JG v R

[2014] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	JG v R [2014] NSWCCA 138
Hearing dates:	7 February 2014
Decision date:	25 July 2014
Before:	Simpson J at [1] Hall J at [202] Schmidt J at [592]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal against conviction - appellant convicted of multiple offences relating to sexual assaults against two complainants - complainants were students at the school at which the appellant resided and was employed - jury in the first trial were unable to agree as to the counts and were discharged - appellant retried before another judge and jury - during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution - trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant - appellant was not cross-examined contrary to Palmer v R - principles as to impermissible cross-examination referred to in Gonzales v R [2007] NSWCCA 321 - whether there was a miscarriage of justice - basis upon which the appellant conducted his case that complainants and other witnesses had lied - conviction of the appellant was not unsafe or unsatisfactory - appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Barton v The Queen [1980] HCA 48; 147 CLR 75 DAO v R [2011] NSWCCA 63; 81 NSWLR 568 DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158 Gonzales v R [2007] [NSWCCA 321; (2007) 178 A Crim R 232 Hoch v The Queen (1988) 165 CLR 292 Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Palmer v The Queen [1998] HCA 2; 193 CLR 1 R v BO [2012] NSWDC 194 R v Cook [2004] NSWCCA 52 R v Daley [2001] NSWSC 1211 R v Edelsten (1989) 18 NSWLR 213 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Foley (1998) 105 A Crim R 1 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v JG (NSWDC, 13 February 2013, unreported) R v JG (NSWDC, 20 February 2013, unreported) R v JG (NSWDC, 23 May 2012, unreported) R v Leak (1969) SASR 172 R v McCarthy (NSWCCA, 12 August 1994, unreported) R v Powch (1988) 14 NSWLR 136 R v Praturlon (CCA, 29 November 1985, unreported) R v PWD (2010) 205 A Crim R 75 R v RWO [2002] NSWCCA 133 R v Shamouil [2006] NSWCA 112; (2006) 66 NSWLR 228 R v Steffan (1993) 30 NSWLR 633 R v XY [2013] NSWCCA 121; 84 NSWLR 363 Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 Re Lockyer (1996) 89 A Crim R 457 Reed v R [2006] NSWCCA 314 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category:	Principal judgment
Parties:	JG (Appellant) Regina (Crown)
Representation:	Counsel: G Walsh, solicitor (Appellant) N Noman (Crown) Solicitors: G Walsh (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2008/60883
Publication restriction:	Non-publication of any material that could identify the appellant.
Decision under appeal	Date of Decision: 2013-06-17 00:00:00 Before: Garling A-DCJ File Number(s): 2008/60883

Judgment

1. SIMPSON J: On 11 February 2013 the appellant was arraigned on an indictment that contained 13 counts (of which counts 6, 8, 11 and 13 were pleaded as alternatives to counts 5, 7, 10 and 12 respectively). All charges were of sexual offences against teenage boys. Count 1 alleged an offence of buggery (Crimes Act 1900 (NSW), s 79) committed between 1 September 1965 and 31 December 1967, against a complainant to whom I will refer as GB. The remaining counts (except count 9) alleged sexual offences of various kinds committed between 1 February 1989 and 31 December 1989 against a complainant to whom I will refer as TE.

1. Counts 2 and 3 alleged indecent assault (Crimes Act, s 61E(1A)); count 4 alleged an act of indecency towards a person under 16 years of age by a person in authority (s 61E(2A)); counts 5, 7, 10 and 12 alleged sexual intercourse with a person under 16 years of age by a person in authority, without consent and knowing that the person was not consenting (s 61D(1A)); counts 6, 8, 11 and 13, the alternatives to counts 5, 7, 10 and 12, alleged sexual intercourse with a person over the age of 10 years, and under the age of 16 years, by a person in authority (s 66C(2)); and count 9 alleged common assault (s 61). The references to legislative provisions are references to the legislation as it applied at the time the offences are alleged to have been committed. There has, since the dates alleged in the indictment, been considerable legislative amendment with respect to sexual offences.

1. The appellant entered pleas of not guilty to all counts. A jury was empanelled and a trial proceeded. On 22 March 2013 the jury returned verdicts of guilty in respect of counts 1, 4, 5, 7, 10 and 12, and of not guilty in respect of count 9. The jury was unable to agree on verdicts in respect of counts 2 and 3.

1. On 17 June 2013 the appellant was sentenced to terms of imprisonment that, when aggregated, totalled 7 years and 6 months with a non-parole of 4 years and 6 months.

1. The appellant appeals against the convictions. He has not sought leave to appeal against the sentences imposed.

1. Before coming to the detail of the Crown allegations, it is convenient to set out the procedural history.

Procedural history

1. The appellant was arrested in September 2008. Initially he was charged with offences against four teenage boys. They were GB, TE, and two others to whom I will refer as SR and PW. The Crown proposed a joint trial of all charges. In April 2012 the Crown gave notice pursuant to s 97 of the Evidence Act 1995 (NSW) that it intended in the trial to rely on tendency evidence. The Crown proposed to rely on the evidence of each complainant with respect to the allegations of each other complainant to establish that the appellant had a tendency to have a sexual interest in teenage boys, to engage in sexual activities with teenage boys, and to use his position of authority to that end. The Crown identified a number of other witnesses from whom it proposed to adduce evidence for the same purpose. The Crown also gave notice under s 98 of the Evidence Act that it intended to rely on coincidence evidence. It proposed to rely on the evidence of each of the four complainants, and of other witnesses, to prove that the appellant committed the offences alleged.

1. By Notice of Motion filed in April 2012, the appellant sought a variety of orders, including an order that there be a separate trial in respect of the allegations made by each individual complainant, and an order for stay of the indictment in respect of the count relating to GB. This latter application was not pursued. Whether there should, or should not, be separate trials depended upon what determination was made as to the use of the evidence of each complainant as tendency or coincidence evidence in respect of the allegations of each other complainant. The appellant also challenged the admissibility of the proposed tendency and coincidence evidence of the other named witnesses.

1. The Notice of Motion came on for hearing before Cogswell DCJ in May 2012. Pursuant to s 130 of the Criminal Procedure Act 1986 (NSW), a pre-trial voir dire was conducted. GB, TE and PW, as well as a number of other witnesses, gave evidence in that proceeding. Ultimately, on 23 May 2012, Cogswell DCJ ruled that, with some relatively minor exceptions, the evidence in question would be admitted as tendency and/or coincidence evidence in the trial of the allegations of GB and TE: R v JG (NSWDC, 23 May 2012, unreported). However, the effect of this ruling was to sever the trials of the allegations of SR and PW.

1. A jury was then empanelled, and the trial proceeded. At the conclusion of the trial, the jury was unable to agree on verdicts.

1. A second trial was then fixed to commence before Garling ADCJ. The appellant sought to re-litigate the admissibility of the tendency and coincidence evidence. Having considered s 130A of the Criminal Procedure Act, Garling ADCJ adhered to the rulings made by Cogswell DCJ: R v JG (NSWDC, 13 February 2013, unreported). This ruling is the subject of grounds 1 and 2 of the appeal.

1. The appellant then sought an order that the proceedings on the indictment, so far as they involved count 1 (concerning the allegations of a single offence against GB) be stayed. That order was refused: R v JG (NSWDC, 20 February 2013, unreported). This ruling is the subject of ground 6 of the appeal. The second trial proceeded. This is the trial the subject of the present appeal.

1. In the second trial the evidence of GB and TE was given to the jury, pursuant to s 306I of the Criminal Procedure Act, by playing the video recordings of their evidence in the first trial. The evidence of a number of other witnesses was similarly given.

1. On 22 March 2013 the jury returned the verdicts set out above. By ground 3 of the appeal it is contended that the convictions are "unsafe and unsatisfactory". By grounds 4 and 5 complaint is made, respectively, of certain questions asked by the Crown prosecutor of two prosecution witnesses, and of the nature of cross-examination of the appellant by the Crown prosecutor.

An overview of the Crown case

1. An overview of the Crown case is as follows.

1. At all material times the appellant was a brother in a religious order working (not as a teacher) and living in a Catholic boys' boarding college in the city of Bathurst, in the central west of NSW. From 1986 he held the position of Vice President of the college. From 1990 he was engaged in community work. Both GB and TE were students at the college, although at widely separated times, GB from 1965 to 1967 (at about age 12 to 14) as a day student, and TE from 1988 to 1989 (at age about 14-15) as a boarder.

1. The offence against GB occurred on an afternoon when, in circumstances to be more fully described below, the appellant directed GB to an art room, where he (the appellant) sexually assaulted GB.

1. The allegations concerning TE involved a more complex course of behaviour, involving the appellant in "grooming" TE by befriending him, having him undertake tasks such as washing the appellant's car, giving him treats by way of reward and showing him pornographic images. Chronologically, the first offence against TE occurred in that context, when the appellant took TE to a local fast food restaurant.

1. The Crown case also involved allegations that the appellant had behaved in a sexually inappropriate way towards other students at the college, and to another teenager. This was the evidence tendered as tendency evidence under s 97 of the Evidence Act. The tendency evidence also included evidence of a variety of books, magazines and DVDs of a pornographic nature, with homosexual themes, and a focus on boys or young men, and condoms, seized in the execution of a search warrant on the arrest of the appellant.

The trial

1. What follows is an account of the evidence given in chief by GB, TE, and other prosecution and defence witnesses. It is not intended to, and cannot, represent any findings of fact with respect to disputed issues, other than those that are embodied in the verdicts of guilty.

The Crown case

1. For the sake of caution, I have anonymised the names of those witnesses who were students at the college, or who gave evidence of sexual encounters with the appellant.

The allegations concerning GB

1. GB was born in June 1952. He attended the college between 1965 and 1967, at the ages of 13 to 15. The offence against him, the subject of count 1 on the indictment, was committed on an occasion when GB and two other students (who he believed were PM and IS) were returning from smoking in a machinery shed. At the time, a swimming pool was under construction in the college grounds. The three boys came across a tractor that had slipped into a trench. The appellant was standing beside the tractor drinking a glass of cordial. GB made a facetious remark to the effect that the appellant had "done a good job there". The appellant poured the cordial he had been drinking over GB's head. He then asked GB and the other boys where they were supposed to be and told them to go there. As the three boys set off, the appellant told GB to go to the art classroom and wait for him there. GB did so. GB thought that he was in trouble, for his facetious remark, and was going to be "flogged". The appellant arrived, carrying a white towel, unlocked the door and told GB to enter. He used the towel to attempt to clean the cordial from the back of GB's neck and head. He then told GB to remove his trousers. GB did so and the appellant told him also to remove his underwear. He did so. The appellant held him tightly around the bottom of the jaw and stood behind him and penetrated GB anally. In evidence, GB said:

"He was using his left hand to hold me in position. He was using his right hand to guide himself. He was lifting me off the floor with - while he was thrusting to try and enter me further I suppose is the best way to describe it."

