant was under a forensic disadvantage because of delay – whether trial judge erred in refusing to do so

CRIMINAL PROCEDURE – trial – judge alone – verdict by direction – where trial judge gave Markuleski direction – whether trial judge erred in properly considering implications of directed verdicts

EVIDENCE – character evidence – good character – whether trial judge erred in dismissing good character evidence

EVIDENCE – judicial notice – matters of common knowledge – where trial judge took judicial notice of church practices of moving priests from parish to parish when complaints arose – whether trial judge erred in doing so

CRIME – appeals – appeal against conviction – unreasonable verdict

Legislation Cited:

Crimes Act 1900 (NSW), ss 79, 81, 81A

Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1)

Criminal Procedure Act 1986 (NSW), s 293A

Evidence Act 1995 (NSW), ss dictionary, 55, 56, 59, 65, 81, 87, 103, 135, 136, 137, 144, 165, 165B

Evidence Amendment Act2007 (NSW), schedule

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

Elzahed v State of New South Wales (2018) 97 NSWLR 898; [2018] NSWCA 103

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394

Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

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

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15

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

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127

R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep)

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

R v Scott Alan May (No 2) [2008] NSWSC 595

R vTaufahema (2007) 228 CLR 232; [2007] HCA 11

R v Watt [2000] NSWCCA 37

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

Thornton v R [2017] NSWCCA 86

Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9

Category:

Principal judgment

Parties:

Peter Higgins (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Skinner with MSM Voleynik (Applicant)
B Baker (Respondent)

Solicitors:
Thompson Madden Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2016/21031

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) there is a non-publication order of information or material that identifies or is likely to lead to the identification of the complainant.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

6 May 2019

Before:

English DCJ

File Number(s):

2016/21031

HEADNOTE

[This headnote is not to be read as part of the judgment]

In October 2017, Brother Peter Higgins, the applicant, was charged with six counts of sexual assault alleged to have been committed in 1974-5 whilst the complainant was a student at a school where the applicant taught in Liverpool. On 6 May 2019, after a judge alone trial the applicant was found guilty of counts 1 (committing an indecent act with a male), 2 (committing an indecent assault on a male) and 4 (buggery), contrary to (the now repealed) ss 79, 81 and 81A of the Crimes Act 1900 (NSW). The trial judge directed verdicts of acquittals in relation to counts 3 and 6. The trial judge did not consider count 5, as it was strictly an alternative to count 4.

The applicant appealed his conviction under nine grounds:

1. the trial judge erred in admitting into trial, as admissions by the applicant, evidence of about the conduct and statements of Brother Downey;

2. the trial judge erred in finding that the applicant swore as he left the witness box at the conclusion of his evidence on 12 April 2019;

3. the trial judge erred in holding that the evidence of the complainant was corroborated;

4. the trial judge erred in giving no weight to the effect upon the reliability of the complainant’s mother’s evidence of her age and ill health;

5. the trial judge erred in finding that the applicant was under a significant forensic disadvantage in meeting a case about events 44 years before;

6. the trial judge did not properly consider the implications of the verdicts of not guilty by direction for counts 3 and 6;

7. the trial judge erred in either dismissing completely or in not giving sufficient weight to the good character evidence called on behalf of the applicant;

8. the trial judge introduced into her deliberations evidence that was not before her Honour, and upon which no submissions had been made or opportunity to make submissions was provided to the defence; and

9. each of the verdicts of guilty is unreasonable, or cannot be supported, having regard to the evidence that her Honour should have properly rejected or properly admitted and properly considered in accordance with the law.

The Court held, granting leave to appeal and allowing the appeal:

Per Payne JA (Rothman J and Bellew J agreeing):

1. As to ground 1, in order to determine whether the previous representations are taken to be admissions, s 87 of the Evidence Act must be addressed: [29].

2. In R v Dolding, the Court held that satisfaction of the s 87(1)(c) criteria does not itself render evidence of the representation admissible in substantive proceedings. The court must determine whether evidence of the previous representation is taken to be an admission, and if it so determines, whether evidence of the admission should be admitted in the substantive proceedings: [31]-[33].

R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127, applied.

3. In R v Dolding, it was held that the admission of evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made “in furtherance of” the common purpose alleged: [37]. No common purpose was alleged between the applicant and Brother Downey in relation to any count in the indictment the applicant faced: [39]. The trial judge erred in the approach taken to s 87 of the Evidence Act and the material to which the applicant objected should have been rejected: [43].

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39; Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22; R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127, explained and applied.

4. As to ground 2, the 18 day delay in the Crown raising the issue and seeking a credit finding based on something outside the written record of the trial was highly undesirable: [51]. Although the way this issue was raised by the Crown at the trial is to be deprecated, the trial judge ultimately dealt with it correctly: [53].

5. At the ground 3, the evidence relied upon by the trial judge, except for the complainant’s mother’s evidence, was evidence given by the complainant himself. None of this evidence was “corroboration” in the legal sense: [56].

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, applied.

6. As to ground 4, the trial judge did not err in failing to warn herself under s 165 of the Evidence Act about the potential unreliability of the complainant’s mother’s evidence based on her age or ill health. There was no evidence of the complainant’s mother’s ill health. The trial judge was not bound to find that the complainant’s mother’s evidence may have been unreliable because of her age: [71].

7. As to ground 5, the trial judge erred in not holding that the applicant was under a significant forensic disadvantage. In the circumstances of the case, after a 44 year delay, the applicant faced a significant forensic disadvantage: [76].

8. As to ground 6, the question the trial judge was required to consider was how the complainant’s failure to give evidence in accordance with parts of his out of court statements that founded counts 3 and 6 affected his credibility and reliability on the remaining counts. Her Honour did not do this, but rather, accepted the narrative of events given to her by the complainant based upon a conclusion that the failure of the complainant to adhere to the statements he had made and upon which counts 3 and 6 were based in fact enhanced the complainant’s credibility and reliability. This was an error: [86].

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

9. As to ground 7, the trial judge made errors of approach. On a fair reading, none of the witnesses were unwilling to make sensible concessions: [91].

10. As to ground 8, the trial judge took judicial notice of three matters. Her Honour made a number of findings about those matters which did not meet the statutory tests in s 144(1). The trial judge did not give the applicant the opportunity to make submissions as required by s 144(4). A miscarriage of justice was thereby occasioned: [109].

Per Payne JA (Bellew J agreeing):

11. The question posed by ground 9 is one the Court must decide by making its own independent assessment of the evidence and determining, whether, notwithstanding that there is evidence upon which the trial judge might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict to stand. This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way that leads to the conclusion that, even making allowances for the advantages enjoyed by the trial judge, there is a significant possibility that an innocent person has been convicted. It follows that the applicant is entitled to be acquitted of all charges: [175].

Per Rothman J:

12. As to ground 9, the trial judge’s advantage is or may be capable of resolving the doubt I otherwise have after reading the evidence. Nevertheless, the applicant is entitled to an acquittal: [190]-[191].

Judgment

1. PAYNE JA: On 5 October 2017, the applicant, Brother Peter Higgins, was charged with sexual assaults alleged to have been committed whilst the complainant was a student at a school in Liverpool in 1974 or 1975 where the applicant taught.

2. In April and May 2019, a judge alone trial was conducted before English DCJ. On 6 May 2019, the applicant was found guilty on three counts, counts 1, 2 and 4, by the trial judge. Her Honour directed verdicts of acquittal in relation to count 3 and count 6, the Crown Prosecutor having accepted that the applicant had no case to answer in relation to those counts. Her Honour did not consider count 5, as it was strictly an alternative count to count 4. Her Honour’s decision was delivered orally but a revised version of her judgment was made available for the purposes of the appeal.

3. Whilst all of the offences were particularised on the indictment as having occurred between 1974 and 1975, the Crown Prosecutor opened on the basis that all but count 6 had occurred in 1974, when the complainant was in year 5.

4. The counts upon which the applicant was convicted were:

1. indecent act with a male, contrary to (the now repealed) s 81A of the Crimes Act 1900 (NSW) (count 1);

2. indecent assault on a male, contrary to (the now repealed) s 81 of the Crimes Act (count 2); and

3. buggery, contrary to (the now repealed) s 79 of the Crimes Act (count 4).

5. Counts 3 and 6 upon which the applicant was acquitted, together with the alternative count 5, were counts under the repealed s 81 of the Crimes Act.

6. The trial at which the applicant was convicted was the applicant’s third trial. The first trial, in 2017, was abandoned when a co-accused, Brother Basil Downey, died. The second trial was vacated after the trial judge expressed concerns about the applicant’s capacity. Those concerns were subsequently resolved. The third trial commenced on 8 April 2019.

7. The complainant was born in December 1963, meaning he was 10 years old throughout the 1974 school year, and 11 years old throughout the 1975 school year. In 1974 the complainant was a student in the year 5 class taught by the applicant.

8. The trial judge found, in relation to count 1, that the applicant pulled out his penis, exposed it to the complainant, and encouraged him to touch it, which the complainant did. In relation to count 2, her Honour found that the applicant held the complainant’s hand, took it into his robes, and placed it on his penis. In relation to count 4, the trial judge found that the applicant inserted the head of his penis into the complainant’s anus. Her Honour found that this assault ceased when Brother Downey walked into the classroom where it was taking place and screamed at the applicant.

9. The applicant was acquitted of counts 3 and 6, where the case opened by the Crown was:

1. in relation to count 3, that the applicant told the complainant to reach into his pocket, which the complainant initially refused to do. After the applicant caned the complainant he reached into the applicant’s pocket and felt his skin. The applicant took hold of the complainant’s arm and the complainant then touched the applicant’s penis with his hands, until it became erect;

2. in relation to count 6, the applicant was supervising the complainant and other students at a swimming pool. After watching the complainant and other boys change, the applicant told the complainant to stay behind in the change room. The applicant was said to have then pulled down his pants and exposed his penis, held it in his hand, and stroked it. He asked the complainant to touch his penis, and grabbed hold of his arm. They were interrupted by another student and the complainant ran away.

