R v BK

[2022] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v BK [2022] NSWCCA 51

Hearing dates:

22 October 2021

Date of orders:

16 March 2022

Decision date:

16 March 2022

Before:

Johnson J at [1];
Rothman J at [170];
Hamill J at [224].

Decision:

By majority, pursuant to s.107(5) Crimes (Appeal and Review) Act 2001 (NSW), affirm the acquittal of the Respondent entered by Judge Jeffreys in the District Court on 30 March 2021.

Catchwords:

CRIME – acquittal after Judge-alone trial – child sexual abuse offences allegedly committed in 1985 – complainant a 12-year old student at school where accused was a teacher – Crown appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001 – appeal on grounds involving questions of law alone – unchallenged evidence admitted at trial as tendency evidence – accused had committed child sexual abuse offences against two other 13-year old students from school between 1985 and 1987– first ground asserted that Judge failed to take tendency evidence into account in acquitting accused – second ground asserted that, if tendency evidence taken into account, Judge erred by failing to record findings concerning tendency evidence - consideration of significance of unchallenged tendency evidence – duty to give reasons – first ground rejected (by majority) – second ground upheld (by majority) – whether discretion should be exercised to quash acquittals and order a new trial – discretionary considerations - held (by majority) that acquittals should not be quashed and a new trial ordered – Crown appeal dismissed - acquittals of accused affirmed under s.107(5) Crimes (Appeal and Review) Act 2001

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCCA 199

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

BRC v R [2020] NSWCCA 176

Browne v Dunn (1893) 6 R 67

Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284

Collector of Customs v Pozzolanic (1993) FCR 280; [1993] FCA 456

Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34

Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22

Hopgood v R [2019] NSWCCA 246

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

IMM v R (2016) 257 CLR 300; [2016] HCA 14

Khorami v R; R v Khorami [2021] NSWCCA 228

Llewellyn v R [2011] NSWCCA 66

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

R v BA [2021] NSWCCA 191

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

R v Jovanovic (1997) 42 NSWLR 520

R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108

R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378

R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256

R v PL (No. 2) [2012] NSWCCA 31

R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175

R v XHR [2012] NSWCCA 247

Sheppard v Blakey and Ors [2001] WASCA 309

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Thornton v R [2017] NSWCCA 86

Toohey v R [2020] NSWCCA 166

Wade v R [2018] NSWCCA 85

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Winner v R (1995) 79 A Crim R 528; (Court of Criminal Appeal (NSW), 14 July 1995, unrep)

Texts Cited:

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Category:

Principal judgment

Parties:

Regina (Appellant)
BK (Respondent)

Representation:

Counsel:
Ms B Baker (Appellant)
Mr TD Anderson SC (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Appellant)
Lisa de Luca & Co (Respondent)

File Number(s):

2019/403316

Publication restriction:

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 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

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Citation:

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Date of Decision:

30 March 2021

Before:

His Honour Judge Jeffreys

File Number(s):

2019/403316

Judgment

1. JOHNSON J: By Notice of Appeal dated 26 April 2021, the Crown appeals under s.107 Crimes (Appeal and Review) Act 2001 against the acquittal at the Sydney District Court on 30 March 2021 of the Respondent, BK, upon an indictment charging offences under s.78N and s.78K Crimes Act 1900.

2. The Respondent stood trial by way of a Judge-alone trial before Jeffreys DCJ upon an indictment charging the following offences, all of which were alleged to have been committed between 1 March 1985 and 25 April 1985 at Marrickville against the complainant, WO:

Count 1 – Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being the pupil of BK (s.78N Crimes Act 1900).

Court 2 – In the alternative to Count 1, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).

Count 3 – Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being a pupil of BK (s.78N Crimes Act 1900).

Count 4 - In the alternative to Count 3, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).

Count 5 - Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being a pupil of BK (s.7NK Crimes Act 1900).

Count 6 - In the alternative to Count 5, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).

Nature of Crown Appeal Against Acquittal

3. Section 107 Crimes (Appeal and Review) Act 2001 provides as follows:

“107    Directed jury acquittals or acquittals in trials without juries

(1)    This section applies to the acquittal of a person—

(a)    by a jury at the direction of the trial Judge, or

(b)    by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or

(c)    by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party.

(2)    The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.

(3)    An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.

(4)    The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.

(5)    The Court of Criminal Appeal may affirm or quash the acquittal appealed against.

(6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 2013) order the detention or return to custody of the accused person in connection with the new trial.

(7)    If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so.

(8)    This section does not apply to a person who was acquitted before the commencement of this section.”

4. The present appeal falls within s.107(1)(b) being an appeal from an acquittal at a Judge-alone trial in the District Court.

5. The right of appeal conferred by s.107(2) is confined to any ground that involves a question of law alone.

6. In R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108, it was noted (at [74], [81]) that, although the formulation “a question of law alone” is more restrictive than the formulation “a question of law”, the use of the word “involves” in s.107 gives the legislation a wider application than if the legislature had restricted the section to grounds of appeal “on a question of law”. A “question of law” is also wider than an “error of law”: Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCCA 199 at [124].

7. A ground of appeal that asserts error in the formulation or application of a legal proposition which is a distinct and separate step in the reasoning process will satisfy s.107(2): R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [27]. If the question of law can be stated and considered separately from the facts with which it may be connected, there is a “question of law alone”: R v XHR [2012] NSWCCA 247 at [23].

8. In the event that error is established and the Court quashes the acquittal under s.107(5), the Court must consider whether to order a new trial under s.107(6). This requires consideration of whether it is in the interests of justice for a new trial to be ordered: R v PL (No. 2) [2012] NSWCCA 31 at [45]-[48]; R v BA [2021] NSWCCA 191 at [69]-[71].

Grounds of Appeal and Questions of Law

9. The Crown relies upon the following grounds of appeal:

• Ground 1 - that the trial Judge erred in failing to take into account tendency evidence adduced in the Crown case in determining whether there was a reasonable possibility that the Respondent’s evidence was true, and

• Ground 2 – in the alternative, that the trial Judge erred in failing to record his findings with respect to that tendency evidence.

10. The questions of law raised by these grounds of appeal are:

• Question 1 – whether a Judge trying criminal proceedings without a jury is required to take into account tendency evidence that has been admitted in the Crown case when determining whether there is a reasonable possibility that the accused’s evidence is true, and

• Question 2 – whether the duty to give reasons under s.133 Criminal Procedure Act 1986 requires a trial Judge trying criminal proceedings without a jury to record findings with respect to tendency evidence that has been admitted in the Crown case.

11. Mr Anderson SC, who appears for the Respondent, accepts that the appeal is based upon a question of law alone and that the Crown is entitled to bring the matter before the Court. I am satisfied that the common position of the parties is correct and that the grounds of appeal involve questions of law alone.

12. As will be seen, the areas of controversy in the appeal relate to the determination of the grounds of appeal and the exercise of the residual discretion if error is demonstrated.

The Evidence in the Trial

13. Put shortly, the Crown alleged that the Respondent had committed three offences contrary to s.78N Crimes Act 1900, with alternative counts alleged under s.78K of that Act.

14. The offences were alleged to have occurred in 1985. At this time, the Respondent was a teacher at St Patrick’s Marist Brothers College, Dundas and was the cadet master of the College’s cadet corps.

The Complainant’s Evidence

15. The complainant, WO, who was then 12 years old, was a student at the College. He was taught by the Respondent and was also a founding member of the cadet corps at that time.

16. The offences were alleged to have occurred on an occasion in the lead up to Anzac Day in 1985. The complainant gave evidence that the Respondent picked him up to drive him to training at Lancer’s Barracks at Parramatta. The complainant said that the Respondent drove him to a semi-detached house in Marrickville. The Respondent took the complainant into the lounge room of the house and showed the complainant a homosexual pornographic video. The Respondent was sitting on a cushion or beanbag and put the complainant’s penis in his mouth and fellated him (Counts 1/2).

17. The complainant alleged that the Respondent then led him to a bedroom, where there was a rifle with an unusual scope and a lancer sword. The Respondent then led the complainant’s mouth to the Respondent’s penis and placed his penis into WO’s mouth and told him to suck it (Counts 3/4).

18. The complainant alleged that the Respondent then placed the complainant’s penis in his mouth and fellated him (Counts 5/6).

19. Thereafter, the Respondent and the complainant went to Lancer’s Barracks for cadet training.

The Respondent’s Evidence

20. The Respondent gave evidence at the trial. He denied committing the offences. He said that he had never had the complainant in his car. The Respondent said that he did not recall the complainant “at all” (T107).

21. The Respondent acknowledged that he possessed a sword and a rifle with an unusual scope, in the home of his parents at Marrickville. He said that, after the Anzac Day march, he had taken the complainant, together with 24 other cadets, through his parents’ home in Marrickville to show the cadets his collection of rifles and swords.

22. The Respondent’s case was that it was because of this occasion that the complainant was able to describe his parents’ home in Marrickville, although the Respondent contended that the complainant was not accurate in his description of the home having beanbags or cushions.

The Tendency Evidence

23. The Crown relied on tendency evidence in support of the Crown case by reference to a Statement of Agreed Facts under s.191 Evidence Act 1995 signed by the Respondent (Exhibit B). The trial Judge read out the contents of Exhibit B to the Respondent and asked whether he admitted the facts in the document, to which the Respondent replied in the affirmative (T6-8).

24. That statement related to the conduct of the Respondent with two other boys, JW and PK, each of whom was 13 years old and in Year 7 in 1985. Both JW and PK attended St Patrick’s Marist Brothers College, Dundas. Both were taught by the Respondent and both were cadets in 1985 when the Respondent was a cadet master.