(It is worth remembering that, although GB was a teenager at the time of the events in question, by the time he gave his evidence he was a mature man of 60 years.)

1. At that time GB was not aware of what it was that the appellant used to penetrate him. However, he then saw the appellant use the towel to clean blood and "slime" from around his buttocks, and to clean his own penis. It was then that GB realised that he had been penetrated by the appellant's penis. He said that the experience was as "a pain like I'd never ever felt before". He continued to experience pain for several days, and also bleeding from the anus.

1. GB was, by this time, crying. The appellant told him to "stop blubbering". He warned GB not to tell anybody about what had happened, and that if he did, he would deny it. He also warned him that children can be cruel towards other children who made complaints of that kind. He said:

"Who are they going to believe, you or me?"

1. This gave rise to the first count on the indictment (buggery), the only count that concerned GB. The appellant was convicted of this offence.

1. GB maintained his silence. He did not tell anybody of the incident until about 2007 or 2008 when he told a psychologist, Dr Robert Woodside. In about 2008 he also told a psychiatrist, Dr Frukacz.

1. In evidence in chief, GB said that he came forward with his allegations after seeing news of the appellant's arrest, and lawyers acting for the appellant publicly declaring that the arrest was "a witch hunt", and the reporting of it "a media beat-up". That prompted him to ring lawyers in the Office of the Director of Public Prosecutions and encourage them to continue with the prosecution.

The allegations concerning TE

1. The allegations concerning TE were more numerous. TE was born in September 1973. He commenced boarding at the college in 1988 when he was in Year 8. By that time the appellant was "second in charge" of the college. Brother Peter Dwyer was the head of the school. TE was also a mature man (aged almost 40) at the time he gave his evidence.

1. TE said that, initially, the appellant treated him very well, and TE liked him. The appellant had TE wash his car and gave him food that he liked. He said by 1989 "things started to feel not right".

1. Incidents of a sexual nature began in 1989. The first instance of physical contact with the appellant that TE recalled took place on an occasion when the appellant took him to a McDonald's restaurant in Bathurst, and bought him food. He said the appellant put his hand on TE's leg, and then lowered it into his groin, his two fingers rubbing each other and clicking. This allegation gave rise to count 2 on the indictment, an allegation of indecent assault against TE. (In respect of this count, the jury was unable to agree upon a verdict.)

1. The following day TE was washing the appellant's car. The appellant asked TE to remove his shirt. He put his arm around the top of TE's shirt and "pinched or played with my nipples ...". There was a practice in the college, among the students, of "nipple twisting" that was done by the boys to one another in order to cause pain. TE said that the action of the appellant in playing with his nipples was of a different character and was of "a fondling nature". TE said that the car washing took place in front of the college, at the main entrance. Only TE and the appellant were present. This allegation gave rise to count 3 on the indictment, an allegation of indecent assault against TE. (In respect of this count the jury was unable to agree on a verdict.)

1. The appellant developed a practice of inviting TE to his room. The appellant showed TE images of a "graphic nature" and asked whether it "turned [TE] on", and whether he had an erection. He showed TE the outline of his erect penis, and asked if that "turned on" TE. At one time he told TE that he was "like a little brother" to the appellant; the appellant told TE not to mention to anybody else that he was going to the appellant's room because he would be victimised by other students. The appellant had sexual images around the room that were of a homosexual variety. The appellant had a red toolbox in his wardrobe that contained about five or six homosexual videos of Asian boys with white men. The appellant showed these videos to TE. While the videos were playing, he performed fellatio on TE, and had TE either perform fellatio on him (which TE resisted) or masturbate him.

1. TE described one incident in which the appellant displayed to him the outline of his (the appellant's) erect penis within his shorts and said to him:

"Do you mind if I wank?"

TE replied that he did not want to see anything, to which the appellant replied:

"How am I supposed to do it if you can't see me?"

1. He said that the appellant covered himself with a sheet, dropped his shorts to below his knees, moulded the sheet over the top of his penis and used his hand, over the sheet, to masturbate. He told TE to watch. The appellant ejaculated onto the sheet. This allegation gave rise to count 4 on the indictment, an allegation of an act of indecency toward a person under the age of 16 by a person in authority. (The appellant was convicted of this offence.)

1. Another incident occurred following a Sunday detention in early May of 1989. TE was required, as punishment, to rake the oval. When he returned rakes to a shed, he found that the shed where they belonged was locked. He walked towards another shed. This was a shed used by a brother, Brother Elrott. As he walked towards Brother Elrott's shed, the appellant intercepted him, and took him into the shed to which the appellant had a master key, which he then closed and locked from inside. When he first encountered the appellant on this day, Brother Dwyer was nearby. Brother Dwyer asked TE about the sweat on his forehead. The appellant asked TE to pose nude beside the lathe. TE refused. The appellant used industrial lubricant on his hand, and began to masturbate. He then put his hand down TE's pants and inserted his finger into his anus. The appellant's fingernail scratched TE's anus and he appeared to take pleasure from the fact that it hurt TE. The appellant then pushed TE over the lathe and penetrated TE's anus, with his penis. He asked TE if he was all right. TE replied that he was not. The appellant hurriedly left. These two incidents of penetration gave rise to counts 5 and 7 on the indictment, and the alternatives, counts 6 and 8. (The appellant was convicted on each of counts 5 and 7.)

1. Another incident which TE believed occurred on a winter Saturday or Sunday took place when TE was in the television room. The appellant took TE to the study hall which at that time was considered to be an out of bounds area. It was deserted. The appellant forced his penis into TE's throat. TE was vomiting and gagging. The appellant pushed him to the ground, pulled his pants down to his knees, and had forced penile-anal intercourse with him. These two acts gave rise to counts 10 and 12 on the indictment, and the alternatives, counts 11 and 13. (The appellant was convicted on each of counts 10 and 12.)

1. On another occasion TE was in the hall watching a movie with other boarding students. He left the room to obtain some water because he was coughing. The appellant took him to his room where he gave TE some cough medicine. He asked TE if he would like to stay in the room and lie on the bed as he was feeling unwell. TE declined. As he left, the appellant came into the hallway, took hold of him by the shirt, and began to drag him back into the room. Another priest (Brother Tanner) appeared in the hallway and the appellant released TE. This gave rise to count 9 on the indictment, a count of assault. (The appellant was acquitted on this count.)

1. TE first mentioned these matters to his mother during a telephone call that he made from the college. It was not the practice in his household to be direct about such matters, and his description to his mother of what occurred was somewhat vague. TE thought that his mother did not understand the nature of what he was describing. He also said that he complained to the matrons in the college infirmary. There were two "matrons" who worked in the infirmary, both registered nurses. They were Ms Marie Daymond and Ms Beverley Clark. Both were present, but TE believed that he spoke to Sister Daymond. TE gestured to her that he had a sore anus. She responded by telling him that he should stop putting things "in his bum". (In cross-examination, TE corrected this and said that it was Matron Clark who had told him not to put things in his anus. It was then elicited from him, in cross-examination, that he had told police that Matron Clark had suggested that he go into town to buy some women's panty liners to soak up the blood. He expressly confirmed, not only that this was what he had told police, but that this had happened.) He also spoke to a nun, Sister Mary Comer in 1989. He told Sister Comer about "putting a penis into my bottom". He said that he saw Sister Comer between 8 and 15 times.

1. In his evidence, TE referred to Brother Elrott, who was disabled and substantially confined to a wheelchair. TE struck up a relationship with Brother Elrott (who he described as "a very lovely man"). Brother Elrott maintained a workshop in a shed (where the conduct the subject of counts 5 and 7 took place). TE, with other students, assisted Brother Elrott physically by helping him to move between his wheelchair and his car, and take him up to his room. TE also spent time with Brother Elrott in his shed, assisting him by handing him tools and the like.

Other evidence in the trial

1. Both of TE's parents gave evidence. His mother, ME, recalled the telephone call made by TE in which he made allegations about misconduct at the school towards him. She could not recall the exact words. Her evidence confirmed TE's impression that she did not understand the nature of what he was saying, nor the seriousness of it. His father, GE, also gave evidence of a much later complaint made to him by TE.

1. Investigating police located PM (one of the boys GB identified as having been with him when he came across the tractor incident). He gave evidence at the first trial. His evidence from that trial was read in the second trial. His evidence was of little assistance. He had a vague recollection of the incident involving a tractor rolling over. He did not recall smoking with GB. The other student named by GB could not be located by investigating police.

1. A record of interview conducted with a Mr Tom Collins, who had been the art teacher at the college in 1964, was read. The effect of this evidence was that only Mr Collins and another art teacher (Father Quinn) had keys to the art room. Mr Collins did not lend his key to anybody. He did not know if Father Quinn lent his key to anybody.

The tendency evidence

1. The evidence of the tendency witnesses was, like that of the two complainants, given by playing the video recordings of their evidence in the first trial.

1. PW gave evidence. He said that he attended the college from the beginning of 1987. At that time the appellant was the Vice Principal. PW gave evidence of an incident that occurred in the dormitory during 1987, when he was leaning on a cubicle talking to fellow students. He said that the appellant came up next to him, put his arm around him and ran his hand down his back, inside and down the back of his shorts or pyjamas, and patted him on the bottom. The appellant was fondling his buttocks for half a minute to a minute.

1. PW's evidence was corroborated by MH, who said that he observed the incident described by PW.

1. RB gave evidence of an event he said he witnessed in 1987 when the appellant sat on a skateboard with a junior student on his lap. The manner in which the appellant held the student was disturbing to RB. That was because the student was sitting in the appellant's groin area and the appellant was holding him down in that position. RB then saw the appellant stand and get off the skateboard. He said the appellant's penis was erect. The appellant turned and walked in the opposite direction. RB also gave evidence of witnessing a similar incident on a second occasion.

1. SW was a student at the college from 1986 to 1991. He gave evidence of having observed an incident in his second year, in the dormitory. The appellant was talking to a group of students. He had his left hand inside the boxer shorts of another student. His hand remained so placed for more than a minute.

1. HM, a student at the college for about a year between the middle of 1985 and the middle of 1986, gave evidence of an incident he said occurred in 1986 at night in the appellant's room. At the request of the appellant, HM went to the appellant's room where they had a conversation which the appellant said was "getting to know [HM]". The appellant placed his hand on HM's leg, and moved it towards the groin. The appellant asked HM what he and his mates did for fun. With some presence of mind, HM replied that they used to "bash gays". The appellant told him that he had been "gay bashed" at Dee Why, but removed his hand and HM left the room.