10. The complainant did not give evidence consistent with these allegations and the applicant was acquitted on each count.

11. The Crown at the trial called evidence from the complainant, the complainant’s mother, Detective Senior Constable Booth who was the officer in charge of the applicant’s matter from October 2015, and Mr John Wakefield who was the investigator of the complainant’s case as part of the Catholic Church’s “Towards Healing” process in 2005. Electronic interviews with the applicant and Brother Downey, in which all of the allegations made by the complainant were denied, were also tendered.

12. The defence case consisted of oral evidence from the applicant and character evidence from seven character witnesses. Those witnesses included teachers who taught alongside the applicant, a mother of children who had been taught by the applicant, and former students of the applicant, including a retired NSW police inspector.

13. On 6 May 2019, the applicant was taken into custody. On 13 September 2019, the applicant was sentenced to a period of 9 months imprisonment for count 1, which commenced on 6 May 2019 and expired on 5 February 2020. The applicant was sentenced to imprisonment for 18 months for count 2, to commence on 6 August 2019 and expire on 5 February 2021. The applicant was sentenced for count 4 to a term of imprisonment of 7 years with a non-parole period of 3 years, to commence on 6 November 2019. The applicant is first eligible for parole on 5 November 2022.

14. The applicant appeals his conviction under nine grounds. I will address each of the grounds separately.

Ground 1: Her Honour erred in admitting into trial, as admissions by the applicant, evidence of the alleged actions and statements of Brother Downey, deceased, on the day of the alleged assault by the applicant the subject of counts 4 and 5

15. The gravamen of count 4 was that one afternoon in 1974 after school the applicant took the complainant to another classroom and engaged in conduct including inserting the head of his penis into the complainant’s anus. The complainant’s evidence was that the assault ceased when Brother Downey walked into the classroom where it was taking place and screamed at the applicant. I will return when addressing ground 9 to the question of whether the complainant then remained in the classroom or waited outside, a matter about which he gave conflicting accounts.

16. For the purposes of ground 1 of this appeal, what is critical is that the complainant was permitted to give evidence in the trial that later that afternoon he was driven home by Brother Downey who told him to tell his parents that “I was late, I missed the bus, and I fell over and hurt my backside”. The complainant’s mother was permitted to give evidence that she remembered an occasion when the complainant had been driven home by Brother Downey who told her that the complainant “fell over, hurt his bottom, and I drove him home.”

17. The Crown sought to tender the evidence about what Brother Downey had said as constituting an admission made by the applicant, thereby at least implicitly accepting that they relied on the evidence for a hearsay purpose. In the applicant’s second trial, the trial judge ruled that the evidence was admissible as an admission. The dispositive reasoning in the May 2018 judgment was as follows:

“I must take the Crown case at its highest. The Crown submits that on the evidence sought to be relied upon I would conclude that there was a common purpose existing at the time that Basil Downey walked into that classroom and that the Crown is entitled to rely upon the evidence of what occurred then and thereafter in furtherance of the common purpose.

…

To my mind the evidence demonstrates a common purpose. In other words, it is open to conclude on a prima facie basis that the evidence demonstrates common purpose between the accused and Basil Downey for Basil Downey once he came upon what was allegedly taking place to then cover up what had occurred in the classroom between the accused and the complainant by threatening the complainant not to tell informing him of the version he was to give to his parents and then confirming to the boy’s parents how the boy perhaps came to suffer injury.

Thereby assisting in the commission of the offence by taking steps to prevent or discourage the complainant from disclosing the commission of the offence to prevent the accused being arrested, standing trial or receiving punishment as a consequence of the alleged offending conduct.

I grant leave to the Crown to adduce the evidence as sought pursuant to the provisions of s87(1)(c) of the Evidence Act.”

18. On 8 April 2019, prior to the commencement of the third trial, counsel for the applicant (who was different to counsel who had appeared at the second trial) sought to renew the objection to this evidence. Counsel also sought to have the Court consider exclusion under ss 135 and 137 of the Evidence Act1995 (NSW). The entirety of her Honour’s reasoning rejecting the application was as follows:

“HER HONOUR: Well I’m not persuaded it would be in the interests of justice for me to revisit the order that I’ve previously made and I don’t propose to do so and nor am I persuaded that the evidence will be improperly or unfairly used against the accused in the circumstances.”

19. The applicant submitted that the evidence of the complainant and his mother about the words and actions of Brother Downey should not have been admitted under s 87 of the Evidence Act as admissions made by the applicant. The applicant submitted that none of the evidence came within the definition of “admission” in the Evidence Act, and that in any event there was no proper foundation for applying the extended basis for adducing the evidence relied upon by the Crown, under s 87(1)(c) of the Evidence Act.

20. The Crown apparently accepted at the trial that both representations were hearsay. The tender was pressed as an admission and under s 65 of the Evidence Act. Section 65 was not pressed on the appeal as a basis of admissibility. The Crown submitted on this appeal that the first relevant question is whether the previous representations attributed to Brother Downey were hearsay. I have concluded that they were. The Crown’s submission to the contrary on this appeal should be rejected. Section 59 (“the hearsay rule”), appears in Part 3.2 of the Evidence Act and provides, relevantly:

59 The hearsay rule—exclusion of hearsay evidence

(1)   Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

…

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note. Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.

21. A “previous representation” is defined in the Dictionary to the Evidence Act as a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced. A fact that the person may reasonably be supposed to have intended to assert by a representation is referred to in Part 3.2 as “an asserted fact” (s 59(2)). In Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ said at [22] that the section:

“[22] … requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it”.

22. That conclusion must be read in the light of the amendments made by the Evidence Amendment Act2007 (NSW) to s 59, in particular the insertion of s 59(2A) set out above.

23. In the present case, I would prefer to analyse these representations together as part of one course of conduct. Both of these representations were adduced “to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”, that is, the relevance of the evidence was not that Brother Downey said those things but rather the implied representation that Brother Downey had witnessed the sexual assault the subject of count 4 and intended to cover it up. For that reason he encouraged the complainant to lie to his parents about the source of his injury; Brother Downey repeated the lie to the complainant’s mother for the same reason. That this use of the evidence was intended by the Crown may be seen in the way the Crown addressed upon it at the trial. The implied hearsay representation, that Brother Downey had witnessed the sexual assault the subject of count 4 and intended to lie about what he had seen, was also taken into account by the trial judge in her dispositive reasoning in the conviction judgment.

24. If the two representations by Brother Downey are analysed separately, no different conclusion is reached. The representation to the complainant by Brother Downey was the instruction to him to tell his parents that “I was late, I missed the bus, and I fell over and hurt my backside”. This representation was adduced “to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”: s 59(1). The relevance of this evidence was not that Brother Downey said this to the complainant; this fact was not relevant. Rather, the relevance of what Brother Downey said to the complainant lay in seeking to prove the facts impliedly asserted by Brother Downey to the complainant, namely that he had witnessed the sexual assault the subject of count 4 and wished to cover it up. For these reasons he encouraged the complainant to lie to his parents about the source of his injury. Brother Downey may reasonably be supposed to have intended to assert those facts, particularly when regard is had to the circumstances in which he made the representations: ss 59(1) and 59(2A). The implied representations, relevant only for the hearsay purpose of proving that Brother Downey had witnessed the sexual assault the subject of count 4 (and wished to cover it up), was also taken into account in this way by the trial judge in her dispositive reasoning in the conviction judgment.

25. The representation by Brother Downey to the complainant’s mother was that the complainant “fell over, hurt his bottom, and I drove him home”. This was not relevant to prove facts expressly asserted. The statement impliedly asserts that Brother Downey had personal knowledge of the circumstances in which the complainant was injured and that the injury had an innocent cause. The evidence was not led to prove any such implied assertions. The evidence was led for the purpose of showing that Brother Downey lied to the complainant’s mother about what he knew of the circumstances. It was the fact the statement was made, and a lie was told, that led to the tender by the Crown. However, the fact that Brother Downey said this to the complainant’s mother is not, by itself, relevant. It is relevant only when considered together with the evidence about Brother Downey having witnessed the assault the subject of count 4 and Brother Downey’s representations to the complainant. The statement to the mother gives effect to the conduct of Brother Downey in telling the complainant what to say. If evidence of the representation to the complainant was inadmissible, then the evidence of Brother Downey’s statement to the mother was also inadmissible: s 56 Evidence Act.

26. On the appeal, the Crown submitted that if the evidence was hearsay, the trial judge correctly found that the evidence was an admission made on behalf of the applicant by Brother Downey.

27. The Evidence Act defines “admission” as follows:

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

28. As the evidence of previous representations made by Brother Downey was hearsay, [1] s 81 of the Evidence Act was relevant. That section provides:

81   Hearsay and opinion rules: exception for admissions and related representations

(1)  The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2)  The hearsay rule and the opinion rule do not apply to evidence of a previous representation—

(a)  that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and

(b)  to which it is reasonably necessary to refer in order to understand the admission.

1. Alternatively, the separate representation made to the complainant. On a “separate representation” analysis the representation to the complainant’s mother was not admissible.

29. In order to determine whether a previous representation made by a person is also taken to be an admission by a party, s 87(1)(a)-(c) must be addressed. That section provides:

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—

(a) that the person had authority to make statements on behalf of another person in relation to a matter, or

(b) that the person was an employee of another person or had authority otherwise to act for another person, or

(c) the scope of the person’s employment or authority.

30. In addressing the question of whether s 87(1)(c) was engaged, at the commencement of the third trial, the decision of this Court in R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 delivered on 25 June 2018, after the second trial in May 2018, was apparently not brought to her Honour’s attention.

31. In that decision Simpson AJA (Johnson and Harrison JJ agreeing) cogently explained the correct operation of s 87 of the Evidence Act. Satisfaction of the s 87(1)(c) criteria does not render evidence of the representation admissible in substantive proceedings. That question requires a further evidentiary decision.