25. The Statement of Agreed Facts stated that, towards the end of 1985, the Respondent had driven JW to a house at Marrickville where he showed JW his collection of rifles and swords. He then drove JW to a house in Chippendale, where he showed JW pornographic videos before performing fellatio on JW and directing JW to perform fellatio upon him. Similar conduct occurred two weeks later.

26. Approximately one year later, the Respondent invited JW to watch pornographic videos and have sex. In the Chippendale house, JW watched pornographic videos. JW declined to perform fellatio on the Respondent, but agreed to masturbate the Respondent. After they masturbated each other, the Respondent performed fellatio on JW. Thereafter, JW continued to visit the Respondent. On these occasions, the Respondent would perform fellatio on JW.

27. The Statement of Agreed Facts also indicated that, in the winter of 1986, the Respondent drove JW and PK to the house in Chippendale where they watched a pornographic video and then performed fellatio on each other. The last time that JW saw the Respondent was in 1987 when he and the Respondent performed mutual acts of fellatio. On this occasion, JW also engaged in anal intercourse with the Respondent.

28. The Respondent did not dispute that he had a sexual interest in JW or PK at the relevant times. However, he maintained that he did not have any sexual interest in the complainant.

The Tendency Notice Relied Upon by the Crown at the Trial

29. The Crown relied upon a Tendency Notice dated 17 February 2021 served for the purpose of s.97 Evidence Act 1995.

30. The Tendency Notice was provided to the trial Judge prior to closing addresses (T164). As will be seen, there was some discussion with counsel concerning the Tendency Notice and its use in the trial (T164-166).

31. The Tendency Notice stated as follows:

“Notice is hereby given that the Prosecution presently intends to adduce evidence of ‘tendency’ pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind.

1.   The person whose ‘tendency’ is the subject of the evidence sought to be adduced is [BK].

2.   The indictment contains 6 counts (3 in the alternative) relating to 1 complainant, [WO], concerning acts of homosexual intercourse of a person above 10 years and under 18 years. The Crown seeks to rely upon evidence, concerning Mr [JW] (contained in paragraph 5), amounting to homosexual intercourse of a person above 10 years and under 18 years, engaged in by the accused on [JW] (set out below) as tendency evidence in proof of the counts on the indictment.

3.   The tendency sought to be proved is his tendency;

(a)   to have a particular state of mind, namely, a sexual interest in males aged between 12 and 15; and

(b)   to act in a particular way, namely, to act upon that sexual interest by:

•   sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school

•   exploiting a position of authority for his own sexual purposes

•   displaying a sexual interest in naked boys

•   performing acts of fellatio on boys

•   forcing boys to perform acts of fellatio upon him; and

•   masturbating himself in front of boys

committing such acts for his own sexual gratification.”

The Role of the Tendency Evidence During the Trial

32. The trial took place between 23 and 26 March 2021, with verdicts and reasons being delivered on 30 March 2021. Having regard to submissions made at the hearing of the appeal, it is appropriate to refer to parts of the trial where the tendency evidence was referred to in evidence and addresses.

Opening Addresses

33. In the course of the Crown opening address, reference was made to the tendency evidence by way of a summary of the matters contained in the document which became Exhibit B (T2-3). In a short opening address for the Respondent, trial counsel noted that, in circumstances where it was conceded that tendency evidence would be admitted at the trial, there was no opposition to the Crown relying upon tendency evidence with that material being condensed into an agreed facts document for that purpose (T3).

34. As noted earlier, when the Statement of Agreed Facts (Exhibit B) was tendered without objection, the trial Judge read the document to the Respondent who agreed that he admitted the facts contained in the document (T6-8).

Evidence of WO

35. The Crown called WO to give evidence (T21-71). The complainant gave evidence concerning the commission of the alleged offences by the Respondent at the Marrickville house (T30-34). The complainant said that he knew JW through cadets, but that he did not know PK (T44). WO said that he had never had discussions with JW concerning the Respondent (T44). Tendered in the Crown case, was a photograph of the College Cadet Unit in 1985 in which the Respondent, JW and WO all appear (Exhibit D).

36. In cross-examination, WO said that he had heard rumours that the Respondent was a paedophile and that he had heard that the Respondent had assaulted JW, although he had never heard that from JW himself (T50-52). In cross-examination, it was put to the complainant that he had never been to the house at Marrickville alone with the Respondent and that the sexual acts alleged by the Respondent had not in fact taken place (T70).

37. In re-examination concerning the rumours he had heard about the Respondent and JW, the complainant said that he had only heard JW’s name mentioned in this respect and that he did not hear any details or go seeking any details about it (T70). The complainant said that he had not told anyone about what the Respondent had done to him as he was ashamed of what had happened and did not want people to know (T70-71).

Evidence of the Respondent

38. In evidence-in-chief, the Respondent denied that the complainant had been in the Marrickville house on any occasion other than Anzac Day 1985 when he was present with other members of the cadet corps (T86). The Respondent denied committing any sexual act with the complainant (T88).

39. In cross-examination, the Crown asked the Respondent concerning the tendency evidence in Exhibit B (T100-101):

“Q. On this occasion, in exhibit B, when you took [JW] to the house in Marrickville, you showed him two rifles and a samurai sword, a bayonet and a Ruger?

A. Correct.

Q. What I want to suggest to you is that you also showed [WO] some weapons when you took him to the house.

A. I did not.

Q. You showed him one firearm and one sword, a sabre?

A. No, I did not.

Q. I want to suggest to you that [WO] even said something to you about there appearing to be condensation on the hilt of the sword. What do you say about that?

A. Could you rephrase that, could I ask you?

Q. Yes. I'm suggesting to you that [WO] said to you that there was some condensation on the sabre, on the hilt of it. You deny that, right?

A. I deny that, yes.

Q. I want to suggest to you that there was a rifle in the room with an unusual scope in that you kept both eyes open when looking through the scope.

A. Correct.

Q. You had such a rifle?

A. I did.”

40. Later in cross-examination, the Crown asked the Respondent questions by reference to the account of the complainant and also the tendency evidence (T105-108):

“Q. I want to suggest then that you put [WO] in the living area of that house, of a house in Marrickville and you put a pornographic video on the television?

A. I did not.

Q. And it was a homosexual pornographic video?

A. It was not.

Q. I want to suggest to you that this video depicted males performing fellatio upon each other?

A. I did not put a video on of that, any nature.

Q. You say you never showed any pornographic video to [WO]?

A. I did not.

Q. Did you ever tell [WO] that you had access to such videos?

A. I did not.

Q. Did [WO] ever attend a house with you and [JW]?

A. He did not.

Q. Did he ever attend a house with you and [PK]?

A. He did not.

Q. Now, we know from exhibit B that you did in fact have access to such homosexual pornographic videos in 1985, correct?

A. Correct.

Q. What I’m suggesting to you is not only did you show such pornographic videos to [JW] and [PK], as appears in the agreed fact, but you also showed them to [WO]?

A. I did not.

Q. I want to suggest to you that during 1985 you had a sexual interest in [JW]?

A. In [JW]?

Q. [JW].

A. I did.

Q. He was about 13 years old at the time?

A. Correct.

Q. You were his cadet master?

A. Correct.

Q. That sexual interest continued throughout 86 and I think up until at least August 87?

A. Correct.

Q. You also had a sexual interest in [PK], at least in 1986?

A. I did.

Q. He was about 14 years of age at the time?

A. I believe so.

Q. And you were his cadet master?

A. Yes, I was.

Q. I’m putting to you that you acted on that sexual interest with [JW]?

A. With [JW], yes, I did.

Q. And you did so on a number of occasions?

A. I did.

Q. On those occasions up until the last occasion in 87, that involved mutual fellatio?

A. It did.

Q. With [PK] you also performed fellatio upon him and he upon you?

A. He did.

Q. You say you had no such sexual interest in [WO], however?

A. I did not.

Q. In the very same year?

A. Correct.

Q. Why was that?

A. I had no interest in [WO] at all.

Q. Was it something about his appearance or something else?

A. I don’t recall him at all, but certainly no involvement, no, nothing stood out.

Q. I’m going to take you back then to the incident in the living room.

PULLINGER: The incident in the living room?

CROWN PROSECUTOR: Which is the basis of count 1 on the indictment.

Q. I want to suggest that you sat on a beanbag or a cushion on the floor. You deny that, correct?

A. I deny that. No.

Q. I want to suggest to you [WO] sat on the couch?

A. No, he didn’t.

Q. And I want to suggest to you the video that you showed him was of a birthday party where naked men were lined up to perform fellatio on the birthday boy?

A. I did not.

Q. I want to suggest you said to [WO] something like, ‘He’s a lucky boy’, meaning the birthday boy?

A. I did not.

Q. You then called [WO] over to you where you were sitting and you pulled his pants and underpants down?

A. I did not.

Q. You then put his penis in your hand and you put his penis into your mouth?

A. I did not.

Q. You also placed his hand behind his head?

A. I did not.

Q. Or your head, sorry.

A. Yeah. I did not.

Q. The pornographic videos that you showed to [JW] and [PK] involved homosexual activities, correct?

A. Correct.

Q. That include fellatio?

A. Correct.”

41. A little later, the Crown returned in cross-examination to aspects of the tendency evidence (T111-112):

“Q. I’ll just go back to exhibit B again, which is the agreed fact. In paragraph 3 you took [JW] to a house in Marrickville and you showed him, amongst other things, he saw guns and a sword, right?

