R v Mackrell - [2025] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mackrell [2025] QCA 144

PARTIES:

R
v
MACKRELL, Desmond Gregory
(appellant)

FILE NO/S:

CA No 65 of 2025
DC No 470 of 2025

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 31 March 2025 (Farr SC DCJ)

DELIVERED ON:

5 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2025

JUDGES:

Mullins P, Bradley JA and Morrison AJA

ORDERS:

1. Appeal dismissed.

2. A warrant issue for the apprehension of the appellant to lie in the Registry for five business days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of repeated sexual conduct with a child and two counts of carnal knowledge against the order of nature – where the appellant was acquitted of a further count of carnal knowledge against the order of nature and one count of indecent treatment of a boy under the age of seventeen years – where the appellant was a high school Principal and the complainant was a student – where the appellant submits that the evidence was unreliable in such a way that the jury should have doubted that guilt had been proven – whether the jury’s finding of guilt was unreasonable or insupportable having regard to the evidence

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v ZT (2025) 99 ALJR 676; [2025] HCA 9, applied

COUNSEL:

T A Ryan KC, with G F Perry, for the appellant
C N Marco for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I have undertaken my own independent assessment of the evidence at the trial. I agree with the reasons of Morrison AJA and with the orders his Honour proposes.
BRADLEY JA: I have assessed the sufficiency and quality of the whole of the evidence, in the context in which the appeal was brought, and reviewed and assessed the features of that evidence that support the appellant’s case and the Crown’s case on appeal as advanced in their respective written and oral submissions.
I agree with the analysis of the evidence by Morrison AJA and with his Honour’s conclusion. For the reasons expressed by his Honour, I agree that, on the whole of the evidence, it was not unreasonable for the jury to have decided there was no reasonable doubt as to the proof of the appellant’s guilt.
It follows that I concur with his Honour’s conclusion that the appeal should be dismissed.
MORRISON AJA: On 31 March 2025, the appellant was convicted after a trial on three counts, namely:
(a)Count 1 – repeated sexual conduct with a child;
(b)Count 2 – carnal knowledge against the order of nature; and
(c)Count 5 – carnal knowledge against the order of nature.
The offending related to events at a school between 1980 and 1982, when the appellant was the Principal and the complainant was a schoolboy aged between 13 and 15. The complainant did not disclose that he was offended against at school until he revealed it to his wife in 2018 or 2019. Apart from making a complaint to the police, he went to solicitors who filed a civil claim on his behalf.
The conduct can be briefly summarised as:
(a)Count 1: the appellant engaged in repeated sexual conduct with the complainant, then a child under 16 years; that involved the appellant committing more than one of the following unlawful sexual acts:
(i)instructing the complainant to stand in his office in a state of partial or complete undress;
(ii)procuring the complainant to touch his penis;
(iii)procuring the complainant to fellate his penis; and
(iv)the acts constituted by any one or both of Counts 2 and 5;
(b)Count 2: the appellant took the complainant into a toilet cubicle and inserted his penis into the complainant’s anus; and
(c)Count 5: on an occasion inside the appellant’s office, Brother X inserted his penis into the complainant’s anus; the appellant aided Brother X to commit the offence, by holding or pulling the complainant down.
The appellant challenges the convictions on the ground that they are unreasonable and cannot be supported by the evidence.
Applicable principles on appeal
The legal principles applicable on an appeal based on an unreasonable verdict ground are well established. In Dansie v The Queen[1] the High Court reaffirmed the approach set out in M v The Queen.[2] The question which the appellate court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court of criminal appeal is to undertake an independent assessment of the evidence, both as to its sufficiency and its quality, and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment.
[1](2022) 274 CLR 651; [2022] HCA 25 at [8]-[9].
[2](1994) 181 CLR 487; [1994] HCA 63.
Further, in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred on the unreasonable verdict ground. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
The court of criminal appeal, in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[3]
[3]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39].
The High Court in R v ZT[4] confirmed the test in M v The Queen. ZT also added some guidance in terms of the jury’s advantages to which this Court must accord attention:[5]
“[9] First, although another passage of M v The Queen refers to the advantage the jury has in ‘seeing and hearing the witnesses’, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in Dansie v The Queen the advantage possessed by the trial judge as arbiter of fact was assessed as ‘slight’ because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.
[10]Second, in applying M v The Queen the appellate court is required to give ‘full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant's guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.”
[4][2025] HCA 9.
[5]ZT at [9]–[10]. Citations omitted.
Concession on the present case
The Crown’s evidence at trial was principally that of the complainant. Some additional evidence was given by the complainant’s wife (in the nature of preliminary complaint), and two police officers who were involved in taking the complainant’s statement.
Mr Ryan KC, appearing for the appellant, conceded that there was no issue on appeal as to the credibility of the evidence given by the complainant. Thus, the real issue was as to the reliability of that evidence.
The appellant’s contentions
The appellant’s submission was that the evidence was unreliable in such a way that the jury should have doubted that guilt had been proven. This was said to follow for a number of reasons which can be summarised as below.
First, from the concessions made by the complainant in his testimony, there remained, at the very least, a reasonable possibility that the complainant had no actual memory of being sexually abused by the appellant, and that his various “memories” of sexual acts committed by the appellant were no more than “just dreams and nightmares [he] had”.
That proposition was said to be confirmed:
(a)when he testified that he did not have a memory of the events of the sexual abuse by the appellant about which he gave evidence until after he had a nightmare or a dream about the event in question;
(b)in his responses to questions asked by the trial judge; when he said that the dreams and nightmares provided “More clarity ... to the actual – actual what happened to me … It seemed more real”;
(c)the complainant’s description of how he identified the appellant as the person responsible, “In my dreams there’s someone else there. It just – when the – my – my dreams would come, that’s when the face would come to that person. And that face was that bloke. That was [the appellant]”;
(d)even if there were, in addition to nightmares and dreams, also “shards of memories and thoughts” of sexual abuse by the appellant, the complainant’s concessions meant that it could not be excluded, beyond a reasonable doubt, that crucial details of those “memories” were drawn from the dreams and nightmares that he experienced;
(e)the complainant’s first experiences of nightmares of abuse, or at best “shards of memories” that he developed and pieced together, concerned only Brother X;
(f)the complainant testified that each time he experienced more nightmares, the more he believed he remembered, such that a more complete picture was assembling in his mind, adding more clarity, more reality and more depth; and
(g)in light of this evidence, the risk that events would be “recalled” that had not actually happened, or that any true events would be recalled in a distorted fashion, was exceedingly high.
Secondly, the evolution of the complainant’s accounts of sexual abuse reinforced the reasonable possibility, left open by the complainant’s concessions about the origin of his recollections (in dreams and nightmares), that the complainant did not have any actual “memories” of sexual abuse by the appellant and that his “memory” of the appellant’s participation in the abuse by others was the product of distortion and unreliable reconstruction.
That proposition was said to follow because:
(a)the first disclosure that the complainant made to anyone about his being sexually abused at the school was to his wife in about 2018 or 2019;
(b)in November 2019, the complainant then made a disclosure to his doctor; the complainant did not testify that this disclosure was about sexual abuse by the appellant; his memory then was drawn from nightmares, and, in the ensuing period from 2020–2021, it was only Brother X he was dreaming about, with dreams of the appellant coming later;
(c)the complainant appeared to accept that he had “no recollection” of the sexual acts committed by the appellant at the time when he first spoke to police in February 2022; that was consistent with the absence of any allegation of sexual abuse by the appellant in either of the two sets of notes that the complainant provided to police at that time;
(d)on 14 March 2022, the complainant sent police an email in which he described, “the most vivid memory ever what happened to me at De La Salle School on 18.02.2022”; the complainant’s description of what he described as a dream, does not appear to have been a recollection about the appellant because it was about two unidentified Brothers;
(e)on 11 July 2022, after the complainant had been informed that Brother X was deceased, the complainant confirmed to police that he had a sexual offence complaint to make against the appellant; and
(f)the complainant testified that, as time passed, what appeared in his recurring nightmares seemed increasingly “real” to him.
Thirdly, material inconsistencies between the complainant’s various accounts of offending (and related matters), only served to reinforce the prospect of unreliable reconstruction. It was said that each inconsistency added to the possibility, that could not be excluded on the whole of the evidence, that the complainant’s memory of sexual offending by the appellant was false or tainted and could not be accepted as reliable beyond reasonable doubt.
The most notable inconsistencies were:
(a)in relation to Count 2, the complainant wrote three different versions (written at separate times) in a notebook concerning his being pulled off a bus, being taken out of line to pick up rubbish, and walking through the school grounds; he then wrote a further version of the same events, later in the same notebook, referring to a “vivid nightmare” of being pushed into a toilet by the appellant and “bleeding from my bottom”;
(b)in relation to Count 3, that the complainant had previously given a detailed and graphic description of an act of forced oral sex, corresponding to how the Crown opened the complainant’s evidence about that count, but about which he gave no evidence at trial;
(c)in relation to Count 4, that the complainant had not referred to this alleged rape in his civil proceeding notice of claim, or in the handwritten notes he gave to police; further, in contrast to the content of his witness statement, the complainant’s evidence at the trial was that Brother X was in the office during this alleged rape; the complainant also agreed in his evidence at the committal hearing that he was unable to recall the position he was in when anally raped; and
(d)in relation to Count 5, the complainant had made no allegation in his witness statement that the appellant had “flogged the crap out of [him]” preceding the rape; the complainant made no mention in evidence in chief of this incident occurring after he was caught with a pornographic magazine by Brother X; in the email dated 14 March 2022, the complainant alleged that Brother X “had his way with me” (without reference to any involvement by the appellant) after Brother X had found the complainant with a pornographic magazine; when it was suggested to the complainant that he had previously asserted in his witness statement that he ended up in the office because of the finding of the magazine, he then asserted that there were two separate occasions, but then later conceded that the act the subject of Count 5 occurred on the same occasion as the finding of the magazine; and the complainant denied that he ever discussed being caught with a pornographic magazine with his parents, when there was a contemporaneous note from his parents forming part of the school records that indicates that had occurred.
Fourthly, it was said that there were features of the complainant’s account which raised doubts about the inherent plausibility of his evidence. These included:
(a)acts of sexual conduct occurred in the appellant’s office, a location where the risk of discovery would have been exceedingly high;
(b)the complainant asserted that he knew the layout of the school like “the back of [his] hand” but was unable to recall the location of the toilet block in which he said he was raped or whether the administration area of the college had been reconstructed in the middle of his three years at the college;
(c)the complainant asserted in his witness statement that he observed the appellant and Brother X walking around the grounds of the school without underwear and with visible erections; however, the complainant testified at trial that, whilst he “stood by” what he said in his statement about that, he had no recollection of those things.
The complainant’s evidence
Early in his evidence the complainant explained that his main teacher at the school was Brother X, and the appellant was the Principal. He described a number of matters in terms that were not contradicted in cross-examination, such as:
(a)the physical features of Brother X (five foot tall, bald, from Burma or Thailand, sweated profusely and stunk);
(b)the physical features of the Principal (six feet tall, very well groomed, big hands);
(c)the Principal’s nature (calm, precise, no mistakes, occasional anger);
(d)the events on his first day in school when he got into a fight and was taken to the Principal’s office;
(e)the location and general features of the Principal’s office, including layout and furniture; from memory he had done a drawing of the layout (Exhibit 1);
(f)that in order to get to the Principal’s office one did not have to cross through the office in which the office secretaries worked;
(g)that when the strap was administered by the Principal it was always to the palm of a hand; and
(h)that he was sent to the Principal’s office on occasions for disciplinary reasons whether he deserved it or not.
In cross-examination there were matters in the complainant’s evidence which were not contradicted by the appellant’s case. For example:
(a)that the appellant never taught the complainant;
(b)that the Principal’s office remained in the one place during the time the complainant was there; it was put that the office moved in Grade 8, but the complainant answered, “I can’t recall that”,[6] and the matter was left there;
(c)the complainant said that on his first day he was sent to the Principal’s office; the appellant’s case accepted that to be so;[7] and
(d)that the appellant applied physical punishment to the complainant in Grades 9 and 10; it was put to the complainant that there was no punishment in Grade 8, which the complainant rejected;[8] then it was put that “from grade 9 onwards … he may have disciplined you from time to time with a strap”, which the complainant accepted, adding “And a cane”;[9] then it was put that such discipline “was only from grade 9 onwards”, which the complainant rejected, saying “the beatings increased in grade 9”.[10]
[6]TS 1-46 line 46 – 1-47 line 8.
[7]TS 1-50 lines 1 – 7.
[8]TS 1-52 line 40.
[9]TS 1-58 line 48.
[10]TS 1-59 lines 8 – 25.
Individual counts