32. The issue of the admissibility of the evidence objected to was presented to the trial judge in this case on the erroneous assumption that s 87 is directed to the admission of evidence in the substantive proceedings. As Simpson AJA explained in Dolding:

“[22] … Examination of the chapeau to s 87 shows that it is directed to an intermediate question: should a representation made by a third party be admitted ‘for the purpose of determining whether a previous representation made by a person’ (who may or may not be a party to the substantive proceedings) (X) is to be taken to be an admission by a party to the substantive proceedings (Y). For that purpose, the court is obliged (‘is to’) admit the evidence of the representation if it is reasonably open (on other evidence) to find:

(i)   that the person who made the representation (X) shared a common purpose (whether lawful or not) with a party to the proceedings (Y) (or one or more persons including Y);

(ii)   that the representation was made by X in furtherance of that common purpose (as will be seen below, the use of ‘that common purpose’ is contentious).” (Emphasis in original.)

33. It is made clear in Dolding (at [23]) that assuming s 87(1)(c) is satisfied:

“[23] The court must then determine whether evidence of the previous representation made by X is to be taken to be an admission by Y; and, if it so determines, whether evidence of the admission should be admitted against Y in the substantive proceedings. Thus, satisfaction of the s 87(1)(c) criteria is only a step towards the admission of the evidence in the substantive proceedings.” (Emphasis added.)

34. About this question of admissibility in the trial, in R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep), this Court (per Dunford J, with whom Sully and Simpson JJ agreed) held that:

“[Section] 87 reproduces the common law relating to representations made by co-conspirators: Ahern v The Queen (1988) 165 CLR 87; or in furtherance of a common purpose: Tripodi v The Queen (1961) 104 CLR 1.”

35. It is thus necessary to understand the co-conspirator’s rule which was succinctly stated in Ahern v The Queen (1988) 165 CLR 87 at 94-95; [1988] HCA 39 as being:

“… when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others … [t]hus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in the partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.” (Footnote omitted.)

36. The Court in Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 explained what was encompassed by “in furtherance of” or “in pursuance of”. The Court (Dixon CJ, Fullagar and Windeyer JJ) said (at 7):

“It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise.” (Emphasis added.)

37. Consistently with this High Court authority, Simpson AJA found in Dolding (at [32]) that the admission of evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made “in furtherance of” the common purpose alleged, by which her Honour meant the common purpose alleged in those proceedings:

“[32] … In my opinion it is clear from the terms of s 87(1)(c) that evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made ‘in furtherance of’ the common purpose alleged.” (Emphasis in original.)

38. Simpson AJA rejected, in terms, the submission that the evidence of a representation made by a third party in furtherance of a common purpose unrelated to the common purpose alleged by the Crown was admissible (at [32]).

39. It was accepted by the Crown on this appeal that no common purpose was alleged between the applicant and Brother Downey in the trial. Rather “a” common purpose, to cover up the sexual assault committed by the applicant, which was not the subject of any allegation made at the applicant’s trial, was submitted to be a sufficient basis to admit the evidence against the applicant at the trial. For the reasons explained in Dolding, that submission cannot be accepted.

40. In Dolding, Simpson AJA explained the admissibility in the trial of admissions allegedly made on behalf of an accused by third parties by reference to two earlier decisions. In the first of those cases, R v Watt [2000] NSWCCA 37, Hidden J, in dissent in the outcome but not as to the principle to be applied, described the principle thus:

“[9] However, it was also necessary for the statements to have been made in furtherance of the alleged common purpose. In my view, there were several statements of Bowman in his telephone conversations with the undercover officer which might have fallen into that category. However, as I have said, his Honour ultimately had regard only to the tape recorded conversation of 5 March. On that occasion it was the undercover officer who introduced the appellant into the conversation, and the only statements of Bowman relating the appellant to the supply of drugs were the references to the possibility of arranging ‘another eight’ on the following Thursday.

[10] True it is that those statements tend to identify the appellant as involved with Bowman in the supply of drugs. Nevertheless, the charge against the appellant was of his knowingly taking part in the supply of methylamphetamine between 21 January and 6 March 1996 (5 March being the day of the last meeting between Bowman and the undercover officer, and the day of the appellant’s arrest). Statements about the possible supply by the appellant of drugs on a day well outside that period could not be characterised as being in furtherance of the common purpose embraced by the offence charged.” (Emphasis added.)

41. His Honour’s reference to the evidence being “in furtherance of the common purpose embraced by the offence charged” correctly identified the basis of admissibility of the evidence as being that the evidence was in furtherance of a charged offence. This was explained in the second of the cases referred to in Dolding, R v Scott Alan May (No 2) [2008] NSWSC 595, where Rothman J explained:

“[25] It seems Watt has been misunderstood by some. The statement of principle by Hidden J on the operation of s 87(1)(c) of the Act is not challenged by the remainder of the Court, and, with respect, could not be. The difference in the approach to the disputed evidence in Watt is that Hidden J construed the conversation as in furtherance of a common purpose that was not relevant to the charge then before the Court. The majority construed the conversation as, at least in part, in furtherance of the common purpose that was then the subject of the proceedings.

[26] As in most cases, in Watt the existence of another uncharged common purpose (and representations made in furtherance thereof) was not relevant to, and would be excluded from, proceedings in relation to the charge before the Court.”

42. That passage in May was expressly approved at [33] by Simpson AJA (with whom Johnson and Harrison JJ agreed) in Dolding. As Simpson AJA concluded, even “if the statutory construction I favour is not correct, it is difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test: Evidence Act,s 56(2)”. I respectfully agree.

43. It follows that the trial judge erred in the approach taken to s 87 of the Evidence Act and the material to which the applicant objected should have been rejected. Ground 1 should be allowed.

Ground 2: Her Honour erred in holding that the applicant swore as he left the witness box at the conclusion of his evidence on 12 April 2019, and her Honour erred in refusing the defence application that as a consequence she discharge herself from further hearing the trial

44. At the conclusion of his evidence on 12 April 2019 the applicant stumbled as he left the witness box. He then made some sort of exclamation. Nothing was recorded in the transcript of the applicant’s evidence about this issue. Nothing was said, by anybody, about what it was that the applicant allegedly said until 18 days later.

44. On 30 April 2019, the transcript records the first mention of this topic:

“CROWN PROSECUTOR: … One minor thing, your Honour, that during the cross‑examination he ‑ it appeared that he went to say the word ‑ he formed the word, ‘bullshit’ and I asked him was he going to say bullshit, this is at p 189, line 5, and he said, ‘I don’t use bad language like that. I am not normally a person that swears or says anything rude.’

And whilst this doesn’t appear on the transcript your Honour may have noticed that when he went to leave the witness box –

HER HONOUR: When he pushed the chair in.

CROWN PROSECUTOR: Sorry?

HER HONOUR: When he pushed the chair in.

CROWN PROSECUTOR: When he pushed the chair in he’s not moments ago told us that he doesn’t swear and I’m not talking about massive swearing, I was talking about the word ‘bullshit,’ he said, ‘I don’t normally use words like that,’ pushed the chair in, caught his foot, appeared to trip and said, ‘Shit.’ Now I haven’t listened to that audio to hear if that’s on the audio. It obviously doesn’t appear on the transcript because his evidence had concluded, but it was audible to us at the Bar table –

HER HONOUR: And certainly to me.

CROWN PROSECUTOR: The Court pleases.

SKINNER: Sorry, where was this?

HER HONOUR: At the conclusion of his evidence when he was getting up out of the witness box, following that exchange about whether he used ‘bad’ language or not as he was leaving the witness box he stumbled, he pushed the chair in and he clearly said the word, ‘Shit,’ and I heard it clearly.

SKINNER: Well, [alright], I’ll address on that.

…

HER HONOUR: I was nearly going to pull him up, Mr Skinner, and ask him to repeat what he said, but I chose not to in the circumstances.

CROWN PROSECUTOR: Both my instructing solicitor and I certainly heard it and in my submission given the evidence perhaps that was a more truthful version rather than what he’d said in evidence moments earlier. And, yes, it’s only a minor thing but it goes to what I’m saying about being polished, practiced, rehearsed and not being genuine and when a genuine moment arrived we perhaps saw a very small glimpse of his character.”

46. On 30 April 2019, the same day that the issue was raised by the Crown, the relevant portion of the recording was played in court. The following exchange occurred:

“[SKINNER:] … Your Honour, there’s another matter that we are concerned about and that is this issue about what my client did or did not say as he left the box.

I’ve asked the recording clerk if we can listen to the tape. It’s an important matter and we need to consider our position in relation to your Honour’s view on it. I’ve got certain instructions. I’m not in a position to - I didn’t hear it. I have a vague memory, I’ll be honest, about him stumbling and perhaps expostulating something, but I certainly didn’t hear him say the word ‘shit’ and we’d like to clear that up, if we can, with the audiotape, if your Honour would allow it.

HER HONOUR: Has the tape been listened to?

SKINNER: We’re doing - that’s why there was a delay, so I just ask perhaps if that can be done in your Honour’s presence or not, it doesn’t really matter to us.

HER HONOUR: It should be in my presence.

PLAYBACK

There you are, there was the word. I clearly heard it.

SKINNER: Your Honour, I did hear something then. I’m not going to play games, but - and it did sound like ‘shit’ I-

HER HONOUR: It was ‘shit,’ Mr Skinner. I am sitting right next to this witness box and the word was ‘shit.’ It was heard by me and it was heard by those at the bar table, it is on that recording.

SKINNER: May I put my position?

HER HONOUR: Yes, you can put your position.

SKINNER: My client’s instructions are that he went ‘shish,’ something like that. He has an Irish accent and he adheres to the proposition that he does not swear. It’s also relevant to the submission my friend made about her questioning earlier on at 189, line 8, ‘Weren’t you going to say it was all bullshit?’ Your Honour will remember that –

HER HONOUR: Yes.

SKINNER: ‘Didn’t you go to say bullshit?’ Then he said, ‘No. I said it did not happen.’ Now the evidence is that he didn’t. That’s the evidence because she didn’t challenge him on it. That’s the evidence on the transcript.”