A. Correct.

Q. Further down that paragraph you took him to a terrace house in Chippendale?

A. That’s correct.

Q. And you showed him pornographic videos and there was the mutual fellatio?

A. That’s correct.

Q. Paragraph 4 you took [JW] to what’s described as ‘a different house’?

A. That’s correct.

Q. And you showed him pornographic videos?

A. Correct.

Q. And mutual fellatio took place?

A. That’s correct.

Q. At paragraph 6 it refers to at your unit.

HIS HONOUR: Described as a flat.

CROWN PROSECUTOR: A flat, sorry.

Q. And there again fellatio, you performed fellatio on [JW] but he rarely performed it on you?

A. That’s correct.

Q. You also took [JW] and [PK] together to the same Chippendale house and that’s at paragraph 7?

A. That’s also correct.

Q. And showed them pornographic videos and mutual fellatio took place?

A. That’s correct.

Q. Now the unit that’s described as ‘your unit’ and do you say that’s your unit at Parramatta?

A. That’s correct.”

42. The Respondent was asked in cross-examination concerning the use of premises at Chippendale for sexual activity with JW. The Respondent stated that he borrowed the key to the Chippendale premises from an acquaintance, Robert Dunn (T113-114). The Respondent was asked in cross-examination (T114):

“Q. But Mr Dunn is someone who you knew was involved in having sex with young boys?

A. Correct.

Q. Is that why you asked to borrow a key to his house so that you could have sex with young boys in that house and he wouldn’t be upset if he found out?

A. Specifically yes.”

43. Towards the end of the cross-examination, the Crown asked the Respondent (T116-117):

“Q. [BK], you accept that during 1985 you had a sexual interest in [JW] and [PK] who were about 13 at the time, correct?

A. I do.

Q. Do you find them to be sexually attractive?

A. I did.

Q. And I’m suggesting to you, you also found [WO] to be sexually attractive?

A. I did not.

Q. You accept you were the cadet master for both [JW] and [PK]?

A. I do.

Q. And you accept you’re the cadet master for [WO]?

A. I do.

Q. I want to suggest to you that you used that position of authority over [JW] and [PK] for your own sexual gratification?

HIS HONOUR: Well hang on. Hang on. Hang on.

CROWN PROSECUTOR: I can break it down into portions if that was a compendious question. I think it was.

HIS HONOUR: He is not charged with authority. He’s charged with teacher pupil.

CROWN PROSECUTOR: That’s right.

HIS HONOUR: Yes.

CROWN PROSECUTOR: But what I’m suggesting to the witness is he’s taken advantage of that position of authority.

HIS HONOUR: It’s a matter, okay, but you need to establish.

CROWN PROSECUTOR: Yes, yes, I’ll do that.

Q. So you accept that you were in charge of these young boys when they were at the cadets?

A. I do.

Q. And you accept that they, and we’re talking about [JW] and [PK] at the moment, if you asked them to do something, they would do it?

A. Correct.

Q. You used that position and that knowledge for your own sexual gratification?

A. I did.

Q. What I’m suggesting to you is you used that same position of authority over [WO] in order to get him to do the things that he did to you and you did to him?

A. I did not.

Q. Of a sexual nature, which is mutual fellatio?

A. I did not.

Q. During 85 you accept you were attracted to those two boys who were between about 13 and 14, 15 years old?

A. I did.

Q. And I’m suggesting to you [WO] who was 12 at the time, you also had a sexual interest in him?

A. I did not.

Q. And you acted on that by performing fellatio upon him and forcing him to perform fellatio upon you?

A. I did not.”

Discussion Prior to Closing Addresses

44. Following the close of the defence case and before closing addresses, discussion took place concerning directions which arose in the circumstances of the trial. In the course of this discussion on the afternoon of 24 March 2021, it was indicated that the trial Judge was to be provided with the Tendency Notice (T152-153, 162-163).

45. The trial was adjourned to 26 March 2021 for the purpose of closing addresses. At the commencement of proceedings on that day, the following discussion took place with respect to the Tendency Notice which had been provided to the trial Judge (T164-166):

“HIS HONOUR: You've sent me that tendency notice, Mr Crown. I haven't had the opportunity to have a look at it, I'll just have a look at it now. I may be wrong, Mr Crown, but I thought when you cross-examined the accused you put it to him that he had a sexual interest in [JW], and what was [PK’s] first name?

CROWN PROSECUTOR: [PK].

HIS HONOUR: Rather than males between the age of 12 and 15.

CROWN PROSECUTOR: The Crown will be asking the tribunal of fact to infer that that is an interest, sexual interest, in young boys between those ages.

HIS HONOUR: What's your position in that respect, Mr Pullinger?

PULLINGER: Well, the facts are those in the agreed fact document. The Crown's entitled to rely on them.

HIS HONOUR: What the Crown says is that as a result of what's in the agreed facts document that the Crown can rely on a tendency to have a particular state of mind, being a sexual interest in males aged between 12 and 15.

PULLINGER: That doesn't accord with the agreed facts document, nor does it accord with the evidence that was in fact given during that course of cross-examination. Because my recollection is that the cross-examination--

HIS HONOUR: The cross-examination was very specific.

PULLINGER: It was very specific and it related to--

HIS HONOUR: I made a note of it at the time.

PULLINGER: It related specifically to [JW] and [PK]--

HIS HONOUR: [PK].

PULLINGER: And the accused accepted that at the time he had that interest in those boys. It was not ever put to him in a general sense that at that time he had an interest in boys generally between the age of 12 and 15. And specifically he denied having a sexual interest in the complainant in this trial.

HIS HONOUR: I understand all that. How do you say it's affected by the agreed facts document? That's what I don't quite understand.

PULLINGER: I don't have my copy, that's exhibit B.

HIS HONOUR: Have a look at exhibit B, show counsel exhibit B, please.

PULLINGER: The agreed fact document, on my quick reading of it, describes actual activities for the most part involving the accused and [JW]. And [PK] gets a mention in para 7.

HIS HONOUR: How does the agreed facts document assist in this respect?

PULLINGER: In my submission it doesn't assist the Crown to say that he had an interest generally in boys of that age, because the agreed fact document doesn't go that far.

HIS HONOUR: Let's explore that. If tendency evidence is admitted in relation to sexual activity between the accused and two individuals. And those individuals are between the ages set and they are male, isn't it open to the Crown to go to the tribunal of fact on the basis that this evidence tends to indicate he's got an interest in these particular males. If you're satisfied of that fact, then you may conclude that he has an interest in males of that age.

PULLINGER: I can understand that being the Crown's submissions, but how it's then caught with the specific evidence that was elicited during cross-examination of the accused, when he concedes sexual interest in those two individuals, but denies it in relation to--

HIS HONOUR: I understand that. What the Crown is saying is that the Crown can rely on the agreed facts in relation to having a particular state of mind, a sexual interest in males aged between 12 and 15. How old was [JW], he was 13, wasn't he?

PULLINGER: Both he and [PK] are 13, that's paras 1 and 2 of exhibit B.

HIS HONOUR: Right. And the complainant here was 12, is that right?

PULLINGER: Yes.

HIS HONOUR: So what's the problem?

PULLINGER: I don't have a problem with it, your Honour. It's there, it's a matter that your Honour's entitled to have regard to.

HIS HONOUR: All right. So you don't have a difficulty with the Crown going to the tribunal of fact on a tendency, to go to the tribunal of fact, in relation to having a sexual interest in males aged between 12 and 15, and relying on the evidence in that regard in relation to [JW’s] activity and [PK’s] activity?

PULLINGER: No, your Honour. There also has to be, of course, borne in mind the actual evidence that was given by the accused when he was cross-examined.

HIS HONOUR: That's a different issue. So are we ready for addresses now or not?”

Closing Addresses

46. The Crown then made a closing address (T167-177). During the course of the Crown closing address, the following submissions were made concerning the use of tendency evidence arising from the conduct of the Respondent towards JW and PK (T175-176):

“Now, during 1985, the accused had a sexual interest in [JW], who was 13 years of age at the time, and I think the fact reads on that up until 1986 he had a sexual interest in both [JW] and [PK]. At that stage [PK] would have been 14, I suppose. The Crown submits the accused had a sexual interest in boys between the ages of 12 and 15. We know the accused was the cadet master of both [JW] and [PK]. The accused admits he acted on his sexual interest in those boys, and he acted on his sexual interest in those two boys by fellating him and having them fellate him. What I'm submitting is that the accused had a sexual interest in boys between 12 and 15 years of age, and he had that sexual interest in 1985. In the Crown's submission he admits to much.

The Crown's submission is that he has a tendency to act on that sexual interest in a number of ways. First, by sexually assaulting young male cadet students. He did that to [JW], to [PK] and to [WO]. And he admits he did it to [JW] and [PK]. Second, by exploiting his position of authority over those young boys for his own sexual gratification. He did that with [JW], [PK] and [WO], and he admits using that position of authority over [JW] and [PK] in that way. He gave evidence that he admitted that. Third, he performed acts of fellatio on young boys. Again, he did that to [JW], [PK], and he also did it to [WO], and he admits doing it to [JW] and [PK]. And fourth, by forcing boys to perform fellatio upon him, again, he did that with [JW], [PK], and [WO], and he admits doing it to [JW] and [PK]. And then fifthly, he did these things for his own sexual gratification.