In his evidence-in-chief, the complainant gave evidence as to several of the particularised Counts.
As to Counts 2 and 3:
(a)the appellant pushed the complainant in the toilet block, shoved his head in the toilet and raped him;[11]
(b)in his account he did not say that the appellant put his penis in his mouth, and thus no evidence of Count 3 was given.
[11]TS 1-34 – 1-37.
As to Count 4, the appellant grabbed his tie and hit his head on the desk, then pulled his shorts and underwear down and anally raped him.[12]
[12]TS 1-37 – 1-38.
As to Count 5:
(a)he was taken to the office where the appellant held him down by holding the complainant’s tie, and Brother X anally raped him;[13] and
(b)Brother X used his penis or a thumb.
[13]TS 1-41 – 1-42.
As to other sexual acts:
(a)on multiple occasions he was asked to go under the appellant’s desk; on some occasions the appellant put his penis in the complainant’s mouth; he would ejaculate in the complainant’s mouth;[14]
(b)on some of the occasions under the desk he would masturbate the appellant.[15]
[14]TS 1-38 – 1-41.
[15]TS 1-41.
Distress or anxiety or painful memory
On a number of occasions in his evidence-in-chief, the complainant’s responses seemed to indicate, and could well have been understood by the jury as indicating, that he was experiencing anxiety or distress:
(a)when recounting what the appellant said to him when he was called in about a broken louvre;[16]
[16]TS 1-31 line 10 – 1-32 line 14.
“You’re in trouble again, um – God, I just said it. God, I just said it. In trouble again, [the complainant]. To that – yeah. I just said it – I just – I’ve ‑ ‑ ‑”
(b)then, moments later when recounting what had happened in the Principal’s office in Grade 9:[17]
[17]TS 1-32 lines 31 – 42.
“In grade 9, one time, I was kicked out of class, and I got kicked out of class. I was waiting outside my door of the school door – of the classroom door, and I heard his – I was taken to his offi – uh, he come up the staircase, he walked along the second storey, and I got taken to his office. It’s – oh. Oh. Jesus. I just ‑ ‑ ‑
So – did you want to continue with that? You were telling us about something that happened in grade 9 ‑ ‑ ‑?‑‑‑Can I ‑ ‑ ‑
‑ ‑ ‑ when you’d been kicked out of ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ Can I just – I need a ‑ ‑ ‑
You need a moment? That’s okay. If you need some water?‑‑‑Thank you.”
(c)when dealing with Count 2 (anal rape in the toilet block):[18]
[18]TS 1-35 lines 1 – 24.
“Okay. And when your head went into the toilet, tell us what you noticed?‑‑‑He pushed my head in the toilet. He – and it didn’t fit right in. Ah, Jesus. It didn’t fit in, so I was – and then he pulled me down and just got my head and shoved it in the toilet.
Was there anything in the toilet ‑ ‑ ‑?‑‑‑Yeah. Uh ‑ ‑ ‑
‑ ‑ ‑ at the time?‑‑‑ ‑ ‑ ‑ urine.
Okay. What was the next thing that happened?‑‑‑He – he raped me.
Okay. So ‑ ‑ ‑
[HIS] HONOUR: Mr [complainant] ‑ ‑ ‑?‑‑‑Sorry.
‑ ‑ ‑ are you in a position to proceed?‑‑‑Yeah. I’m all good. Just ‑ ‑ ‑
All right then. Well ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ I’m very – sorry ‑ ‑ ‑
‑ ‑ ‑ just try and ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ sorry.
‑ ‑ ‑ compose yourself and the more you can be, the faster this will be done. All right?‑‑‑Thank you, your Honour.”
(d)when dealing with occasions when the appellant made him sit under the appellant’s desk, with the appellant’s penis in his mouth:[19]
“Okay. And so in terms of anything in the leadup to you putting his penis in your mouth. Was there anything that you did? How would it get into your mouth?‑‑‑He would – sorry?
Well – so how would it eventuate that you had his penis in your mouth?‑‑‑He would make me – oh, Jesus. He was erect.
Yes?‑‑‑So I had to ‑ ‑ ‑
Okay. And ‑ ‑ ‑
HIS HONOUR: But how would he make you do that?‑‑‑How would he make ‑ ‑ ‑
How did you know to do it?‑‑‑He would just sit back in his chair like this … it just – it – I’m that scared, I’m – he – God help us. It just happened, your Honour. It ‑ ‑ ‑”.
[19]TS 1-40 lines 20 – 34.
There were occasions during his cross-examination where his responses indicated he was under stress, and the jury could have thought that. For example:
(a)when looking for a particular page in a document:
“So have a look at page 6?‑‑‑One, two, three, four, five, six. Is that six, six, six? Sorry, I’ve just ‑ ‑ ‑
Just page 6, yes. Do you see that there?‑‑‑Oh, God.
It’s got a heading, Description of Incidents with [the appellant]?‑‑‑Description of incidents. Sorry. I’ve just got to find it. I can’t find it.
It’s all right. If you want to hand it back, we can find it for you and give you the page?‑‑‑Yeah, please, because – yeah. I’m sorry. Sorry.”
(b)after being cross-examined about his notes and memory:[20]
“All right. Now, you have undertaken a lot of – do – you all right? ‑‑‑Yeah. Yeah.
You can have a moment?‑‑‑No. It’s okay. Keep on going, please.”
(c)when being questioned about Count 5:[21]
“MS MORREAU: Now, the relevant passage is down the bottom of that first page, “I bought a magazine.” Mr [complainant], are you all right? Do you need a ‑ ‑ ‑?‑‑‑Yeah. Yeah. All good. Thank you. Yeah. Yeah. I’m just – can I just read that again, please, if that’s okay. I’ve read that.”
[20]TS 2-13 line 24.
[21]TS 2-38 lines 17 – 20.
On occasions the way the complainant answered indicated that the memory was a painful one, and the jury could have understood it that way:
(a)when dealing with Count 2 and his head being pushed into the toilet;[22]
“He pushed my head in the toilet. He – and it didn’t fit right in. Ah, Jesus. It didn’t fit in, so I was – …”
(b)when dealing with what happened on the first day at school, and the difference between what was in his civil claim and his evidence at the trial;[23]
“It’s a very different event to the – what you’ve described ‑ ‑ ‑?‑‑‑Um ‑ ‑ ‑
‑ ‑ ‑ in your evidence today, isn’t it?‑‑‑Well, it’s just – God.
You must be wrong, on your evidence today?‑‑‑No, I’m not. I know – I – I know what happened to me. I – no matter what. God. Thirteen years of age. There’s no reason why, it’s just–”
[22]TS 1-35 lines 1 – 3.
[23]TS 1-50 lines 41 – 47.
The complainant’s memory
The jury would have noted that in his evidence-in-chief the complainant did not pretend to have a memory where he did not. For example:
(a)as to the number of times he was given the strap in the Principal’s office in Grades 9 and 10;[24]
[24]TS 1-33 lines 9 – 16.
(b)when dealing with Count 2 and how long he was bent over in the toilet:[25]
[25]TS 1-35 line 41.
“And how long did that go on for?‑‑‑I have no recollection of time.”
(c)when dealing with Count 2 and which hip the appellant’s hand was on and which hand:[26]
[26]TS 1-36 lines 13 – 24.
“Yes. And so his hands were – are you saying his hands ‑ ‑ ‑?‑‑‑One was on … there – on … here, pushing my head in, and the other one ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ was from behind – I’m quite certain – I’m – one – I don’t remember which hand. I’m so sorry. I just ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ all I – I remember that …
So you’re indicating – and you can tell me if this is wrong, but you seem to be indicating you had one hand on the back of your head pushing it down, and one hand on your hip, but you don’t know which side was which?‑‑‑Yeah, I – no, I don’t know which one. I don’t know which one.”
(d)when dealing with Count 2 and how long the appellant’s penis was in his anus:[27]
“Okay. And so I think you mentioned you were unable to say how long that went on with his penis in your backside?‑‑‑No, I wouldn’t have the faintest.”
(e)when dealing with occasions when he was under the appellant’s desk, and how many times he masturbated the appellant:[28]
“‑ ‑ ‑ manipulate his penis. Okay. And are you able to say how many times that happened?‑‑‑Oh, I – that one I can’t recall.
Was it a single occasion, or multiple times?‑‑‑Multiple. To my – best of my recollection it was more than once.”
[27]TS 1-36 line 39.
[28]TS 1-41 lines 14 – 18.
In cross-examination the jury would have noted the many occasions when the complainant did not pretend to have a memory where he did not. For example:
(a)when being asked what sports he played while at that school, whether there was an after-school sports ground, how many students were at the school, how many teachers, the teachers’ names and whether he had a home teacher;[29]
[29]TS 1-44 – 1-45.
(b)as to whether there was another office next to the Principal’s office;[30]
[30]TS 1-46 lines 8 – 14.
“Okay. You recall there was an office right next door to his?‑‑‑An office?
An office that sat right next door to [the appellant’s] office?‑‑‑No, I just know [the appellant’s] office.
Okay. There could have been, you just can’t recall it?‑‑‑I can’t recall anything like that.”
(c)as to whether there was a new library in Grade 9, whether there was a Deputy Principal and his name, whether the Deputy Principal had responsibility for disciplinary matters, and that he would have met them;[31]
[31]TS 1-47 lines 10 – 27.
(d)as to the size of the strap used for discipline;[32] the answers were “to the best of my recollection”;
[32]TS 1-48.
(e)as to which year it was that he spoke to his wife and revealed that he had been abused at school;[33]
(f)as to when he signed a police statement and whether he provided a full statement on the first occasion when he saw police;[34]
(g)as to whether he gave notes to police on 2 February 2022;[35]
(h)as to whether he wrote the handwritten notes in mid-2021;[36]
(i)as to the dates of the handwritten notes;[37]
(j)as to whether the appellant would not always be in his office but out and about in the school grounds;[38]
(k)as to whether the school had areas that were quieter than others;[39]
(l)as to precisely where the toilet block was in the school grounds;[40]