47. The trial judge’s rejection of the applicant’s submissions about what had allegedly been said 18 days earlier formed the basis of an application that her Honour discharge herself. That application was refused. The applicant does not challenge that decision, at least directly.

48. On the appeal, the applicant read an affidavit from Mr Madden, solicitor, containing paragraphs [2]-[15] which gave evidence about Mr Madden’s observations about the language typically used by the applicant and tendered the report of an audio expert, Mr Sakis Anastopoulos, who had analysed the audio recording of the relevant passage. Mr Anastopoulos’ report concludes that his analysis of the audio was “inconclusive”.

49. The Crown opposed leave to rely upon paragraphs [2]-[15] of Mr Madden’s affidavit and the report of Mr Anastopoulos, submitting that it was not fresh evidence, as it could have been obtained by the exercise of reasonable diligence at trial. It was agreed that the Court should address the admissibility of this evidence in these reasons.

50. The Crown’s submission should be accepted. Mr Madden’s evidence of observation was not relevant to any fact in issue and was not admissible. The fact that Mr Madden had not observed the applicant to swear in the course of preparing for trial is not probative of whether on the relevant occasion he did. The report was not fresh evidence: Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. The report, on its face, established nothing of relevance. It cannot be concluded that the report would have been likely to have caused the judge to have entertained a reasonable doubt about the guilt of the applicant: R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63].

51. I regard as highly undesirable the 18 day delay in the Crown raising this issue and seeking a credit finding based on something outside the written record of the trial. It is even more troubling that the trial judge, who apparently made a conscious decision not to raise what she thought she heard at the time, was at least initially prepared to entertain a credit finding adverse to the applicant based on something that was never put to the applicant and which he had no opportunity to address at the time.

52. If anything was to be made of the applicant’s alleged exclamation it was incumbent on the Crown to seek a timely transcript correction and, if not agreed, to seek a ruling. Regrettably, that did not occur. If the Crown thought this matter was potentially important it should have raised the matter immediately or, at the latest, sought a transcript correction as soon as the transcript became available. Fairness to the applicant should have ensured that he was given an opportunity to address the accusation at the time. It would have been quite unfair in this case for the trial judge to take the alleged exclamation by the applicant into account. Ultimately, her Honour did not do so. The trial judge dealt with the issue in her conviction judgment:

“An incident arose during the course of the trial over which there were submissions made on behalf of the Crown and the defence, and that is whether the accused swore as he was leaving the witness box. I have decided in fairness to the accused to put that incident from my mind and to not let it impact on this assessment of his credibility. It was with the benefit of hindsight a matter which should have been raised at the time and it was not. It is now unfair to the accused to use what may or may not have transpired against him. I have chosen to ignore the Crown’s submissions on that point and disregard what may have been seen or heard on my part and to put it from my mind.”

53. Although the way this issue was raised by the Crown at the trial is to be deprecated, the trial judge ultimately dealt with it correctly.

54. Ground 2 should be dismissed.

Ground 3: Her Honour erred in holding that the evidence of the complainant was corroborated

55. The trial judge commenced her conviction judgment by observing, as part of a summary of the Crown case, that “there is no independent objective evidence confirming” the applicant’s testimony. Despite that initial observation, the trial judge went on to find what her Honour described as “corroboration” for the applicant’s account.

“I find that the complainant’s evidence is corroborated in a number of respects; his mother’s evidence, and I will return to her evidence in due course; his evidence of the type of underwear worn by the accused; his description of the closet in which he was placed; his description of the pain experienced at the time of the anal penetration, which satisfies me beyond reasonable doubt that the accused’s penis penetrated the complainant’s anus and, therefore, amounts to sexual intercourse, such that an act of buggery is made out; his description of his bottom stinging, so much so that he could not take a bath on the night of that alleged incident, something he complained about as long ago as 2005, something still fresh in his memory from the physical injury he sustained; and his evidence about being driven home by Brother Downey and being told not to say anything about what occurred to him, evidence corroborated by his mother.”

56. All the evidence listed by her Honour save the mother’s evidence was evidence given by the complainant himself. None of this evidence was “corroboration” in the legal sense as explained in Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51.

57. The Crown accepted that none of this evidence was “corroboration” in the legal sense. I reject the Crown’s submission that the trial judge was using the term “corroborated” in a colloquial rather than a legal sense. I would not infer that the trial judge was using a term with a clear legal meaning in a colloquial sense. The reference was not a slip made in the course of an oral judgment. The reasons of the trial judge, whilst delivered orally, were revised before being sent to this Court. In addition, her Honour gave herself a specific warning about one aspect of corroboration at the outset of the judgment:

“Evidence of the distressed state of the complainant does not of itself amount to corroboration and care must be taken to ensure that if distress is to be relied upon as corroboration, it must be the only cause of the distress and other explanations must be excluded.”

58. The trial judge recorded that it was important that the role of “corroboration” in its legal sense be borne in mind. None of the individual pieces of evidence identified by her Honour were corroborative in the legal sense and I doubt that the evidence was in any way supportive of the complainant’s evidence:

1. the complainant’s mother’s evidence, at its highest, was that the complainant was driven home by Brother Downey. I have earlier concluded that the evidence of what Brother Downey allegedly said to her was not admissible against the applicant. Further, Brother Downey gave an account in an interview with the police which was exculpatory of the applicant which was never addressed by the trial judge;

2. the evidence concerning the type of underwear worn by the applicant was not supportive of the complainant’s evidence. The evidence of the complainant about white underpants was led (and only led) in the context of count 6 where the applicant was acquitted;

3. the complainant’s description of the cupboard was that “[i]t was like a broom cupboard” that “went from floor to ceiling”. How this evidence supported the complainant’s account was not explained by the trial judge; and

4. the explanation of pain the complainant said he experienced in the course of events the subject of count 4 contained none of the unique or unusual details sometimes found to be corroborative: see Thornton v R [2017] NSWCCA 86. This evidence was not corroborative.

59. A second finding of “corroboration”, to which I will return, was made by the trial judge about the complainant being moved from the applicant’s class to another class and then on to a third class in the course of 1974. The trial judge found:

“The complainant says he was moved from the accused’s class and put into Mr Davies’ class until the realisation dawned on Brother Downey that that was the very room where the incidents occurred and, hence, he was moved again. That is something I find also has a remarkable ring of truth to it. It would be difficult to imagine someone making up that level of detail simply to corroborate a version of events, if they in fact did not happen, as I have already stated.”

60. This finding was an error. Not only was there no corroboration of the applicant’s evidence on this topic, the applicant’s account was inconsistent with detailed documentary evidence being class rolls from 1974. Those records showed the complainant remaining in the applicant’s class in 1974. For the trial judge to find support for the complainant’s account by reason of his detailed account of being moved between classes, when that evidence was inconsistent with the available documentary evidence, was not fair to the applicant.

61. The trial judge returned to the topic of corroboration for a third time and found that the complainant’s account was corroborated by an independent witness called in the defence case. Her Honour said:

“The Crown says I should regard the improvement in marks as an indication that the accused had kept his word; if the complainant did as he was requested to do it would be reflected in his marks. The improvement in his marks, from the records tendered in the defence case, are in maths and religion in particular, the very two subjects that the accused taught when he joined Patrician Brothers Blacktown at the time he was working with a Mr [Eves], who gave character evidence supporting to some extent what the complainant had to say about the accused promising to assist him with his marks or grades if he complied with his request and/or demands.

In another small but important piece of evidence corroborative of the complainant and corroborated by an independent witness, independent of the Crown, called in the defence case, I find the complainant was a witness who made appropriate concessions when necessary. I find his demeanour when giving evidence was that of a truthful witness reliving painful experiences. He was at times highly distressed. There was also evidence from Mr Wakefield of the distress of the complainant when they spoke on the telephone on one occasion. There is also the evidence of [the complainant’s mother] of the distressed state of the complainant on the day he was driven home from school after the sexual assault is alleged to have occurred. I find his level of distress supports his credibility.”

62. This finding as to the complainant’s marks was apparently addressed to the evidence of Mr Eves, a character witness for the applicant who had taught with the applicant at other schools. The applicant apparently taught religion and mathematics at the second of those schools. The entirety of Mr Eves’ evidence on this topic was:

“Q.  Do you know Brother Peter Higgins?

A.  I do.

Q.  How long have you known him?

A.  Since 1965, 54 years.

Q.  How well did you get to know him from 1965?  Did you work together?

A.  We worked together.

Q.  In what capacity?

A.  As teachers in the primary school at Patrician Brothers at Granville.  I’m not sure whether that was one or two years.  And then when I was at Blacktown he joined the Blacktown staff in the secondary teaching junior maths and religion.

Q.  Did you ever live with him in a community?

A.  I did, in Granville.  Whether that was for one or two years I can’t recall.”

63. The trial judge apparently concluded that the complainant’s marks in religion and mathematics improved during the year that he was in the applicant’s class (although as noted above her Honour also found that the complainant was moved from that class). How it was that this improvement in these particular subjects was probative of any fact in issue was not explained by her Honour. Whatever the evidence amounted to, it was not evidence of corroboration.

64. The fourth matter of “corroboration” relied upon by the trial judge was that in his record of interview, Brother Downey said that children who were ill and whose parents could not be contacted to come to pick them up were driven home by a teacher. This was not evidence of corroboration. It was, at best, evidence consistent with one aspect of the complainant’s account. More importantly, it derived from the same record of interview where Brother Downey denied the complainant’s account in the strongest terms. The trial judge made no finding rejecting that denial, save perhaps in taking account of various matters relating to the Catholic Church as judicial knowledge that I will shortly come to. Her Honour said:

“In that record of interview however he gives an important piece of evidence corroborative of the complainant and supporting the Crown case. He says children who were ill and whose parents could not be contacted were driven home from school. The incontrovertible evidence is that there was no phone number for the complainant on the school roll. The inference to be drawn - and I do so - is that no phone call could have been made to the complainant’s parents to come and collect him if he was injured as he - or perhaps the school - says he was. The second important piece of evidence - very much in support of the Crown case - is that Brother Downey rode a bicycle. That became a significant piece of evidence to my mind. It was evidence corroborated by the accused himself and importantly [the complainant’s mother].”