1. MK gave evidence that he attended the college from 1986 to 1989, when he was in Years 9 to 12. On one occasion, when he was in Year 9 or Year 10 he saw the appellant with his arm around the back of a student, towards the student's pants line.

1. Another tendency witness was MA. MA was born in January 1979. MA was not a student at the college. He gave evidence of having first met the appellant at a dinner party in about 1993, when MA was 14. MA had an uncle, Noris Ioannou, with whom he was close. Mr Ioannou was in a long-term homosexual relationship with Robert Lyons, a psychiatrist. Dr Lyons had a holiday home at Cape Gervis (in South Australia). About a week after the dinner party, the appellant picked up MA from MA's parents' home to drive him to the Cape Gervis holiday home. MA said that, after dinner that night, he and the appellant were sitting on a couch massaging each other's feet. There might have been some movement by the appellant towards MA's genital area. Their legs were in each other's crotch area. Later that evening, when everyone had retired to bed, MA entered the appellant's room, jumped into his bed, and took hold of the appellant's penis. The appellant took hold of MA's penis. MA felt uncomfortable and left the room. The circumstances surrounding the dinner party, and these events, were the subject of evidence from Dr Lyons and Mr Ioannou. Their evidence essentially corroborated that of MA, although they could not attest to what had occurred in the bedroom.

The defence case

1. The defence case was outlined at the commencement of the trial, when the solicitor representing the appellant gave an opening to the jury. He said that all allegations were "untrue". He went on to say:

"... the defence case is that what [GB] says about this incident is untrue. [GB] never complained to anybody, anybody until September 2008. At that time ladies and gentlemen, there was enormous publicity when this accused was arrested on 3 September 2008. Front page news, TV, internet, the lot. Radio ... So [GB] comes forward nearly 41, 42, 43 years later, in the circumstances of considerable publicity. One of the things you will need to consider about [GB] is this; he hated that school. He was a dayboy. He didn't like it. Who could blame him I suppose. He felt different to the boarders. The boarders were regarded better as far as he concerned [sic]. He hated the order, he hated the school, he hated the institution and so on. You will have to consider carefully how someone could not complain, would not complain, would not talk about in any way to doctors that he was seeing, anything about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence."

(There was, in fact, no evidence to support the assertions about GB's state of mind.)

1. With respect to TE, the solicitor referred to behavioural problems, and to TE's history of attendance at the college infirmary, of which there was evidence. He referred to TE's anticipated evidence that one of the matrons at the infirmary, when he made a complaint of bleeding from the anus, told him to wear women's panty liners. He suggested that the jury would accept the denials of the two matrons in preference to TE's allegation. He made reference to the anticipated evidence of TE concerning the incident at McDonald's, and told the jury that McDonald's at Bathurst did not exist at the time of the incident TE alleged.

1. He referred to the evidence concerning Brother Dwyer, and said that Brother Dwyer would give evidence, as he had in the first trial, that no such incident had ever occurred, and that it was "ridiculous" to suggest that it had. He concluded that part of his opening by saying:

"That's the quality of the evidence of [TE]."

1. The solicitor went on to deal with some of the evidence that was to be given. The clear tenor of the opening was that all of the accusations against the appellant were false, and deliberately false, motivated, at least in the case of GB, by animosity to the college and to the appellant; and, in the case of TE, by his alleged fragile psychological condition. The solicitor made specific reference to TE's supposed "attendance" at an adolescent psychiatric school. The attribution of motive - the suggestion that GB was motivated by publicity generated by the appellant's arrest - could only be taken to mean that GB had deliberately come forward to join in the accusations against the appellant, and had done so dishonestly.

1. In case there was any doubt about it, during the hearing of the appeal, the appellant's solicitor expressly acknowledged that his intention in cross-examining the complainants as he did was to accuse them of deliberate fabrication.

1. It is clear from these passages that the defence case was that both complainants were making false accusations against the appellant.

1. That continued to be the theme in the cross-examination of the various Crown witnesses. A concerted attempt was made to discredit the two complainants in particular. One means by which this was attempted was to identify discrepancies in the evidence given by the complainants in committal proceedings, and statements they had made on prior occasions. For example, in a statement made by GB to police, he gave the dates of his attendance at the college as 1964 to 1966. During the committal proceedings he gave those dates as 1965 to 1967. It was put to both GB and TE that the events of which they complained had never taken place.

1. It was elicited from GB in cross-examination that he had made two statements to police. In the first (September 2008) he said that he had attended the college between 1964 and 1966. In the second (February 2009) he corrected the dates to 1965 to 1967. He was cross-examined with respect to a third document; this was not a statement made to police, but an account he had prepared for himself in 2012, but had provided to the Director of Public Prosecutions.

1. Cross-examination of GB focussed heavily upon the tractor incident. The main avenue of attack concerned the year in which he said it had occurred.

1. GB said in evidence that the incident of which he complained did not happen in 1965. What he could say with certainty was that the incident took place the year that the tractor went into the trench. In the statement he wrote for his own purposes in 2012 and provided to the Director of Public Prosecutions, he said that he thought he would have been 12 or 13 years of age at the time of the incident. That would have placed the incident in 1964 or 1965.

1. In the statement made to police, GB said that he could not remember the names of the two students in his company when he came across the tractor. By the time of committal, he recalled the names of the students as PM and IS.

1. In the document provided to the Director of Public Prosecutions, GB described the appellant's clothing at the time of the tractor incident as a white t-shirt and shorts. He did not, in his police statement, refer to or describe the clothing the appellant was wearing.

1. It was put to him that, in the two statements made to police, he had included an acknowledgement that the statement accurately sets out the evidence he would be prepared, if necessary, to give in court as a witness, and was true to the best of his knowledge and belief and he knew that if he said anything he knew to be false or did not believe to be true he would be liable to prosecution. No such acknowledgment was contained in the third document, the account he had prepared for his own purposes. Just what was intended to be achieved by that cross-examination is not clear; there does not appear to be any material discrepancy between the content of that document and his earlier statements, other than some confusion about the year in which the offence occurred.

1. In his first statement to police, GB said that when he came across the tractor, it had its two right hand wheels stuck in the trench. At committal, he corrected this by saying that it was the two left hand wheels that were stuck. His explanation for this was that his perception depended upon the angle from which he was viewing the tractor.

1. The recurring theme of the cross-examination of TE was that his evidence was false. It was clearly implied that he had deliberately fabricated his allegations against the appellant. This, it appears, was sought to be supported in a number of different ways, which it is, regrettably, necessary, having regard to the grounds of the appeal and the submissions, to explore in some detail.

1. It was first suggested to TE that, from the beginning of his residence at the college, he had had learning difficulties, visual impairment, and difficulties in settling into the college life. At the end of the cross-examination, it was suggested to him that he had falsely stated to police that he had been accused by the appellant of lighting fires and stealing. I infer that these questions were put in order to suggest a motive for his making false allegations, although that was never directly put to him.

1. TE was then extensively cross-examined about each of his allegations. With respect to count 2, the allegation of indecent assault at a McDonald's restaurant in Bathurst, TE did not, in his evidence in chief, specify a date of its occurrence. In cross-examination he agreed that he had, in a statement made to police, fixed the timing of the incident as late February or early March 1989. It was put to him that as at that date, the McDonald's restaurant in Bathurst had not opened. He replied:

"That's a load of crap."

He was shown a newspaper cutting purportedly reporting the opening of the restaurant in August 1989. He said:

"It's with my whole heart that I believe that I was in McDonald's in 1989 ..."

He queried whether the opening reported in the newspaper was a "grand opening" and whether the business had in fact been operating at an earlier time.

1. He maintained that he had "physically" gone to McDonald's in Bathurst with the appellant. Ultimately, the Crown conceded that the McDonald's restaurant had opened in August 1989. Plainly, TE could not be right about both the date of the offence, and its location. TE was pressed to adhere to the date he had given. His focus was on having attended the restaurant, rather than committing himself to the date.

1. Another issue the subject of extensive cross-examination was the location and layout of the appellant's room, where TE said some of the offences and other events took place. He was asked to, and did, draw a diagram of what he said was the layout of the appellant's room. He was challenged by being confronted with another diagram, said to have been drawn by the appellant, which was markedly different. TE maintained that the room depicted in that diagram was not the room of the appellant. It was suggested to him that the room he had drawn was in fact the room of Brother Elrott, but he refuted this.

1. In cross-examination it was elicited from TE that, in his statement to police, he had given an account of an incident in the office of Brother Dwyer (the President of the college). This was not the subject of evidence in chief. The incident, as recounted by TE, was this. TE had gone to see Brother Dwyer to report that another student had stolen some clothing of his. Brother Dwyer had, on the table in his office, a number of photographs, which TE could clearly see were pornographic photographs of naked boys. Brother Dwyer attempted to conceal them. While TE was in the office, his uncle (whom TE said was a paedophile) arrived. He handed Brother Dwyer $100, and Brother Dwyer gave him photographs.

1. TE was cross-examined at length with a view to exposing what was said to be the unlikelihood of various aspects of his evidence. These included:

(1)   his account of the pornographic photographs given by Brother Dwyer to TE's uncle;

(2)   the incident in which TE said that he had been required to rake grass in May. It was suggested to him that there would be no grass mown in Bathurst in May, that any grass mown would be mulched, and that, in any event, TE had not been on detention on any Sunday in May, June or July of 1989;

(3)   the evidence concerning TE's complaint to the matrons following which he claimed to have been told to "stop putting things up his bum", and to buy women's panty liners;

(4)   the car wash incident. This, TE said, took place on a Saturday in the front of the school, near the entrance. Plans of the school show that there is an oval in front of this area. The suggestion was that this oval, on Saturdays, would be in use, with many students and perhaps parents present - and that, therefore, it was unlikely that the appellant would have behaved as TE alleged, in what was, effectively, a public place. TE denied that the oval was in use, and said that it was, in fact, out of bounds.

1. Throughout the cross-examination, TE was repeatedly accused of lying about various incidents of which he gave evidence. Similarly, the tendency witnesses were accused of fabrication.

The appellant's evidence

1. The appellant said that he was first posted to the college in October 1965. He then occupied a guest room in an area of the college known as "the priest's corridor". He was not a member of the college staff.

1. He became involved in the construction of the swimming pool, where "the tractor incident" referred to by GB had taken place. He gave very detailed evidence about the circumstances of the tractor incident. He said that extricating the tractor from the trench took most of the day.