(m)as to whether the toilet block also had a changing room;[41] and
(n)as to whether at 3.15 or 3.30 there would have been plenty of students around the school.[42]
[33]TS 1-57 line 4.
[34]TS 2-6 lines 26 – 47.
[35]TS 2-7 lines 20 – 34.
[36]TS 2-9 line 26.
[37]TS 2-10 lines 23 – 27.
[38]TS 2-19 lines 33 – 37.
[39]TS 2-20 lines 9 – 15.
[40]TS 2-27 lines 18 – 22.
[41]TS 2-27 lines 34 – 43.
[42]TS 2-28 line 29.
The jury may have had reason to find the complainant’s evidence reliable, concerning his resistance to letting his words be altered. The complainant gave evidence of his experience with one counsellor who wanted to change the complainant’s words. The complainant would not let that happen:
“And your notes indicated that you had a negative or an unpleasant experience with a particular counsellor?‑‑‑Cor ‑ ‑ ‑
I’m not going to ask you about the details?‑‑‑Yes. Hundred per cent.
All right. You found that he wanted to change your words?‑‑‑Correct. Yes.
Yes. Was he suggesting things to you about what you might’ve experienced?‑‑‑Not about that. It’s just about – no. Just what you just said. He just – and I ‑ ‑ ‑
Okay?‑‑‑I said, absolutely not. These are my words. I stick by my words.
Okay. Did you have any experience with any other counsellor where you found that they were wanting to change your words?‑‑‑Incorrect. Just that person.”
Matters put to the complainant and rejected or corrected
In cross-examination there were many matters put to the complainant but which he rejected outright, did not adopt, or corrected.
For example, matters corrected included:
(a)that the doorway to the office was off an open corridor; the complainant replied it was a concrete pathway;[43] and
(b)whether he could see into the Principal’s office from outside, or outside from the inside;[44]
“Right. And you recall that you could see inside and outside through the office, that is to the courtyard area or basketball courts that were outside of ‑ ‑ ‑?‑‑‑To the best – sorry. I apologise. Yeah.
‑ ‑ ‑ [the appellant’s] office?‑‑‑To the best of my recollection, yes.
Yes. And that is both looking and looking in?‑‑‑All I know by looking out, not in. Only ‑ ‑ ‑
Sorry?‑‑‑ ‑ ‑ ‑ one way. Only one way from his office.
Okay. That is, your recall seeing in the window from outside, is that what you’re describing?‑‑‑No, from inside his office, outside.
All right. You recall being able to see in from outside?‑‑‑No.”
[43]TS 1-45 line 32.
[44]TS 1-46 lines 16 – 30.
Matters that were put and rejected included:
(a)that the office window was actually on the southern side of the office; the complainant rejected that, saying it was on the northern side;[45]
[45]TS 1-46 line 3.
(b)that on the first day at school the appellant did not strap the complainant;[46]
[46]TS 1-50 lines 1 – 6.
“I put to you that [the appellant] didn’t lash you at all on the – that day. I suggest that to you, that he didn’t lash you at all?‑‑‑I know he did, so – I was there. I know.
And in fact, he redirected you to the deputy principal when you were brought to his office?‑‑‑I know [the appellant] gave me six of the best that day.”
(c)that an incident in the complainant’s statement of claim never happened; the complainant responded “I know it did … I know it did happen to me”;[47]
(d)that the appellant did not excessively punish the complainant;[48]
(e)that the appellant’s punishment of the complainant by using the strap was not on a regular basis;[49]
(f)that the punishment by the appellant did not increase in Grades 9 and 10;[50]
(g)that when he spoke to police after returning from Japan, he had no memory of acts carried out by the appellant as opposed to Brother X;[51]
(h)that he told Officer Heenan that he suspected Brother X had died in May 2022;[52]
(i)that the back of the desk did not go all the way down to the floor, so that he could be seen if anyone entered the room;[53] and
(j)that the door to the appellant’s office would only ever be closed if there was a private meeting with adults.[54]
[47]TS 1-51 lines 45 – 49.
[48]TS 1-58 line 38.
[49]TS 1-59 line 14.
[50]TS 1-59 line 21.
[51]TS 2-6 lines 4 – 20.
[52]TS 2-17 lines 6 – 10.
[53]TS 2-21 – 2-22.
[54]TS 2-23 lines 19 – 23.
In each case there was no evidence to contradict the complainant’s rejection.
Reasons for a poor memory
The complainant’s answers in evidence gave a number of reasons for his poor memory. One was that whilst he would “write stuff”, he could not recall what he wrote as “I just block it out”.[55]
[55]TS 1-51 lines 1 – 4.
The complainant was asked about the fact that the first time he mentioned what had happened was to his wife. The complainant explained:[56]
“Now, the first time that you told anyone about suffering sexual abuse was telling your wife …; correct?‑‑‑Ah, I didn’t – that – no. It’s, um, we had an Airbnb guest over and he said an inappropriate joke about, um, paedophilia, and I just said, “There’s certain things you shouldn’t joke about, and it – it affected me,” so – and [she] looked at me and she said, “You?” and I went nod and that was it.
And do you recall after that dinner with her and that guest, that you told her that you’d been molested at school?‑‑‑No, I’ve only just said that part.
All right. I suggest that was the first time, though, that you indicated to anyone else that you had been sexually offended against at school?‑‑‑I just said – as I said, like, it – that’s the first time – when she said – when he said that word paedophilia and she said, “Did it happen to you?” I just nodded my head “yes”.
Yes?‑‑‑That’s – I can’t remember what year that was, I’m very sorry.
That’s okay. I’m just suggesting that she was the first person you spoke to in terms of indicating that something had happened?‑‑‑She’s the very first time, I’m quite certain on that one. That’s – yes. Sorry, I’m just – I’m thinking about other things, sorry.
Because during the time that you were at home and during these years, grades 8 to grade 10 you never told anyone about ‑ ‑ ‑?‑‑‑I never said anything to anybody.
‑ ‑ ‑ what you’re now saying happened to you?‑‑‑Never ever, ever. I never said nothing for 40 years.
In terms of the sexual abuse?‑‑‑Nothing at all.”
[56]TS 1-52 line 44 – 1-53 line 22.
It was then put to the complainant that he had said to his wife, some two or three years after the first occasion, that “I was lucky because other kids got raped”:
“Of course. I was suggesting to you that after that initial conversation ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ or understanding, on your version, conversation, for about two to three years after that, on several occasions you said to your wife [name], “I was lucky, as other kids got raped”?‑‑‑Mmm.
You were in effect telling her that you had not been raped at school. Touched, but not raped?‑‑‑I can’t recall that.
Right. Do you deny it or is it ‑ ‑ ‑?‑‑‑I just ‑ ‑ ‑
‑ ‑ ‑ a matter that you can’t recall?‑‑‑I can’t recall. I’m very sorry, I just ‑ ‑ ‑”
I pause to note that whilst the question was framed, “Do you deny it or is it a matter that you can’t recall”, the cross-examiner did not ask “do you accept it”. Consequently, the proposition was not accepted, and there was no evidence adduced that it was true.
The complainant went on to explain that he told his wife, then subsequently a doctor in 2019, but he was too scared to go to the police:[57]
“At that time, you didn’t have any memories of being raped?‑‑‑I just had – I told – first person, I said – that’s what I said. Like, there was that joke that was said, and that’s the first – and then after I said what I said, I couldn’t put it back into the bottle. It was – I couldn’t put it back in. So – I’ve got no recollection. I just said what I said to my wife, and that’s it. In 2019, I told Dr Choom.
Yes. And in – when you spoke to Dr Choom in 2019, you didn’t give him any great details about ‑ ‑ ‑?‑‑‑I gave him ‑ ‑ ‑
‑ ‑ ‑ what it was ‑ ‑ ‑?‑‑‑I – I’m quite certain I gave him – I – I told him I was – I got raped. I can’t remember because it’s 2019. I – but as I said, I was there with Dr Choom. I know what I said to him, but I can’t recall everything, because I just can’t – I just – I told him what happened to me, and he asked me, ‘You should go to the police,’ but I was too scared to.”
[57]TS 1-54 lines 15 – 28.
Flashbacks, nightmares and shards of memory
The complainant was first asked about flashbacks and nightmares in cross-examination. He was asked about what he told the doctor in 2019:[58]
“MS MORREAU: You were limited in what you said to Dr Choom?‑‑‑I told him what – I told him what happened to me at that school.
And was it limited to – well, did you tell Dr Choom that you were haunted with memories every now and again and flashbacks?‑‑‑I – I told Dr Choom what happened to me at school.
That’s not my question, though. My question is, did you tell Dr Choom that you were haunted with memories every now and again with flashbacks?‑‑‑Correct.
And that this had become exacerbated in recent months?‑‑‑I can’t recall that, but it did increase at that time, yes.
And did you tell Dr Choom that you were – had been harbouring a sexual abuse secret?‑‑‑As I said, I got told – I told him what happened to me at that school.
In terms of your memory at that time, was it flashes and images that were plaguing you, rather than complete memories?‑‑‑I had nightmares.
Nightmares. And the nightmares were – I suggest you told others of sexual abuse at the hands of Brother X?‑‑‑I never told any – but – only person I ever told was with Dr Choom.”
[58]TS 1-55 lines 8 – 29.
I pause to note the curious wording of the question, “did you tell Dr Choom that you were haunted with memories every now and again with flashbacks”. It is difficult to know what can be drawn from the response to that form of question. It is posited on the basis that the complainant did have memories, but was haunted by flashbacks too.