65. This evidence did not provide corroboration or support for the complainant’s account. To the contrary, Brother Downey’s record of interview, read fairly, was contradictory of the complainant’s account. The trial judge never squarely addressed this evidence or sought to resolve the contradiction.

66. To the extent that bicycle riding was relevant, in his record of interview, Brother Downey said he drove the car belonging to the Order regularly and also rode his bike every day. Her Honour’s finding that any part of Brother Downey’s record of interview provided support for the complainant’s account cannot be supported on any fair reading of the evidence.

67. I would uphold ground 3.

Ground 4: Her Honour erred in giving no weight to the effect upon the reliability of the complainant’s mother’s evidence of her age and ill health, and the inconsistencies in her evidence that were established

68. During the trial the applicant asked the trial judge to give herself a direction under s 165(1)(c) of the Evidence Act that she approach the evidence of the complainant’s mother with caution because it may have been affected by age, ill health or the like. Section 165 of the Evidence Act states, relevantly:

165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

…

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

…

(2) If there is a jury and a party so requests, the judge is to—

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).

69. The trial judge did not directly rule on the application before delivering her judgment. In the conviction judgment, the trial judge said about the complainant’s mother:

“I then want to turn to the evidence of [the complainant’s mother]. I am asked to find that she is an unreliable witness due to her age and inconsistencies in statements made by her. Particularly as to the identification of Brother [K]avanagh as the person who drove her son home and spoke to her about what occurred at school that day when she first spoke to the Royal Commission. True it is that she did say it was ‘Brother [Aengus]’ when she first spoke to the Royal Commission. But she goes on to say ‘She had never seen Brother [Aengus] drive instead of taking his bicycle.’ Whilst she has the identification of the person who drove her son home incorrect in terms of his name on that first occasion, she certainly does not have the description of the person she was referring to incorrect. Brother Downey was the person who rode his bicycle everywhere. He is clearly the brother she was referring to.

She was most gracious in the way she spoke about Brother Walker - Bishop Walker - who had treated her and her son following disclosure. The hallmark of a witness who herself was gracious and I find credible. She too made appropriate concessions when inconsistencies were pointed out to her in her earlier statements. She is a woman who had just turned 80 who I find was clearly distressed at her perceived failure on her part to further investigate what had occurred on the day despite her best efforts to do so. What she did of course when she became aware of the allegations was to assist her son to pursue the matter to find closure as a mother would do. She cannot be criticised in that regard. I would expect someone of her age with the stresses she has been through in recent times to make mistakes. I found her to be an honest witness doing her best to give evidence - not necessarily in support of her son - but also a witness who was willing to concede appropriately that she had made mistakes also the hallmark of a truthful witness.”

70. It is correct, as the applicant submitted, that the trial judge did not approach the complainant’s mother’s evidence with caution, and made no express finding about the reliability of her evidence.

71. Although the question is finely balanced, I have concluded that the trial judge did not err in failing to warn herself under s 165 of the Evidence Act about the potential unreliability of the complainant’s mother’s evidence based on her age or ill health. The Crown is correct that there was no evidence of the mother’s ill health. The trial judge was not bound to find that the complainant’s mother’s evidence may have been unreliable because of her age.

72. Further, the most significant attack on the complainant’s mother’s reliability was that she told the Royal Commission that a Brother Aengus (Kavanagh) drove her son home as opposed to Brother Downey. It is possible that the true source of this error was an investigator at the Royal Commission who made an incorrect note. The trial judge did not err in failing to give herself a warning about the unreliability of the complainant’s mother’s evidence.

73. I would dismiss ground 4.

Ground 5: Her Honour erred in not holding that the applicant was under a forensic disadvantage in the trial and in declining to give herself a direction in that regard

74. During the trial the applicant sought a direction that the trial judge consider the evidence on the basis of the forensic disadvantage the applicant suffered because of the delay in complaint. Section 165B of the Evidence Act provides:

165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section—

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following—

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

75. The applicant submitted, inter alia, that two relevant defence witnesses and a co-accused had died. Those witnesses included the teacher in whose room all of the assaults were alleged to have taken place and another teacher, Mr Cullotty. The delay was 31 years until complaint, 42 years until the applicant was first charged by the police and 44 years until the applicant was tried in the third trial. Many potentially relevant records had been destroyed in that time. The Crown resisted the direction sought. The trial judge said:

“I reject any submission that the accused has been at a forensic disadvantage due to the delay in the complainant coming forward and making complaint. From the first moment that the complaint was made the lawyers on behalf of the church and the accused had access to documents.

There are witnesses who are now deceased. There is independent evidence however regarding the classes taught by those at the relevant time. It is not the Crown case that they were witnesses to what occurred. Mr Davies may or may not have been able to recall that the complainant was in his class during the relevant period of time, I do not know. I cannot speculate about what he might or might not have said. But having regard to the evidence of others I doubt very much if he could have added much to either the case for the Crown or the accused. The evidence was that he was elderly at the time. A retired teacher who had come out of retirement to teach at the school as depicted in the exhibits. No doubt the effluxion of time would have impacted upon his memory also.”

76. In my view the trial judge erred. The Crown conceded that in all cases involving delays of anything like the delay in this case the courts have accepted that the accused was labouring under a significant forensic disadvantage. In the circumstances of the case, after a 44 year delay, the applicant faced a significant forensic disadvantage. A series of matters should have led the trial judge to find that significant forensic disadvantage was established:

1. the death of Brother Downey;

2. the death of relevant defence witnesses, including the teacher in whose room each of the offences was alleged to have occurred and Mr Cullotty;

3. gaps in the school records; and

4. changes to the physical buildings where the applicant taught the complainant and where the complainant says the assaults occurred. There was limited evidence (by reason of the delay) of the position or covering of the windows in the classroom where the offences allegedly occurred, the size and type of the window in the door to the classroom and whether it could be covered by a curtain.

77. I would allow ground 5.

Ground 6: Her Honour did not properly consider the implications of the verdicts of not guilty by direction for counts 3 and 6

78. The Crown accepted that it had not proven counts 3 and 6. The trial judge entered directed verdicts of not guilty on both counts. The trial judge directed herself that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account in the assessment of the complainant’s credibility generally: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.

79. I have concluded that the trial judge did not properly consider the implications of the directed verdicts. Rather than considering whether the inadequacy of the complainant’s evidence on counts 3 and 6 ought to be taken into account in assessing his credibility generally and upon the remaining counts, as Markuleski required her Honour to do, the trial judge accepted as proven the events the complainant described even though they were inconsistent with the allegations he had earlier made and which the Crown charged as counts 3 and 6. The trial judge held that:

“The complainant gave evidence of that incident when he was asked to give evidence in support of count 3, an occasion, on the Crown case, when the accused requested the complainant to once again touch his penis but the complainant had refused. It was to be the Crown case that the accused picked up a cane and used it in a menacing fashion in order to force the complainant to comply with his ‘request’. Rather than giving evidence, as anticipated by the Crown, the complainant gave evidence of that other incident, an incident which would have amounted to an indecent assault if it had been the subject of a charge on the indictment, which it was not, hence the directed verdict on count 3.

The Crown opened on count 6, an incident said to have taken place at the local swimming pool in the changing rooms when it was alleged that the accused pulled down his pants and the complainant noticed that the accused was wearing the white underwear. It was anticipated that the accused would give evidence of the accused exposing his penis to the complainant, holding it in his hand and stroking it, inviting the complainant to touch his penis. This was an incident which did not come to light until well after the police investigation had commenced. It was something the complainant had told a Dr Adams about in a consultation in late 2017.

When giving evidence of this incident the complainant did not say that the accused exposed his penis, rather, he said he was grabbed by the accused but he managed to break free when another child came into the change room. What he said was, ‘He went to pull out his penis’. That fell short of establishing an essential element of the offence and, hence, the directed verdict. There is a consistency in what he was attempting to say and what was to be the Crown case in respect of that count. There is a consistency of complaint to Mr Wakefield, the Royal Commission and in his evidence in court.

I have examined his evidence with great care as to the critical matters and I find it stands up to the level of scrutiny required. The mistakes as to the identity of teachers or the location of classrooms are not something which causes me to doubt the reliability of his evidence as to the essential elements which must be proved to my satisfaction beyond reasonable doubt.

The failure of the complainant to give evidence as anticipated by the Crown in support of counts 3 and 6 is not such as to cause me to doubt the reliability of his evidence on the remaining counts. Clearly the evidence of what occurred, not the subject of charge 3, could have constituted another offence, if not the offence charged.”

80. As will become apparent, there was no minor failure of recollection involved here. The complainant’s evidence at the trial was flatly inconsistent with his account which formed the basis of count 3 and inconsistent in a material respect with his account which formed the basis of count 6.

81. The Crown opened count 3 as follows:

“Count 3, your Honour, is another afternoon in 1974 and again very similar the school bell rang for the end of the day. Higgins requested that the complainant remain behind. Once all the students had left again the accused walked the complainant into classroom 5A and again placed him in the closet. A short time later Higgins then removed the complainant from the closet and walked him to the teacher’s desk. I expect the complainant will tell you that Higgins placed his arm around the complainant and told him words to this effect ‘You’re a good young boy’ and that they could have secrets. Higgins told the complainant that he needed to help him out if he was going to help the complainant with his grades. Higgins told the complainant that he did not want the complainant’s father knowing what they were doing. Higgins told the complainant to reach into his pocket but the complainant refused. At this stage it’s alleged that the accused then picked up a cane from the front of the classroom, he told the complainant to hold out his hand and he began hitting his hands with the cane in a flicking motion. As a result, the complainant then reached into the accused’s pocket and felt Higgins skin underneath. The accused took hold of the complainant’s arm and told the complainant to stroke it. The complainant touched the accused’s penis with his hands, touching it to the point of it becoming erect, and again, the complainant told him to stop and go home. The complainant missed the school bus home.”