The Crown submits that the tribunal of fact would have no doubt that the accused had those tendencies in 1985, and the Crown submits that makes it much more likely that he committed the offences on [WO]. A tribunal of fact might be wondering why, if the accused was going to have sex with [WO], why he wouldn't just take him to his own flat. I think he said he was living in Parramatta at the time. I asked the accused why he didn't just take [JW] to his own Parramatta apartment, the flat, and the accused replied, ‘I have no idea.’ So we get no assistance from the accused as to why he didn't take these other boys to his own flat, simply, ‘I have no idea.’ But from the agreed fact, which is exhibit B, it's clear the accused had access to a number of houses where he could take young boys to have sex with them. The accused said at least one of the owners of one of those houses was also involved in having sex with young boys. He specifically said that Robert Dunn, the owner of one of the houses, was a man involved in having sex with young boys, and in fact that's the very reason the accused asked to borrow Mr Dunn's key, so he could have sex with young boys at his house, and Mr Dunn would not be upset if he found out about it. The point of this submission is that the accused was taking boys to houses other than his own house, in order to have sex with them, and that's what he did with [WO].”

47. Soon after, the Crown addressed a further aspect relating to the tendency evidence concerning JW and PK (T176-177):

“I will move on to one further topic, I'm nearly finished. There's absolutely no evidence of concoction or contamination in relation to the evidence of [WO]. He knew [JW] through the cadets, but they were in different years at school. They didn't associate together. [WO] and [JW] never had any discussions about the accused. It wasn't even suggested to [WO] that he discussed the matter with [JW]. And then, of course, [JW] [sic] doesn't even know [PK], he doesn't even know who he is. The evidence of what [WO] knew about the accused being a paedophile is that he heard rumours through the school that the accused was a paedophile. He heard that [JW] had been assaulted by the accused, and [JW’s] name had been associated with the accused. That was it. There was nothing more. He hadn't heard any details, and hadn't gone seeking details. He just heard [JW’s] name mentioned. No details about being taken to various houses, no details about being shown homosexual pornographic videos, no details of fellatio having taken place with [JW] and [PK]. Absolutely nothing. And of course, when [WO] heard the rumours, he was asked if he told anybody about what had happened to him, and he said he didn't because he was ashamed, and he ‘didn't want people to know’. That's hardly surprising, in the Crown's submission, that a 12 year old boy didn't want his mates at school to know that the cadet master had sucked his penis and forced him to suck the cadet master's penis.

The Crown's submission is this: if what [WO] says happened is not true, isn't it remarkable that he correctly, I use the word guessed, that the accused had homosexual pornographic videos? We know the accused had access to those from exhibit B. The accused, I asked and he certainly didn't tell [WO] that he had access to such videos. Also, isn't it remarkable that the accused had shown these videos to other young boys? And isn't it remarkable that [WO] guessed that fellatio was the sexual act that the accused liked to engage in with young boys? And isn't it remarkable, most of all, that [WO] made these allegations against someone who had the tendencies that I've referred to earlier in this address, and had those tendencies in this very same year, 1985?

Just before I sit down, a couple of points. The accused didn't know where he got the homosexual pornographic videos that he showed to [JW] and [PK] in the house in Chippendale. He didn't know whether they were really there, or whether he brought them with him. It seems the accused was going from house to house, bringing young boys with him, young boys who were cadets of his, showing the boys homosexual pornographic videos and then engaging in mutual fellatio. Sometimes it would seem the accused brought the videos with them. Sometimes they were already at the various houses. But what it does seem like is that there were so many houses that the accused was going to and doing this, he can't even remember which ones had the videos already there, and which ones he was bringing the videos to.

During 1985 the accused admits he found [JW] and [PK], who were then about 13 years old, to be sexually attractive. Put simply, in the Crown's submission, in 1985 the accused was sexually attracted to young boys around that age. He also had a position of authority over young boys at that time, and he admitted using that position of power over them, knowing they would do what he did, and he did that for his own sexual gratification. Yet he gave evidence he wasn't sexually interested in [WO], who falls within that category of the age and the time. He said he didn't use his position of authority over [WO] for the same reason. The Crown's submission is that's just beyond belief.

When one looks at the similarities or the common features between what the accused did to [JW] and [PK], and admits doing to [JW] and [PK], it demonstrates very strong tendencies on behalf of the accused, and those tendencies I have mentioned a few moments ago. With those tendencies and the very detailed description [WO] gave, and in the Crown's submission he was not shaken on any significant point in cross-examination, the Crown submits your Honour would have no reasonable doubt that the accused committed the acts as alleged by [WO]. The Crown's submission, I invite your Honour to return guilty verdicts on counts 1, 3 and 5.”

48. The closing address on behalf of the Respondent at trial focused upon the evidence of the complainant and the Respondent (T179-185). Trial counsel for the Respondent touched briefly and generally on the tendency evidence (T185):

“The accused has the prejudicial law, but not unfairly prejudicial, tendency notice material. That doesn't assist him at all. That can only help the prosecution in my submission to a limited extent. If it can't be used as a make piece or substitute for the evidence in a trial.”

49. No submissions were addressed, by trial counsel for the Respondent, to the tendency evidence of JW and PK or in response to the detailed Crown submissions which had touched upon these issues.

50. It is against this background, arising from this relatively short Judge-alone trial, that his Honour moved to give reasons for returning verdicts for the purpose of s.133 Criminal Procedure Act 1986.

Judgment of the Trial Judge

51. After the closing addresses on 26 March 2021, his Honour reserved his decision and adjourned the trial to 30 March 2021.

52. His Honour gave judgment on 30 March 2021. Given the grounds of appeal, it is appropriate to set out parts of the judgment, which occupied some 49 pages.

53. After recounting the counts in the indictment and noting certain general directions applicable to a criminal trial, his Honour set out the elements of the offences with which the Respondent was charged (pages 1-4). Thereafter, the trial Judge recorded a number of directions which included:

1. assessing the reliability and credibility of the witnesses, including where witnesses had given evidence by CCTV (pages 4-5);

2. the standard of proof (page 5);

3. the approach to be taken to consideration of separate counts and alternative counts (pages 6-7, 15-16); and

4. the drawing of inferences (pages 6-7).

54. His Honour then said (page 7):

“In this case the Crown seeks to establish the accused’s guilt based largely or exclusively on the evidence of the complainant, together with evidence of tendency. This being so, unless I am satisfied beyond reasonable doubt that the complainant was both an honest and accurate witness in the account that he has given, I cannot find the accused guilty.”

55. The trial Judge then addressed the question of delay in complaint (page 7):

“The complainant did not complain about what he claims the accused did to him until he spoke to the police in 2019. The delay in making the complaint about the alleged conduct of the accused does not necessarily indicate that the allegations that the offences were committed is false. There may be good reasons why the complainant may hesitate in making or may refrain from making a complaint about such an assault. I have heard evidence that the complainant did not complain until 2019 because he felt ashamed and did not want to become part of a rumour mill at the school in relation to similar complaints.”

56. His Honour then addressed the tendency issue, apparently reading from the Tendency Notice of 17 February 2021 (see [31] above) and the Statement of Agreed Facts (Exhibit B) for this purpose (pages 7-10):

“Part of the Crown case against the accused is that the accused had a tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 years of age, and to act in a particular way, namely to act upon that sexual interest by sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school by exploiting a position of authority for his own sexual purposes by displaying a sexual interest in naked boys, by performing acts of fellatio on boys, by forcing boys to perform acts of fellatio upon him, by masturbating himself in front of boys and by committing such acts for his own sexual gratification.

The Crown says that the tribunal of fact will be satisfied that the accused had this tendency because of his conduct in relation to [JW] and [PK]. The agreed facts establish that [JW] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. [PK] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. Towards the end of 1985 the accused drove [JW] to a house in Marrickville, showed him two rifles and a samurai sword, a bayonet and an automatic rifle, and then drove to a terrace house in Chippendale, where he showed him some pornographic videos and the two of them engaged in mutual fellatio.

Approximately two weeks later the accused picked [JW] up from school, took him to a different house, showed him pornographic videos and then they engaged in mutual fellatio. One day in 1986 the accused took [JW] to the same house in Chippendale, where they watched pornographic videos. [JW] declined to perform fellatio on the accused, and instead they masturbated each other and then the accused performed fellatio on [JW]. [JW] continued to visit the accused’s flat, where the accused would perform fellatio on [JW]. [JW] would rarely perform fellatio on the accused, but would masturbate the accused.

One time during the winter months in 1986 the accused drove [JW] and [PK] to the house in Chippendale, where they watched a pornographic video and then performed acts of fellatio on each other. In approximately August 1987 the accused and [JW] performed mutual acts of fellatio on each other, then [JW] laid on the floor, the accused sat astride [JW], and [JW]’ penis entered the accused’s anus. The Crown says this conduct reveals the accused had a tendency to have a particular state of mind, namely a sexual interest in males between 12 and 15, and to act in a particular way; namely to act upon that sexual interest makes it more likely that he committed the offences charged in the indictment.

There is no issue that the conduct in relation to [JW] and [PK] occurred. The tribunal of fact then needs to consider whether that conduct enables the inference to be drawn that the accused had the tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15, and to act in a particular way, namely to act upon that sexual interest.

The tribunal of fact would recall the direction about the care that needs to be applied in relation to inferences. The tribunal of fact needs to consider whether there might be alternative explanations for the evidence. The tribunal of fact should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. It should bear in mind the directions when considering this part of the evidence. If the tribunal of fact finds the accused did have a sexual interest in males aged between 12 and 15 and acted upon that sexual interest, then the tribunal of fact can use that in considering whether it is more likely that the accused committed the specific offences with which it is charged. However, it is essential that the tribunal of fact consider in relation to each charge whether the accused had that sexual interest and acted upon that sexual interest on that specific occasion.

Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are subject to the charges. That is the only way the accused’s tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 and to act in a particular way, namely to act upon that sexual interest, may be used.

Ultimately the tribunal of fact must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant and what the accused did. It will include the tendency alleged by the Crown, provided that the tribunal of fact is satisfied it has been established.

The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. The tribunal of fact must be careful to avoid allowing any emotional response or prejudice to distract it from a calm and objective assessment of this issue.”

57. His Honour then said (page 10):

“Apart from evidence of tendency relied upon by the Crown, the only evidence implicating the accused in any of the offences comes from the complainant. There is no evidence independent of the complainant in any material way that tends to indicate the accused in any of the offences.”

58. Earlier in the judgment, his Honour said (page 5):

“It is notorious that offences such as the ones that I am considering are usually committed in private and so it is commonly the case that the Crown is forced to rely on the evidence of a single witness, but the standard of proof, proof beyond reasonable doubt, is not watered down because the offences such as these usually occur in circumstances where no-one is present to corroborate the complainant’s version.”

59. His Honour directed himself concerning delay in WO’s complaint (including the impact of delay on the credibility of the complainant and the relevance of forensic disadvantage to the Respondent) (pages 7, 11-15).

60. Before embarking upon consideration of the evidence of the complainant, the trial Judge said (page 14):

“It falls to the Crown to establish beyond a reasonable doubt that the evidence of the complainant is both honest and reliable. If the tribunal of fact has a reasonable doubt about either of these two matters, then the tribunal of fact must find the accused not guilty. The fact that the complainant’s evidence may not have been demonstratively dishonest or unreliable in some respect does not enhance his credibility. The delay may mean that it is not possible to demonstrate. The delay is what renders that his evidence may be unreliable and lacking in credibility, that is the starting point for the tribunal of fact.”

61. The trial Judge gave himself a direction in accordance with R v Jovanovic (1997) 42 NSWLR 520 (page 16):

“I need to give myself a Jovanovic direction, which is to the effect it would be natural for the tribunal of fact to ask itself why the complainant, [WO], would make up such serious allegations against the accused. The tribunal of fact is given the following direction about that question. As the tribunal of fact has been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns upon the evidence of [WO], the tribunal of fact must be satisfied beyond reasonable doubt that [WO] has told the truth.

It is the tribunal of fact’s duty to decide whether it accepts the evidence of a witness in whole or in part, [WO] is no exception to that. It would be wrong to conclude that [WO] is telling the truth because there is no apparent reason in the tribunal of fact’s view for [WO] to lie. People lie for all sorts of reasons, sometimes it is apparent, sometimes it is not. Sometimes the reason is discovered, sometimes it is not. The tribunal of fact cannot be satisfied that [WO] is telling the truth merely because there is no apparent reason for [WO] to have made up these allegations. There might be a reason for [WO] to be untruthful that nobody knows about.”

62. The trial Judge then referred to the evidence of the Respondent in which he denied committing the alleged offences against the complainant (pages 17-18). Immediately thereafter, his Honour said (pages 18-19):

“If having considered the evidence of the accused and submissions of both counsel in relation to it and the tribunal of fact accepts it, then of course the tribunal of fact must acquit the accused and bring in verdicts of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to the essential matters which it must prove. If after having given consideration to the evidence of the accused and any evidence which the Crown asks the tribunal of fact to take into consideration, the tribunal of fact does not positively accept the evidence of the accused in support of the accused’s case but that evidence leaves the tribunal of fact nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then the tribunal of fact in law is bound to bring in a verdict of not guilty.

As I previously emphasised, it remains the position that the Crown must establish beyond reasonable doubt the charges which it brings against the accused, and it is never for the accused to prove that he is not guilty. The fact that the accused has given and called evidence before the tribunal of fact does not alter the burden of proof. There is no obligation on the accused to persuade the tribunal of fact to accept that evidence.

The Crown must satisfy the tribunal of fact beyond reasonable doubt that it should reject it as a reasonably possible version of the facts. If that evidence leaves the tribunal of fact with a reasonable doubt as to whether the Crown had made out its case in respect of any element of the offence or any essential fact that it must prove, then the tribunal of fact is bound in law to bring in a verdict of not guilty. In other words the tribunal of fact does not have to believe that the accused and his witnesses are telling the truth before the accused is entitled to be acquitted.

If at the end of the tribunal of fact’s deliberations it finds that there is a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade the tribunal of fact of the accused’s guilt beyond reasonable doubt. If the tribunal of fact rejects the evidence of the accused, then the tribunal of fact still needs to be satisfied beyond reasonable doubt by the evidence in the Crown case.”

63. His Honour then summarised the evidence of the complainant (pages 19-27). His Honour then recited the contents of the Statement of Agreed Facts document (Exhibit B) concerning the Respondent’s admitted conduct with respect to JW and PK (pages 27-29).

64. The trial Judge concluded the summary of the Crown case with a reference to evidence concerning the arrest of the Respondent on 23 December 2019 and a conversation which took place with police in that respect (page 29):

“It was an agreed fact that the accused was arrested on 23 December 2019 by Detective Sergeant Hampstead, in the company of Detective Brogan. Detective Sergeant Hampstead said to the accused, ‘There’s been a complaint from one of the students that was in the cadets in 1984 at St Patrick’s, Dundas, that you sexually assaulted him.’ The accused said, ‘No, that’s right. Who is this?’ Hampstead said, ‘He was a student at the school who you taught in the cadets, named [WO].’ The accused said, ‘No, I don’t know him. There must be some mistake.’ Hampstead said, ‘He’s made an allegation that you sexually assaulted him in a house at Marrickville whilst you taught him at the cadets at the school. It’s an historical sexual assault, it was back in 1984.’ The accused said, ‘No, I don’t even know him, there must be some mistake.’ That was the Crown case.”

65. His Honour then summarised the evidence of the Respondent in the defence case (pages 29-40). The trial Judge then summarised the evidence of Owen McInnes, a friend of the Respondent, who shared his interest in military paraphernalia, with the evidence of Mr McInnes relating to certain items of that type in the Respondent’s house (pages 40-44).

66. His Honour then referred to the Crown closing address (pages 44-47). In the course of that summary, the trial Judge said (pages 46-47):

“The Crown relied heavily in the Crown’s submissions on the tendency evidence and I have given a direction in relation to tendency. The Crown submitted that there is a great deal of similarity between what happened between the accused and [JW] and the accused and [PK], and what the complainant says happened to him, and that it is highly significant. What the Crown said:

‘If what [WO] says happened is not true, isn’t it remarkable that he correctly guessed that the accused had homosexual pornographic videos. Isn’t it remarkable the accused had shown videos to other boys. Isn’t it remarkable that [WO] guessed that fellatio was the sexual act the accused liked to engage in with young boys. Isn’t it remarkable most of all that [WO] made these allegations against someone who had the tendencies that that accused had and had those tendencies in the very same year, 1985.’

The Crown said when one looks at the similarities or the common features between what the accused did to [JW] and [PK], and admits doing to [JW] and [PK], it demonstrates very strong tendencies on behalf of the accused and those tendencies are remarkable. The Crown submits that there would be a verdict of guilty in relation to the principal counts in the indictment.”

67. The trial Judge then summarised the defence closing address (pages 47-48). No reference was made to any submission made by trial defence counsel concerning the tendency evidence.

68. Immediately after the summary of the defence closing address, his Honour expressed his conclusion in the following terms (page 48):

“So far as the complainant is concerned there is nothing in his evidence that in my view would led [sic] me to think that he is lying, that he is untruthful or that he is unreliable. That, of course, is not the right test for me to apply, I have to be satisfied beyond reasonable doubt that the accused is guilty. To put the matter another way, if there is a reasonable possibility that the accused’s evidence is true, it is my duty to find him not guilty. In my view I cannot exclude the reasonable possibility that the accused’s evidence is true and accordingly I am not satisfied beyond reasonable doubt and I propose to acquit the accused.”

69. His Honour then returned verdicts of not guilty on each of the six counts contained in the indictment.

Some General Observations Concerning the Grounds of Appeal

70. At the hearing of the appeal, both the Crown (T16, 22 October 2021) and Mr Anderson SC (T24), accepted that the grounds of appeal were, in effect, two sides of the same coin.

71. There is some overlap between the submissions concerning the two grounds. As the submissions addressed the grounds separately, it is appropriate to consider each ground separately, whilst noting that common features will be observed in the submissions of the parties.

72. In effect:

1. the first ground of appeal asserts that the trial Judge failed to take the tendency evidence into account in assessing the Respondent’s evidence, and in determining whether the Court was satisfied beyond reasonable doubt of the guilt of the Respondent on any of the counts;

2. if the first ground failed, the second ground of appeal asserts that the trial Judge failed to give reasons as required by law by failing to record his findings with respect to the tendency evidence.

Ground 1 – Failure to Take Tendency Evidence into Account in Assessing the Respondent’s Evidence

Submissions for the Crown

73. The Crown submitted that the first ground of appeal involves a question of law, namely whether a Judge trying criminal proceedings without a jury is required to take into account tendency evidence that has been admitted in the Crown case, when determining whether there is a reasonable possibility that an accused person’s evidence is true and whether the guilt of the accused person has been established beyond reasonable doubt (T3, 22 October 2021). As the question can be considered separately from the facts with which it is connected, it was submitted that the question constitutes a “question of law alone”.