Further, the question, “In terms of your memory at that time, was it flashes and images that were plaguing you, rather than complete memories?”, proceeds on the basis that the complainant did have memories as at 2019, just not “complete memories”, whatever that might mean. In any event the answer was non-responsive, but not pursued.
The next question asked about how, if at all, the complainant heard that Brother X had died. The complainant explained that he was told by Officer Heenan, but he had no idea apart from that.
The complainant then explained that he had not been avoiding memories of what had happened:[59]
“But – all right. Is it fair to say in your life up to that point that you had been avoiding memories of what might have happened to you at school?‑‑‑No. I just – I worked hard at that time I was looking after my mum, so my main focus was looking after my mum at that moment.”
[59]TS 1-55 line 43.
The questions then moved to the period between December 2019 and December 2021, during which the complainant accepted that he had experienced worsening anxiety, trouble sleeping, night sweats, panic attacks and nightmares. The complainant explained the nightmares were of Brother X at first, but also the appellant. However, he accepted that in the period 2020-2021 it was Brother X he was dreaming about.[60]
[60]TS 1-57 lines 16 – 45.
It was in this context (that is, the complainant was being cross-examined about the dreams he was having about Brother X) that the first question referring to “shards of memory” was raised:[61]
“And you began having shards of memory that began to develop and piece together‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ about sexual abuse that you sustained from Brother X?‑‑‑Correct.
And at that time, was it the case that you didn’t have complete memories of what he, Brother X, had done?‑‑‑One more time, sorry? Sorry. I’m very sorry.
Yes. Is it the case that these shards of memories were not complete memories?‑‑‑Oh, just – yeah, correct. That’s what shard means.
They were pieces ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ of memories.”
[61]TS 1-57 line 49 – 1-58 line 13.
The complainant accepted that “shards of memories” is not the same as “complete memories”. However, the questions did not explore just what the difference was, beyond the fact that a shard is a piece. No questions examined what pieces were present, or the extent of the existing memory, in 2020–2021. No questions attempted to establish what a “complete memory” was, nor whether the cross-examiner’s meaning was the same as the complainant’s meaning.
The cross-examiner then asked whether it was the case that it was in mid-2021 that the complainant first recalled that Brother X had raped him:[62]
“And is it the case that in about mid-2021, that you recalled at this time, for the first time, that Brother X had raped you anally?‑‑‑I can’t recall the timeframe.”
[62]TS 1-58 line 13.
In so far as the question sought to establish the first time that that particular recall existed, the answer was not responsive. However, there was no follow-up question at that time. Instead, the questions then turned to the intrusiveness of the memories (not the shards):[63]
“All right. I – at that time, with respect to [the appellant] though your memories of him were far less intrusive than those in respect of Brother X ‑ ‑ ‑?‑‑‑Correct, yes.”
[63]TS 1-58 line 21.
I pause to note that the question and answer does not go so far as to say that there were no memories of the appellant, just that one set was more intrusive than another.
The cross-examiner then asked to establish that the complainant believed he had been excessively punished by the appellant. Having got agreement to that the next question was:[64]
“And any memories you had of him were around that punishment?‑‑‑Correct.”
[64]TS 1-58 line 36.
I note that the questions did not seek to establish, nor did they establish, that they were the only memories held by the complainant.
The questions then established that the complainant told police that Brother X had raped him about 20 times in several locations at the school (including the sports storage area and a science classroom) and would make him suck his penis.[65]
[65]TS 1-60 – 1-61.
The next question was as to whether the complainant’s “flashes of memory” in relation to Brother X began to merge with those about the appellant. The complainant rejected that proposition but quickly became distressed:[66]
“Is it the case that your flashes of memory in relation to Brother X began to merge into flashes of thought and perceived memories about [the appellant]?‑‑‑Incorrect.
There was a process of you attempting to retrieve memories in this period of time, after you’ve disclosed it to Dr Choom, wasn’t there?‑‑‑Would you – I don’t understand that question, sorry.
Okay. Thinking through, trying to remember what might have happened to you?‑‑‑Yes. I’ve got a block there, yes, but I – Doc – I can’t remember – oh, God, it’s – okay. I’m so –
HIS HONOUR: And at the time, and I’m not hurrying you up, Mr [complainant] ‑ ‑ ‑?‑‑‑I’m sorry, I just – it’s get ‑ ‑ ‑
That’s all right. That’s all right. Do you know how much longer you might be with this examination?
WITNESS: It’s getting too much for me.”
[66]TS 1-61 lines 10 – 28.
When court resumed the following day, the transcript suggests that the complainant was still not composed.[67]
[67]TS 2-2 – 2-3.
The cross-examiner turned to the question of shards of memories and nightmares. The questions and responses were:[68]
[68]TS 2-5 lines 6 – 45.
“Now, you agreed with me yesterday that your memories of the abuse that you feel you suffered were in the form of shards of memories and nightmares; you remember that ‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ questioning? And you noted that each time you had more night sweats and nightmares, you believe that you have remembered more; is that right?‑‑‑Correct.
And so that is more complete pictures were assembling in your mind? ‑‑‑Correct.
And new pictures were emerging in ‑ ‑ ‑?‑‑‑Excuse, could you say it one more time, sorry?
I’m sorry, and new pictures were emerging in your mind via this night sweats and nightmares that you were ‑ ‑ ‑?‑‑‑More ‑ ‑ ‑
‑ ‑ ‑ were suffering?‑‑‑ ‑ ‑ ‑ clarity to the picture.
I’m sorry?‑‑‑More clarity, if you know what I – how can I say this – more in-depth to it.
I see. So you’re talking it about more context ‑ ‑ ‑?‑‑‑Yeah, more ‑ ‑ ‑
‑ ‑ ‑ a little?‑‑‑More volume to the ‑ ‑ ‑
I see?‑‑‑That’s – that’s my word. That’s all I can ‑ ‑ ‑
What do you mean by volume?‑‑‑Like, more – more reality to it. More clarity.
I see?‑‑‑That’s my word, clarity, and volume.
So if I – in -clarity is a little, unclear to me, but if I use the word reality – it felt more real to you, is that what you’re saying?‑‑‑Correct. More – yeah, that’s more – more in-depth, yeah – that’s – that’s my ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ interpretation of what I said.
And you’re describing that that would happen – when you had further nightmares, that it would become more real ‑ ‑ ‑?‑‑‑More – more ‑ ‑ ‑
‑ ‑ ‑ to you?‑‑‑Yeah.”
There are several points that should be made about that exchange.
First, the opening question must be understood as referring only to memories of Brother X. The “shards of memory” were in respect of Brother X, with the “memories” of the appellant being “far less intrusive”.[69]
[69]TS 1-57 line 44 – 1-58 line 23.
Secondly, nothing said by the complainant can be understood as accepting that he had no real memories, nor that the only memories he had came from nightmares. He was clearly straining to explain the impact of the nightmares and sweats:
(a)they gave “[m]ore clarity to the picture”;
(b)he did not accept the words “more context” but rather said “more volume”;
(c)when asked what he meant by volume, he said “more reality” but then immediately “more clarity”; and
(d)they gave “clarity and volume”, which he explained as “more in-depth”.
It was put to the complainant that when he spoke to police after returning from Japan, he had no memory of acts carried out by the appellant as opposed to Brother X.[70] The complainant rejected that proposition.
[70]TS 2-6 lines 4 – 20.
The complainant’s notes in 2021
The cross-examination turned to notes handwritten by the complainant in 2021. It was put to the complainant that those notes contained no allegation of conduct by the appellant.[71] The notes were shown to the complainant.
[71]TS 2-8 line 26.
It was put to him that the two sets of notes contained no allegation against the appellant of the kind given by the complainant in evidence.[72] The response was in this passage:[73]
“‑ ‑ ‑ for now. And I put to you, as I did before, that in neither of those two sets of notes did you make an allegation of the kind that you gave in evidence before the jury yesterday against [the appellant]?‑‑‑They were my initial statements.
Okay?‑‑‑But that’s – that’s how – that’s how it was I – I can only write so much at the same time and then that’s – it’s too much to talk about at first.
And I should be specific, I’m talking about the sexual counts that you’re charged with ‑ ‑ ‑?‑‑‑Mmm. But ‑ ‑ ‑
‑ ‑ ‑ and gave evidence in support of yesterday. You did not speak about those matters in those notes?‑‑‑Yes. I – I – yeah. What’s written there is written there.
Okay?‑‑‑Yes.”
[72]TS 2-10 line 37.
[73]TS 2-10 line 37 – 2-11 line 1.
The trial judge then intervened to ask his own question:[74]
“What’s being asked of you is, do you accept that nothing that is written in those documents repeats the allegations that you made in your evidence yesterday regarding sexual improper acts?‑‑‑Correct.”
[74]TS 2-11 line 11.
The cross-examiner then put to the complainant that he had no memory of sexual acts carried out by the appellant, a proposition consistently denied by the complainant:[75]
“And I put to you – this is I’m putting to you, not the notes – that you, in fact, had no memory of any of the sexual acts that you told the jury about yesterday had been committed on you by [the appellant]?‑‑‑I know what he did to me.