82. The complainant’s evidence in chief did not reflect this account at all. In assessing the credibility and reliability of the complainant the trial judge failed to take into account that the complainant’s evidence reflected none of the matters the Crown had opened as supporting count 3. As I will explain in addressing ground 9, the fact that the complainant gave an account of uncharged offending which bore no resemblance to count 3 was not a matter tending in favour of acceptance of the complainant’s credibility and reliability as the trial judge found. To the contrary, the fact that four written statements had been made by the complainant to the police containing not one word relevant to the separate uncharged offending was a matter that should have caused the trial judge to consider whether the complainant’s evidence as a whole was credible and reliable.

83. The evidence was that count 6 was a late added count based on a statement made after memories emerged during a session with a psychiatrist. The Crown opened count 6 as follows:

“Count 6, your Honour is in the summer months, sometime after the counts 4 and 5.  The complainant was being supervised by Higgins and other brothers at a swimming pool located in Liverpool, the complainant went to the change room to change into his swimming costume which the accused stood and watched not only the complainant but other students change their clothes.  Higgins told the other students to leave the change room and told the complainant to stay behind.  When that happened Higgins then pulled down his pants and the complainant saw that he was wearing white underwear.  The complainant asked ‘are you going for a swim’ and Higgins replied ‘no’.  He exposed his penis and held it in his hand and stroked it.  Higgins then said something like ‘come and touch it and be the good boy I want you to be’.  The complainant attempted to run however was grabbed by Higgins who held onto his arm.

As this occurred another student entered the change room and Higgins told the student to get out.  At this point the complainant shrugged from Higgins grip and ran outside and jumped into the pool.  Higgins followed the complainant and yelled at him to get out of the pool.  The complainant complied and was dragged onto the grass by Higgins who told him to sit down.  He was further told that ‘you’re going to be severely punished and you’re going to pay for what you’ve done’.  While the complainant was sitting on the grass, or on the ground rather, some friends approached and asked what he’d done, and I expect you’ll be told that Higgins yelled at the students and told them to move away.  As the students left the pool and approached the bus Higgins took hold of the complainant and told him to stand next to the bus.  Higgins said, ‘Wave to everyone goodbye’.  Higgins made the complainant walk back to school.  When the complainant returned to school, he attended Downey’s office and Downey administered the cane to the complainant for disobeying the teacher and not getting on the bus.  Downey told the complainant it was his own fault for not getting on the [bus].”

84. The complainant’s evidence did not reflect this account in critical respects. He said in evidence in chief that the applicant approached him in the change room and the following occurred:

“Q.  You asked him was he going for a swim, what did he say?

A.  No.

Q.  Then what did he do?

A.  He grabbed me, and told me what I was about to get, I deserved it because I disgraced him, dishonoured him, disrespect him.

Q.  And what happened?

A.  Another kid walked into the room.  I tried to get away, and he wouldn’t let me go, and another kid walked in to get changed, and as Higgins turned to tell him to get out, I broke free and ran out and jumped in the swimming pool.

Q. After you asked Brother Higgins about going for a swim, what did he do?

A. He said no, he’s not, and grabbed me, and he said what was I about to get is for disrespect and disgrace, and he started undoing his pants, he was undoing his pants.

Q. And when he undid his pants, what did he do?

A. He went to pull his penis out.

Q. Yes, did he pull it out[?]

A. No, that’s when the kid walked in.”

85. The complainant’s evidence that the applicant did not “pull out” his penis is inconsistent with an element of the charge and the basis upon which the Crown presented count 6. The finding of the trial judge that “[t]here is a consistency in what he was attempting to say and what was to be the Crown case in respect of that count” was not an available path of reasoning for her Honour. The finding by the trial judge that what the complainant was “attempting to say”, but did not say, somehow supported his credibility and reliability was an error.

86. The question the trial judge was required to consider, in accordance with Markuleski, was how the complainant’s failure to give evidence in accordance with those parts of his out of court statements that founded counts 3 and 6 affected his credibility and reliability on the remaining counts. Her Honour did not do this, but rather, accepted the narrative of events given to her by the complainant based upon a conclusion that the failure of the complainant to adhere to the statements he had made and upon which counts 3 and 6 were based in fact enhanced the complainant’s credibility and reliability. This was an error.

87. I would uphold ground 6.

Ground 7: Her Honour erred in either dismissing completely or in not giving sufficient weight to the good character evidence called on behalf of the applicant

88. Seven character witnesses were called in the applicant’s case. On a fair reading of all of that evidence, the applicant mounted a powerful case on character.

89. The trial judge made a number of findings essentially rejecting all of that evidence. The findings of the trial judge were as follows:

1. as to Mr Byrne, who had been a student of the applicant and later a fellow teacher, the trial judge found:

“What I found extraordinary about his evidence was that he a former priest and teacher in the Catholic School did not follow any of the findings of the Royal Commission. The Royal Commission was an enquiry into the abuse of children in a variety of institutions including the Catholic Church and its schools. I do not accept his evidence that he would not have followed those proceedings or the Commission’s findings. He is clearly a well-educated man. The reporting of the Commission’s findings was significant in the news coverage on a daily basis for the duration of the hearings and when the findings were published. It is simply unbelievable that he would not have followed what was transpiring involving the very organisation he was employed by for some considerable period of time. I give his evidence very little weight in the circumstances.”

In the days after the sexual assault the complainant was removed from the accused’s class, 5B, and placed into a number of other classes. Downey told the complainant he had to stay away from Higgins and that he was to keep his mouth shut. During the week after the sexual assault Downey subjected the complainant to a number of unjustified canings. During such canings Downey told the complainant that more would happen if he was to tell anyone what had occurred between him and Higgins.”

137. As to count 4, there were a number of inconsistencies between the complainant’s out of court statements reflected in the Crown’s opening and the complainant’s evidence, which I will address below.

Inconsistencies and improbabilities in the complainant’s evidence

138. In relation to count 1, the complainant said that the incident commenced in a quite different way, when the applicant “told me he had lollies, or something, in his pocket, and he told me to put my hand in, but there was nothing there; it was just his penis.” The complainant also gave evidence that during the events the subject of count 1, the applicant “pulled his penis out at one stage, and asked me to pat it like I was patting a dog.” According to the Crown opening, in his out of court statements, the applicant said that the reference to patting a dog related to a separate event, the subject of count 2. Contrary to his out of court statements, that the applicant “undid the front zipper of his pants and exposed his penis”, the applicant’s evidence was that he “pulled his penis out at one stage” and the complainant saw “only the top of” the applicant’s penis. On a fair reading, the evidence the complainant gave was materially inconsistent with his out of court statements summarised in the Crown opening relating to count 1. In isolation, those differences would not cause me to doubt the credibility or reliability of the complainant. They are, however, part of the background to the assessment this Court is required to make.

139. In relation to count 2, the most significant differences between the complainant’s evidence and his out of court statements were that the second incident commenced shortly before school finished for the day and the quite different details by which the offending allegedly occurred. Again, in isolation, those differences would not cause me to doubt the credibility or reliability of the complainant, but they form part of the background.

140. In relation to count 4, a matter of some potential significance was that the complainant in his evidence said that Brother Downey told the complainant to wait outside the classroom while Brother Downey and the applicant argued inside the room. In his evidence at the Royal Commission on 29 July 2014 the complainant had said that he remained in the classroom while Brother Downey and the applicant argued outside. In cross examination, the complainant stated that at the Royal Commission he “mucked it up, because they were in the classroom, I was outside”. Another matter of much greater potential significance in relation to the reliability and credibility of the complainant’s evidence is that he gave a detailed account of being moved between classes in 1974 after the events the subject of count 4:

“Q. In the days after that car ride home, what happened?

A. I was moved out of 5B into 5A, then from 5A back into 6A, then 5C. I just got moved from class to class, away from him.

Q. Away from?

A. Higgins.

Q. Were you told why that was?

A. He only just told me not to go near him, to stay away.

Q. When you were being moved from class to class, did Downey say anything else to you?

A. Along the lines that I was going to get punished.

Q. And did you get punished?

A. Yes.

Q. What did that involve?

A. Getting the cane.

Q. When you got the cane, was anything said to you?

A. That was a reminder to keep my mouth closed, otherwise I’d get more.

Q. Who said that to you?

A. Downey, Higgins.

Q. Sorry?

A. Brother Downey and Brother Higgins.”

141. The complainant’s evidence about being moved from class to class after the events the subject of count 4 was an important part of the narrative. The complainant’s evidence was inconsistent with daily class attendance rolls which were in evidence showing the complainant remained in the applicant’s class throughout the 1974 year. It will be recalled, as set out at [114] above, that the trial judge rejected that documentary evidence as being a matter of significance because her Honour found, based on taking judicial notice of matters relating to Catholic priests, that “it would not surprise” her Honour if the contemporaneous class records from 1974 had been forged or altered. As I have said, that finding was an error and no such conclusion was open to be drawn. In a case about events over 40 years ago where there is very little objective contemporaneous material still available, those contemporaneous records, which are inconsistent with an important aspect of the complainant’s evidence and consistent with the accounts given by the applicant and Brother Downey, must be taken into account in determining the credibility and reliability of the complainant’s account.

142. In this case, perhaps the most important inconsistencies between the complainant’s out of court statements reflected in the Crown opening and the evidence he gave were in relation to counts 3 and 6 where the applicant was acquitted by direction. In relation to count 3, the Crown’s opening is set out at [81] above. The critical elements of that opening were that:

1. once all the students had left for the day the applicant walked the complainant into classroom 5A and placed him in the closet. A short time later the applicant then removed the complainant from the closet and walked him to the teacher’s desk;

2. the applicant told the complainant that he needed to help him out if he was going to help the complainant with his grades;

3. the applicant told the complainant that he did not want the complainant’s father knowing what they were doing;

4. the applicant told the complainant to reach into his pocket but the complainant refused. The applicant then picked up a cane from the front of the classroom, he told the complainant to hold out his hand and he began hitting his hands with the cane in a flicking motion; and

5. as a result, the complainant then reached into the applicant’s pocket and felt the applicant’s skin underneath. The applicant took hold of the complainant’s arm and told the complainant to stroke it. The complainant touched the applicant’s penis with his hands, touching it to the point of it becoming erect, and again, the complainant told him to stop and go home. The complainant missed the school bus home.