74. It was submitted that the trial Judge summarised the tendency evidence and stated accurately the principles that applied to consideration of that evidence. However, the trial Judge did not make any findings about the tendency evidence and did not indicate at any point in the judgment that he had, in fact, taken the tendency evidence into account in determining that there was a reasonable possibility that the Respondent’s evidence was true. In this way, the trial Judge had failed to take the tendency evidence into account in determining whether the guilt of the Respondent had been proved beyond reasonable doubt.

75. In these circumstances, it was submitted that this Court should infer that the tendency evidence was not taken into account when finding that there was a reasonable possibility that the Respondent’s evidence was true: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [131].

76. The Crown submitted that the question whether there was a reasonable possibility that the Respondent’s evidence was true could not be determined by considering the Respondent’s evidence in isolation. Reliance was placed upon The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] in support of a submission that, in a case involving direct evidence, the evidence of any witness (including the Respondent) should not be considered separately in a “hermetically sealed compartment”. Rather, the Crown submitted that the evidence of an accused person must be assessed in the context of all the other evidence in the trial including the tendency evidence adduced in the Crown case.

77. It was submitted that the tendency evidence was important evidence in the Crown case in this trial, and was required to be taken into account by the trial Judge in determining whether there was a reasonable possibility that the Respondent’s evidence was true, as part of the process of determining whether the guilt of the Respondent had been established beyond reasonable doubt.

78. The Crown noted that, to be admitted, the tendency evidence had to have “significant probative value” and the evidence was required to substantially outweigh any danger of unfair prejudice: ss.97 and 101 Evidence Act 1995. At trial, the Respondent did not contend that the evidence did not satisfy either of these thresholds.

79. The Crown submitted that the tendency evidence in the present case was capable of demonstrating that, at the time of the alleged offences:

1. the Respondent had a sexual interests in boys of the complainant’s age, who were under the Respondent’s authority as a teacher and cadet master; and

2. the Respondent was prepared to act on that interest, including by using his position of authority to gratify his sexual interest, in particular, through a process of showing the boys pornography before then engaging in acts of fellatio.

80. The Crown noted that the Respondent did not dispute that he had a sexual interest in JW and PK, although he denied that he had a sexual interest in the complainant at the time. In circumstances where the occurrence of the alleged offences was in issue, it was submitted that the tendency evidence was highly relevant to an assessment of the Respondent’s assertion that his association with the complainant was an innocent one: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [28], [40] and [162].

81. The Crown submitted that the Respondent’s admitted sexual interest in two boys under his authority, and his preparedness to act on that interest at the time of the alleged offences, was an important matter that needed to be taken into account by the trial Judge in assessing the Respondent’s evidence that he did not commit the alleged offences against the complainant.

82. In making this submission, the Crown did not contend that the trial Judge was required to find the Respondent guilty of the alleged offences. Rather, the Crown’s contention was that the trial Judge was obliged to take the evidence into account in assessing whether there was a reasonable possibility that the Respondent’s evidence was true, as part of determining whether the guilt of the Respondent had been proved beyond reasonable doubt. As his Honour did not take the tendency evidence into account on this question, the Crown submitted that error is established as asserted in the first ground of appeal.

Submissions for the Respondent

83. Whilst accepting that the appeal is based on a question of law alone, Mr Anderson SC submitted that neither ground of appeal had been made out.

84. It was submitted for the Respondent that the trial Judge was alive to the significance of the tendency evidence in the trial with reference being made to it in the judgment of the District Court.

85. In considering this ground of appeal, it was submitted that the Court should read the reasons of the trial Judge fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47]. It was submitted that a judgment may comply with the obligation to give reasons where it appears “expressly or by implication” that relevant principles were taken into account by the trial Judge: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]. In many cases, the question whether there has been compliance with the duty to give reasons will raise questions of degree: AK v Western Australia at [84]. Reliance was placed upon Sheppard v Blakey and Ors [2001] WASCA 309 at [25] where it was said that the failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered.

86. Senior Counsel for the Respondent noted that, whilst it is certainly the case that in reaching his ultimate conclusion, the trial Judge did not specifically address the role of the tendency evidence in Exhibit B and what role it played in his Honour’s assessment of the complainant’s evidence, it was submitted that, given the extensive and repeated references to the evidence within the judgment, the inference should be drawn that the trial Judge must have taken that evidence into account.

87. Insofar as the tendency evidence had been led by the Crown in order to bolster the credibility of the complainant, it was submitted that the trial Judge made clear that he accepted the complainant was credible in the critical paragraph concluding the judgment (see [68] above). In this way, it was submitted that the inference should be drawn that the trial Judge had regard to the tendency evidence in not making an adverse finding concerning the credibility of the complainant.

88. It was submitted that it would create a counsel of perfection to conclude that the absence of a specific reference to the tendency evidence, when reaching the ultimate conclusion, meant that the trial Judge failed to take the evidence into account. It was submitted for the Respondent that it was implicit from the totality of the judgment that the tendency evidence was considered. Ultimately the Crown case failed, not because the complainant was not credible, but because his Honour held that there was a “reasonable possibility that the accused’s evidence is true”.

89. Whilst accepting the Crown’s reliance upon the principles in The Queen v Hillier (see [76] above), it was submitted that the trial Judge had assessed the evidence of the Respondent together with the other evidence including the tendency evidence.

90. In circumstances where the judgment is replete with references to the tendency evidence, it was submitted that it is implicit that the trial Judge’s ultimate conclusion had regard to the tendency evidence in reaching the verdicts of acquittal. It was submitted that it was implausible that his Honour would refer to the tendency evidence in detail and then proceed to disregard it in reaching verdicts.

91. As the Respondent did not give an alternative version of events, but simply denied that the offences occurred, it was submitted that there was little more that needed to be said in terms of reasons as to the use which the trial Judge made of the tendency evidence in reaching verdicts.

92. The Respondent submitted that the first ground of appeal should be rejected.

Decision on First Ground of Appeal

93. The first ground of appeal contends that the trial Judge erred in failing to take into account the tendency evidence adduced in the Crown case in determining whether there was a reasonable possibility that the evidence of the Respondent was true, as part of the process of deciding whether the Crown had proved the guilt of the Respondent beyond reasonable doubt.

94. It is undoubtedly the case that the trial Judge referred to directions of law applicable to tendency evidence with a summary being provided, as well, of the tendency evidence itself. The fundamental difficulty is that the trial Judge did not indicate what use, if any, was made of the tendency evidence in reaching the conclusion that the Respondent should be acquitted on all counts.

95. In considering the first ground of appeal, it is necessary to consider the issues in this trial more broadly.

96. The Respondent was standing trial for charges which alleged serious sexual offences said to have been committed by him in 1985 at the time when he was a school teacher and cadet master at a College. Putting aside for a moment, the tendency evidence, the Crown case was dependent upon the evidence of the complainant who was to give evidence of events said to have occurred many years prior to the trial.

97. Trials for what have been described as historical child sexual abuse offences have become more common in recent decades, and even more so as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse which issued its final report in 2017. The law with respect to tendency evidence has been amended as a result of the work of that Royal Commission: BRC v R [2020] NSWCCA 176 at [87]-[89]; ss.94(5), 97A Evidence Act 1995; s.161A Criminal Procedure Act 1986.

98. This was an unusual trial in that the tendency evidence was not disputed and was before the trial Judge in the form of a Statement of Agreed Facts under s.191 Evidence Act 1995. That body of unchallenged evidence stood to be considered in the context of a trial for charges arising from events in 1985, where the Crown case was otherwise dependent entirely upon the evidence of the complainant.

99. In these circumstances, the tendency evidence was of great importance in the trial and it was necessary for the trial Judge to have proper regard to that evidence in the process of reaching verdicts at the Judge-alone trial. As is apparent from the extracts of the evidence and the Crown closing address referred to earlier (at [35]-[49]), there was an interweaving of persons and events in 1985, involving the Respondent’s sexual acts with JW and PK and the sexual acts alleged by WO to have taken place in a similar setting and in the same period.

100. Clearly, more was required than a bare recital of the tendency evidence itself combined with general directions concerning the use of tendency evidence. The Crown had addressed the trial Judge concerning the importance of the tendency evidence and its role in the trial and, if the trial Judge was to have regard to that evidence properly in reaching verdicts, it was necessary for that evidence to be considered, with an assessment of its role in the trial, which, in this case, was critical and central to the determination of the guilt of the Respondent.

101. It is correct that this Court must read fairly the entire judgment of the trial Judge in considering this ground of appeal. It is also correct that a trial Judge is not required to address every issue in the trial and to make findings concerning that evidence in the process of reaching verdicts. However, the tendency evidence in this case was of such importance that it was essential that the trial Judge do far more than merely recite the existence of the evidence in the trial. If his Honour was to take it into account, as opposed to merely acknowledge its existence, it was essential that there be some examination or analysis of the role of the tendency evidence in reaching verdicts.

102. An important part of the obligation to give reasons under s.133 Criminal Procedure Act 1986 at a Judge-alone trial is to allow the community, the parties and this Court to understand the basis upon which the verdicts were reached. This is of particular importance in maintaining the confidence of the community in the system of Judge-alone trials, which operates in circumstances where members of the community are not involved directly by way of jury service.

103. In Hughes v The Queen, Kiefel CJ, Bell, Keane and Edelman JJ said at [40] (footnote omitted):

“In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed together with other evidence makes significantly more likely any facts making up the elements of the offence charged.”