1. He said he did not recall GB, and had "nothing whatsoever" to do with him during the three years that he (GB) was at the college. He denied having directed GB to go to the art room after the tractor incident. He said he did not have a key to the art room, and, indeed, at that time did not know where the art room was. He denied anally penetrating GB, and denied warning or threatening him.

1. The appellant said that, in 1986, he was appointed a Vice-President of the college and Tutor Master and House Master of the boarding school. He gave detailed evidence describing his accommodation, which conflicted in a number of respects with the evidence of TE. He said that he had minimal contact with TE. He denied ever having taken TE to a McDonald's restaurant. He denied ever inviting TE to his room. He denied possession of any pornographic material. He said that he did not have a key to Brother Elrott's shed.

1. The specific allegations made by GB, TE, and the tendency witnesses were put to the appellant. He denied each. The appellant said that he moved to Adelaide in 1991 and became involved in the Adelaide Diocese and AIDS council. In that capacity he met Dr Lyons and Mr Ioannou. With respect to MA, he asserted that Dr Lyons had expressed to him concern about MA's sexual orientation and behaviour and had asked the appellant to act as a professional counsellor. By that time the appellant was living in Adelaide and had come to know Dr Lyons. An arrangement was made for the appellant to pick up MA and drive him to Cape Gervis. (This was disputed by Dr Lyons.) The appellant said that after dinner that night, and after he had retired to bed, MA came into his room and sat on his bed, wanting to continue the conversation that they had had on the drive down. He said that he immediately told MA to return to his room. He denied that MA had got into his bed.

1. The appellant said that he did not expel TE from the college. He acknowledged that, in two telephone conversations after his arrest (which was intercepted pursuant to a warrant) he had said of TE:

"We expelled him, he was a pyromaniac",

and:

"I expelled him."

He said that this was said out of frustration and upset at having been arrested and falsely accused.

1. He said that in 1997 he returned from Adelaide to Sydney where he took up a position at a Catholic organisation called Stanford House and continued his involvement in HIV/AIDS organisations. It was in the course of this work that he came into possession of the various books, magazines, DVDs and other items (including condoms) that were seized by police in the execution of the search warrant.

1. The appellant's evidence took issue, in a number of detailed aspects, with the evidence of both of GB and TE, and, to a lesser extent, with the tendency evidence witnesses.

1. In addition to the appellant's own evidence, 18 witnesses were called in his defence. A number of these were character witnesses, who attested his good character. Some had been students at the college at various times, and gave evidence that they knew of nothing untoward about his behaviour or reputation. Two gave evidence, consistent with that of the appellant, that the art room was always locked. Two gave evidence of the discipline system in force at the college. This appears to have been intended as rebuttable of evidence given by GB, that, when the appellant sent him to the art room, he feared that he was going to be "flogged".

1. Brother Dwyer gave evidence. He had no recollection of coming across TE at Brother Elrott's shed. He was referred to the evidence of TE that Brother Dwyer had asked him about sweat on his forehead, and was asked if that had ever occurred. He replied "No".

1. He denied that TE had ever come to his office about stolen clothing, and said that would not be within the normal college procedures. He described as "totally a fabrication" that there was an occasion when TE had come to his office when he had photographs of naked boys on his desk. He said that he did not recall ever meeting a person by the name of the uncle TE had spoken of.

Grounds of appeal

1. The grounds of appeal are pleaded as follows:

"1. The learned Trial Judge erred in refusing an Application pursuant to s 130A Criminal Procedure Act in respect of separate trials of the counts in the Indictment relating to [GB] and [TE].

2. The Trial Judge erred in refusing an Application pursuant to s 130A(a) Criminal Procedure Act as to tendency and coincidence evidence relied upon by the Crown.

3. The conviction of the appellant was unsafe and unsatisfactory.

4. His Honour erred by permitting the Crown Prosecutor to cross-examine Matron Clarke as to 'masking' symptomatology relating to [TE].

5. That a miscarriage of justice occurred as a result of the Crown Prosecutor being permitted to cross-examined [sic] the Accused contrary to Palmer v R [[1998] HCA 2; 193 CLR 1].

6. The learned Trial Judge erred in refusing an application for a permanent stay of the Indictment in respect of [GB]."

1. Before commencing to deal with the individual grounds of appeal, I make this observation.

1. In support of the grounds, written submissions were filed on behalf of the appellant. The written submissions run to 111 pages. It was difficult to follow the argument advanced, partly because, as is apparent, the submissions have been prepared for purposes other than the appeal (such as an application to cross-examine witnesses at committal), and added to incrementally.

1. The manner in which the submissions were presented has increased the difficulty of understanding what the appellant's case is, and has very significantly increased the amount of time necessary to be taken to do justice to that case. This approach is unfair to other litigants whose determinations will be delayed while I (and other members of the Court) struggle to identify the case sought to be made. Discipline is called for in the preparation of submissions.

Ground 1: separate trials

Ground 2: tendency and coincidence evidence

The background to these grounds

1. As mentioned above, prior to the empanelment of the jury in the first trial, by Notice of Motion, an application was made on behalf of the appellant that there be a separate trial in respect of the allegations of each of the four complainants named on the indictment as it then stood. The outcome of that application depended upon whether or not the evidence upon which the Crown proposed to rely as tendency and/or coincidence evidence would be admitted for those purposes (or either of them). The Tendency Evidence Notice (s 97) nominated a number of witnesses from whom the Crown proposed to call evidence. These included students of the college, who were to be called to give evidence of the appellant behaving in a sexual way to themselves, or of having observed the appellant behaving in a sexual way to others.

1. The proposed witnesses named in the Tendency Evidence Notice also included police officers who would give evidence of the execution of a search warrant at the appellant's home after his arrest in September 2008, and to the seizure of a number of items from those premises. Those items included DVDs, books and magazines, condoms and a club membership card. The Crown proposed to rely on these items of evidence as indicating a sexual interest, on the part of the appellant, in young boys.

1. The Coincidence Evidence Notice (s 98) indicated that the Crown proposed to rely on the allegations of GB and TE to establish that, because of the improbability of the events the subject of those allegations occurring coincidentally, the appellant did in fact engage in the conduct alleged. Further, the Coincidence Evidence Notice foreshadowed that the Crown intended to rely on the evidence of the various items seized from the appellant's home to support TE's assertion that the appellant showed him pornographic videos and magazines.

1. The Notice of Motion was supported by an affidavit sworn by the appellant's solicitor. The affidavit recounted, in detail, the arrest and charging of the appellant, as well as other members of the Catholic Order of priests who administered and staffed the college. Annexed to the affidavit were many pages of extracts from newspaper and internet reports, and comments posted on the internet. It appears that this was intended to provide the foundation for the proposition that GB, and perhaps TE, had been influenced to bring their complaints by becoming aware of other allegations against the appellant, or other members of the college staff. This, in turn, appears to have been directed to a proposition that the evidence of the two complainants lacked probative value because it was affected by contamination resulting from what was said to be widespread media publicity.

1. Cogswell DCJ determined that (with minor exceptions) the evidence would be admitted for tendency and coincidence purposes. The effect of that ruling was that the application for separate trials would fail and the Notice of Motion would be dismissed. Although there is in the material before this Court no record of any formal order being made, it may be taken that, at least by implication, his Honour made an order dismissing the Notice of Motion. Once he had determined that the evidence of both complainants was admissible for tendency and coincidence purposes, it was inevitable that such an order would be made.

1. That is of some significance, for reasons that appear below.

1. At the commencement of the second trial a similar application was made to Garling ADCJ. Garling ADCJ considered himself bound by the order made by Cogswell DCJ. In reaching that view, he relied on s 130A of the Criminal Procedure Act.

1. Sections 130 and 130A are relevantly in the following terms:

"130 Trial proceedings after presentation of indictment and before empanelment of jury

(1) In this section, court means the Supreme Court or District Court.

(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:

(a) the proceedings are part of the trial of the accused person, and

(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

(4) ...

(5) ...

130A Pre-trial orders and orders made during trial bind trial Judge

(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.

(2) ...

(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.

(4) In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial."

1. There was no dispute that, for the purposes of s 130A(3), the trial before Cogswell DCJ had been "discontinued", and that the (implied) order made by Cogswell DCJ dismissing the Notice of Motion seeking separate trials was an order within that sub-section.

1. There is an issue, as yet unresolved, whether s 130 and s 130A encompass pre-trial rulings on evidence: see R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [151] per Howie J. This doubt derives from the interpretation given to the word "order" as it appears in s 5F of the Criminal Appeal Act 1912 (NSW): see R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633; DAO v R [2011] NSWCCA 63; 81 NSWLR 568.

1. Garling ADCJ was alive to this issue. He cited a decision of Haesler DCJ in R v BO [2012] NSWDC 194, in which his Honour concluded that, since s 130A is designed to avoid the unnecessary re-ventilation of issues which often lead to delays in criminal trials, the word "order" in s 130A encompasses pre-trial rulings and orders relating to the admissibility of evidence.

1. Garling ADCJ agreed with that view and adopted it. That is not the subject of any ground of appeal.

1. It is necessary to do no more than note that that issue exists. Certainly, it would be helpful if the NSW Parliament were to effect an amendment to put the matter beyond doubt. Section 130 and s 130A would be considerably more useful if it were clear that they are intended to ensure that pre-trial rulings on evidence are (absent the interests of justice dictating to the contrary) binding on subsequent judges dealing with the same proceedings.

1. There are two reasons why the issue does not call for determination in this case. The first is that it has not been raised in the very lengthy submissions provided on behalf of the appellant. The second is that, in any event, what was done by Cogswell DCJ amounted to an order. The order was to dismiss the Notice of Motion by which the appellant sought separate trials: see DAO v R [2011] NSWCCA 63; 81 NSWLR 568.

1. Garling ADCJ extracted sub-s 130A(1) and (3). He went on to say:

"It is argued on behalf of the accused that I should make an order which would allow the reconsideration of this application on the basis that it would not be in the interests of justice for the previous order to be binding. The onus of proof, of course, is upon the accused.

...

It is argued on behalf of the accused that I should allow this matter to be reconsidered because his Honour [Cogswell DCJ] made this ruling on the evidence available to his Honour but before his Honour heard the evidence in the trial. It is argued that the evidence which came out in the trial, which included evidence from the complainant, evidence from the accused and other evidence on the accused's behalf would allow this court to come to a different view. It is argued that the evidence given by the complainant [GB] was significantly unreliable.

...

As I see the position, his Honour had before him a significant amount of evidence. His Honour, in a lengthy judgment covering a number of matters, obviously gave careful consideration to the point it is sought to re-argue. When I am looking at s 130A I do not consider it on the basis that one of the parties may not agree with his Honour's ruling or that I, indeed, may have reached a different conclusion. The section of the Act is in place for a purpose and that is that pre-trial orders or orders in another trial made by another judge, the trial Judge, cannot be re-argued except in exceptional circumstances.

...

I have concluded, having looked at all those matters quite rightly raised, that this is not a matter in which I could rule that it would not be in the interests of justice for the order to be binding ... I cannot make any other finding than that I am bound by section 130A in relation to the first of these matters.

... I am not hearing arguments as to whether I would have admitted [the evidence] in this trial, I am purely ruling in relation to section 130A and, having considered all those matters, I have concluded that I am bound by section 130A in his Honour's ruling. I could not say it would not be in the interests of justice that that order be binding."

1. The argument that was put to Garling ADCJ was to the effect that experience in the first trial demonstrated unreliability in the evidence of both complainants. This, it was said, was because there was a risk that their evidence had been contaminated by pre-trial publicity, and because the complainants were hostile towards the appellant. Those arguments were essentially the same as had been put before Cogswell DCJ. They provided no basis for departure from the order made by Cogswell DCJ.

1. An additional argument was put to Garling ADCJ. That was that, since both GB and TE had given evidence in the first trial, and had been cross-examined, Garling ADCJ was in a better position than had been Cogswell DCJ to assess their credibility. Moreover, as the appellant had also given evidence in the first trial, it was possible to discern "an alternative explanation" for conduct of the appellant of which the two complainants gave evidence. The alternative explanation went to the appellant's possession of the items seized in the execution of the search warrant, tendered as indicative of the appellant's interest in homosexual activity, particularly with young boys or men. The alternative explanation was the appellant's involvement in HIV/AIDS organisations.

1. These submissions were, in my opinion, misconceived. The task of a judge determining admissibility of evidence under s 97 or s 98 is to decide, first, whether it would have "significant probative value". Since "probative value" is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Evidence Act, Dictionary), the assessment is of the capacity of the evidence to have that effect to a significant degree. In DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158, this Court held that, for the purposes of s 98, the assessment of probative value may take into account any alternative explanation (in a criminal case, inconsistent with guilt) of which there is a real possibility: at [10] (per Bathurst CJ) and at [78]-[82] (per Whealy JA). That appears to be because s 98 specifically directs attention to other evidence adduced, or to be adduced, by the tendering party. (The same must, obviously, apply to evidence tendered under s 97.) Both the Chief Justice and Whealy JA, however, also held that in the assessment of probative value it is no part of the judge's function to embark upon an assessment of the credibility of the evidence. That is, and remains, within the province of the jury: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [167]. That applies equally whether the evidence is tendered under s 97 or s 98, or is sought to be excluded under s 137. In a criminal case, a further assessment is required: to be admissible under s 97 or s 98, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant (s 101(2)).

1. The submissions put to Garling ADCJ invited his Honour to make an assessment of the probative value of the evidence by evaluating the credibility of the two complainants on the basis of the evidence they gave in the first trial, particularly their cross-examination. That was wrong in principle, and Garling ADCJ was correct not to succumb to the invitation.

1. A similar submission was made to this Court, and should similarly be rejected.

1. Moreover, what was said to be the possible subject of an alternative explanation was not the criminal conduct alleged, but the appellant's possession, at the time of his arrest, of items that might be thought to be indicative of a sexual interest in young men or boys.

1. In an alternative argument put on appeal, the appellant's solicitor seized upon the reference in the decision of Garling ADCJ to "exceptional circumstances". The contention was that his Honour applied the wrong test.

1. Had his Honour applied an "exceptional circumstances" test, then there is an available argument that this denoted error. However, in my judgment, he did not apply such a test. He set out the relevant sub-section (sub-s (3)) of s 130A, and twice thereafter expressed the conclusion, in correct terms, that he could not rule "that it would not be in the interests of justice for the order made by Cogswell DCJ to be binding". That is a test in the language of s 130A. The single reference to "exceptional circumstances" does not express the approach taken by Garling ADCJ to the issue that was before him.

1. Finally, it was argued that Garling ADCJ erred by failing to exercise the "discretion" conferred by s 130A. This was not a case, it was (correctly) pointed out, in which the second judge exercising jurisdiction was limited to the material available to the judge who made the initial decision. In this case, available to the judge, and said to be relevant to the assessment of probative value for the purpose of s 97 and s 98, was the evidence given by GB and TE in the trial, as well as that of the appellant. The evidence of the appellant can immediately be put to one side; probative value for the purposes of s 97 and s 98 is to be assessed by reference to the evidence in question, having regard to other evidence adduced or to be adduced by the tendering party. There is no room in that assessment for reference to be made to evidence tendered or to be tendered by the opposing party.

1. The relevance of the evidence of GB and TE in the trial was said to lie in the effect of their cross-examination. There was nothing in those parts of the cross-examination to which reference was made that impacted on this evidence other than their credibility. For the reasons given above, that does not affect the assessment of the probative value of the evidence so far as s 97 and s 98 are concerned.

1. It will be seen that both grounds 1 and 2 rely upon s 130A of the Criminal Procedure Act. There is no separate challenge to the decision (by Cogswell DCJ) that the evidence was admissible as tendency and coincidence evidence, nor any ground that asserts miscarriage of justice as a result of the admission of the evidence. No argument was directed to the admissibility of the tendency and coincidence evidence. To the extent that it is possible to do so in the absence of argument, I would conclude that the tendency and coincidence evidence was properly admitted.

1. I would reject grounds 1 and 2.

Ground 6: refusal of an application of permanent stay in respect of GB's allegations

Background

1. Prior to the commencement of the second trial a Notice of Motion was filed on behalf of the appellant, in which a number of orders were sought, the first of which was for permanent stay of the proceedings so far as they concerned the allegations of GB against the appellant. The Notice of Motion was supported by two affidavits sworn, respectively, on 24 January 2013 and 6 February 2013, by the solicitor who has represented the appellant throughout. The first affidavit runs to 62 pages of text in which is recounted, in microscopic detail, every incident with respect to the appellant, the charges, and the proceedings. By way of illustration, paragraphs 57-58 record a mention, on 19 December 2008, of the matter before the Chief Magistrate in which the question of venue was discussed. Just how this has any relevance to the application for stay, or any other of the orders sought in the Notice of Motion was and remains unexplained. Similarly, annexed to the affidavit are a very large number of documents, which are not paginated. It is impossible to discern the relevance of a great deal of this material. The plethora of documentation put before the court, without any attempt to explain its relevance, has added to the difficulty of determining whether there is any merit in this, and other, grounds of the appeal.

1. The second affidavit catalogues staff at the college who have died, or, who, by reason of medical conditions or infirmity, are not in a position to provide information or give evidence. Plainly, this is intended to demonstrate the disadvantage caused to the appellant in defending allegations that date back more than four decades. That disadvantage ought not be underestimated.

1. The hearing with respect to the Notice of Motion before Garling ADCJ was complicated by the fact that one of the orders sought in the Notice of Motion concerned the admissibility "of evidence as to Sexual Assault Communication Privilege" concerning GB. Evidence was given by two medical practitioners, but that issue, ultimately, was not pursued.

1. Garling ADCJ gave judgment on 20 February 2013. He identified as the matters to consider (as put to him on behalf of the appellant) the following:

"(1) Delay.

(2) The reason for the delay.

(3) Was the accused responsible for any of the delay.

(4) Prejudice to the accused.

(5) Consideration of public policy, namely, the importance of bringing persons accused of serious crimes to be processed by the court system."

1. He began by noting the extent of the delay - that is, the delay between when the offence was alleged to have been committed, and when it was reported to police. That was between 41 and 43 years. (It was an even longer period before the allegation was brought to trial, and another year before the second trial commenced.) Garling ADCJ noted the submissions made on behalf of the appellant, to the effect that no real explanation for GB's delay in coming forward had been given, but his Honour also noted that GB had given evidence that the appellant had told him not to tell anybody of what he had done as he would not be believed. He noted a submission that GB, in complaining, was motivated by "animus" towards the college, and his unhappy experiences at the college. He further noted a submission that GB came forward after seeing the appellant's solicitor interviewed and disagreeing with what he had said. This submission was intended, it seems, to reflect on the credibility of GB's allegations.

1. Quite properly, Garling ADCJ did not make findings of fact on any of these matters. He accepted that the appellant was not responsible for any of the delay.

1. In relation to asserted prejudice, he noted that what was put on behalf of the appellant was:

• significant publicity surrounding the charging of the appellant, and the arrest of another member of the same Order as the appellant;

• significant publicity surrounding the institution of an inquiry by Royal Commission into matters concerning sexual abuse of children in, inter alia, religious institutions;

• significant dispute about "the tractor incident";

• the unavailability, whether by death or infirmity, of potential witnesses.

1. Finally, his Honour considered the public policy issues and correctly directed himself in accordance with decisions such as Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23; Barton v The Queen [1980] HCA 48; 147 CLR 75 and R v RWO [2002] NSWCCA 133. He accepted that the appellant was at some disadvantage as a result of the delay, and other matters, but considered that the publicity, for example, could adequately be dealt with by directions.

1. In the written submissions filed with respect to the appeal, a great deal of emphasis was placed upon "the tractor incident". Complaint was made that, during the course of his evidence, the appellant maintained that there had been only one "tractor incident". The complaint appears to have been that, initially, the Crown alleged that the offence against GB occurred in 1965; but that, at committal, the Crown amended the charge to allege that it occurred between 1 September 1965 and 31 December 1967.

1. The "tractor incident" itself is peripheral to the allegation made by GB. It does no more than set in a temporal context what he alleged the appellant did to him. On GB's account, what occurred occurred in an art room, in the absence of any other person. Fixing with more specificity the date on which it occurred could not, in the circumstances of this case, make any difference.

1. It is true, of course, as in all cases of alleged historical sexual abuse, that there is disadvantage to the person accused, in, for example, being hampered in giving or obtaining evidence of what he was doing on a particular date. However, while that may be a disadvantage, it is not, and has never been, a sufficient basis for a stay of the proceedings: R v RWO [2002] NSWCCA 133; R v McCarthy (NSWCCA, 12 August 1994, unreported).

1. It was also submitted to this Court that GB's personal history was relevant to this question. Reference was made to what was said to be his medical history, during which he made no complaint or disclosure of the offence; to what was said to be his antipathy to both the appellant and the college; to what was said to be his antipathy to the appellant's legal representative; to what was said to be his motivation (supporting other victims); and that he was influenced by the media reporting.