I put to you ‑ ‑ ‑?‑‑‑Sorry. Yeah.
‑ ‑ ‑ that ‑ ‑ ‑?‑‑‑I – I’m – yeah.
All right. I put to you that, when you went to see Julie Heenan in February 2022, that you had no memory of any of the sexual acts that you told the jury yesterday that he had committed on you?‑‑‑I had no recollection. I just – I know what happened that day. And that’s all I know.
Yes. But you can either accept or reject what I’m saying. I’m putting to you that you had no memory at that point when you first started speaking to Julie Heenan of any of the sexual acts that you told the jury about yesterday? ‑‑‑Because that was my initial – that was my initial thing. There was more to come after that. Yes.”
[75]TS 2-11 lines 19 – 35.
Any suggestion that the complainant was accepting that he had no memory of the allegations against the appellant was negated by a passage following immediately thereafter:[76]
[76]TS 2-12 line 24 – 2-13 line 22.
“MS MORREAU: Firstly, I put to you that it was a difficult process giving a statement to the police for you?‑‑‑Oh, correct.
All right. And I put to you that it was difficult because you didn’t have memories of particular acts against you of a sexual kind by [the appellant]?‑‑‑Incorrect.
I put to you that your memory that you now say you have about those acts was one that only developed through this process of there being small shards of memory that you were building on, through nightmares, through reconsideration?‑‑‑I know what I know.
Do you reject ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ that proposition or do you accept that?‑‑‑One more time, sorry.
Okay. I’ll start that again?‑‑‑Yeah.
We talked about this process of shards of memory?‑‑‑Listening. Yeah.
And I’m putting to you that, even when you were speaking to Detective Heenan, to Julie Heenan ‑ ‑ ‑?‑‑‑Listening.
‑ ‑ ‑ that that process was still going on?‑‑‑Correct.
Okay?‑‑‑At the beginning because it’s my first statement ‑ ‑ ‑
All right?‑‑‑ ‑ ‑ ‑ with Julie Heenan.
I’ll try and be clearer ‑ ‑ ‑?‑‑‑Sorry. Yeah.
‑ ‑ ‑ so that we can ‑ ‑ ‑?‑‑‑Please do. Yeah. Because – yeah.
‑ ‑ ‑ get through this. And that process of having nightmares, dreams and thoughts ‑ ‑ ‑?‑‑‑So much more.
‑ ‑ ‑ what was happening both in respect of your memories of Brother X as well as your memories of [the appellant]‑ ‑ ‑?‑‑‑[The appellant] and ‑ ‑ ‑
‑ ‑ ‑ in this time?‑‑‑Correct.
Okay?‑‑‑Both.
Do you accept the possibility that that process of reflection, nightmares, flashbacks piecing together, your – what you now see as memories in respect of both of them has distorted the accuracy of the memories that you now believe you have?‑‑‑I know what they both did to me. And I stand by what I wa ‑ ‑ ‑
So you reject that proposition?‑‑‑Oh, hundred per cent.”
As can be seen in that passage, the complainant rejected that he had no memories of the allegations against the appellant and rejected that his memories had been distorted by the process of reflection, nightmares and flashbacks.
The cross-examination then turned to an email sent to Officer Heenan on 14 August 2022, referring to “the most vivid memory ever what happened to me at [the school]”.[77] The email included:
(a)“I woke up screaming, ‘mum, help me. Mum, help me.’ One brother had his hand over my mouth and the other brother was raping me”; and
(b)“I’m in a dream, in a dream looking down on me while this is happening”.
[77]TS 2-14 line 16.
It was then put that what he sent to Julie Heenan following the notes was the first occasion of any allegation about another Brother being involved in any rape, a proposition rejected by the complainant:[78]
“Yes. Okay. I put to you that in what you sent to Julie Heenan following the notes that we’ve already talked about that you gave her, that that was the first occasion of any allegation about another brother being involved in any rape?‑‑‑I always said there’s two brothers.
So you reject that?‑‑‑Correct. Yeah.”
[78]TS 2-14 lines 37 – 42.
The complainant then accepted that the email was the first record of his telling the police about another Brother being involved.[79]
[79]TS 2-14 line 48 – 2-15 line 12.
The next set of questions and responses was:[80]
“… You made no allegation in your police statement of one Brother holding his hand over your mouth while another was raping you, did you?‑‑‑I know what I dreamt that night.
That’s not my question?‑‑‑Yeah.
My question is, you made no allegation in your police statement about one Brother holding his hand over your mouth while another rapes you?‑‑‑I can’t recall, I just I – know ‑ ‑ ‑
Well, you can have a look at it if you ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ require it, but you can take it from me that it’s not ‑ ‑ ‑?‑‑‑Okay, I take it from you. I – I – yeah.
You accept that? And you made no allegation yesterday in your evidence of one Brother holding a hand over your mouth whilst another raped you?‑‑‑Well, I told you yesterday what happened to me.
Do you accept that – we can – the record will reflect ‑ ‑ ‑?‑‑‑I – yeah. Yeah. I’m getting confused. I ‑ ‑ ‑”
[80]TS 2-15 lines 17 – 36.
It is evident from that passage that the complainant accepted that his police statement did not contain an allegation about one Brother with a hand on his mouth while another Brother raped him. Further, he accepted that his evidence had not mentioned such an allegation. However, the complainant maintained that “I told you yesterday what happened to me”, i.e. in his evidence he said what had happened. The jury may have found that response reliable, and not surprising, given that the email referred to a dream, not a memory, as the cross-examiner had put herself: “you’re speaking about … the vivid memory rather than the actual events”.[81]
[81]TS 2-14 lines 22 – 25.
It was put to the complainant that it was not until August 2022 that he told police about allegations concerning the appellant. His response was: “Yes. I don’t remember dates and times.”[82] After some discussion about the question being asked, the trial judge posed a question:
“HIS HONOUR: What you’re being asked, Mr [complainant], is do you agree or disagree that the first time you gave details of any sexual impropriety on the part of the defendant was in August of ’22?‑‑‑I can’t recall dates and times, but ‑ ‑ ‑
All right?‑‑‑Yeah. I’m very sorry, yeah.”
[82]TS 2-15 lines 38 – 41.
The complainant’s answer plainly did not accept the proposition put.
The sequence as to this aspect was in the evidence of Ms Heenan:[83]
(a)she first saw the complainant on 2 February 2022;
(b)it was extremely difficult process to get a version from him;
(c)it was some months before she received allegations of sexual conduct by the appellant;
(d)on 6 May 2022 she told the complainant that Brother X was dead;
(e)it was not until 11 July 2022 that the complainant confirmed he wished to lay a complaint about the appellant; and
(f)after 11 July 2022 she engaged in emails with the complainant to elicit particulars of the complaint.
[83]TS 3-18 – 3-19.
The cross-examiner then put questions that were part of the defence case alleging motive to lie, namely that when the complainant found out Brother X was dead, he realised or was told that he could only lay a complainant against a living defendant, such as the appellant. Thus:[84]
“Right. And when Julie Heenan told you about him having deceased, that is, Brother X, then – she also told you, didn’t she, that at least any criminal complaint could only be made against [the appellant]?‑‑‑I have no recollection of that.
It’s possible, you just don’t recall?‑‑‑I just don’t recall, full stop, yeah.
All right. And did you also become aware, practically speaking, that your civil claim would need a defendant who was alive?‑‑‑No, I – no recollection of that. I don’t anything like that. Wouldn’t have a clue what you’re saying.
In relation to that civil claim that was filed in December of 2022, the 16^th of December?‑‑‑I can’t remember what dates and times. I – I – I
It’s okay. But that is generally ‑ ‑ ‑?‑‑‑If that’s what’s written down, yeah.
Right – approximately correct in your memory?‑‑‑I just can’t recall dates and times.
That claim is on hold pending these proceedings, yes?‑‑‑A hundred per cent correct.”
[84]TS 2-17 lines 12 – 28.
The complainant’s answers did not accept the proposition put as to needing a live defendant.
The cross-examination then moved to the complainant’s evidence in the trial.
The first topic was his evidence that the alleged sexual offending commenced in grade 9 and continued into grade 10:[85]
[85]TS 2-17 line 39 – 2-18 line 18.
“Right. And were you suggesting that each – on – and this was your evidence yesterday, that it was about one to times a week that you were in there, required either to stand naked or partially naked or to sit under his table?‑‑‑Correct. It started off in grade 9, increased in grade 9 and 10.
All right. So perhaps not one to two times a week in grade 9; is that what you’re saying?‑‑‑It increased in grade 9 and grade 10.
Okay. In terms of regularity, this is your memory that you’re relying upon, you say, that, that regularity of one to two times per week, was that in place all of year 10, or ‑ ‑ ‑?‑‑‑All I know in my words is that it increased in grade 9 and grade 10.
But where do you get that one to two times a week?‑‑‑At the beginning.
You – at what point ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ it was just ‑ ‑ ‑
At what point in that period was it one to two times a week?‑‑‑At the beginning, in grade 8, it was only sporadic, it was only now and then. But in grade 9 and grade 10, the frequency [indistinct] increased, increased, increased.
So I suggest you’ve never said that any of any of that occurred in grade 8?‑‑‑In grade 8 it only started now and then. It was only now and then in grade 8.
I know, I’m sorry. I’ll withdraw. I put that improperly. But you did not allege sexual offending from my client in his office in year 8?‑‑‑It was in grade 9 and 10, I told you ‑ ‑ ‑
That’s right?‑‑‑ ‑ ‑ ‑ the first, it was in the toilet blocks, and the second time it happened in his room. It was ‑ ‑ ‑”