143. The complainant did not say anything at all in his evidence at the trial about the events the subject of count 3 and the applicant was acquitted by direction. It is a matter of significance in assessing the credibility and reliability of the complainant’s evidence as a whole that an assault about which he had complained over four written statements to the police was not addressed at all in his evidence at the trial. The trial judge enjoyed no particular advantage in assessing the credibility and reliability of the complainant on this topic. The complainant’s failure to say anything about the events the subject of count 3 leads me to harbour doubts about the credibility and reliability of the complainant.

144. The complainant did, however, give evidence of a violent serious sexual assault by the applicant which he said took place between the events the subject of counts 2 and 4. This violent sexual assault was not the subject of the indictment and the Crown conceded that it was not mentioned at all by the complainant in any one of the four separate statements he made to the police. Far from this evidence being a matter which supported the credibility and reliability of the complainant, as the trial judge concluded, the evidence given by the complainant of a violent sexual assault not found in any one of the four statements to the police was a matter causing me doubts about his credibility and reliability.

145. In relation to count 6, as I have said, the complainant’s evidence that the applicant did not “pull out” his penis is inconsistent with an element of the charge and the basis the Crown presented count 6. The finding of the trial judge that what the complainant was “attempting to say”, but did not say, somehow supported his credibility and reliability, was an error. The question the trial judge was required to consider was how the complainant’s failure to give evidence in accordance with those parts of his out of court statements that founded counts 3 and 6 affected his credibility and reliability on the remaining counts. Her Honour did not do this but, rather, accepted the narrative of events given to her by the complainant at the trial and did not address the materially different accounts the complainant had given upon which the charges were based. Her Honour’s conclusion that the failure of the complainant to adhere to the out of court statements he had given and upon which counts 3 and 6 were based in fact enhanced the complainant’s credibility and reliability was also an error.

146. Even giving full weight to the trial judge’s advantages, and heeding the warning under s 293A of the Criminal Procedure Act, I am left with a doubt about the credibility and reliability of the complainant’s evidence as a whole.

147. There were also improbabilities in the complainant’s account. The fact that during his 44 year teaching career the applicant is not alleged to have committed any other offence is significant. It will be recalled that the trial judge rejected that evidence on the basis that her Honour found that it was not surprising there were no complaints about the applicant as the applicant was “caught in the act” when committing the offence the subject of count 4. As I have explained, this was an impermissible form of reasoning in seeking to assess the credibility and reliability of the complainant’s evidence.

148. In order to assess the reliability and credibility of the complainant’s account it is necessary to take into account all of the evidence including that of the applicant and, in this case, Brother Downey. Of course people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Trauma may affect people differently, including affecting how they recall events. It is correct that it is common for there to be differences in accounts of a sexual offence. Both truthful and untruthful accounts of a sexual offence may contain differences. Nevertheless, and acknowledging all of these matters, on all of the evidence I have a doubt about the credibility and reliability of the complainant’s evidence.

Remaining evidence in the Crown case

149. The other evidence in the Crown case may be shortly addressed. The evidence of the complainant’s mother was only important as it related to the “admissions” made by Brother Downey on behalf of the applicant. I have concluded that those out of court statements were not admissible in this case.

150. There were no other family members who gave evidence. As the officer in charge of the investigation explained:

“Q. In the course of your investigations did you attempt to contact the [complainant’s] brother, …

A. Yes

Q. Were you able to contact him? There’s no statement from him in the brief, is there?

A. The attempts were made through [the complainant], and this refers to his father as well. I believe the nature of the complaint made it difficult to speak with relatives as they wanted to remove themselves as much as they can from what was alleged by the victim.

Q. Is this what [the complainant] told you?

A. Yes.”

151. Nothing of significance emerged from the evidence of Mr John Wakefield, who explained the “Towards Healing” process conducted by the Catholic Church. The payment of money to the complainant in a civil process, without admissions, is not probative of the applicant’s guilt. There was no evidence that other complaints about the conduct of the applicant had ever been made. The evidence of the officer in charge of the investigation was not significant, save for the transcripts of recordings of the interviews by the police with the applicant and Brother Downey and the transcript of the covertly recorded confrontation between the complainant and the respondent in 2016 which I will address when dealing with the applicant’s evidence.

152. I have not overlooked the transcript of the interview between commissioners of the Royal Commission and the complainant and his mother which was tendered by the Crown under s 103 of the Evidence Act. I have referred to one aspect of that interview which is potentially relevant at [140] above. That interview proceeds by a series of leading questions from the commissioners and contains no real detail about any incident or incidents. Her Honour’s finding that the interview was “consistent” with the evidence given by the complainant at the trial was not correct. The Royal Commission interview is at best neutral in seeking to evaluate the credibility and reliability of the complainant’s evidence.

Evidence of the applicant

153. The applicant in the record of interview which was tendered and in the sworn evidence he gave at the trial denied the allegations made by the complainant. The only demeanour based credit finding made by the trial judge was that the applicant was a “polished presenter”, because he gave consistent accounts when questioned by the police and in Court. It seems that in the atmosphere of the trial, the finding that the applicant was a “polished presenter” was a matter which the trial judge thought detracted from the likelihood that the applicant’s evidence was true.

154. I have read all of the evidence carefully. The applicant was at the time of the trial an 81 year old retired school teacher who had been in the brotherhood since he joined in Ireland when he was 18. He has, from the beginning, emphatically denied that he ever touched the complainant inappropriately. I do not discern in his evidence a use of language or rhetorical device warranting the description “polished presenter”, much less do I think that the consistency in his account is a matter which should be taken into account against him.

155. The trial judge found that three matters had an “effect upon [the applicant’s] credibility”, although did not, in terms, reject his evidence. Those three matters were:

1. his “insistence” that children were only ever “smacked”, which the trial judge rejected as “arrant nonsense”;

2. his explanation of how he came to earn the respect of students in his class, which the trial judge found to be “implausible” given the size of the class and age of the boys; and

3. that when explaining his understanding of his vow of chastity he paused in his answer before addressing homosexual relationships. The trial judge found his explanation “totally unbelievable”.

156. The first reason given by the trial judge for casting doubt on the applicant’s credit should be rejected. The applicant’s evidence was clear from the time he was questioned about this by the police that as far as he could recall in the 1970’s he had administered the strap or the cane to boys in his class “as a last resort”. It is correct that in parts of his evidence to the police he described that as giving students a “smack”. It was unfair for the trial judge to find that there was something adversely affecting the credit of the applicant in his use of the term “smack” as one way of describing his use of the cane or the strap. The applicant was clear in his record of interview and evidence at the trial that he used those implements but said, repeatedly and clearly, that he employed the strap or the cane only as a last resort. The applicant’s evidence in this regard was supported by a number of witnesses who had been students (or were the parents and grandparents of students) of the applicant before and after 1974. There was no basis for the trial judge to reject this evidence.

157. The related suggestion, made by the Crown at the trial, that somehow the applicant sought to downplay the role of corporal punishment in his record of interview and that this went to his credit was equally unfair. What the applicant actually said in his record of interview was “it [corporal punishment] was normal there for years, until, until the cane was stopped, probably in the ‘70s or ‘80s … yeah, not really sure.” The applicant never suggested that corporal punishment had ceased before 1974, which was the relevant year for the purposes of the record of interview and this trial. In circumstances where the applicant was the one who told the investigating police that he was the complainant’s teacher in 1974 (the complainant having originally asserted that all of these events took place in 1975) the suggestion that this remark about the time corporal punishment ceased in schools, about which he said he was “not really sure”, was not a matter which adversely affected the applicant’s credit.

158. The second matter relied upon by the trial judge as adversely affecting the applicant’s credit was the applicant’s explanation of how he came to earn the respect of students in his class, which did not involve corporal punishment, save as a last resort. The applicant’s evidence in this regard was strongly supported by a number of witnesses who had been students (or were the parents and grandparents of students) of the applicant before and after 1974. There was no basis for the trial judge to reject this evidence. The trial judge’s finding that the evidence was “implausible” given the size of the class and age of the boys was a finding based not on the evidence but on her Honour’s taking of judicial notice that “[t]o suggest that a class of 44 boys aged ten or 11 could be controlled without the use of some form of corporal punishment in those days is simply ludicrous.” As I have earlier found, her Honour erred in taking judicial notice of that matter. There was evidence at the trial from a number of participants in the applicant’s classroom supporting the applicant’s account. There was no basis for the trial judge to make a credit finding against the applicant based on her erroneous finding that the applicant’s evidence was “ludicrous”.

159. The third matter relied upon by the trial judge in rejecting the credit of the applicant was a pause in his evidence when explaining his understanding of the vow of chastity he took. The applicant did not say, as the trial judge found, that in the 1970’s “he was unaware of the nature of homosexual relationships”. What he actually said was that in 1974 “I did not know much about that particular standard of living”. The applicant’s explanation for his evidence was as follows:

“Q. Why did you pause between the intercourse or relationship with the female and then saying, ‘or anybody else’?

A. Well, intercourse with a female was more common than a person having intercourse or interference with a male person, in my situation.”

160. I do not regard the applicant’s evidence quoted above as “unbelievable”. Before making a credit finding based on what the applicant said he believed over 40 years earlier, her Honour would have needed a great deal more evidence than she had about what the applicant thought then and what he had experienced or encountered in the world.

161. I reject each of the trial judge’s reasons for discounting the applicant’s credit. None of those reasons were available to the trial judge based on the evidence at the trial.