1. The following submissions were put:

"Seventhly, in a case in which there is basically only word against word, the actual prejudice to the Applicant is submitted to be very considerable.

Eighthly, in this case the Applicant also faces reliance by the Crown upon tendency evidence being of its very nature highly prejudicial ...

Ninthly, by reason of the delay the Applicant is no longer able to receive directions relating to:

 corroboration

 complaint

 a full Longman [Longman v The Queen [1989] HCA 60; 168 CLR 79] direction

 a direction as to evidence of a relatively young witness."

1. The last of these is difficult to understand. There is no reason that delay precludes appropriate directions being given to a jury. That appropriate directions were given is evidenced by the fact that there is no ground of appeal that raises the absence or the adequacy of any of these directions.

1. Nor is it apparent why a stay should be granted on the basis that the Crown case depends upon the word of the complainant as against the word of the appellant. That is the case in almost all trials of sexual assault or abuse. And it is difficult to understand why a stay should be granted on the basis that tendency evidence has been determined to be admissible.

1. It is only in rare and exceptional circumstances that a trial of a serious criminal allegation will be stayed. So much is established by the authorities to which Garling ADCJ made reference.

1. The appellant has failed to establish any basis on which a stay should have been granted, and has failed to establish any basis of error in the determination of Garling ADCJ to refuse to stay the proceedings.

1. Ground 6 must, therefore, also be rejected.

Ground 4: cross-examination of Matron Clark as to "masking symptomatology" relating to TE

1. This ground is based on two false premises. The relevant evidence is the following. Ms Maree Daymond and Ms Beverley Clark were both registered nurses who worked in the infirmary at the college, Ms Daymond from 1979, Ms Clark from 1975. Both gave evidence that TE attended the infirmary on numerous occasions, complaining of stomach pains.

1. Ms Daymond, who gave evidence first, was asked by the Crown prosecutor in chief:

"Now as part of your training did you learn that young men or adolescents can sometimes mask what is happening to them by complaining about stomach pains?"

The appellant's solicitor objected and, after hearing argument, Garling ADCJ rejected the question.

1. Ms Clark was then called to give evidence. The Crown prosecutor asked her:

"In the course of your training did you learn that young male adolescents can complain about stomach problems but in fact be referring to something else?"

Ms Clark asked for the question to be repeated: when it was repeated she said:

"I think, no."

She is recorded as saying:

"I have always during my nursing career, treated the symptoms as they were presented. I do not presume to diagnosis [sic]."

She went on to say that if a student made repeated complaints of tummy aches she would refer him to a general practitioner and rely on his or her diagnosis.

1. That was as far as the evidence in chief of Ms Clark went on this topic. However, in cross-examination, she was asked:

"You were asked a number of questions about whether you would deduce from symptomatology of bleeding from the anus what in your mind would trigger a thought or belief or a suspicion of sexual assault. Remember those questions asked of you?"

She said she did and accepted that that was the evidence that she had given.

1. The two false premises underlying this ground of appeal are (i) that the Crown prosecutor cross-examined Ms Clark; and (ii) that Garling ADCJ permitted cross-examination on the subject of "masking symptomatology".

1. The written submissions on behalf of the appellant referred to the requirements of the Evidence Act in respect of "expert evidence" (s 79) and credibility evidence (s 102). Since no evidence of the kind the subject of the ground was given, it is unnecessary to deal with these arguments.

1. There was some ambiguity in the approach eventually taken on behalf of the appellant. Although, at one point, he seemed to abandon this ground, he also maintained that he relied on his written submissions. Like Hall J, I have considered it wise to deal with the ground, although briefly.

1. Ground 4 of the appeal must fail.

Ground 5: cross-examination of the appellant: Palmer v The Queen

1. In Palmer v The Queen [1998] HCA 2; 193 CLR 1, it was held that it is impermissible to cross-examine an accused as to whether he or she can nominate any motive for a complainant to make false allegations.

1. The complaint under this ground does not involve any cross-examination of the appellant of that type. It is, however, related: the cross-examination of which complaint is made was cross-examination of the appellant to the effect that it was his assertion that various of the witnesses were lying in their evidence. That is not the same as asking whether a witness has a motive to lie, but, in the same manner, it does invite the accused person to express a view concerning what is in the mind of the witness - that is, whether false evidence is a deliberate lie, or mistaken or merely unreliable for some other reason. It is always open to an accused person to give evidence contradicting any part of the evidence given by a Crown witness. Doing so does not necessarily entail the assertion that the witness is dishonest in giving that evidence. The Crown did not dispute that questions of the kind put to the appellant were, if not impermissible, certainly ill advised.

1. The cross-examination of which the appellant now complains is as follows. MK (a tendency evidence witness) spoke of having seen the appellant with his arm around the back of another student, towards the pants line. In his evidence in chief the appellant said that he had no recollection of that ever having occurred. In cross-examination, when he was asked about MK's assertions, step by step, he said:

"It didn't happen."

1. He was then asked about assertions of another witness (RB). These were the assertions that RB had observed the appellant on a skateboard with a young student against his groin. The appellant's answers were:

"I remember him saying that and it's totally ridiculous that that could ever happen ...

It's ridiculous ...

It's not physically possible ...

I remember him saying that and that also is a lie ..."

1. The transcript then records the following:

"CROWN PROSECUTOR. He's a liar too?

A. Absolutely a liar.

Q. Is [MK] a liar?

A. Yes.

Q. He said that he saw it on two separate occasions?

A. I know what he said, yes. It still makes it a lie."

1. The appellant was then asked about the evidence of PW. PW was the witness who said that the appellant put his hand down the back of PW's pyjamas or shorts and fondled his bottom. The appellant said:

"I remember him saying that and that also is a lie ..."

The following transcript is then recorded:

"Q. So [RB's] lying?

A. Yes.

Q. And [PW] is lying?

A. Yes."

1. The appellant was then asked about the evidence of a witness, MH. MH had given evidence of observing the appellant with his hand on the buttocks of another boy. The transcript records the following:

"Q. And that's what he says he saw you do?

A. That is also false.

Q. He's a liar too?

A. Yes."

1. The Crown prosecutor (Mr Hughes) then asked about the witness SW, who gave similar evidence. The appellant agreed that to behave in that way was "totally inappropriate" and said that he would never do it. The transcript then records the following exchange:

"Q. And what you were doing I put to you, is you were grooming - that is - getting the boys used to being touched inappropriately by yourself, that's right isn't?

A. It is not right Mr Hughes, it is totally false.

Q. [SW] is a liar?

A. Yes Mr Hughes.

Q. As is [MH]?

A. Yes Mr Hughes.

Q. As is [PW]?

A. Yes Mr Hughes ...

And they all contradicted each other as to the incident."

1. The appellant was then asked about the allegations made by TE. The following is recorded in the transcript:

"Do you remember [TE] saying that you befriended him, that you said in effect he was like a little brother to you?

A. I remember him saying that, but that did not happen.

Q. He's lying about that?

A. Yes, like he lied about everything else.

Q. Like all the others lied about everything?

A. Yes.

Q. And he said that you took him to the McDonald's restaurant at Bathurst for a meal?

A. He said that but that it also untrue."

He denied fondling TE's chest or nipples. He was asked if he was doing this in pursuance of his grooming of TE. He said:

"It is totally false Mr Hughes."

1. He denied showing TE any pornography and said that TE had never been in his room. He was asked about performing fellatio on TE and said:

"That is totally false."

1. He was asked about having TE perform fellatio on him, which he also described as "absolutely false". He said that did not happen.

1. When asked about gaining sexual gratification from masturbating in the presence of TE, he said:

"It did not happen. He's a pathological liar."

When pressed on what he meant by "pathological", he said:

"Well describe it as you will but that's what I - that's my description of the accusations against me would have to be made by a pathological liar."

When asked if that also included GB, he replied "Absolutely". He said:

"... I said [TE] was a pathological liar and now I'm saying [GB] is a pathological liar also."

1. The transcript then records the following:

"Really, the people that are accusing you, that don't agree with you, you categorise them as pathological liars?

A. Absolutely, because I have been falsely accused.

Q. The other alternative of course, [name of appellant] is that they're telling the truth and you acted exactly the way they say you did. That's right, isn't it?

A. That is totally, totally false."

1. Later, the appellant was asked about the evidence of the witness Dr Lyons. The appellant had asserted (in his evidence in chief) that Dr Lyons had asked him to counsel MA (who gave evidence of being in bed with the appellant). Dr Lyons denied that he had made that request. The following exchange is recorded in the transcript:

"Q. Was he lying when he said that?

A. He was lying because why else would Dr Lyons invite me to pick [MA] up from his home, drive him to Cape Gervis, alone in my car when he and [MA's] uncle were also driving from Adelaide to Cape Gervis that same afternoon after work.

...

Q. And he's lying according to you?

A. I'm saying - I've given you the reasons that he asked me to pick him up and I can think of no other reason why he would do that unless he asked me to speak with [MA]."

1. At a later stage in the cross-examination, the following exchange is recorded:

"Q. Is this the case, correct me if I'm wrong, your case, every single person in this trial who alleges sexual misconduct on your part perpetrated by you on them is a liar?

A. Yes.

Q. That extends from [GB] in the period 65/67 through [HM] in a room on the priest's corridor in 86. It continues with [SR] in 1987. It continues to [PW] who said that you put your hand down his pyjama shorts. It continues through all the allegations of sexual misconduct described by [TE], including anal penetration and it includes, it culminates in [MA], who said that he got into your bed and their (sic) was a mutual holding of penises. All of those witnesses are lying, is that your case?

A. Yes.

Q. And additionally, every single witness in the prosecution case in this trial who says they witnessed you acting in a predatory and inappropriate way with young students at the school, they're also lying, according to you?

A. The incidents didn't occur so, therefore, they could not have witnessed it.

Q. So [MK] lied when he told the jury he saw you with your hand on a year 7 student or 8 student on the steps leading up from the swimming pool area to the main building?

A. Yes.

Q. [RB] is lying when he told the jury you were sitting with a young pupil next to your groin and that when you stood up he could see you had an erection and you quickly walked away, not once but on two separate occasions? He's lying?

A. Yes.

Q. [SW] was lying, as was [MH], when they both testified about your placing your hand down [PW's] pyjama pants or shorts in the year 8 dorm? Correct? They're lying?

A. I think you said [SR] never made that accusation.

Q. No, [SW].

A. I'm sorry, [SW]. Yes.

Q. Both Noris Ioannou and Dr Robert Lyons are lying when they describe your inappropriate physical contact with their 15 year old nephew, [MA], in 1994?

A. Yes. All their evidence contradicted each other.

Q. Indeed Dr Lyons is lying when he says he never asked you to counsel his nephew? That was a lie?

1. He gave evidence in relation to the tractor incident. He said that he and a Mr Scheppingen were laying pipes in a trench that had been excavated by contractors, the trench being a drainage trench associated with the construction of a swimming pool. He said that when they were backfilling the trench the wheels of Mr Scheppingen's tractor slipped into the trench.

1. He then gave evidence about the incident which he said occurred around mid-to-late morning and that he and Mr Scheppingen worked all day to extract the tractor that had slipped into the trench from it.

1. He denied pouring cordial over GB's head. He did not recall GB at the school and said he had nothing to do with GB at all.

1. His evidence was that at the time of the tractor incident he did not know where the art room was situated and he did not have a key to the art room. He denied directing GB to go to that room and he did not go there and open it with a key. He denied that he had anally penetrated GB.

1. In the years 1986 and 1987 he said his room was not on the priests' corridor and that in 1988 and 1989 his room was in the Slattery Wing above the entrance to the College. He said in 1988 and 1989 he never locked the door to his room.

1. He was shown a diagram that had been drawn by TE (Exhibit 6) and he gave evidence that the layout of his room was not as depicted in the diagram.

1. He gave evidence that he was aware of TE in 1988.

1. He said he did not have a television and video in his room and that there was no television or video on a moveable stand during his time at the College.

1. The appellant also gave evidence concerning the locking mechanism of Brother Elrott's shed door and he did not have a key to that door. There were only two persons who had a key, including Brother Elrott.

1. His evidence was that any contact he had with TE in 1988 would have been minimal.

1. He denied taking TE to McDonalds as alleged and denied that he asked TE to wash his car in the front of the school.

1. He stated in evidence that he did not invite TE to his room. He said he was diligent in interviewing students in his office and never interviewed any student in his room.

1. He denied having pornographic material in his room at the College at any time. His evidence was that the room was regularly cleaned by a cleaning lady and his room was attended to by a laundry lady.

1. He denied ever showing TE a pornographic video and did not discuss sex with him, nor perform the activities TE alleged. His evidence was he did not develop a friendship with TE or with any other student and that TE never came to his room.

1. He denied that he saw any student raking grass on the College oval and that the ovals were maintained by maintenance staff. This was relevant to Count 5 concerning TE.

1. He had no recollection of coming across TE in circumstances where they ended up approaching Brother Elrott's shed. He said he did not have a key to that shed and the door to the shed was not able to be deadlocked. He denied ever being in the shed with TE and denied the sexual assault alleged by TE.

1. He denied taking TE to a study hall on a Sunday morning and committing the sexual assault detailed in TE's evidence.

1. His evidence was he had no recollection of a particular event occurring as described by a Crown witness, MK, and denied the incident described by RB. He stated that the area where the incidents were alleged to have occurred was one of the busiest areas of the College.

1. He denied touching the witness "B" in the Year 8 dormitory as alleged by SW.

1. In relation to HM's evidence that he came to his room on the priests' corridor in 1986, he said at no time during his second stay at the College did he have a room on the priests' corridor. He denied touching HM as had been alleged.

1. In the beginning of 1991 he moved to South Australia where he joined the Adelaide Diocese and Aids Council (ADAC). He commenced there as a volunteer with that organisation and was later employed as a pastoral care worker and education officer.

1. In relation to the alleged incident at Cape Jervis in 1995, the appellant said he remembered MA but denied any physical contact with him.

1. In relation to the DVD "Gay Man's Guide to Safe Sex" which was seized by police, the appellant said he acquired it during the course of his training and self-education in relation to HIV/AIDS.

1. At the time of his arrest he said he was working full-time for Vincare. When he returned to Sydney in 1998 he was employed by, and then did volunteer work, for organisations that helped HIV/AIDS sufferers.

1. He had obtained the condoms found in his room from the AIDS Council of NSW and from Stanford House so that he could distribute them to his clients. He said he had picked up the magazines that were found in his room from various locations including Stanford House and the AIDS Council of NSW. He did that because he felt that it was important for him to keep up to date with what was happening in the HIV community.

1. His evidence was that he had acquired the VHS tapes and the DVDs that were seized from his room over many years. He could not recall how, or who, he got them from but some backdated to the earliest times of his ministry in Adelaide. He said that at the time he was regarded with suspicion by members of the gay community and persons would give him those recordings to try to shock him. He said he had not ever looked at the recordings. In cross-examination he agreed that at a previous trial he had given evidence that the DVDs and VHS tapes had been in his possession since his time in Adelaide. It was put to him that his evidence had changed since the first trial because he knew that the DVDs had not been manufactured in the 1990s.

The Challenge to GB's Evidence

1. The challenge made to GB's evidence at trial did not directly suggest that his evidence had been contaminated through discussions with any particular person or persons nor by GB having read any internet or other media publicity.

1. As the Crown observed, the nature of the attack upon his credibility effectively went to the issue of his reliability. He was cross-examined on a number of matters that may be regarded as peripheral to the alleged sexual assault that occurred the subject of Count 1. Such matters included details concerning the "tractor incident" and associated matters such as the clothing worn by the appellant.

1. The contention on behalf of the appellant at trial was that the evidence of GB was unreliable as he was uncertain as to the year in which the alleged incident occurred, that he was uncertain as to precisely which friends he had been with on the day in question, he was uncertain as to which wheels of the tractor were involved in the incident and that he had what he referred only to a "feeling" as to the time of day upon which it occurred, and finally, that his recollection as to the clothing that the appellant was wearing on the day in question was inconsistent with clothing shown to be worn by the appellant in a photograph taken with him standing next to the tractor when in the drainage trench. There was, I note, an important issue at trial as to the particular occasion or date on which the photo was taken.

1. I have earlier set out in summary the evidence of GB as to the events he alleged in respect of the tractor incident and the events concerning Count 1.

1. The alleged inconsistencies in GB's evidence, as I have noted, concentrated largely upon the reliability of his evidence. The distinction in sexual assault cases between a witness' credibility on certain issues and his or her veracity is an important one. In Reed v R [2006] NSWCCA 314, Spigelman CJ observed at [62]-[65]:

"The only significance that I can see of the new information, is for the purpose of cross-examination of LK on credit because she had suggested that MH was not present on the occasion. In a word against word case, such as this, any information capable of being deployed in cross-examination on credit is potentially of significance. Nevertheless, questions of fact and degree are involved in order to determine the statutory question: Has there been a miscarriage of justice? That question must be understood in the sense suggested by Simpson J In Grey: Was the material of "sufficient relevance"?

In my opinion, in the circumstances the new material was not of sufficient relevance. Even in a word against word case, it is not the case that anything capable of impinging upon the credibility of the sole Crown witness must be permitted to be investigated in full. Credibility issues involve questions of reliability and of veracity. It is sometimes important to distinguish between them.

Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. 'Remembering Trauma' Harvard University Press, Cambridge, Massa., 2003 esp at pp 48-62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.

With regard to issues of veracity, surrounding detail can be of greater significance. In the present case, the credibility of TF, whose statement raised a possible inconsistency with LK's version, was so low, and MH's stated inability to recall detail was such, that the suggestion that further inquiry could lead anywhere was entirely speculative."

(i): The Year of the Incident

1. In evidence at the committal hearing GB said he could not remember the year in which it occurred.

1. In his first statement to police dated 23 September 2008, he stated that he went to the College from 1964 to 1966. During the committal hearing he amended the dates from 1965 to 1967. When cross-examined at the committal, he said that the incident did not occur during his first year at the College.

1. In a document that he prepared dated 4 September 2012, GB stated that he believed that he would have been twelve or thirteen years of age at the time of the incident. He agreed that he turned twelve in 1964 and thirteen in 1965. He could not remember whether it occurred in 1966 or 1967. He said that the only thing he could say was that it happened in the year that the tractor went into the trench.

1. The Crown submission was that his evidence as to the year of the incident in no fashion undermined his evidence: Crown's Written Submissions at [45].

(ii) The Identity of the Two Students at the Site of the Tractor

1. Prior to the committal hearing on 8 December 2009, GB recalled the students were IS and PM. He said he recalled their names as a lot of little things had come back to him from time to time and those were two students who he said he regularly smoked with.

1. Beyond the delay in recalling the names of the students, no other submission as to its possible significance was relied upon.

(iii) Clothing Worn by the Appellant

1. In a typed statement which GB prepared dated 4 May 2012, he stated he believed that at the time of the incident the appellant was wearing a white T-shirt and shorts. He agreed that in his first police statement (23 September 2008) he did not refer to what the appellant was wearing.

1. In the photograph shown by Mr Walsh to GB in the trial, the appellant was wearing different clothing. The Crown submission was that the fact that the appellant was wearing other clothes when photographed at a time other than when GB was present, accounted for little: Crown's Written Submissions at [46]. The Crown noted that GB's evidence was that when he observed the appellant there was no one else there other than GB's two school friends. The photograph shown to him, however, showed others present. Exactly as to when the photograph was taken, relative to the incident, was unknown.

(iv) The Tractor Wheels

1. GB had stated that the right side tractor wheels were stuck in the trench. At the committal this changed to the left wheels. He attributed the change to clarifying the difference between facing the tractor and from the perspective of a driver of the vehicle.

(v) The Time of Day of the Incident

1. GB's evidence was that he recalled it was hot. He felt that the incident had occurred in the early afternoon after lunch because of the extreme heat of day. He felt it was perhaps one o'clock for that reason - as in or towards the middle of the day. The fact that he "felt" that it was in the early afternoon, by reason of the heat, did not establish any inconsistency of significance.

(vi) Alleged Impossibility of Timing of the Allegation

1. In the appellant's written submissions, reference was made to the fact that GB was taken to the photographs at page 8 of the publication "Echoes" which in November 1965 showed the construction site inundated with 12-15 ft of water. GB did not recall the drainage trench having been constructed. Reference to the scene depicted in the publication as at November 1965 is not a matter of any particular significance on the issue of the reliability of GB's recollections.

The Evidence of Other Witnesses Concerning Count 1

1. PM in evidence stated that he attended the College from 1964 until 1967. He remembered the appellant and he remembered the pool being built. He said he vaguely remembered an incident involving a tractor rolling over. He knew that GB was in his year. From time to time he smoked at school. He went smoking with a lot of different people. He did not think that GB smoked.

1. Police, as noted above, were unable to locate the other person identified by GB, namely IS.

1. A record of interview was conducted with Mr T Collins (Exhibit R). Mr Collins commenced teaching at the College in 1964 and his role was to look after the art department. The art room had one door; the door was always locked except when classes were being held.

1. He and the other art teacher, Father Quinn, were the only people with keys to the art room. He did not loan his key to anyone. He could not say if Father Quinn loaned his key to anyone.

Submissions Made at Trial

1. In his final address to the jury in the second trial (at T 1521-T 1528), Mr Walsh raised the following issues concerning the evidence of GB:

(i) His motivation in coming forward after forty two years and reporting the alleged sexual assault.

(ii) That GB hated the College and its staff and had told Dr Frukacz that he had had a miserable time at the College. GB had not reported having been sexually assaulted to Dr Frukacz.

(iii) The fact of delay went not only to both the credibility and reliability of GB, but also raised considerable difficulty in the appellant defending himself.

(iv) The variation in GB's evidence as to the year in which the incident is said to have occurred.

(v) The period in which relevant construction had been carried out on the swimming pool, in particular, that as at November 1965 when it is said the incident occurred, there was no pump house in 1965, 1966 or 1967. For an inexplicable reason GB had referred to a pump house when in those years it did not exist.

(vi) GB's account to police that two right-hand wheels of the tractor went into the trench when the photographs revealed it was the two left-hand wheels.

(vii) That the delay in GB's recollection of the names of the two students he said he was with served to demonstrate his unreliability.

(viii) In relation to the clothing worn by the appellant at the time, there was no reference by GB in his first two police statements as to the clothing. In his third statement he referred to the appellant having worn shorts and a white T-shirt. There was no explanation as to why he had only referred to the clothing in his last statement.

(ix) GB was wrong in describing the windows in the art room.

(x) That GB, coming forward forty two years after the event was clearly motivated because he was angry when he heard the appellant's lawyer speak out suggesting that the allegations were a "beat-up" and so on. Additionally, GB hated the College and the brothers and the priests.

(xi) It was suggested in the final address by Mr Walsh that there were many inconsistencies in the way GB's evidence unfolded in the context of the tractor incident.

1. As I have also noted above, Mr Walsh relied upon issues associated with GB's alleged motivation, it being argued for the appellant at the pre-trial hearings that GB had "animus" against the College and its staff.

1. In his opening address to the jury, Mr Walsh emphasised that GB had come forward over forty years after the alleged events "in the circumstances of considerable publicity": T 197:28-30. He said that the jury would hear that GB felt different to the boarders, that he hated the Order, and hated the school and the institution: T 197:30-35. He put to the jury:

"... you will have to consider carefully how someone could not complain, would not complain, would not talk about [sic] in any way to doctors that he was seeing, anyone about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (T 197:32-40)

1. GB's evidence was that he told Robert Woodside, a psychologist, about the alleged events in or about 2007 or 2008. He said he had also told a psychiatrist he was seeing, Dr Frukacz. That was around 2008. He said he did not tell anyone before then because it was "not the sort of thing that you sort of discuss".

1. GB gave evidence, as noted above, that he came to make his statement to police in circumstances where he had seen two lawyers who were representing the appellant saying that the investigation was a "witch hunt" a "media beat-up". He soon after gave his statement to police.

Conclusions on GB's Evidence

1. There was no evidence before the jury that GB's evidence was contaminated in any way and there was no evidence of collusion. The principal basis upon which his evidence was challenged was his reliability. The attack on his veracity was largely based upon what was referred to as his "animus", having hated the College and its staff and the long delay before disclosing the alleged sexual assaults.

1. An examination of GB's evidence does not, in my assessment, establish that he was discredited as a witness. The matters relied upon in the appeal in relation to GB were not, in my opinion, sufficiently cogent as to destroy his credibility.

1. The issues concerning GB's credibility centred upon the accuracy of his recollection many years after the alleged events on matters that were essentially peripheral in nature. The reliability or otherwise of his recollection and evidence on such matters required the jurors to assess the significance of his recollection upon them and the extent to which they found his account of the events concerning the offences alleged and his evidence on the peripheral matters to be persuasive and reliable.

The Challenge to TE's Evidence

1. The submissions for the appellant referred to the following matters as adversely affecting TE's reliability:

(i) That he was "a very troubled student" at the College who was involved in lighting fires (a matter disputed by TE).

(ii) That his allegations concerning the McDonalds restaurant events were shown to have been factually incorrect.

(iii) The inherent unlikelihood of the alleged incident the next day when TE claimed he was washing the appellant's car in view from every window of the front of the building.

(iv) The inherent unlikelihood of the alleged incident in mid-1989 after raking grass on the oval, when that was not the time of year the grass was cut.

(v) The shed was Brother Elrott's shed and the appellant either did not have or would not have any key to open the shed. TE was challenged as to his evidence of the type of locks on the shed doors.

(vi) The inherent unlikelihood of the appellant using machinery lubrication to sexually assault TE.

(vii) The inherent unlikelihood of the appellant having sexually assaulted TE in the study hall when other students would have been in the area.

(viii) As to TE's evidence of having reported the sexual assaults, Sister Comer in her statement made no mention of any report or allegation. It could not be suggested she lied about that aspect.

(ix) TE visited the infirmary approximately 127 times in 1988 and 125 times in 1989.

(x) Whilst TE's evidence was that he went to the appellant's room on many occasions and was shown pornography and pornographic videos, he was wrong when identifying the appellant's room on a colour plan.

(xi) That TE took a good deal of time in drawing a sketch of the appellant's room and its contents. He misdescribed the number/location of the windows. Although he said he was shown videos he did not mark a television/video on the sketch plan. TE had said that there was a television on wheels for general use. It was kept in the hallway. There was a large fireplace in the room omitted from the sketch plan.

(xii) TE said that movie nights were on Fridays. It was put to him that he was wrong and they occurred on Saturdays.

(xiii) The issues concerning Dr Wilson's evidence raised in the appellant's supplementary submissions.

Conclusions on TE's Evidence

1. There was no evidence before the jury that TE's evidence was contaminated. Nor was there evidence of collusion. There was in the appellant's case a suggestion that TE was motivated by his dislike of the school and staff, including the appellant. However, the principal challenge to TE's evidence was upon the basis of his unreliability as a witness having regard to the matters set out above.

1. TE gave evidence of a report by him to his mother whilst still at school. There is a lack of specificity in the report but his evidence, if accepted, was capable of providing some evidence of him having reported, at the least, interference with him by someone.

1. TE's evidence of having disclosed the occurrence of sexual assaults upon him to his father, was also a matter for the jury to take into account having heard and seen TE and his father give evidence.

1. The late reporting of sexual assaults to medical practitioners and the psychologist, and the evidence concerning the same, as discussed above, is a familiar issue in child sexual assault cases and it is one matter that requires assessment by a jury in light of all the evidence.

1. On my review of the evidence of TE and the issues raised in respect to his evidence in the appellant's submissions I do not consider that a conclusion can be reached that TE was a discredited witness. As in the case of the complainant GB, many issues raised in cross-examination of TE related to peripheral facts suggesting possible inconsistency and unreliability. However, I do not consider that on appeal it can be said that it was not open to the jury to have accepted TE as a credible witness and accept his accounts in respect of the sexual assaults the subject of the counts on which they returned guilty verdicts.

Conclusions on Ground 3

1. In the result, having considered the totality of the evidence, I consider that the appellant has not established that the evidence of GB and TE lacked credibility as he contended, with the result that the jury ought to have experienced a doubt as to his guilt of the offences of which he was convicted.

1. In these proceedings in which the credibility of GB and TE and the appellant was critical, the jury's advantage of hearing and seeing them give evidence was of fundamental importance in assessing the veracity of each. That, of course, was central to the jury's consideration of the evidence of GB and TE in relation to the sexual assaults each claimed occurred.

1. There were a number of matters relevant to the probative strength of the coincidence evidence of GB and TE. These included: (i) the fact that they had each attended the school many years apart; (ii) that they had not communicated with one another about the appellant; and (iii) that each alleged assault by the appellant involving anal/penile penetration in circumstances involving similarities. It was clearly open to the jury to determine the coincidence evidence of each complainant as having significant probative value.

1. I do not consider in relation to Ground 3 that the guilty verdicts reached by the jury on Counts 1, 4, 5, 7, 10 and 12 were unreasonable or were not supported to the requisite standard by the evidence. I am satisfied that the evidence established, to the requisite standard, the appellant's guilt of the offences in respect of which he was convicted. I accordingly have concluded that Ground 3 is without merit and should be dismissed.

Conclusion

1. On the basis of the analysis and conclusions set out above, the appellant has not established any of the grounds of appeal relied upon.

1. I accordingly propose that the appeal be dismissed.

1. SCHMIDT J: The appellant advanced six grounds of appeal, although the 'nub of the appeal' was explained by Mr Walsh at the hearing of the appeal to relate to grounds 1 and 2, the alleged errors under s 130A of the Criminal Procedure Act 1986 (NSW). These grounds were pressed on the basis of Garling ADCJ's alleged failure to properly consider the evidence received at the first trial.

1. I agree with Simpson and Hall JJ that the appeal must be dismissed, the appellant not having established any of the grounds pressed, for the reasons given by Simpson J. I wish to add only brief comments in relation to ground 3, that the conviction was unsafe and unsatisfactory and ground 5, that there was a miscarriage of justice as the result of the appellant's cross-examination.

1. As to ground 5, it may not be overlooked that there was in reality no objection to the Crown's approach to the cross examination of the appellant, either at the first or the second trials. That reflected forensic decisions, as Mr Walsh explained at the hearing of the appeal, given the appellant's case, with both complainants being cross examined on the basis that they were untruthful and unreliable witnesses and with every witness, that there was a powerful body of ill will towards the appellant. The Crown met that case in the appellant's cross-examination, as has been explained, without objection.

1. In the result in my view in the particular circumstances of this case, the appellant is not only bound by the forensic decisions made at the trial, no miscarriage of justice has been established and even though leave under Rule 4 should be given in relation to ground 5, the appeal must be dismissed.

1. The case pressed for the appellant at the hearing was that both complainants' evidence, in which there were so many inconsistencies and which was indicative of unreliability, established ground 3.

1. I do not need to add to Simpson J's explanation of the evidence and the problems with the case advanced. Having myself considered the evidence I have also not been left with the doubt which the appellant contended the evidence raised as to his guilt of the counts of which he was convicted.

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Amendments

05 August 2014 - Former paras [86] to [94] inclusive deleted; replaced by paras [86] and [87].

Amended paragraphs: [86]-[94]

Decision last updated: 05 August 2014