104. In Khorami v R; R v Khorami [2021] NSWCCA 228, this Court considered the role of tendency evidence in a trial where it was accepted by the defence that the evidence could be used for tendency purposes. The Court said at [202]-[203]:

“202   It is necessary to keep in mind the way in which tendency evidence can be used to assist fact finding in a criminal trial. Evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject to the charge or charges: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124]; Taylor v R [2020] NSWCCA 355 at [92]-[94]. In Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303, the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) said at [359]-[360]:

‘359    As Simpson J has said on previous occasions (for example, Gardiner at [124]), proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.

360   The process of reasoning is:

•   on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;

•   it can therefore be concluded or inferred that the person had a tendency to act in that way;

•   by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.

Alternatively:

on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;

•   it can therefore be concluded or inferred that the person had a tendency to have that state of mind;

•   by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.

Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.’

203   In this case, the tendency evidence had substantial work to do, given the close proximity of other criminal acts carried out by the Applicant which permitted inferences to be drawn concerning his conduct and state of mind at the time of the counts where the verdicts are challenged on appeal.”

105. It is relevant, as well, to keep in mind the nature of the tendency evidence itself in this trial. This was not a trial where the tendency evidence was based upon sexual activity with teenage boys in an entirely different context to that relevant to the trial, such as the family of a next door neighbour as opposed to boys who were students or cadets at the school where the accused person was employed.

106. Here, the tendency evidence involved admitted acts by the Respondent in 1985 in which he engaged in sexual activity with two boys at the same school as the complainant, and where there were significant similarities between the acts described in the tendency evidence committed against JW and PK. It was not suggested at the trial that the complainant in this trial had, in some way, spoken to JW or PK so as to acquire knowledge of what those persons said that the Respondent did to them (see [36]-[37], [47] above). Accordingly, the tendency evidence was powerful and had substantial work to do in the context of this trial.

107. The Crown’s Tendency Notice asserted that the Respondent had a tendency to have a particular state of mind, being a sexual interest in males aged between 12 and 15 years, with the tendency being demonstrated by the admitted acts of the Respondent towards JW and PK (see [31] above). The trial Judge accepted, prior to closing addresses, that the tendency evidence could be used in this way (see [45] above).

108. In cross-examination at the trial, the Respondent admitted that he had a sexual interest in JW and PK in 1985 and 1986, but he denied that he had a sexual interest in the complainant (T106-107 at [40] above). It is clear that the issue in the trial involved undisputed evidence that the Respondent displayed a tendency to have sexual interest in boys aged 12 to 15 years in 1985 which he acted on with respect to JW and PK, but with him denying that he had such a sexual interest in the complainant.

109. I do not consider that there was any requirement on the part of the Crown to put some other proposition to the Respondent in cross-examination for the purpose of giving full effect to the tendency evidence in the Crown closing address. The issue had been raised in the Tendency Notice and in cross-examination of the Respondent, and was available to be relied upon by the Crown in the manner utilised in the Crown closing address.

110. There were, in truth, some striking similarities between what was alleged by JW and PK in the undisputed tendency evidence and in the contested account given by the complainant with respect to the alleged offences committed against him by the Respondent.

259. In written submissions on the second ground, the Director submitted that there were three possible explanations for these crucial findings and, specifically, that there was a “reasonable possibility that the accused evidence was true”. To paraphrase, those possibilities were:

1. His Honour was not satisfied, or did not draw the inference, that the respondent had the tendencies alleged.

2. His Honour found the respondent had those tendencies, but was not satisfied to the requisite standard, that he acted upon them (that is, “there was a reasonable possibility that the respondent’s evidence” (denying that he had a sexual interest in the complainant was true”)).

3. The trial Judge “assessed the respondent’s evidence without taking into account the tendency evidence at all”.

260. To succeed on the first ground of appeal, the Director must establish that the third possibility is the correct one. I do not accept that it is.

261. It is inconceivable that Judge Jeffreys simply disregarded, or failed to consider “at all”, the tendency evidence in coming to the conclusion that the respondent’s denial raised a reasonable doubt about his guilt. I am unable to accept the suggestion that the trial Judge placed the respondent’s evidence in an “hermetically sealed compartment” [32] whereby he disregarded the other evidence in the case, including the tendency evidence, in making the ultimate and critical findings. To have done so would have been to ignore the directions of law he had set out earlier in the judgment. His Honour set out earlier in the judgment the evidence upon which the prosecution relied, the fact that it was not in dispute, and the process of reasoning by which the tendency evidence could be used as circumstantial evidence in support of the prosecution case and, thus, in undermining the credibility of respondent’s denials. His Honour had obviously not forgotten that there was undisputed evidence led in support a tendency case. There is no sensible explanation as to why or how the Judge would have failed to consider the tendency evidence “at all” in making his assessment of the respondent’s denials. A fair reading of the reasons as a whole does not allow for this interpretation.

     32. A colourful phrase employed by Gummow, Hayne and Crennan JJ in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 and adopted by the Director in written submissions at [26]-[27].

262. I would reject the first ground of appeal.

Ground 2: that the trial judge erred in failing to record his findings with respect to that tendency evidence

263. There is more merit in the Director’s second ground and I have found it difficult to resolve. On the one hand, the fundamental reason the trial Judge found the respondent not guilty is plain from the reasons for judgment. On the other hand, the approach the trial Judge took to the tendency evidence in reaching the ultimate conclusion is unclear and not exposed in the judgment. The question whether, in those circumstances, the reasons were adequate is one upon which minds may differ. I have concluded that Johnson J is correct in his conclusion that the second ground is made out. To explain why, it is necessary to re-state the essence of the Director’s complaint and consider the case law on the extent and content of the duty of a Judge sitting alone to provide reasons for their verdicts.

264. As I have already said at [259], the Director submitted that there were three possibilities in terms of the Judge’s approach to the tendency evidence. The precise way this was put in written submissions was as follows:

“44. The trial judge concluded that he was unable to exclude the reasonable possibility that the respondent’s evidence was true. As the trial judge’s directions relating to tendency evidence illustrate, there are at least three potential pathways to this conclusion that were open to his Honour:

(i)   That the trial judge did not draw the inference that the respondent had a tendency to have the alleged state of mind, or to act on that state of mind;

(ii)   That the trial judge drew the inference that the respondent had the alleged tendencies, but nonetheless considered that there was a reasonable possibility that the respondent’s evidence was true; or

(iii)   That the trial judge assessed the respondent’s evidence without taking into account the tendency evidence at all.”

265. I have rejected the third possibility – that the Judge failed to take the tendency evidence into account in assessing the respondent’s evidence “at all” – in dealing with the Director’s first ground of appeal. I accept the Director’s submission that there were at least two other “pathways” to a conclusion that it was possible that the respondent’s denials were true. The question that arises under this ground is whether the duty of the Judge to provide adequate reasons encompassed a requirement that Judge Jeffreys spell out which of those two pathways he took to reach that ultimate conclusion.

266. The duty to give reasons for a verdict in a trial by judge alone arises from s 133(2) and (3) of the Criminal Procedure Act:

“(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

267. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (“Fleming”) the High Court considered the predecessor provision (in what was then s 33 of the Criminal Procedure Act). The current provision is in relevantly identical terms to that considered by the High Court. Fleming concerned an appeal against conviction and the High Court noted that s 6 of the Criminal Appeal Act 1912 had now to be seen “through the prism of s 33”. [33] There are obvious differences in the terms of the provision in s 6(1) of the Criminal Appeal Act (relating to appeals against convictions whether following a trial by judge alone or by jury) and those in s 107(5) of CARA (relating to an acquittal following a judge alone trial). Those differences may be significant to the outcome of the present appeal. However, they do not diminish the importance of the principles stated in Fleming concerning the duty of a trial Judge sitting without a jury to provide adequate reasons for their verdict or verdicts. At [24]-[31], their Honours enumerated eight propositions concerning the operation of the provisions and the duty to give reasons. The fifth proposition stated by the High Court is important to the disposition of the ground of appeal currently under consideration:

“Fifthly, whilst s 33(2), when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.” [34]

33. Fleming v The Queen (1998) 197 CLR 250 at 262; [1998] HCA 68 at [26].

34. Fleming v The Queen (1998) 197 CLR 250 at 263-264; [1998] HCA 68 at [28].

268. In AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 the third member of the majority, writing separately, reiterated at [108] one of the matters lying at the heart of the decision in Fleming:

“As the Court said in Fleming v The Queen of the New South Wales equivalent to ss 119(3) and 120(2), a legislative concern is evinced ‘that, in the operation of the new regime ... whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done’.” [35]

35. AK v The Queen (2008) 232 CLR 438 at 481; [2008] HCA 8 at [108].

269. They also observed at 467 [84]:

“In many cases the question of whether there has been compliance with the duty imposed by s 120(2) of the Criminal Procedure Act will raise questions of degree. Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the ‘reasoning process linking’ the principles of law to the findings of fact.” [36]

36. AK v The Queen (2008) 232 CLR 438 at 467; [2008] HCA 8 at [84].

270. It has been held that there is no proscriptive standard, and the adequacy of reasons given in a judge-alone trial will be a question of degree, [37] and dependent on the individual circumstances of the case. [38]  

     37. Toohey v R [2020] NSWCCA 166 at [24].

     38. Mifsud v Campbell (1991) 21 NSWLR 725 at 728.

271. Wade v R [2018] NSWCCA 85 was a case where the appellant complained the Judge did not take certain expert evidence into account in making a finding as to the accuracy and reliability of the two complainants’ evidence. ^[39] RA Hulme J at [99]-[104] restated the general principles articulated in Fleming, before concluding at [120]:

“In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused's version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his ‘not guilty’ responses when arraigned at the commencement of the trial.”

39. Wade v R [2018] NSWCCA 85 at [144]-[145].

272. To similar effect are the following observations in Thornton v R [2017] NSWCCA 86 at [158]-[165]:

“158. The Crown argues that, while it is necessary that the judge articulate the essential ground or grounds on which the decision is based, there is authority that while in many cases the reasons for preferring one conclusion over another should be given, where the resolution depends entirely on credibility, it is (or may be) enough that the judge simply finds one way over another (citing Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280-281; W v R [2014] NSWCCA 110 at [147]; Siafakas v R [2016] NSWCCA 100 at [68]; Cutajar v R [2016] NSWCCA 222 at [12].

159. The appellant relies on Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, where the High Court upheld an appeal as to the insufficiency of reasons. There, the Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) at [12] identified the error of the Court of Criminal Appeal of the Supreme Court of South Australia as being to view the appellant’s trial as reducing to a case of ‘word against word’ and went on to say:

‘It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.

160. The Court said (at [13]) that to dismiss the complaint as to sufficiency of reasons on the footing that the trial judge’s acceptance of the complainant’s evidence necessarily carried with it rejection of the appellant’s evidence “was to overlook that the judge’s acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as to guilt” and that:

‘Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.’”

273. In Thornton v R, Ward JA concluded at [165]:

“Accepting that there is force to the criticism that on some issues (such as the presence of D at the time of the offences) her Honour’s reasoning involved simply a statement of conclusion, there was in my opinion a sufficient statement of reasons for her Honour’s ultimate satisfaction beyond reasonable doubt as to the appellant’s guilt on the indecent assault counts.”

274. Campbell J agreed with Ward JA with N Adams at [226] said she was “not satisfied that the trial judge’s reasons were inadequate.” In Thornton, there were a number of significant evidentiary issues explained by Ward JA which were not linked to the issue of credibility of the complainant in the trial Judge’s judgment. Even so, it was held the reasons were sufficient because the issue, whether the complainant’s evidence established the offences beyond reasonable doubt, was simple.

275. The present case was essentially a credibility case, or a “word against word” case. It is arguable that it was sufficient for the trial Judge to say “little more” than he did. That seems to accord with approach taken by this Court in both Thornton v R and Wade v R, each of which were cases involving appeals against convictions. While Judge Jeffreys found nothing to diminish the credibility of the complainant’s account, he could not reject the respondent’s denials beyond reasonable doubt. To put it another way, there was a reasonable possibility that the respondent’s denials were true. As the High Court in Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 made clear “the judge’s acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as [the accused’s] guilt”. [40]

     40. Douglass v The Queen [2012] HCA 34 at [13]; (2012) 290 ALR 699.

276. However, with some reticence, I am persuaded that the Director is correct and that more needed to be said by the trial Judge in the present case. Because of the evidence of admitted predatory sexual conduct towards two other school boys at around the same time, the reliance on the tendency said to be established by that evidence, and the favourable finding concerning the complainant’s credibility, the trial Judge needed to explain how he dealt with the tendency evidence. As the Director submitted, the pathway to a reasonable doubt must have involved the trial Judge either (1) not drawing the inference that the respondent had the tendencies alleged or, (2) finding that he had some or all of those tendencies but that he did not act on them as alleged by the complainant in this case. The reasons for judgment should have indicated transparently the pathway his Honour took, or have provided some explanation as to the approach taken to the tendency evidence. The situation is analogous to that described by Basten JA in    Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]:

“121 …Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another.”

[My emphasis.]

277. For those reasons, I am satisfied that the Director has established ground 2.

Appropriate orders

278. Section 107 of the CARA is set out in full by Johnson J at [3]. The section falls within Division 3 of Part 8 of the CARA. The section does not provide any automatic consequence flowing from the appellant (either the Director or the Attorney General) establishing an error of law in the judgment leading to an acquittal. [41] Rather, sub-ss (5) and (6) provide respectively that this Court “may affirm or quash the acquittal” and “may order a re-trial”.

     41. Crimes (Appeal and Review) Act 2001 (NSW) s 107(2).

279. The provision may be contrasted with sub-ss 6(1) and 6(2) of the Criminal Appeal Act 1912 which provide for the determination of appeals against conviction. Where any of the “three limbs” of error are established “the court shall allow the appeal” unless “it considers that no substantial miscarriage of justice has actually occurred.” [42] If the appeal is allowed, the Court is to quash the conviction and enter a verdict of acquittal (s 6(2)) unless it orders a re-trial under s 8.

     42. The bewildering body of case law explaining the operation of this provision is legendary: most recently, see, for example the judgment of Gageler J in Hofer v The Queen [2021] HCA 36; 95 ALJR 937 and N Adams J’s helpful analysis of that judgment in Tomlinson v R [2022] NSWCCA 16 at [121]-[132].

280. It may be that in most cases where an error of law is established, the power in s 107(5) to “affirm or quash the acquittal” would result in the verdict being quashed. The question would then become whether a re-trial should be ordered under s 107(6). However, in contrast to s 6 of the Criminal Appeal Act, the section does not mandate that the appeal be allowed and the [acquittal] be quashed. It has been said that s 107 represents a “partial abrogation” of a “fundamental principle of our criminal law”, that is the principle of double jeopardy and the prohibition on successive prosecutions for the same offence. [43] In the circumstances of the present case, in view of the ground that I would uphold, the question of whether the verdict of not guilty should be quashed is a live one.

     43. R v PL [2009] NSWCCA 256 at [91] (Spigelman CJ). See also Regina v XHR [2012] NSWCCA 247 at [99] (Beazley JA, as her Excellency then was) and Green v United States, 355 US 184 at 187-188 (1957) (Black J), cited by the former Chief Justice in R v PL.

281. The discretion in s 107(6) whether to order a new trial is “unconstrained by specific wording (cf. s 104 of the Crimes (Appeal and Review) Act)”: R v BA [2021] NSWCCA 191 at [69] (Adamson J). I agree with Adamson J that the suggestion in R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [150]-[168] that the discretion in s 107 “ought be read with the qualifications in s 104” is contrary to the terms and structure of the statute. Section 104 falls in a different division (Division 1) and is, on its own terms, confined to the issue of “determining under this Division whether it is in the interests of justice” to order a re-trial (my emphasis). Even so, some of the matters referred to in s 104 will also be relevant to the “unconstrained” discretion in s 107.

282. In R v BA Brereton JA said at [31]:

“Pursuant to CARA, ss 107(5)-(6), the Court of Criminal Appeal may affirm or quash the acquittal appealed against, and if the acquittal is quashed, may order a new trial in such manner as the Court thinks fit. Although expressed in different terms to (NSW) Criminal Appeal Act 1912, s 5D, these provisions should be understood as incorporating the “residual discretion” of a Court of Criminal Appeal to dismiss a Crown appeal notwithstanding the establishment of material error in the decision of the trial judge, and it is for the Crown to satisfy this Court that it should not exercise its residual discretion to decline to intervene.”

283. His Honour also observed at [32]:

“In this respect, the public interest in the due prosecution and conviction of offenders is a weighty consideration. So is the purpose of a Crown appeal, which is not for the mere correction of error in an individual case, but to provide general guidance. In this case, the regular course of justice has miscarried, because the respondent has not been tried in accordance with law, having been acquitted by direction on an incorrect basis, with the result that the charge against him was never considered on a correct basis by the tribunal of fact.”

284. In Lazarus v R [2017] NSWCCA 279; (2017) 270 A Crim R 378 Bellew J remarked at [157]:

“Determining where the interests of justice lies is not a mathematical exercise, in which the relevant factors are “tallied”, and a determination reached as to the particular side of the line on which the majority of them fall. Rather, it is a balancing exercise which involves assessing each individual factor and ascribing the appropriate weight to it. Importantly, the weight to be ascribed to individual factors in that balancing exercise may vary according to the circumstances of the particular case.”

285. In the present case, the “public interest in the due prosecution of offenders” is, as the Director submitted, a weighty consideration in favour of quashing the acquittal and ordering a retrial. Also favouring such an order is the concession of senior counsel that the case against the respondent was a strong one. [44]

     44. Appeal Tcpt, 22 October 2021, p 30.

286. On the other hand, the offences were allegedly committed more than 35 years ago. Evidence tendered on the appeal shows that, since he was acquitted, the respondent has moved interstate and suffers from a neurological disease similar to multiple sclerosis. Clearly, his health is deteriorating, and he is attempting to move on with his life. Those matters are entitled to some weight but would not outweigh the public interest in the respondent being tried according to law for the very serious offences.

287. In my assessment, the critical factor in the exercise of the discretion is that the trial Judge, having heard the two critical witnesses give evidence and with the knowledge that the respondent had committed similar offences against two other school boys, was left with a reasonable doubt as to the respondent’s guilt. While his Honour failed adequately to expose the approach he took to the tendency evidence, and while this constituted a legal error, his finding on the critical issue was quite clear:

“In my view I cannot exclude the reasonable possibility that the accused’s evidence is true an accordingly I am not satisfied beyond reasonable doubt …”

288. In the light of that finding, and the nature of the error established, it would be wrong to put the respondent to trial again. The appropriate order is to affirm the verdict of not guilty.

289. Accordingly, the orders I would make are these:

1. Pursuant to s 107(5) of the Crimes (Appeal and Review) Act 2001 (NSW), affirm the acquittal of the respondent entered by Judge Jeffreys in the District Court on 30 March 2021.

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Endnotes

Decision last updated: 16 March 2022