Allowing for a degree of confusion on the part of the complainant given this was day two of the trial, the answers seem to correlate with his evidence-in-chief, namely that the sexual offending started in grade 9 and continued in grade 10.
Whilst the offending the subject of Count 1 included being made to sit under the desk and masturbate the appellant or have the appellant’s penis in his mouth, the complainant made clear there was a distinction in his mind between the direct sexual offending (the rapes in Counts 2 and 5) and those other occasions when he sat under the desk. The latter, he said, started in grade 8, while the conduct in Counts 2 and 5 started in grade 9. Thus, in an exchange immediately following the passage above:[86]
“Now, you may have been in his room for the other matters that you’ve talked about, I’m not ‑ ‑ ‑?‑‑‑Mmm.
That’s why I just wanted to ‑ ‑ ‑?‑‑‑But I know ‑ ‑ ‑
‑ ‑ ‑ be clear about this?‑‑‑ ‑ ‑ ‑ grade 9, first time it happened.
Yeah. When I’m asking you about the one to two times a week, your evidence yesterday was that those – that’s about the regularity, that you were required to stand naked or sit under a table?‑‑‑At the very first time it started off now and then. It was only grade 8 it started, and as I said, in grade 9 and grade 10, it – it increased.
…
All right. So in terms of requiring you to stand still naked or to sit under his table, that only started in grade 9?‑‑‑My recoll – as I said, that everything started grade 8. It started now and then.
All right?‑‑‑That’s what I just said.
That’s your evidence. Okay?‑‑‑And in grade 9, it increased in volume, and same as grade 10.”
[86]TS 2-18 lines 20 – 30 and TS 2-18 line 44 – 2-18 line 2.
But that raises a point the jury must have grappled with. If, as the defence case would have it, the complainant did not have genuine memories of the rapes but only the product of nightmares and dreams, why did those nightmares and dreams exclude grade 8?
The questions next turned to the desk in the appellant’s office, and the question as to whether anyone could have seen the complainant when sitting under it. The proposition put to the complainant was that the back of the desk did not go all the way down to the floor, and in fact there was a 30cm gap so that people could have seen him sitting there. The complainant rejected that, saying the back went all the way down to the floor.[87]
[87]TS 2-21 – 2-22.
The complainant clearly rejected the proposition being put. There was no evidence to contradict what the complainant said.
Likewise, it was put to the complainant that the door to the appellant’s office “would only ever be closed if there was a private meeting with adults”.[88] That proposition was rejected by the complainant and there was no evidence to contradict him.
[88]TS 2-23 lines 19 – 23.
It was then put that the sexual conduct in the office “simply didn’t happen”, a proposition rejected by the complainant. However, the rejection was not just a “no”, but emphasised that he knew what had happened because he had been there:[89]
“Mr [complainant], I put that this sexual conduct that you allege against [the appellant] in his office simply didn’t happen?‑‑‑I know it did. I was there. I know it did. I know what he did to me. I know.”
[89]TS 2-23 line 44.
In similar vein was his denial of the proposition put to him, namely that the appellant did not rape him in any toilet block:[90]
“I suggest to you [the appellant] never raped in the toilet – in any toilet block at [the] School?‑‑‑As I said, I know what he did to me.”
[90]TS 2-28 line 44.
The complainant was questioned about the notes he made and gave to the police. The complainant accepted that there was no mention in the notes about the rape by the appellant.[91] By contrast his police statement did contain that allegation.[92]
[91]TS 2-33 lines 14 – 24.
[92]TS 2-32 line 35 – 2-33 line 32.
The complainant accepted, too, that his civil notice of claim made no mention of the rape by the appellant in the office.[93] He said, “sometimes you just forget” and “it’s a traumatic experience, so sometimes that’s just how it is”.
[93]TS 2-33 line 48 – 2-35 line 14.
The cross-examination then turned to the events of Count 5, the rape in the office where both the appellant and Brother X were involved. The complainant’s police statement had recorded that the occasion for that trip to the office was that a pornographic magazine had been found in the complainant’s possession. The complainant accepted that his police statement said so.[94]
[94]TS 2-36 lines 1 – 8 and TS 2-37 lines 30 – 35.
As was put to the complainant, the appellant’s case accepted that there was an occasion in grade 10 when a pornographic magazine had been found in the complainant’s possession.[95] What was then put was that there had been no rape on that occasion or any occasion, a proposition rejected by the complainant in a way similar to his rejections referred to above:[96]
“Okay. And now I suggest to you that there was, in fact, a pornographic magazine found by you – find – found on your person in the school in grade 10?‑‑‑Yes.
Okay?‑‑‑Yes. There was. Yeah.
I’m accepting that?‑‑‑Yes. Correct.
I suggest, of course, there was no rape by my – involving my client at all on that occasion?‑‑‑I know what happened be – I – I – I’m – as I said, I’m there. I know what he did to me. I know what happened that day.
Or indeed on any occasion that ‑ ‑ ‑?‑‑‑No. I know – as I said, I know what happened to me that day. I know what happened to me at that school from grade 8 to grade 10.”
[95]TS 2-37 line 41.
[96]TS 2-37 line 41 – 2-38 line 4.
The complainant was then taken to an email dated 14 March 2022, which referred to the occasion when he had been caught at school with a pornographic magazine. In it, as accepted by the complainant, his account was: he went to school on the late bus, got to school at around 8.55, “I was near the brick building, and he came out of nowhere, Brother X did. ‘What have you got there, [the complainant]?’ I showed him the magazine. He took it, said, ‘I won’t say anything to your parents about this, but you have to come with me’ and had his way with me. This is how I remember that day. As I get older, these memories are more vivid every day and affects me and my family.”[97]
[97]TS 2-38 line 25.
The complainant accepted that those were his words, saying “It’s just what I wrote that day.” It was then put to him that the appellant had little to do with the response to the magazine incident, a proposition rejected by the complainant:[98]
[98]TS 2-38 line 43 – 2-39 line 21.
“Because I suggest you had very little interaction with [the appellant] at all on this day of the pornographic magazine?‑‑‑Incorrect. I – I know what happened to me that day.
Well, I suggest that the interaction you had with [the appellant] on the occasion of being found with the pornographic magazine was that your teacher, […], sent you up to see [the appellant]?‑‑‑I don’t remember names of teachers, date, times.
Okay?‑‑‑I – I just know that I met by Brother – I – I’m – I thought it was Bro – I know it was [the appellant] – not Bede, X. I remember from there to there. That’s what I remember that day.
All right?‑‑‑As I said, what’s been ‑ ‑ ‑
I’m just suggesting to you that this is my client’s case. Okay?‑‑‑Listening to you. Yeah. Yeah.
That [the appellant] decided upon a disciplinary response which was to call your father about the incident?‑‑‑I don’t know a recollection of anything like that.
Well, were you spoken to you by your father about this magazine?‑‑‑Never. No one said anything to me when I got back home. No one said nothing to me.
And I’m suggesting to you that that’s all that [the appellant] was involved in this incident around the pornographic magazine?‑‑‑Incorrect.
And I suggest to you that any allegation that he held you down while Brother X raped you, whether it be by penis or by finger, is false?‑‑‑Incorrect.”
The cross-examination then turned to the complainant’s memory. He accepted that his memory had become better over time, as he wrote everything down. It was put to him that the process of dreams, nightmares, reconstruction and speaking with police and lawyers had led him to reconstruct a narrative, and that he had no memory of the events until he had the nightmares. The complainant rejected the propositions, explaining that the dreams added more clarity to what had happened to him. The passage is long but must be understood in context:[99]
[99]TS 2-39 line 25 – 2-41 line 3.
“I understand that the – that your evidence is that you have developed a better memory over time. Is that right?‑‑‑I did – I wrote everything down when I came home from Japan. These are my words, and this is what happened to me.
I asked you though, do you accept that you did not have – I’m not going to go back there. I withdraw that – that you had a process of dreams, nightmares, reconstruction and speaking with the police and lawyers that has assisted you to come to a place where you can give a narrative in court about what you allege occurred?‑‑‑No one ever said to me anything. These are my words. And this – this is what I said to police. There was no assistance from no one. These are what I said.
I’m not suggesting someone else is assisting you. I’m ‑ ‑ ‑?‑‑‑Well, please reframe that question a little bit better, please.
‑ ‑ ‑ suggesting that you’ve, throughout the time that you’re dealing with the police in addition to the matters we talked about in Japan, that you’ve been dreaming about matters and they have – that has been a process of you trying to reconstruct your narrative that you believe happened to you, and that’s how you’ve ended up with a complete account today and yesterday in court?‑‑‑There’s no reconstruction.
The various memories I’ve put to you over time though were the subject of dreams and nightmares in the first instance, weren’t they?‑‑‑These are just dreams and nightmares I’ve had. Yes.
HIS HONOUR: Mr [complainant], just so I can understand your evidence, is it the case that what you’re saying is that, for parts of your evidence regarding this – these allegations ‑ ‑ ‑?‑‑‑Yes, your Honour.
‑ ‑ ‑ you didn’t have a memory of the event until you had a nightmare or a dream, but after that, your memory developed. Is that effectively what you’re telling us?‑‑‑Correct.
All right?‑‑‑It’s – there’s – it’s – it’s hard to explain.
Sure?‑‑‑There’s more to that questi – y ‑ ‑ ‑
I understand. And then – and you tell me if I’ve got this wrong, but as time passed, you had more dreams and nightmares, and your memory improved as a consequence?‑‑‑I still have more – correct. I still have more nightmares and – to the current date.
All right. And then, after you have a nightmare about a particular thing, but ‑ ‑ ‑?‑‑‑Listening. Yeah.
I won’t name a particular event, but you have a nightmare about a particular event. Following on from that event, the nightmare, you then have a memory of the event itself that was the subject of the nightmare. Have I understood things correctly?‑‑‑I – I had a nightmare.
Yes?‑‑‑But the – it’s just – when I have a nightmare, it’s – I have a nightmare. And – it’s hard for me to explain. When I have a nightmare, it – it’s difficult. I know – when I have a nightmare, it just – when I have a nightmare, when I have these dreams of being – I don’t know how much I’m allowed to elaborate. I’m very so – I just ‑ ‑ ‑
That’s okay?‑‑‑I – I just don’t ‑ ‑ ‑
Well look, let me ask it a different way. Again, you tell me ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ if I’m incorrect. I’m just trying to understand?‑‑‑Yeah. Yeah. I know. It’s hard for me to ‑ ‑ ‑
That’s all right. Just take your time and listen carefully, but tell me if I’m wrong. But my understanding of your evidence is that, in relation to event A, you have no memory of it. You have a nightmare, and after the nightmare, you have a memory of it?‑‑‑I would have a basic – of a dream, but then the dream would be more clarity ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ to the actual – actual what happened to me.
Right?‑‑‑So I know it’s – there’s more information. When I have a nightmare, there’s more information about what happened to me. There’s more clarity. There’s more substance. Whatever I – they were yesterday, there’s more – yeah.
‘It seemed more real’ I think was the term ‑ ‑ ‑?‑‑‑Yeah. That’s it.
‑ ‑ ‑ you used yesterday?‑‑‑It’s – it’s more – it’s – it’s there.”
Counsel for the appellant placed considerable emphasis on the responses to the trial judge in that passage. However, that emphasis tended to rely on the response to the first iteration of the question, “… what you’re saying is that, for parts of your evidence regarding … these allegations … you didn’t have a memory of the event until you had a nightmare or a dream, but after that, your memory developed. Is that effectively what you’re telling us?” The first response was “Correct”, but in my respectful view, a proper understanding of the evidence cannot be obtained by stopping there. The complainant immediately went on to say how hard it was to explain and there was more to that question. What followed was a qualification on his response.
The complainant explained that he still had nightmares to the current date, that he found it difficult to explain how the nightmares fitted in, but they added clarity to what he already remembered: “I would have a basic – of a dream, but then the dream would be more clarity … to the actual … what happened to me … When I have a nightmare, there’s more information about what happened to me.”
The trial judge asked a question: “‘It seemed more real’ I think was the term you used yesterday?” However, that was not a term used by the complainant himself, but rather one put to him and which he did not adopt, preferring to explain that the dreams or nightmares added clarity and volume or made things appear more in-depth.[100]
[100]TS 2-5 lines 18 – 43.
When read in full and in context, the complainant was not saying that he had previously had no memories, or that his memories had been overborne by the dreams and nightmares from which he suffered from childhood. What he was saying, the jury might accept, is that he had memories of the actual events, which memories gained added depth or clarity by the dreams and nightmares.
It is evident from the passage following that set out above, that the complainant was struggling to answer the trial judge in a clear way:[101]
“And do I understand correctly, again, that as time passes – and this continues to occur – it continues to seem more and more real?‑‑‑Well, dream – my dreams, it’s not just one set thing with my dreams.
I’m not talking ‑ ‑ ‑?‑‑‑I know that, but I mean ‑ ‑ ‑
‑ ‑ ‑ about just the one thing. It covers many things?‑‑‑Yeah.
But I thought that was the evidence you gave yesterday. Is that ‑ ‑ ‑?‑‑‑Yeah.
Have I restated that correctly?‑‑‑Yeah. Yeah. Sorry. I just – yeah. I’m just ‑ ‑ ‑
That’s all right. Thank you?‑‑‑A bit haywire. Sorry. Very sorry.”
[101]TS 2-41 lines 7 – 19.
Even in that exchange the complainant did not accept the trial judge’s formulation of things becoming more real.
When questioning returned to the cross-examiner, the final topic was a series of propositions directed to establishing that the complainant had propounded false memories as concerns the appellant, which the complainant denied:[102]
“Through this process, I put to you that you have mistakenly or intentionally taken true memories of events that have occurred with Brother X and relocated them on [the appellant]?‑‑‑Incorrect. As I spoke to you.
And that, through this process, that you have developed distorted and false memories of the actions of [the appellant]?‑‑‑Incorrect.
You needed someone who was still alive to feel like you were getting justice, didn’t you?‑‑‑I don’t understand that question.
You needed someone alive to bring a charge?‑‑‑What – I don’t – I – I don’t know what you’re trying to say here. I don’t know though.
I’m suggesting the reason that you’ve – to some degree, whether it’s intentional or subconsciously, you have directed your gaze to [the appellant] because he is alive, and Brother X is deceased?‑‑‑Oh, incorrect . Mmm. Mmm. Excuse me.
I’d suggest your allegations against my client that he sexually offended against you at all are entirely untrue?‑‑‑Incorrect.
And that he never excessively punished you?‑‑‑Oh, incorrect.”
[102]TS 2-41 lines 23 – 43.
Cross-examination ended at that point.
Re-examination was brief. It focussed on whether the complainant had memories of the alleged offending prior to having nightmares about them:[103]
“I’m asking about the state of your memory – and you’ll either be able to answer it or not – but I’m simply asking you whether or not you had any memories or knowledge within yourself that [the appellant] had done these sexual things to you prior to having nightmares and dreams about it?‑‑‑Correct.
Well, what do you mean by that?‑‑‑Uh, there’s always been – there’s always been something there. There’s something there that – in my dreams there’s – there’s some older person there. In my dreams there’s someone else there. It just – when the – my – my dreams would come, that’s when the face would come to that person. And that face was that bloke. That was [the appellant]. I know it is. I – I – it – sorry. Sorry. The more dreams I have, the more it – I have a dream. It’s just – I – I – it’s to me explain.
Okay?‑‑‑I just don’t want to talk about it.
Well, when did the dreams start?‑‑‑I’ve always had dreams. I’ve always – I’ve always, from an early age ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ at my mum’s house. Yes.
That is about [the appellant]?‑‑‑Bro – Brother X and [the appellant], yeah. Yeah.
Okay?‑‑‑And it gets – just dreams about something happening to me.”
[103]TS 2-42 lines 26 – 48.
The jury could accept that as being an affirmation that the complainant had memories which were not supplanted or overborne by the dreams or nightmares. The complainant was saying that he had memories and the dreams or nightmares added another part, clarity or depth.
Finally, the re-examination asked the complainant directly as to whether he had taken memories of Brother X and relocated them to the appellant. His answer was unequivocal:[104]
“Now, you were asked a question about whether it’s possible that you’ve mistakenly or intentionally taken true memories of Brother X and relocated them to [the appellant]. You say that’s incorrect?‑‑‑A hundred per cent.
Why?‑‑‑I know – just, I know – I know what happened to me on that day. I know what happened to me at that school. It’s two people. Two different Brothers. I know.
You were asked about some documents that you provided to the Officer Heenan particular in February of 2022. There was an exercise book and some typewritten documents ‑ ‑ ‑?‑‑‑Mmm-hmm.
‑ ‑ ‑ where you accepted you didn’t discuss these allegations of a sexual nature involving [the appellant]. You understand what I’m talking about?‑‑‑Correct. I’ve never told anybody anything.
Well, was there any reason why you didn’t detail the allegations against [the appellant] in those documents?‑‑‑No. No reason why. There’s no reason.
Right. And finally, you were asked yesterday – or you agreed that you didn’t complain to anyone at the time that these things happened?‑‑‑I kept to myself. I – I don’t – I’ve never told anybody anything. I just – I just kept everything to myself.”
[104]TS 2-43 lines 1 – 22.
The jury could accept several things from that evidence. One is that the memories of what had happened were not mis-allocated to the appellant. A second is that the complainant had a memory of what had happened, and who did what. A third is that the reason why his handwritten notes did not mention the appellant is not that the appellant was not involved, but rather that the topic was one he had not revealed to anyone, but rather kept it to himself.
Other evidence