Confrontation on 19 December 2015

162. I have taken into account the evidence of the confrontation between the complainant and his mother, on the one hand, and the applicant on the other, on 19 December 2015. That confrontation was covertly recorded pursuant to a warrant and occurred outside mass attended by the applicant on the Central Coast of NSW. The complainant and his mother are recorded confronting the applicant and repeatedly demanding an apology for what he had done to the complainant. The applicant, who is unaware he is being recorded, firmly rejects the suggestion that he did anything at all to the complainant.

162. During that confrontation, the complainant accuses the applicant of taking him to a different classroom to that where he now says he was taken to. It may be that the error is explicable in that the complainant originally alleged that the offending took place in a different year, 1975. In isolation, those differences would not cause me to doubt the credibility and reliability of the complainant. They are, however, part of the background to the assessment this Court is required to make.

Brother Downey’s evidence

164. Brother Downey had died before the applicant’s third trial. Brother Downey’s denials in his record of interview were unequivocal. He was said to be an “eyewitness” to the conduct the subject of count 4. It is apparent from the record of interview that Brother Downey was a very sick and dying man when interviewed. Brother Downey denied that he had witnessed the applicant sexually assaulting the complainant or that he had failed to report the sexual abuse by the applicant. Brother Downey said that if there was a complaint that a teacher had mistreated a student, and if that happened, they would “get the sack the first time”. Brother Downey also said:

“Q337 I have information to suggest that you told [the complainant] not to tell anyone about what had occurred between him and Mr Higgins.

A I look straight at you in the eyes and I say, no such thing. No such thing. So please don’t bring it up again.”

165. It is clear that her Honour rejected the possibility that Brother Downey was telling the truth but did not address any of the central aspects of Brother Downey’s evidence at all in her conviction judgment. This was unfair to the applicant.

166. As I have earlier found, when addressing the treatment of the trial judge of the character evidence, the finding that the applicant had been caught “red handed” assaulting the complainant involved an implicit rejection of Brother Downey’s evidence. That finding was made before finding that the Crown had proven its case beyond reasonable doubt. It seems that the trial judge’s acceptance of the evidence of the complainant infused her Honour’s consideration of whether the Crown had proven its case beyond reasonable doubt.

167. Brother Downey’s evidence is another part of the evidence which needs to be taken into account in addressing the present ground of appeal.

The character evidence

168. Adopting a fair analysis of the character evidence it was material which should have been taken into account in favour of the applicant.

169. Mr Byrne gave evidence that the applicant “seemed to be very gentle with the kids” and that he considered the applicant to be a man of good character. Brother Mahoney said he “wouldn’t see much guile” in the applicant at all, and that the allegations were out of character of the man he knew. Brother Kavanagh gave evidence that, by the time he was involved in the Towards Healing process in 2005, he had known the applicant for over 50 years, and the allegations did not fit his opinion of the applicant’s character. Brother Kavanagh’s views about the applicant did not change even though he heard a lot of detail about the allegations from the complainant.

170. Mr Eves had known the applicant for 54 years, including living with him at one point. Mr Eves said that he regarded the applicant to be a man of great faith and strong principles, who “has been a friend of mine and my family, my siblings, my own children” over the past 50 years.

171. Mrs Burgess, who had worked at the school canteen and observed the applicant at social outings said that she had never seen the applicant behave in any way inappropriately towards young boys. Her sons and grandsons had been taught by the applicant. She described the applicant as “beyond reproach”.

172. Mr McGhee gave evidence that he had known the applicant since 1969, and described him as a “gentle Irish man”. Mr McGhee, who had by the time of the trial retired at the rank of inspector in the NSW Police, said that “any issues of impropriety when it comes to children” were furthest from his mind when he thought of the applicant. He said that when he was 11 or 12 his father passed away, and that the applicant and the other Brothers supported his family and his education. Mr McGhee said that whilst he was in a position of vulnerability at that time, the applicant never used his relationship with him to do anything inappropriate. This evidence was the subject of her Honour’s finding that Mr McGhee was not vulnerable as he had subsequently become a senior police officer. As I have said, that finding was an error as one not based on the evidence at the trial.

173. The evidence of the character witnesses as to the applicant’s good character over decades must be taken into account in the task the Court is required to perform. The trial judge’s reasons for rejecting that evidence cannot stand.

Conclusion about ground 9

174. The burden of persuading the Court that the trial judge’s verdict is wrong lies on the applicant: MacKenzie v R (1996) 190 CLR 348 at 370; [1996] HCA 35. I am conscious that in addressing the central issues in this case I have not seen the complainant or the applicant give evidence. Having said that, the trial judge, who enjoyed those advantages, has made a significant number of errors relating to the credibility and reliability of both witnesses which gave rise to a miscarriage of justice. Her Honour’s assessment of the credibility and reliability of the complainant and the applicant was flawed.

175. The question posed by this ground is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the trial judge might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I have concluded that this is such a case. This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way as to lead me to conclude that, even making allowance for the advantages enjoyed by the trial judge, there is a significant possibility that an innocent person has been convicted. It follows that the applicant is entitled to be acquitted of all charges.

176. I have concluded that in the circumstances here, even if I had dismissed ground 9, and that prima facie a new trial should be ordered (see R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51]) it is in the interests of justice in this case to enter an acquittal.

177. The alleged offending took place more than 46 years ago. The applicant, who is 82 years old, has been in custody since 6 May 2019, the date of his conviction, when bail was refused. The applicant has completed his sentence in relation to count 1 and a significant portion of his non-parole periods for counts 2 and 4. If a re-trial was ordered it would be the applicant’s fourth trial on these charges, due to no fault on his part.

178. The length of time that has elapsed since the events giving rise to the charges is a relevant factor in determining whether to order a new trial: Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15; Taufahema at [55]. That time, 46 years in this case, tends strongly in favour of not ordering a new trial. Having regard to, on any view, the weaknesses of the Crown case, the age of the applicant (now 82) and the fact that he has already served over one-third of the non-parole period on the most serious count, even if I had rejected ground 9, the interests of justice require that a judgment of acquittal be entered rather than that a new trial be ordered. The applicant is entitled to be released from prison forthwith.

Conclusion and orders

179. For the foregoing reasons leave to appeal should be granted on each of the grounds of appeal and the appeal in relation to grounds 1, 3, 5, 6, 7, 8 and 9 should be allowed. The appeal on grounds 2 and 4 should be dismissed.

180. I propose the following orders:

1. Leave to appeal granted;

2. Reject the tender of:

1. paragraphs [2] to [15] of the affidavit of Mr Madden affirmed 1 April 2020; and

2. the reports of Mr Anastopoulos;

3. Appeal allowed;

4. Quash the applicant’s convictions;

5. Enter verdicts of acquittal on counts 1, 2, 4 and 5 in the indictment.

181. ROTHMAN J: I have had the advantage of reading the reasons for judgment of Payne JA and the orders his Honour proposes. I agree with the orders proposed by Payne JA.

182. I also agree with the reasons for judgment of Payne JA in relation to Grounds 1-8 of the appeal. I would make some comments.

183. The evidence of the statement by Brother Downey would be admissible on only one basis. The statement to the Police is admissible under s 65 of the Evidence Act 1995 (NSW) as a representation of a person who is not available: s 65(2) of the Evidence Act. Brother Downey was under a duty to be truthful when the statement was provided. But, in that circumstance, the representation is inconsistent with the testimony of the complainant. The trial judge treated it in the opposite way.

184. The statements of Brother Downey were not corroborative of the complainant. If anything, they were independent evidence corroborative of the applicant and, as stated, inconsistent with the complainant’s evidence.

185. I turn then to Ground 5. The applicant was under a significant forensic disadvantage as a result of the delay. The only “independent” witness, if one were to accept the complainant’s account, had died and, even though his statements did not support the complainant, his evidence was treated as “corroborative” of the complainant. I agree with Payne JA as to other potential witnesses.

186. In this kind of offence, allegedly committed by a person in the position of the applicant, evidence of good character must be treated with some scepticism. Nevertheless, the evidence of that kind in this case is particularly apposite and the trial judge treated the applicant, Mr Byrne and the other brothers in a manner that unfairly stereotyped all priests or all clerics.

187. Further, in that regard, in relation to Ground 8, her Honour took “judicial notice” of the practice of the Catholic Church to move priests from parish to parish. The applicant was never a parish priest. He was a member of an order that conducted schools. Her Honour’s “judicial notice” about priests is of no relevance and has the appearance of prejudice or bias.

188. As already stated, I agree with the reasons of Payne JA on Grounds 1-8. The foregoing comments are not intended to qualify that agreement. Nor do they qualify the agreement. Ground 9 of the appeal needs to be considered. That ground asserts an unreasonable verdict.

189. The difficulty with considering Ground 9 is that one must exclude the evidence wrongly admitted and include the evidence rejected by her Honour, either as inadmissible or of no or little weight. The reasons of Payne JA set out the test on this ground.

190. The emphasis in the test expounded by the High Court is satisfaction beyond reasonable doubt. In this proceeding, ultimately guilt must depend on the credibility of the complainant. There is independent evidence that would require the complainant’s testimony to be treated carefully. But in the absence of seeing and hearing the complainant and the applicant, I am not prepared to hold that the verdict is unreasonable. The trial judge’s advantage is or may be capable of resolving the doubt I otherwise have after reading the evidence.

191. Nevertheless, I agree with the orders proposed by Payne JA. I do so, in relation to proposed order (5), because of: the applicant’s age; the death of the only alleged independent witness; and the miscarriage of justice perpetrated against the applicant. I would do so under s 6(2) of the Criminal Appeal Act 1912 (NSW). I do not consider that a new trial would more adequately remedy the miscarriage of justice: s 8(1) of the Criminal Appeal Act.

192. BELLEW J: I have had the advantage of reading, in draft, the judgment of Payne JA. 

193. In respect of grounds 1 to 8, I agree with his Honour’s conclusions.

194. In respect of ground 9, having conducted my own review of the evidence, I agree that the applicant is entitled to be acquitted of all of the charges brought against him. 

195. I agree with the orders proposed by Payne JA. 

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Endnotes

Decision last updated: 03 July 2020