Joint admissions were made and put before the jury. They relevantly included:
(a)that the records kept by the Education Department included a letter signed by the complainant’s parents and addressed to the appellant, dated 25 June 1981; it relevantly read, “[The complainant] has informed me that you found him reading pornography at school today. I have spoken to him and have found out [where he bought it] and have forbidden him to buy such trash again also lectured him on the moral aspect … Thanking you for … your approach in letting us know”;
(b)the contents of some notes by the doctor who saw the complainant in 2019; they read:
(i)had been harbouring sexual abuse secret;
(ii)13-14-15 – [the] School […]; and
(iii)haunted by memories every now and then with flashbacks. Re-exacerbated last several months.
The complainant’s wife gave evidence. She married the complainant in 2017. Relevant parts of her evidence were:
(a)in 2018 a guest at their house made a joke about paedophiles;
(b)the complainant responded to the effect that it was not good to joke about it;
(c)that night the complainant told her (for the first time) that he had been molested at school, though he gave no details;
(d)over the next few years he continued to say things to her about that; he said “I was lucky as other kids got raped”;
(e)after the first disclosure he suddenly stopped while walking, burst into tears and disclosed that he had been raped; that disclosure was made in Japan before the covid pandemic, and before they returned to Australia;
(f)she only found out the details when he saw lawyers in Australia; those details were things like: he was sometimes asked to come in his office and just naked and sometimes half-naked, and sometimes he would just stand there, torturing him, whether he had done something wrong; and
(g)for about two years after his initial disclosure he said he was not raped and then in the third year he said, “Well, I was.”
In cross-examination she made it clear that she heard parts of his complaint before seeing the lawyers:[105]
“That’s right. Now, would you accept that it’s possible that you only heard that information about any activity happening in [the appellant’s] office in the course of that meeting with Porters Lawyers?‑‑‑Like I said a while ago, just a minute ago, I said I heard bits and pieces of the story, but I heard the full details when we sat down with Porters Lawyers.
I am just asking you to consider whether you heard those details about conduct in an office in that meeting with Porters Lawyers?‑‑‑No. I heard that before that.”
[105]TS 3-15 lines 29 – 36.
Senior Constable Berry gave evidence. He took over handling the complaint from Officer Heenan. He said the complainant’s statement was signed on 19 October 2022.
Consideration
The central attack on the convictions was on what was said to be “concessions” by the complainant. In my view, however, when the evidence is properly understood the “concessions” do not carry the case very far.
The first is that the complainant did not have a memory of the events of the sexual abuse by the appellant about which he gave evidence, until after he had a nightmare or a dream about the event in question. The complainant repeatedly said he had actual memories, even if they were referred to as “shards”. The jury heard him reject the proposition that he had no real memories, or that they were the product of dreams or nightmares, or that they were relocated from Brother X to the appellant.
As has been said above, the complainant’s attempts to explain the significance of the dreams and nightmares were in the context of his maintaining that they added to memories that already existed. The dreams and nightmares added clarity or volume, or depth. Properly understood, the complainant’s evidence did not accept that the dreams and nightmares established reality that was not there otherwise. Specifically, the evidence does not go so far as to show that the complainant adopted the line (wrongly attributed to him) that the dreams and nightmares created or added reality.
In similar vein, the complainant said he always knew that two Brothers were involved, and that the appellant was one of them. That the dreams involved the appellant’s face is not something the jury would have necessarily found worrying, in the sense of reliability. The complainant had nightmares for a long time, and it was only when the memories surfaced after his confession to his wife in 2018 or 2019 that they added the clarity or weight referred to.
That answers the second and third “concession”.
The jury may have accepted that the complainant’s first memories of the abuse concerned only Brother X, but that does not mean they had to conclude that the memories concerning the appellant were false ones, or that memories of Brother X were transposed wrongly to the appellant.
In my view, the evidence does not reach the point of compelling the conclusion that events recalled had not actually happened, or that any true events were recalled in a distorted fashion. The appellant’s submission is that the risk of this was “exceedingly high” and the jury ought to have thought so. I respectfully disagree. My own analysis of the evidence does not lead me to assess the risk that way.
The appeal proceeds on a concession that the complainant’s credibility is not in issue. In other words, it is accepted that he was a credible witness. The jury heard his denials of the propositions, and his reassertions that he knew what had happened. They also had the opportunity to see and hear him when he explained or attempted to explain the significance of the dreams and nightmares. It was open to them to conclude that when the complainant said he had actual memories, not created or overlain by the dreams of nightmares, that he was telling the truth.
The appellant’s submissions also focus on the “evolution” of the complaints of sexual abuse for the contention that the complainant did not have any actual “memories” of sexual abuse by the appellant and that his “memory” of the appellant's participation in the abuse by others was the product of distortion and unreliable reconstruction.
The first disclosure was to the complainant’s wife in 2018. That had been prompted by an unexpected and inappropriate joke about paedophilia. That led to the complainant disclosing that he had been affected by paedophilia. To that point he had told no-one about his experience, not even his family.
The complainant’s evidence was that once that had been said, he “couldn’t put it back into the bottle … I couldn’t put it back in”.[106] He was “quite certain” that he told the doctor that he had been raped. The doctor recommended he go to the police but the complainant was too scared to do so.
[106]TS 1-54 line 17.
The doctor’s notes read:[107]
(i)had been harbouring sexual abuse secret;
(ii)13-14-15 – [the] School […];
(iii)haunted by memories every now and then with flashbacks. Re-exacerbated last several months.
[107]Emphasis added.
The doctor’s note is of the complainant being haunted by memories, with flashbacks. Nothing in that is consistent with the complainant having no memories but only the projections of nightmares or flashbacks.
After the initial disclosure to the complainant’s wife, she gave evidence that he told her he had been raped.[108] It was accepted by the complainant that when dealing with the police, and in his notes, he did not initially identify abuse by the appellant. However, he explained that in re-examination when he said there was no reason why he did not reveal the details in his notes, but “I’ve never told anybody anything”, “I kept to myself. … I’ve never told anybody anything. … I just kept everything to myself.”
[108]TS 3-11 lines 10 – 18.
The fact that the notes and initial contact with police did not include the appellant as an offender does not necessarily mean that the complainant’s memories of the appellant were likely false. The jury could accept his evidence that the reason why his notes and initial contact with police did not reveal offending by the appellant was not that the appellant was not involved, but rather that the topic was one he had not revealed to anyone, but rather kept it to himself.
The appellant contends that the complainant “appeared to accept that he had ‘no recollection’ of the sexual acts committed by the appellant”, referring to a passage of evidence at TS 2-11 lines 27 to 30. That evidence is dealt with in detail in paragraphs [68] to [72] above. Properly understood, it does not sustain that submission.
The appellant’s contentions also rely on the complainant’s email dated 14 March 2022. In it the complainant described a vivid dream involving two Brothers, one of whom held a hand over the complainant’s mouth while the other raped him. The contention is that the email does not appear to record a recollection about the appellant.
That evidence is dealt with in detail at paragraphs [73]-[77] and [97]-[98] above. Whilst it is true that the email does not refer to the appellant, the complainant maintained that his evidence given at the trial was true. As explained in paragraph [77] above, the jury may have found that response reliable, and not surprising, given that the email referred to a dream, not a memory, as the cross-examiner had put herself: “you’re speaking about … the vivid memory rather than the actual events”.[109]
[109]TS 2-14 line 25.
It is true, as the appellant contends, that it was not until 11 July 2022 that the complainant informed police he wished to lay a complaint of sexual abuse about the appellant. However, Officer Heenan’s evidence does not support the conclusion that that was the first time the complainant identified the appellant as an offender. The sequence of events is in paragraph [80] above, taken from Officer Heenan’s evidence. She first saw the complainant on 2 February 2022. It was an extremely difficult process to get a version of events from him, and it was some months before she received allegations of sexual conduct by the appellant. The evident conclusion the jury could draw is that the complainant identified the appellant as an offender by around May 2022, but it was not until 11 July that the complainant said he wished to lay a formal complaint, ie. have criminal proceedings instituted.
In my view, the evolution to which the appellant refers does not compel a doubt as to the reliability of the complainant’s evidence.
The appellant also relies on the inconsistencies in the various accounts from the complainant as showing that the jury should have held a doubt as to the reliability of the evidence.
The appellant accepts that, alone, the inconsistencies would not likely be sufficient to support an unreasonable verdict contention. The jury was properly instructed by the trial judge, in accordance with s 103ZY of the Evidence Act 1977 (Qld), that people may not remember all details of a sexual offence or may not describe such offences in the same way each time, and that trauma may affect people differently, including with respect to their recall of events, and further, that it was up to them to decide whether or not any differences in the complainant’s account were important in assessing the complainant’s truthfulness and reliability.
The complainant’s truthfulness is conceded on the appeal. The inconsistencies go only to reliability.
Further, the appellant’s case on this aspect is that the suggested inconsistencies have to be seen in the context of the other evidence which has been dealt with above. It is contended that the inconsistencies:
“[p]rovide cogent support for the already powerful conclusion that it would be unsafe for the appellant’s convictions to stand. Each inconsistency adds to the possibility, that has not been excluded on the whole of the evidence, that the complainant's memory of sexual offending by the appellant was false or tainted and could not be accepted as reliable beyond reasonable doubt.”
As I have identified above, the evidence does not compel the conclusions advocated by the appellant. The jury was not obliged to harbour such a doubt as to the reliability of the complainant’s evidence that the test of guilt could not be satisfied.
The first suggested inconsistency is that the complainant wrote three versions of the lead-up to Count 2. One referred to his being pulled off a bus, being taken out of line to pick up rubbish, and walking through the school grounds. A separate note referred to a vivid nightmare of being pushed into a toilet by the appellant and raped.
The differences are, in my view, inconsequential. More important was the complainant’s evidence that he had actual memory of the events, and the consistency in the complainant’s account of the offending conduct itself.
The second is the fact that the complainant did not give evidence (as was opened) as to Count 3 (oral rape at the same time as Count 2).
It is true that the complainant did not give evidence of the oral rape in his account of what happened. It is not an unusual occurrence for a witness not to come up to proof in the reality of giving evidence at a trial. That he did not do so in respect of a subject that, the jury could accept, was embarrassing and painful, hardly renders the balance of his evidence unreliable. The trial was replete with examples of the difficulty the complainant had in relating the events and being cross-examined upon them.
The third concerns Count 4 and refers to the fact that in the complainant’s civil notice of claim or his notes, he did not refer to this alleged rape. Further, in his police statement he did not refer to Brother X being there.
During the trial the complainant explained, or attempted to explain, the difficulty he had in the process of producing a statement, why the notes were the way they were, and how he had suppressed the events over a lifetime. For reasons I have explored above, his evidence on the other counts was capable of being accepted even though Count 4 was not. The matters raised do not impact reliability on those counts.
The fourth is in respect of Count 5. It was that the complainant did not, in his witness statement, say that the appellant had “flogged the crap of [him]”, whereas he said so in evidence. Further, the complainant had not, in evidence in chief, mentioned the pornographic magazine as part of the narrative. Then in cross-examination the complainant conceded that Count 5 did involve him having a pornographic magazine but he denied discussing that fact with his parents, whereas the admissions showed a note from the parents to the appellant about the magazine.
The differences raised are, in my view, inconsequential. They concern matters peripheral to the central allegation, namely that on an occasion in the appellant’s office the complainant was raped by Brother X while the appellant assisted.
The appellant also contended that certain features of the complainant’s account “raised doubts about the inherent plausibility of his evidence, making it even more difficult to dispel doubts about the reliability, generally”.
One was the fact that the offending occurred in the appellant’s office, which, it was said, was a visible location where the risk of discovery would have been high. However, the jury would not likely be ignorant of the fact that risk taking behaviour often accompanies offending. There was no evidence of the appellant’s practice about closing his door and it could be assumed it was closed during the offending. There was nothing to say that once closed, visitors would open it anyway. Why, then, would the jury have seen the location as “wholly implausible”. Further, some of the offending conduct occurred while the complainant was made to sit under a desk, where, as the evidence showed, the back came to the ground.
The second was that while the complainant said he knew the layout of the school like the back of his hand, he could not remember the location of the toilet block where the rape occurred, or whether the administration area had been reconstructed. His failure to recall the precise location of the toilet block is inconsequential. It was not suggested that the location was relevant in some way. There was no evidence that the administration area had been reconstructed, so any failure to recall that fact was neither here nor there.
The third is the complainant’s evidence that he had seen the appellant and Brother X walking around the school without underwear and with erections. That allegation was in the complainant’s police statement. When cross-examined on that his evidence was that he stood by what he said in the statement but he had no recollection. Plainly the complainant was saying that as at the date of the trial he had no recollection of that matter, even though he had put it in his statement. It was not put to the complainant that the statement was wrong. This point adds nothing.
For the reasons given above, the assessment of the evidence does not cause me to have such a doubt as to the reliability of the complainant’s evidence that the convictions should be set aside. In my view, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
The jury’s advantages
I should add that had I reached the conclusion that there was reason to doubt the reliability of the complainant’s evidence, I am unable to conclude that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
In my view, the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt, and therefore no miscarriage of justice has occurred.
The jury heard and saw the complainant over two days of evidence, and under cross-examination about matters which, they would accept, were extremely painful for the complainant to recall and talk about.
There are many factors that they were able to weigh in their assessment of the complainant which would have been particularly acute for them, experiencing the evidence firsthand and being able to make their own assessment of a witness who, as is conceded, was credible.
For example, as examined earlier in these reasons:
(a)there were many matters on which the complainant’s evidence was not contradicted: see paragraphs [24] and [25] above;
(b)the jury could have seen that the complainant’s responses indicated he was experiencing anxiety or distress in giving evidence: see paragraphs [31]-[33] above;
(c)jury would have noted that the complainant did not pretend to a memory he did not have: see paragraphs [34]-[35] above;
(d)the jury had the benefit of seeing how the complainant corrected various propositions put to him, showing reliability: see paragraph [38] above;
(e)likewise, they saw how the complainant rejected propositions that were put to undermine his evidence and his reliability as a witness; in each case there was no evidence to contradict the complainant: see paragraphs [39]-[40] above;
(f)there were evident reasons why the complainant’s memory might be poor or affected: see paragraphs [41]-[45] above;
(g)the jury would have appreciated that nothing said by the complainant showed he had no real memories, or the only memories he had came from nightmares; to the contrary, the complainant asserted time and again that he actually remembered the events: see paragraphs [46]-[66] above;
(h)the complainant was not saying that he had previously had no memories, or that his memories had been overborne by the dreams and nightmares from which he suffered from childhood. What he was saying, the jury might accept, is that he had memories of the actual events, which memories gained added depth or clarity by the dreams and nightmares.

The advantages that the jury had, which this Court does not, were explained in ZT. They include:
(a)the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility;
(b)the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers); and
(c)the jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.
Those advantages are manifest in this case. The complainant was giving evidence on a subject that must have been extremely painful in memory. He struggled to explain various aspects including the impact of his dreams and nightmares, and how he dealt with memories that could not be put back into the bottle. He was plainly anxious, emotional and distressed during his evidence. His difficulties extended to his dealings with police.
Had I reached another conclusion so as to have a doubt as to the complainant’s reliability, those doubts would have been resolved by the jury’s advantages.
In my view, there was no miscarriage of justice.
Another matter
There is one unfortunate aspect of the appellant’s submissions that I would mention.
The written outline contained this:[110]
“6.At the conclusion of the complainant’s evidence on the second day of trial, the trial judge confirmed with the Crown that its case ‘rests or falls’ on acceptance of that evidence.
7.His Honour then indicated his ‘strong view’ that, given the quality of the evidence the complainant just gave, ‘any conviction would not stand on appeal’. The trial judge highlighted his concerns about the complainant testifying that his memory developed ‘after dreams or nightmares’, that these felt ‘more real as time passes’, and also the ‘very and many inconsistencies’ in the complainant’s account.
8.The Crown was given overnight to consider its position and elected to proceed with the prosecution. The learned trial judge described this as a ‘curious decision’.”
[110]Appellant’s outline, paragraphs 6–8. Footnotes omitted.
The test in M v The Queen make it clear that the appellate court must make its own independent assessment of the evidence, both as to its sufficiency and its quality, and draw conclusions from that assessment.
The views of the trial judge about the sufficiency or otherwise of the evidence are utterly irrelevant to the task to be performed by this Court. His Honour’s statement was not part of the evidence for a start, and in any event was merely his Honour’s opinion. Reference to them would be an error on the part of this Court. Further, the appellant’s submission in this respect is an invitation to error and should not have been made. That submission has been put entirely aside.
Proposed order
I propose that the appeal be dismissed.
Orders
1.Appeal dismissed.
2.A warrant issue for the apprehension of the appellant to lie in the Registry for five business days.

CITATION:	R v Mackrell [2025] QCA 144
PARTIES:	R v MACKRELL, Desmond Gregory (appellant)
FILE NO/S:	CA No 65 of 2025 DC No 470 of 2025
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 31 March 2025 (Farr SC DCJ)
DELIVERED ON:	5 August 2025
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2025
JUDGES:	Mullins P, Bradley JA and Morrison AJA
ORDERS:	1. Appeal dismissed. 2. A warrant issue for the apprehension of the appellant to lie in the Registry for five business days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of repeated sexual conduct with a child and two counts of carnal knowledge against the order of nature – where the appellant was acquitted of a further count of carnal knowledge against the order of nature and one count of indecent treatment of a boy under the age of seventeen years – where the appellant was a high school Principal and the complainant was a student – where the appellant submits that the evidence was unreliable in such a way that the jury should have doubted that guilt had been proven – whether the jury’s finding of guilt was unreasonable or insupportable having regard to the evidence Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied R v ZT (2025) 99 ALJR 676; [2025] HCA 9, applied
COUNSEL:	T A Ryan KC, with G F Perry, for the appellant C N Marco for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent