Slattery v R

[2023] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Slattery v R [2023] NSWCCA 117

Hearing dates:

2 December 2022

Date of orders:

19 May 2023

Decision date:

19 May 2023

Before:

Bell CJ at [1];
Ward P at [171];
Wilson J at [174]

Decision:

(1)      Grant leave to appeal other than in respect of Ground 4 of the Notice of Appeal.

(2)      Allow the appeal in part, quash the qualified finding of guilt in respect of Count 13, and enter a verdict that the Appellant is not guilty of the offence charged as Count 13.

(3)      With respect to the remaining limiting terms –

(a)      grant leave to the Appellant to file written submissions with respect to any possible variation of the limiting terms within two weeks of the date of this judgment;

(b)      grant leave to the Director to file submissions in reply within four weeks of the date of this judgment; and

(c)      direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 7 days of the filing of the Director’s submissions in response.

(4)   Otherwise dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – principles to be applied in determining an unreasonable verdict ground of appeal where the accused was found guilty after a trial before judge alone – relevance of the reasons of the trial judge – proper approach to arguments alleging specific error in the reasoning of the trial judge – whether trial judge ought to have entertained a reasonable doubt about the accused’s guilt

CRIME – appeals – appeal against conviction – unreasonable verdict – historical sexual offences against three complainants – where appellant sought to impugn reliability of complainants’ evidence on appeal – inconsistencies in complainants’ evidence concerning questions of chronology and timing – whether inconsistencies produced reasonable doubt about the complainants’ identification of the appellant as the perpetrator of the offences – advantage of trial judge in seeing and hearing witnesses give evidence – whether inherently improbable that appellant would commit acts of child sexual abuse in the presence of others

CRIME – appeals – appeal against conviction — miscarriage of justice – whether failure of defence counsel to adduce evidence of the accused’s good character gave rise to miscarriage of justice – whether failure of defence counsel to put evidence of prior criminal convictions to witnesses as a basis for challenging their credibility gave rise to miscarriage of justice – whether appellant deprived of real chance of an acquittal – no miscarriage of justice

MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – appeal from qualified findings of guilt after special hearing conducted pursuant to s 55 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether qualified findings of guilt were unreasonable or unsupported by evidence – principles to be applied – relevance of the reasons of the trial judge – proper approach to arguments alleging specific error in the reasoning of the trial judge

Legislation Cited:

Crimes Act 1900 (NSW) ss 79, 80, 81 (as it was at 15 December 1980)

Criminal Appeal Act 1912 (NSW) s 5(1)(b)

Evidence Act 1995 (NSW) ss 103, 110, 165(2)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 55, 56, 62(b), 63(2)

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Clay v R (2014) 245 A Crim R 470; [2014] VSCA 269

Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

De Silva v R (2013) 236 A Crim R 214; [2013] VSCA 339

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

GS v The Queen [2022] NSWCCA 225

GZ v R [2015] ACTCA 11

JV v R [2017] NSWCCA 49

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

Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1

Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v DBB [2013] 1 Qd R 188; [2012] QCA 96

Sharma v R [2011] VSCA 356

Tieu v R (2016) 92 NSWLR 94; [2016] NSWCCA 111

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category:

Principal judgment

Parties:

Daniel Slattery (Appellant)
The Crown (Respondent)

Representation:

Counsel:
D Phillips (Appellant)
H Roberts SC with C Young (Respondent)

Solicitors:
Stidwill Solicitors (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/104605

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), nothing may be published that is likely to lead to the identification of PT, RE or GB.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the name of any person mentioned in the proceedings in relation to something that occurred when the person was a child must not be published.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

7 May 2021

Before:

Syme DCJ

File Number(s):

2018/104605

HEADNOTE

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

In July 2018, Daniel Slattery (the Appellant) was charged with 13 counts involving allegations of historical sexual abuse against three complainants, PT, RE and GB. The offending was alleged to have occurred in 1980 at the Kendall Grange School in Morriset, New South Wales (the School), a boarding school for boys with intellectual needs or behavioural issues. The School was operated by the Order of the Hospitaller Brothers of St John of God, a religious order of the Catholic Church. The Appellant was a Brother of the Order at the time of the offending, and the three complainants were students at the School who resided in the dormitory supervised by the Appellant.

The alleged offending involved various acts of penetrative and non-penetrative sexual abuse which occurred at several locations at the School, including in the Appellant’s bedroom and in other areas of the dormitory in the presence of other students. Counts 1–9 related to sexual acts involving PT, Counts 10–12 involved RE, and Count 13 involved GB. The complainants were between 9 and 13 years of age at the time.

The Appellant, who many years later had been diagnosed with Parkinson’s disease, was found unfit to be tried. Accordingly, the District Court conducted a special hearing pursuant to s 55 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) to determine whether, on the limited evidence available, the Appellant had committed the offences charged. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

At the special hearing, which was heard by a judge alone, the Crown led evidence from each of the three complainants. The trial judge found that, on the limited evidence available, the Appellant had committed Counts 1–11 and 13 (the qualified findings of guilt). As Count 12 was an alternative charge to Count 11, no verdict was entered. The trial judge gave written reasons for her decision.

An important element of the Appellant’s case, at first instance and on appeal, was a challenge to the reliability of each complainant’s identification of the Appellant as the perpetrator of the offences. In essence, the Appellant contended that, if it were accepted that the alleged acts occurred, the Crown had not eliminated the reasonable possibility that they had been performed by another of the Brothers. Relevantly, there was evidence that other Brothers would frequently engage in violent and sexual behaviour towards children. In this context, it was contended that aspects of the complainants’ evidence supported a finding that the alleged acts occurred in 1981, after the Appellant had left the School.

The appeal raised three issues for determination:

1. whether there was a miscarriage of justice by reason of the failure of defence counsel to adduce evidence of the Appellant’s good character (the good character issue);

2. whether there was a miscarriage of justice by reason of the failure of defence counsel to put evidence of prior criminal convictions to the complainants as a basis for challenging their credibility (the prior convictions issue); and

3. whether the qualified findings of guilt were unreasonable or unsupported by the evidence (the unreasonable verdict issue).

The Court held, granting leave to appeal except in respect of Ground 4, allowing the appeal in respect of Count 13 and otherwise dismissing the appeal:

As to the good character issue

1. The decision by trial counsel not to adduce evidence of good character was a deliberate choice. In the circumstances, that choice was capable of being justified by the risk of adverse evidence being admitted in rebuttal, together with the arguably limited value of the good character evidence: [93] (Bell CJ); [171] (Ward P); [174] (Wilson J).

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9; JV v R [2017] NSWCCA 49; Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44; Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13; De Silva v R (2013) 236 A Crim R 214; [2013] VSCA 339; Clay v R (2014) 245 A Crim R 470; [2014] VSCA 269; Sharma v R [2011] VSCA 356; R v DBB [2013] 1 Qd R 188; [2012] QCA 96; GZ v R [2015] ACTCA 11, considered.

2. In determining whether the decision of trial counsel not to adduce character evidence was a rational forensic decision, it was not necessary to decide whether certain evidence of hospital records would have been admissible as rebuttal evidence. It was sufficient that defence counsel’s decision was capable of being justified by a rational apprehension of risk of exposing the Appellant to damaging adverse evidence in rebuttal: [90] (Bell CJ); [171] (Ward P); [174] (Wilson J).

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered.

3. While the forensic value of good character evidence will inevitably turn on the nature and importance of that evidence in all the circumstances of the case, there is now greater community recognition that persons who are otherwise thought to be of good character may commit offences involving child sexual assault: [91] (Bell CJ); [171] (Ward P); [174] (Wilson J).

JV v R [2017] NSWCCA 49, considered.

As to the prior convictions issue

4. In light of the nature and very small number of prior convictions recorded against PT and GB, which involved minor theft, violence and driving offences, it cannot be said that it was irrational for defence counsel not to put those convictions to PT or GB as a basis for challenging their credibility: [104] (Bell CJ); [171] (Ward P); [174] (Wilson J).

5. The bulk of the convictions recorded against RE, which involved driving offences, damage to property and affray, did not bear directly on his honesty. The only two offences bearing on his honesty, which involved stating a false name and a false abode in relation to driving charges, could not have substantially affected the assessment of RE’s credibility in the circumstances: [105]–[107] (Bell CJ); [171] (Ward P); [174] (Wilson J).

Tieu v R (2016) 92 NSWLR 94; [2016] NSWCCA 111, considered.

As to the unreasonable verdict issue

6. Discussion of the principles applying to an appeal against conviction on the ground that a verdict was unreasonable or unsupported by evidence, in circumstances where an accused person has been convicted after a trial before a judge alone (with the consequence that the trial judge’s reasons for the guilty verdict are before the appellate court): [111]–[115] (Bell CJ); [172] (Ward P); [174] (Wilson J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25; GS v The Queen [2022] NSWCCA 225, considered.

7. In the context of an unreasonable verdict ground of appeal, arguments to the effect that the trial judge erred in his or her process of reasoning are not to the point. The matters raised by such arguments must be considered not for the purpose of attacking the trial judge’s reasoning, but in the context of considering whether, on the appellate court’s independent review of the evidence, the trial judge ought to have entertained a reasonable doubt about the Appellant’s guilt: [116]–[117] (Bell CJ); [172] (Ward P); [174] (Wilson J).

8. The trial judge enjoyed a significant advantage by reason of having observed each of the complainants give evidence in person including when under sustained cross-examination: [119] (Bell CJ); [172] (Ward P); [174] (Wilson J).

9. The various asserted inconsistencies in PT and RE’s evidence, most of which concerned questions of chronology and timing, did not give rise to any reasonable doubt that the Appellant committed Counts 1–11. In this context, the assessment of a witness as credible and reliable for some purposes does not necessarily amount to an acceptance of every aspect of their evidence (particularly in circumstances where a lengthy period has passed since the events in question): [126], [144]–[145] (Bell CJ); [172] (Ward P); [174] (Wilson J).

10. GB’s evidence as to the timing of events, if accepted, would have placed the events the subject of Count 13 well after the Appellant had left the School. This raised a reasonable doubt about the accuracy of GB’s identification of the Appellant as the perpetrator, and therefore about whether the Appellant committed Count 13: [150]–[153] (Bell CJ); [172] (Ward P); [174] (Wilson J).

11. It was not inherently improbable that the Appellant would have performed the alleged acts in the presence of other students, in circumstances where violence and sexual abuse by Brothers against students was frequent, the Appellant occupied a position of authority, and the students were young boys with intellectual difficulties: [159]–[161] (Bell CJ); [172] (Ward P); [174] (Wilson J).

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered.

12. Because tendency reasoning was not needed to support the qualified findings of guilt on Counts 1–11, the quashing of the verdict on Count 13 did not carry consequences for those other Counts: [165]–[167] (Bell CJ); [172] (Ward P); [174] (Wilson J).

JUDGMENT

1. BELL CJ: In July 2018, Daniel Slattery (the Appellant) was charged with 13 counts involving allegations of historical sexual abuse against three complainants, who will be referred to in these reasons as PT, RE (sometimes referred to in the evidence as RN) and GB.

2. The offending was alleged to have occurred in 1980 at the Kendall Grange School in Morisset, New South Wales (the School), a boarding school for boys with intellectual needs and/or behavioural issues. The Appellant was a teacher and dormitory supervisor at the School between 21 January and 14 December 1980. The School was operated by the Order of the Hospitaller Brothers of St John of God (the Brothers of St John), a religious order of the Catholic Church. The Appellant was a Brother of the Order at the time of the offending, and is referred to in some of the evidence as Brother Daniel. The three complainants were students at the School and resided in the dormitory which the Appellant supervised. The names of other boys at the School at the time have been anonymised for the purposes of these reasons.

3. The Appellant, who many years later had been diagnosed with Parkinson’s disease, was found unfit to be tried in the District Court in November 2019. The Mental Health Review Tribunal subsequently determined that he was unable to give instructions, follow proceedings or give evidence, and that he was unlikely to become fit to be tried within a 12 month period. Accordingly, pursuant to s 55 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health Act), the District Court was required to conduct a special hearing to determine whether, on the limited evidence available, he had committed the offences charged.

4. Section 54 of the Mental Health Act relevantly provides:

“… a special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged.”

5. The special hearing was conducted before Syme DCJ (the trial judge) in the District Court at Newcastle, and proceeded over the course of three weeks. Section 56 of the Mental Health Act relevantly provided that the defendant was to be taken to have pleaded not guilty, and that the special hearing was to be conducted “as nearly as possible as if it were a trial of criminal proceedings.”

6. At the conclusion of the special hearing, on 7 May 2021, the trial judge found that, on the limited evidence available, the Appellant had committed Counts 1–11 and 13 on the indictment (the qualified findings of guilt). As Count 12 was an alternative charge to Count 11, no verdict was entered. The trial judge gave written reasons for her decision.

7. On 26 November 2021, the trial judge imposed a number of limiting terms pursuant to s 63(2) of the Mental Health Act, with the total effective limiting term amounting to 11 years. Those penalties are not the subject of the present appeal.

Notice of Appeal

8. By Notice of Appeal filed on 30 March 2022, the Appellant now seeks leave to appeal against the qualified findings of guilt. Relevantly, s 62(b) of the Mental Health Act provides that qualified findings of guilt made following a special hearing are “subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings”.

9. The Appellant relies upon the following five grounds of appeal:

1. The trial miscarried because of the failure of defence counsel to adduce evidence of the Appellant’s good character.

2. The trial miscarried because of the failure of defence counsel to put evidence of convictions of dishonesty to the complainants.

3. The guilty verdicts in respect of Counts 1–11 and 13 are not supported by the evidence, or in the alternative the verdict was unreasonable.

4. The judge erred in law in not giving herself a witness reliability direction under s 165(2) of the Evidence Act 1995 (NSW).

5. The trial judge erred in law in not directing herself as to the need to exclude the reasonable possibility of the Appellant not having committed the offences in Counts 1, 3, 7–9, 10 and 13.

10. In support of ground 2, the Appellant also sought leave to rely on new evidence concerning allegedly false vaccination certificates provided on behalf of RE in order to enable him to attend the sentencing proceeding.

11. As none of the grounds involves a question of law alone, leave is required for each ground of appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave is also required in respect of Ground 4 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), as a direction pursuant to s 165(2) of the Evidence Act was not sought at the special hearing. Further, the Appellant requires leave to adduce new evidence in support of Ground 2.

12. On appeal, counsel for the Appellant sought to rely on four further affidavits of Kenneth Stidwell, the Appellant’s solicitor. Those affidavits were sworn on 8 February 2022, 31 May 2022, 27 September 2022 and 26 November 2022. The Crown relied upon an affidavit of Marley Zelinka, affirmed on 17 November 2022.

13. Leave to appeal should be granted but, for the reasons that follow, the appeal should be dismissed save as to Count 13.

Factual background and charges

14. It was common ground at trial that the Appellant held a position at the School during the period from 21 January 1980 to 14 December 1980. The School was, as I have noted, operated by the Brothers of St John, and was known as a “Residential Special School for the Mildly and Emotionally Disturbed Retarded Boy”. The Appellant was the only Brother at the School during the period from 1979 to 1982 with the first name Daniel, and was known at the School as “Brother Daniel”.

14. The three complainants, PT, RE and GB, each attended the School for at least some period during 1980. Their respective periods of attendance were 23 July 1979 to 16 December 1982; 11 February 1980 to 17 July 1981; and 18 June 1980 to 16 December 1982. At the time of the offending, they were between nine and thirteen years of age.

15. Counts 1–9 on the indictment related to alleged sexual acts involving PT, Counts 10–12 involved RE, and Count 13 involved GB. All of the offences were said to have occurred between 19 January and 15 December 1980. The offences variously involved acts of penetrative and non-penetrative sexual assault which were alleged to have occurred in the dormitory and other locations at the School.

16. The Appellant was charged pursuant to the relevant provisions of the Crimes Act 1900 (NSW) as it was at the time of the offending. Accordingly, Counts 5 and 6 were charges of buggery, contrary to s 79 of the Crimes Act, and were punishable by up to 14 years of imprisonment. Count 11 was a charge of attempted buggery, contrary to s 80 of the Crimes Act, and was punishable by up to 5 years of imprisonment. The remaining offences, being Counts 1–4, 7–10 and 12–13, were charges of indecent assault on a male person, contrary to s 81 of the Crimes Act. Those offences were punishable by a maximum of 5 years of imprisonment.

17. At the special hearing, the Crown led evidence from PT, RE and GB. It was common ground that the evidence of each complainant was cross-admissible for tendency purposes. The Crown also called Jennifer Threlfo, who had worked as a secretarial or clerical assistant with the Brothers of St John for 41 years, and Detective Sergeant Daniel Payton, who had been the officer in charge of the investigation into the Appellant since mid-2016.

18. The Crown tendered video footage and transcripts of photo identification procedures which had been conducted by NSW Police with each of the complainants. Police conducted an identification procedure with each of the complainants in 2011, and a second identification procedure with GB in 2017, and with PT and RE in 2018. During each of these identification procedures, the complainants were shown a series of photographs of staff members and students at the School, and were asked who they recognised. The Appellant was not depicted in any of the photographs used in the 2011 identification procedure, as at that stage the investigation was focussed on Bernard McGrath (referred to as “Brother Bernard”), another Brother at the School who had been accused of sexual offences. However, the Appellant was depicted in photos used in the 2017 and 2018 procedures. It will be necessary to return to discuss these identification procedures in due course.

19. The defence case at trial was that the Appellant had not engaged in the conduct which was the subject of the offences. It was submitted that the complainants had misidentified him as the perpetrator of the alleged offences, and that the acts of sexual assault may have been committed by one of the other Brothers at the School. In support of this case, defence counsel at the trial contended that some of the evidence given by the complainants supported a finding that the offending occurred in 1981, after the Appellant had left the School.

20. The only witness called by the defence was Dr Kasinathan, a clinical psychiatrist, who gave evidence about the reliability of recalled memory.

21. Following the special hearing, the parties provided an agreed statement of facts, which largely concerned the dates at which certain students and staff members were at the School, and which of them were deceased by the time of the special hearing.

The Crown case

23. It was common ground that the evidence of each complainant was cross-admissible in considering the charges relating to each other complainant. The Crown relied on the evidence of each complainant to establish a tendency that the Appellant had a sexual interest in boys between 9 and 13 years of age, and to act on that interest by engaging in sexual contact with boys of those ages who were under his care or authority. There was no objection to this use of tendency evidence.

24. It is convenient at this point to set out the evidence of the complainants about each count alleged on the indictment, as summarised by the trial judge. It should be noted that, although the complainants and the trial judge referred to the Brothers by their first names (for example, “Brother Daniel” or “Brother Bernard”), these reasons will refer to them as the Appellant and Mr McGrath.

Counts 1–9 (offences involving PT)

25. PT was enrolled at the School from 23 July 1979 to 16 December 1982, and was either 9 or 10 years of age at the time of the offending. He resided at the School as a boarder during the week, and would return home to his parents on weekends. The School’s records indicated that at the time of his attendance, he was assessed to have an IQ of 83.

26. The allegations which were the subject of Counts 1–9, as described in the evidence of PT, were summarised by the trial judge in the following passage:

“Count 1, Indecent Assault upon a male

PT’s evidence was that the first time he was touched by Br Daniel in a sexual way was in the TV room one evening in 1980 when he was 9 or 10 years old. His memory is anchored to his age at the time which is a consideration for the court when assessing accuracy. The accused told PT to sit on his lap, and PT complied. The accused kissed him on the neck and touched his chest. PT could feel the accused’s beard itching his neck. The accused offered him a drink of beer, which he tried but did not like the taste, so he handed it back. He described Br Daniel smiling at this. The accused then moved PT around on his lap and he felt the accused’s penis pressing against his bottom. The accused next took hold of PT’s hand and put it on … his erect penis. PT said he could feel the skin of the accused’s penis with his hand. PT said that he told Br Daniel that his penis was very big to which Br Daniel responded that his would be as big as he got older. This detailed recollection is relevant when assessing PT’s reliability. By this stage the accused’s penis was exposed. The accused moved PT’s hand up and down his penis for a period of time. After that the accused told him to get down and watch TV. Another boy was asked to sit on Br Daniel’s lap next, while PT continued to watch TV.

Count 2, Indecent Assault upon a male

The next event occurred later the same evening not long after. The accused walked PT to the dormitory master’s bedroom (which was Br Daniel’s bedroom) and told him to come in. Once inside the bedroom they both lay on the bed together. On the bed the accused engaged in what PT described as “dry humping”, with the accused thrusting his erect penis against PT’s bottom, on the outside of his pyjamas. He described it vividly, as feeling like he was being prodded in his bum through his pyjamas with a stick. This activity continued for what seemed to him like half an hour, after which the Br Daniel took PT back to his bed in the dormitory, telling him he was showing love, and what happened was private. …

Count 3, Indecent Assault upon a male

On a different day, PT was his room within the dormitory with another student, [SL]. Br Daniel entered the room and talked to PT and the other boy about sexual matters, including ejaculating. He then placed both boys’ hands on his penis and moved them up and down, giving them instructions on how to masturbate him. The accused continued with this sexual activity until he ejaculated on their hands. Very shortly afterwards, he took them into the bathroom to wash. He told them not to tell anyone. It is observed that exhibit 1 shows [SL] present at the school 16/09/1980 to 8/05/1981, offering timing accuracy support for this event.

Count 4, Indecent Assault upon a male

On another occasion PT recalls having been physically assaulted by both Br Bernard and the accused and he was very upset. Br Bernard gave PT two pills and told him to take them to calm him down. Br Bernard giving pills in such circumstances was not an infrequent occurrence and the complainant described a feeling like his body turn[ing] to jelly and quickly becoming very sleepy. He was cross-examined and it was suggested they might be his prescribed medication, but PT did not believe he was given prescribed medication at the school. There is no evidence otherwise in the school records. He recalled on this occasion being taken into a room by both the brothers and drifting in and out of sleep. PT said [he recalled] his bum being touched and the accused’s beard touching his face. At one point he was face down and felt the accused on top of him ‘humping’ him, but does not know if the accused penetrated his anus. While this was occurring PT saw Br Bernard’s silhouette standing behind the accused, thus being able to confirm that the person doing this was not Br Bernard but Br Daniel. … The following day PT saw blood on the toilet paper after he had wiped his bottom.

The complainant said that on several occasions the accused “bum rooted him very roughly” on occasions but was unable to recall all the details of each individual event. The matters that he can recall in detail follow.

Count 5, Buggery

The accused took PT into his bedroom. Once inside the accused forcibly kissed and undressed PT. He could recall the accused spit[t]ing and rubbing his spit inside his bum cheeks. The complainant was lying flat on this stomach. He could feel significant pain, he said like a sharp piercing pain which made him cry. His face was pushed into the pillow and he had difficulty breathing. He felt his anus being penetrated by the accused’s penis causing significant pain. He specifically recalled the feeling of relief when the accused pulled his penis out of his anus. He does not recall if the accused ejaculated inside him. Afterwards PT said he was crying and told Br Daniel that he was hurt. The accused apologised for hurting him and said he was only showing physical love. Afterwards, the accused helped PT have a bath, and put him to bed. PT said that unlike other brothers, Br Daniel was often apologetic if he hurt him and always talked about showing love. Other brothers were far more cruel. …

Count 6, Buggery

On another occasion after this occasion the accused took PT into his room, gave him some Communion wine to drink, and talked about god and the bible. The accused and PT then lay next to each other on the bed. The accused pulled PT’s pyjamas down, rolled on top of him and forcibly penetrated PT’s anus with his penis. PT particularly recalled being held down by his shoulders while the accused thrusted into PT’s anus. … On this occasion he recalled Br Daniel ejaculated, causing PT to feel a warm, liquid sensation which PT thought at the time was the accused ‘weeing’. He recalls the bursting pain subsiding when the accused withdrew his penis from his anus. The description given was in great detail, especially when describing the pain and extreme discomfort in his lower abdomen.

…

Count 7, Indecent Assault on a Male – counts 7, 8 and 9 occurred in succession

The first incident of oral sex PT recalled was in Br Daniel’s room. This recollection was relayed in vivid detail as PT said he was still embarrassed by it. He was collected by Br Daniel and taken into his room. He thinks that something sexual happened but could not recall the detail. He said that after that the accused made PT take his penis in his mouth, pushing it into his mouth until PT gagged. PT thinks that he may have accidentally bit the accused’s penis. (Count 7) The accused then said he would show PT how to do it.

Next the accused took PT’s penis into his own mouth. (Count 8) PT felt embarrassed and ashamed as this gave him an erection. It was evident to the court that this event still gives PT great embarrassment.

After the accused had described and demonstrated what to do as described above, the accused then made PT again take his penis into PT’s mouth. The complainant recalled that he was gagging because Br Daniel’s penis was very large. The accused held the back of the complainants head and guided it and the complainant’s mouth onto the accused penis (Count 9). The accused continued to thrust into PT’s mouth before he removed his penis and masturbated to ejaculation.”

27. PT also gave evidence about other incidents involving the Appellant and himself, or the Appellant and other students, which did not form part of the offences charged. I will return to this evidence in due course.

28. Relevantly, PT gave evidence that he complained to his mother about being violently abused by the Brothers at the School. However, he did not recall complaining about the Appellant, who he said had not been very violent. The police did not take a statement from PT’s mother, and she was not called as a witness.

Counts 10–12 (offences involving RE)

29. Counts 10 to 12 related to sexual offences committed against RE. RE was enrolled at the School between 11 February 1980 and 17 July 1981, and was either 12 or 13 years of age at the time of the offending. The school’s records indicate that he was assessed on enrolment as having an IQ of 60 to 73, and was described as “mildly retarded”.

30. In the course of the special hearing, the Crown led evidence from RE about an incident which preceded the alleged offending, but did not form part of any of the counts on the indictment. RE gave evidence that, some months after he began at the School, he had been asleep in his dormitory when he woke to someone rubbing his penis with their hand on the inside of his pyjamas. He did not do anything, as he “didn’t know what to do”. He was unable to see the person touching his penis, and did not recognise them at the time.

31. After describing the above incident, the trial judge summarised RE’s evidence about Counts 10–12 as follows:

“Count 10, Indecent Assault on a Male

The next time RE can recall the same thing happening, he was laying a different way and could see the shape of the robes, and was sure it was Br Daniel who was bending over him. After refreshing his memory from his police statement he told the court that on this occasion he recognised he saw Br Daniel’s face and beard[.] In cross examination he was challenged that he may have been mistaken as to identity but said he was sure it was [Br] Daniel both because he saw him and at that time he was in charge of the quarters in which RE was placed. He was cautious about the identification for the reasons noted above. On this occasion RE ejaculated after being masturbated by the accused who then left. The next day he told the lady who helped with dinner and later a teacher what Br Daniel had done. He denied that he told her about ejaculating to avoid getting into trouble for having ejaculate on the sheets. He denied that the ejaculate was caused by a wet dream.

…

Count 11, Attempt Buggery & Count 12 in the alternative, Indecent Assault on a Male

The next significant memory RE related was when Br Daniel picked him up at the train station, after a weekend home. He had no doubt it was Br Daniel who picked him up. There is no suggestion he could not see him. RE told the accused about a gravel rash injury he had and when they arrived at the School the accused took him to the first aid room, placed him on a bench and took his pants off. Instead of giving medical treatment the accused exposed his erect penis by lifting his coat. He opened RE’s legs and tried to force his penis into his anus. RE demonstrated how he was sitting. The Complainant said that he could feel Br Daniel’s penis touching in the bum and could feel pressure and was in pain in that area as a result. He was terrified and fled the room. He does not recall what the penis looked like other than it was erect and sticking out of Br Daniel’s robes. The event described satisfied the charge of attempted buggery. It was as described a clear attempt by the accused to penetrate the complainant’s anus with his penis, which was erect. The act was unable to be completed as RE fled.”

32. RE gave evidence that he had reported the abuse to a number of others around the time of the offending and in the years since.

Count 13 (offence involving GB)

33. The final count on the indictment was alleged to have been committed against GB, who attended the School from 18 June 1980 to 16 December 1982. He was 13 years of age at the time of the offending. GB gave evidence that he stayed at the School as a boarder during the week and would return home on weekends. School records indicated that he was assessed to have an IQ of 68, and his functioning was described as in the “upper mildly retarded range”.

34. The trial judge summarised GB’s evidence about Count 13 as follows:

“Count 13, Indecent Assault on a Male

… [GB] said he was asleep in his bed when he woke up to the sound of someone next to him, who got into his bed. That person was lying behind GB and he turned his face and could see him, clearly recognising his beard and that it was the accused. His identity was clear in GB’s mind. He said the accused then put his hand inside GB’s pyjamas and took hold of his penis. Once he had taken GB’s penis in his hand, the accused moved his hand up and down causing GB’s penis to become hard. He could feel the accused[‘s] hand on his skin. He felt uncomfortable. The accused continued masturbating GB’s penis for a period of time. Nothing was said. After a couple of minutes, the accused stopped and got out of GB’s bed and then left the dormitory area where GB slept.

…

Apart from the above conduct, there were five other occasions after that where the accused engaged in similar conduct with GB, in the same place. He could recognise it was Br Daniel on each occasion. It was in the same area. There were about 15 boys in the dormitory mainly together in rooms. There were 3 others in his room … . There was no discussion about the event with others.”

35. GB did not make any disclosures about the offending until he was contacted by police in 2011.

Issues regarding reliability and identification evidence

36. At trial and on appeal, an important element of the Appellant’s case was a challenge to the reliability of each complainant’s identification of the Appellant as the perpetrator of the offences. There was evidence that Brothers at the School would frequently engage in violent and sexual behaviour towards students. In essence, counsel for the Appellant contended that, if it were accepted that the alleged acts occurred, the Crown had not eliminated the reasonable possibility that they had been performed by another of the Brothers, and that the complainants had misidentified the Appellant as the perpetrator. Similarly, it was contended that the complainants’ evidence supported a finding that some of the alleged acts occurred in 1981, after the Appellant had left the School.

37. In particular, it was suggested on behalf of the Appellant that there was a reasonable possibility that Mr McGrath had performed the acts alleged. Mr McGrath had taken over running the School after September 1980, when the previous principal, Brother Terrance, had died. There was considerable evidence that Mr McGrath had sexually abused students at the School. Mr McGrath has been convicted of multiple counts of sexual assault against multiple victims. PT and GB both gave evidence that they had been sexually abused by Mr McGrath, and they had both also been complainants in criminal proceedings against him.

38. It is convenient at this point to set out certain of the trial judge’s findings about the reliability and credibility of the complainants’ evidence, together with the key attacks that were made on that evidence at the special hearing, a number of which are sought to be reagitated on appeal.

39. Before turning to discuss each complainant separately, it should be noted that the trial judge made the following relevant findings and observations about all three complainants:

1. after noting that there was no suggestion of collusion between the complainants, her Honour found that there was “no evidence that they knew each other well at the school or have talked since”;

2. in assessing the reliability of each complainant’s evidence, her Honour stated that she took into account the expert evidence of Dr Kasinathan so far as it was relevant; and

3. her Honour took into account the complainants’ “relative cognitive difficulties as observed by the school on enrolment”. Her Honour considered that each complainant’s cognitive disability “[b]y and large … was not a feature that diminished their credibility, as each had different attributes by which their accuracy, reliability and honesty could be tested against other evidence.”

40. The trial judge ultimately concluded that each complainant’s evidence was “capable of being accepted to the high criminal standard”. Her Honour described the evidence of PT as “particularly compelling”, that of RE as “similarly honest and reliable, with some details as to sequence of events seemingly out of place due to passage of time or other issues related to RE personally”, and the evidence of GB as “honest”.

Matters concerning PT’s evidence

41. The issues raised about the reliability of PT’s evidence require some explanation of the police investigation leading to these proceedings.

42. PT made his first statement to police in September 2011. The focus of that statement was on allegations of abuse perpetrated against PT by Mr McGrath. The statement did not refer to the allegations against the Appellant which are the subject of Counts 1–9, but included the following:

“Brother Daniel was a hairy man. He had a beard. I think he was there as a relief brother. I can picture him at night, that he took boys into the same bedroom that Bernard took me and the other boys. I watched him a couple of times. Boys go in there with Brother Daniel when I was lying in my bed at night. He was sexually active as well. By that, he – I mean, he was a man that used to walk around with an obvious erection, sticking out under his robe all the time. I can remember him coming up and rubbing his erect penis against my shoulder or arm.”

43. In cross-examination, PT was questioned about why he did not tell police in 2011 about other allegations of abuse against the Appellant. He said that the police had told him they were “only here to concentrate on Brother Bernard”, and had told him to make a note of other allegations so that “when we get to him … you can put it in your statement.” PT gave evidence that in the 12 months after being interviewed by police, he remembered more details about sexual abuse he experienced at the School. In that time, he created a document titled ‘Incidents and Memories’ which included more allegations about both Mr McGrath and the Appellant. He was also receiving treatment from a psychiatrist at the time. As PT could not write, he dictated the document to his wife who typed it for him. That document was in evidence.

44. In 2013, PT contacted lawyers in relation to a civil claim for damages relating to sexual abuse suffered at the hands of several Brothers at the School. A solicitor’s letter written on behalf of PT in March 2013 identified a series of allegations against the Appellant. A statement of claim was filed in October 2014, which was in evidence. That statement of claim made allegations against the Appellant and Mr McGrath, among several other staff members at the School.

45. In 2017, PT gave the ‘Incidents and Memories’ document to police for use in the trial of Mr McGrath. In February 2018, he made a statement to police in which he made further allegations against the Appellant, which form the basis of the present charges. The existence of certain differences between PT’s 2011 statement and the greater detail in his later evidence was a matter on which counsel for the Appellant placed considerable reliance at the special hearing.

46. After summarising PT’s evidence in chief, the trial judge discussed a number of matters about which PT was challenged in cross-examination and which went to the reliability of his recollection of events. In particular, her Honour referred to the following matters:

1. PT recalled Brother Clegg being at the School for about 12 months when PT was around 10 years old, whereas school records indicated that Clegg worked there much later, after PT had left the School. However, PT did not identify a photo of Clegg in the photo identification procedure, although Ms Threlfo gave evidence that the photo depicted Clegg. The trial judge found that PT “must have the name [of Brother Clegg] incorrect”. Her Honour took this into account when considering the reliability of PT’s evidence, but described it as a “very minor discrepancy” and “irrelevant to the charged offences… or the identification of the accused”.

2. PT recalled that another student, GM, was present immediately before Counts 7, 8, and 9 occurred. However, school records showed that GM was not at the School until June 1981, after the Appellant had left the School. Her Honour found that the evidence about GM being present before the incident “does not negate evidence of what happened later but will be considered with other evidence.” Her Honour considered that “[i]t would be usual for a memory of a traumatic event to be retained, whereas unimportant peripheral details, such as who he was with beforehand … may not be retained with such accuracy.”

3. Similarly, PT recalled that GM was his roommate when the Appellant was at the School. He recalled being punched by GM in the first few months of 1980, when Mr McGrath was in charge. The trial judge found that “[c]learly he is wrong about [this incident] being in 1980”. However, she noted that PT was correct that GM was at the School at the same time as Mr McGrath, and that the presence of GM “does not feature as a part of the detail of the charged offences, as does for example [SL].” Her Honour noted the discrepancy, but found that it “does not diminish in a significant was [scil: way] his accuracy as a whole.”

4. PT gave other context evidence about incidents involving the Appellant and a number of other students, however, three of the students who he named (including GM) were not at the School at the same time as the Appellant. This evidence was to the effect that PT had seen the Appellant cuddling other boys in the TV room or taking them into his room. The trial judge considered that “[PT’s] memory is not always accurate for detail of matters that are of little importance to the charged offences”.

47. The trial judge also made a number of remarks about matters which her Honour considered to support or corroborate the reliability of PT’s evidence, including:

1. the certainty with which PT denied in cross-examination that a photo depicted Mr McGrath;

2. concessions made by PT that he never saw the Appellant smoking and that he could not recall if the Appellant’s penis was circumcised;

3. that at the identification process conducted in 2018, PT accurately recognised a number of photos of the Brothers who used to work at the School;

4. that PT recognised that many of the photos used in the identification procedure were taken at the School, and recognised the backgrounds in some photos; and

5. that PT accurately recalled that the Appellant was only at the School for half of the time that the other Brothers were (during the time PT was at the School).

48. When the trial judge returned to assess PT’s credibility and reliability later in the reasons, her Honour made the following findings:

1. The fact that PT recalled more details about the offending after being interviewed by police, and that he had seen television news stories concerning sexual abuse at the School, did not detract from the credibility of his account. There was no evidence that his memory was implanted or substituted by any therapeutic process or what he saw on television.

2. The process by which PT’s memories were “rekindled” by his interactions with police did not amount to a process of unreliable “recovered memory”, but rather a gradual process of “trying to recall events and details that he had simply not thought about for a long time.”

3. In recalling events, PT differentiated between the Appellant and Mr McGrath not only by reference to their names and appearances, but also their nature. Notably, he recalled that the Appellant was not usually violent and aggressive, whereas Mr McGrath was.

4. PT’s observation that the Appellant was not as violent as other Brothers was a way he was able to differentiate the Appellant from other Brothers who had abused him. The inclusion of this positive observation of the Appellant’s character also supported PT’s reliability and honesty as a witness, as it would not be expected if a complainant were seeking to embellish or fabricate evidence.

5. Although PT was diagnosed with complex PTSD, there was no evidence to suggest that his diagnosis resulted in his evidence being less credible.

49. The trial judge made the following general assessments about the manner in which PT gave evidence:

1. Her Honour was “impressed by the detail of PT’s memory and the effort he made to ensure that his recollections were as accurate as they could be”.

2. PT was able to anchor his memories of who was at the School at particular times by reference to his own age and incidents with particular Brothers.

3. Unlike other complainants, the timing and sequence of events in PT’s evidence was “largely accurate when able to be compared to independent evidence such as school records”.

4. PT’s willingness to amend details of his evidence when he realised a part of it was inaccurate “reinforces a finding as to his honesty and reliability.”

50. Her Honour concluded her discussion of PT by saying:

“I find that by and large PT’s evidence was honest, and [gave] an accurate version of events concerning the charges before the court. I found him to be a reliable witness. He is a credible witness [whose] evidence is capable of acceptance to the required standard, when tested against all other evidence.”

Matters concerning RN/RE’s evidence

51. For present purposes, it is necessary to note two aspects of RE’s evidence which formed the basis of attacks on the credibility and reliability of his evidence. These attacks were repeated on appeal.

52. First, RE gave evidence that he had reported the abuse to a ‘house mother’ at the School (a member of staff), to his own mother, to a family friend, and at a police station (although he could not recall where the station was). However, there was no corroborating evidence to support these disclosures. The family friend had died some 20 to 30 years before the special hearing. Relevantly, Detective Sergeant Payton gave evidence that police had contacted RE’s mother in 2011, and she told them that RE had never disclosed being sexually abused, although he had come home with bruising and complained of physical assault by one of the brothers. RE’s mother was not called as a witness. The majority of the former ‘house mothers’ and other staff were deceased, and others had previously indicated that they were not aware of any abuse.

53. In cross-examination, RE was questioned about what he had told his mother at the time of the alleged acts. He said that he told his mother about both the physical and sexual abuse perpetrated by the Appellant. He said that his mother did not believe the allegations of sexual abuse, but that she acted on his complaint of violent punishment conducted by Mr McGrath. In his statement to police, RE said that he had fallen out with his mother, and had not spoken to her in years.

54. Second, RE gave evidence about two occasions on which he had smashed windows at the School. He said that one occasion he “smashed all the windows in the school” after the Appellant “tried doing it to [him]” in the church. On another occasion he said that he smashed windows and the School sent a bill home to his mum to pay for the damage. In cross-examination, he said that he left the School a few weeks after he broke the windows the second time. He agreed that it would have been in June or July 1981.

55. Third, in his statement to police, RE said that the conduct which formed the basis of Count 10 occurred “about 12 months after [he] arrived at the school”. In cross-examination, when asked if he agreed with that statement, RE said, “Could’ve been, I can’t remember, but yeah”. If this estimate were accurate, it would have placed the alleged offending in approximately February 1981, after the Appellant’s departure from the School (which was in mid-December 1980).

56. Her Honour made the following findings and observations relevant to RE’s recollection of events:

1. RE accurately recalled the names of a number of other students who attended the School at the time that he was there. His recollection was consistent with school records.

2. Although RE’s “memory as to detail, especially of dates and putting names to faces [was] somewhat lacking”, his “recollection of the detail of a number of events was vivid”.

3. RE recalled the Appellant and Mr McGrath, and gave accurate descriptions of their appearances. When asked to identify photographs he “became confused in putting names to faces.” Her Honour noted “[t]his limitation in his ability to identify images”, but found that “his physical descriptions coincide with photographs identified by others.”

4. In oral evidence, RE frequently asked to refresh his memory by referring to a statement he had given to police in September 2011, particularly in relation to questions about dates.

5. In the course of the identification process conducted in 2018, “it was obvious that [RE] was unsure of names”. He displayed confusion in identifying a photo of Brother Terrance, at one point appeared confused about “whether he meant [Brother] Daniel or [Brother] Bernard”, and did not identify any pictures of the Appellant.

57. In cross-examination, RE was questioned at some length about the dates when particular events occurred. The trial judge found that RE had difficulty recalling the dates of events, but her Honour was nonetheless satisfied that the chronology of his evidence could be established by reference to other known events. For example, after noting that Mr McGrath took over the running of the School from September 1980, the trial judge said the following:

“RE recalled being flogged by Br Bernard for throwing food at Br Daniel, which it transpired he said he did after Br Daniel first tried to sexually abuse him. This places the timing of the first alleged event of abuse in a time when Br Bernard was in charge and both were at the school. This form of recollection is more likely to be accurate than RE trying to recall when he was in particular rooms. This is a particularly relevant observation considering the nature of cross examination when RE was asked to agree that particular time frames estimated in his memory could be exactly related to particular months. As noted above RE did not have a good grasp of times frames or months, or even years. Suggesting to this witness that an event occurred in a particular month and suggesting as counsel does that this is a significant reason to reject his evidence is flawed reasoning. RE’s difficulty with dates was obvious from the very commencement of his evidence.”

58. To similar effect, her Honour later said:

“[RE] anchored the events in his memory to it being Br Daniel who perpetrated the abuse by recalling that Br Bernard became more violent at about the time he took over from Br Terrance. RE said that shortly after that time he started becoming angry because of the sexual abuse by Br Daniel. He started acting out toward Br Daniel with resulting physical punishment by Br Bernard. This clear and logical sequence of events are tied to each other in a time frame in his recollection. His evidence is to be assessed with this understanding.”

59. As has been noted, RE gave evidence that he had reported the abuse to several people, including his mother. The trial judge observed that “no evidence was able to support” these disclosures, and that RE’s mother had told the police that RE had made complaints of violent abuse but not sexual abuse. Her Honour said that this fact was “not particularly relevant to the charges before the court, except to confirm that he did complain of physical abuse.”

60. After discussing a number of matters going to the reliability of RE’s recollection of events, the trial judge said the following:

“The court is able to conclude that RE was very sure who his assailant was at the time the events occurred. There is no room for doubt. This recollection would not be expected to diminish over time. RE had a vague memory of dates and not much recollection of how long he was at the school when particular events occurred. This lack of accurate memory as to dates did not diminish his credibility as to the events. The dates when RE was at the school are able to be established by alternative means.”

61. Her Honour ultimately made the following assessment of RE’s evidence:

“[I] find his evidence was honest and reliable as to the events complained of. The accuracy is doubted as to dates, but other evidence is available.”

Matters concerning GB’s evidence

62. GB gave evidence that while at the School he was sexually abused by Mr McGrath, as well as by the Appellant. He had previously given evidence in criminal proceedings against Mr McGrath.

63. In his police statement, given in 2011, GB described the timing of the alleged acts in a way which was inconsistent with the School’s records of when the Appellant was at the School. At the time of giving the police statement, GB was not sure what year he had started at the School. School records showed that he had started on 18 June 1980 (as was agreed by GB in cross-examination).

64. Much of the cross-examination of GB took the form of counsel taking GB to various paragraphs of his police statement, and putting various propositions from the statement to him. It should be noted that GB agreed to essentially every proposition put to him in cross-examination. In this manner, GB agreed that he lived in Mr McGrath’s dormitory for the first 10 to 14 months he was at the School, and that he moved into the Appellant’s dormitory about two months before leaving the School. Given that school records showed he finished at the School on 16 December 1982, he agreed that he would have moved into the Appellant’s dormitory in about October 1982. The obvious difficulty with this evidence was that, if this timing of events were accepted, GB’s evidence was that he moved into the Appellant’s dormitory well after the School’s records showed that the Appellant left the School.

65. GB gave evidence that he was also sexually abused by Mr McGrath while he was staying in the dormitory which Mr McGrath supervised. After reading from his statement, he agreed that this abuse started about two months after he arrived at the School. He agreed that it happened at night, and that Mr McGrath would get in the bed behind him and reach over to masturbate him. (This was essentially same modus operandi as Count 13 alleged against the Appellant: see [34] above.) GB agreed that Mr McGrath abused him in this way about six times over a period of about 8 to 12 months. After a period of time the abuse became anal intercourse, which went on for another 4 to 6 months.

66. GB agreed that the room where he was abused by the Appellant was dark at night, and that he did not see the Appellant leave after the abuse occurred.

67. The trial judge made the following observations about GB’s evidence:

1. She gained the impression that he was “really unsure about actual dates and time frames but more reliable when reference was made to sequences of events, and the rooms in which events happened, by reference to photographs.”

2. His visual memory of faces appeared quite good, when compared to his memory of timeframes. He accurately identified a number of photos of people who had been at the School.

1. Having regard to his physical descriptions of the Appellant and Mr McGrath, GB was “well able to differentiate between the 2 brothers and also able to [differentiate] who was in which building.”

2. In the course of the identification process conducted in 2011, GB identified the photo of the Appellant taken around the time of the offending, but was unsure about the photo of the Appellant when he was younger (in which he was clean shaven). He also accurately identified a number of photos of other Brothers, including Mr McGrath, as well as and the main building where he was abused by the Appellant. Her Honour considered that “GB’s ability to recognise faces is accurate and this reinforces his reliability”.

3. GB recalled being relieved that the Appellant only sexually abused him by masturbating him rather than anally penetrating him as did Mr McGrath. Her Honour considered this detail important in assessing GB’s credibility, and remarked that “[i]f he was embellishing his evidence there would be no reason for him to make this concession.”

68. Her Honour made the following remarks about inaccuracies and inconsistencies in GB’s evidence:

1. GB recalled that he started at the School at the beginning of 1980 and stayed for two years. However, this recollection was inconsistent with school records, which showed that he commenced at and departed the School some six months later than he remembered. Her Honour considered that this observation must be kept in mind when assessing GB’s evidence about the timing of events.

2. GB’s original police statement was “inaccurate as to matters of timing”. When the time frames from his police statement were put to him in cross-examination, GB repeatedly answered “yes”. In light of GB’s faulty recollection of when he started at the School, her Honour considered that “[t]he usefulness of having him agree to these time frames that commence with an inaccuracy is therefore questionable”.

69. Her Honour found that, while GB said he had always remembered the events in question, “his recollection of dates [was] not accurate”. Notwithstanding these inaccuracies, she considered that GB’s evidence was corroborated by other evidence, noting that:

1. the dates the Appellant and GB were at the School coincide, as revealed by the School records;

2. GB’s recollection of where the abuse occurred was consistent with other evidence of the layout of the School and the areas that the Appellant supervised;

3. in his evidence about Count 13, GB recalled seeing the Appellant’s beard as he got into bed, reinforcing his identification of the Appellant (see [34] above).

70. Her Honour ultimately concluded that:

“The evidence of GB is honest. Its accuracy and reliability [are] in question as to the date range in which certain events occurred, not that they did occur. Reference to other evidence is required to establish the date range for the charged office concerning GB. That evidence is readily available.”

Other observations about identification and tendency evidence

71. Under the heading “Identification Summary”, the trial judge addressed a number of other matters arising from the photo identification procedures and the use of identification evidence. Her Honour said the following:

“… both PT and GB identified Br Daniel from the array of 20 photos provided by Police from archives and random internet downloads. The photographs were taken at obviously different places and times, of a series of people at school or casual settings … There were 20 photographs 9 of which showed men in religious clothing or displaying religious paraphernalia, as far as I am aware of the catholic faith. Most were in colour. Although the photos were not a typical photo array as might be provided for police identifications, they were in my opinion better that could be expected for an identification of this type … Some photos were of B[r]others at the school some were of other unknown brothers or priests … The observation that he was only one [with] a full beard is irrelevant. One other had a beard shadow as pointed out to PT. The two boys who identified Br Daniel identified both the full beard photo as well as the younger clean shaven photo.

I acknowledge that special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of in circumstances such as this. I approach this evidence with the knowledge of experience of the criminal courts over the years which demonstrates that identification evidence may turn out to be unreliable. I acknowledge in the context of this case that the identification was of a person that they may not have seen for many decades, but one who many years ago they have ample opportunity to observe and interact with. The photos were of that person when they knew him. The fact that the accused was the only one with a full beard in the photos is a matter that I take into account, but I have commented on the certainty with which those who did identify this photo made that identification …

Each complainant nominated the perpetrator as being Br Daniel. Each complainant was able to differentiate the abuse by other Brothers and the abuse by Br Daniel, both as to the nature of the abuse (GB); who was in charge of the dormitory at a particular time (RE); the fact that there was only 1 Br Daniel (all 3).

…

Each of the three complainants recalled that Br Daniel had a beard, with PT and GB both recalling the beard as being a factor of recognition when the abuse was occurring. Both say that as far as they can recall, Br Daniel was the only Brother at the school who had a beard all the time. RE had difficulty putting names to photos in general. He however described him as having both dark hair and a dark beard.

…

Each of the complainants independently nominates the sexual offending as having occurred in the same dormitory building, and that at the time of the sexual offending Br Daniel was the dormitory master for that building.”

72. The trial judge found that the tendency relied upon by the Crown was made out (see [23] above). In terms of her Honour’s use of the tendency evidence, her Honour said, “[i]n the context of this case the tendency relied upon by the Crown simply assists in the sequence evidence of RE and GB.” To similar effect, she said, “[t]here is no other issue in the case to which it is relevant, but it may counter any suggestion of uncertainty as to timing.”

The first ground of appeal

73. The first ground of appeal is to the effect that the special hearing miscarried because of the failure of defence counsel to adduce evidence of the Appellant’s good character.

74. At the special hearing, defence counsel did not adduce any oral or documentary evidence for the purpose of proving that the Appellant was a person of good character pursuant to s 110 of the Evidence Act. Following the conclusion of the special hearing, in response to an email containing an agreed statement of facts, the Associate to the trial judge sent an email to the parties which contained the following:

“Thank you for the email attaching Agreed Facts.

The court notes the omission of good character submissions yesterday. Please advise if that was intentional.”

75. Defence counsel responded the following day:

“yes, we did not intend to raise character. I have copied [Crown Prosecutor] and [appellant’s solicitor] in to this reply.”

It is clear from this exchange that the decision not to adduce evidence of the Appellant’s good character was a deliberate one.

76. On appeal, Mr Phillips (who appeared for the Appellant) sought to impugn this decision, contending that it deprived the Appellant of the chance to obtain a fair trial. In particular, he submitted that counsel below ought to have adduced evidence of the Appellant’s lack of criminal antecedents, together with evidence of his “excellent character and reputation in the community”.

77. In this context, Mr Phillips referred the Court to a number of character references which were tendered in proceedings on sentence in the District Court. It should be noted that these references were all obtained after the special hearing, in October 2021, and therefore could not have been tendered at the special hearing as evidence of the Appellant’s good character. It can be inferred that these references are relied upon as illustrations of the kind of good character evidence which could have been adduced by defence counsel at the special hearing, had he decided to do so. It should be noted, though, that all but one of these references were based on the referees’ knowledge of the Appellant many years after the incidents the subject of the charges.

78. It has been said on many occasions in this Court and in the High Court that, generally speaking, parties are bound by the conduct of their counsel at first instance: see eg TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 (TKWJ) at [74]; Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9 (Nudd) at [9]; and JV v R [2017] NSWCCA 49 (JV) at [97].

79. Where an accused seeks to argue that a miscarriage of justice has arisen from a decision by trial counsel not to lead certain evidence, one very important consideration will be whether the impugned act or omission by trial counsel can be characterised as a rational tactical or forensic decision. As was said by Kiefel CJ and Keane J in Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 (Orreal) at [16]:

“Save for exceptional cases, in our system of justice, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding matters such as what evidence to lead or have excluded. It is usually only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision that consideration will be given to whether it gave rise to a miscarriage of justice.” (citations omitted.)

See also Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 at [23].

80. To similar effect, in TKWJ (in which the High Court considered and rejected an argument that the failure by trial counsel to adduce good character evidence gave rise to a miscarriage of justice) Gleeson CJ said at [16]:

“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations.”

81. In that case, Gaudron J emphasised at [27] that the question of whether a rational forensic justification exists for a decision by trial counsel is to be assessed objectively:

“One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.”

82. In JV, N Adams J (Leeming JA and Fagan J agreeing) reviewed a number of appellate cases where the failure to adduce evidence of good character was found to have given rise to a miscarriage of justice, including De Silva v R (2013) 236 A Crim R 214; [2013] VSCA 339; Clay v R (2014) 245 A Crim R 470; [2014] VSCA 269; Sharma v R [2011] VSCA 356; R v DBB [2013] 1 Qd R 188; [2012] QCA 96; and GZ v R [2015] ACTCA 11. Her Honour then went on to say (at [118]):

“A miscarriage of justice will only be established on the basis of a failure to adduce evidence of good character if no rational basis can be gleaned from the transcript of the proceedings for failing to do so.”

83. In reliance on these authorities, Ms Roberts SC (who appeared for the Crown) argued that the decision by the Appellant’s trial counsel not to adduce evidence of good character was a rational forensic decision, as to do so would have permitted the Crown to adduce rebuttal evidence. In particular, Ms Roberts pointed to evidence of hospital records from 1984, which indicated that the Appellant received “behavioural treatment for a long standing sexual problem”. In those records, the treating doctor’s handwritten notes recorded that the Appellant had reported experiencing “[p]ederasty impulses since age 15–16” and had “v[ery] little control over the impulses”. They also recorded that, from age 13, the Appellant “had sexual relations with other young boys the same age”, before having heterosexual relations with women from around 16–17.

84. The Crown Prosecutor at trial had indicated an intention to adduce the hospital records in opening written submissions. However, the evidence was ultimately not adduced, as it became clear that it had not been served on the Appellant before the special hearing and had not been referred to in the Crown’s tendency notice. On appeal, Ms Roberts contended that, although the hospital records could not be relied upon as tendency evidence (because of the failure to comply with notice requirements), they would nevertheless have been available as rebuttal evidence if defence counsel had led evidence of the Appellant’s good character (see Evidence Act, s 110(2)-(3)). As a consequence, it was submitted that the decision by defence counsel not to lead evidence of the Appellant’s good character was a rational forensic decision.

85. In response, counsel for the Appellant contended in oral argument that the hospital records would not have been admissible as rebuttal to the putative good character evidence. He submitted that the hospital records were only capable of establishing that the Appellant had a history of same sex attraction to children while a child himself, and that there was “nothing [in the records] about non-consensual relationships”. He also submitted that, in the context of the 1980s, the reference in the hospital records to a “sexual disorder” may have merely been a reference to the Appellant’s homosexual attraction. He therefore contended that the evidence did not go to the Appellant’s character, and would only have been relevant for a tendency purpose.

86. There may well be room for debate as to whether the hospital records directly bore upon or would have been admissible to rebut evidence to the effect that the Appellant was a person of good character within the meaning of s 110 of the Evidence Act. Notwithstanding that the term “pederasty” (as used in the doctor’s notes) is typically used to refer to relationships between adult men and boys, the notes only expressly refer to the Appellant having sexual relations with children while he himself was also a child. It may also be doubted whether evidence of a person’s sexual impulses, absent any suggestion that he or she has acted on those impulses, could by itself be considered to go to their good or bad character.

87. It is not, however, necessary or desirable to decide the evidentiary question raised by the Appellant’s argument, namely, whether the hospital records would have been admissible as rebuttal evidence.

88. The High Court considered a very similar argument advanced on behalf of the appellant in TKWJ. In that case, the appellant had been charged with sexual offences against two children, C and K. Separate trials were conducted. At the first of the two trials, which concerned the offences relating to C, counsel for the accused indicated that he intended to adduce evidence of the accused’s good character. Counsel for the Crown replied that, in that event, he would then seek to call K to give evidence about the allegations relating to her, in order to rebut the accused’s good character evidence. Defence counsel ultimately elected not to rely on good character evidence. As has been noted, the Court found that no miscarriage of justice arose from that decision by defence counsel at trial.

89. Before the High Court, the appellant argued that his trial counsel ought to have sought a pre-trial ruling from the trial judge on the question of whether, if the defence case were to include evidence of good character, the Crown would be permitted to lead evidence from K in reply. In addressing this argument, Gleeson CJ said the following at [11]–[14]:

“… In undertaking the artificial exercise, required by the appellant’s argument, of considering, after the event, whether the trial judge would have given a ruling in advance, and what that ruling might have been, it is necessary to bear in mind that much might have turned upon exactly what the character evidence was going to be. Without knowing what the witnesses to be called on behalf of the appellant were going to say about his disposition or behaviour, a judge would presumably find it difficult to anticipate the potential significance of the evidence of K. Furthermore, bearing in mind the allegation of collusion between C and K, any ruling may well have required an extensive investigation, on the voir dire, of the evidence of C, and K, and their mother. Indeed, it could have required a rehearsal of a substantial part of the evidence that would be given in front of the jury; something that would not necessarily have been to the appellant’s ultimate advantage. And it would have required the assumption that the evidence before the jury would not be materially different from the evidence on the voir dire. That serves to underline the tentative nature of any possible ruling.

In the Court of Criminal Appeal, James J, with whom Sheller JA agreed, said:

‘In my opinion, it is not possible for this Court to say any more than that, if an application for a ruling had been made, the trial judge might have made, but might not have made, a ruling favourable to the appellant.’

…

Let it be assumed that it would have been possible for trial counsel to have sought a ruling in advance. It is possible that the trial judge might have agreed to give such a ruling. It is possible that any such ruling might have been to the effect that, subject to the course of evidence at the trial, the trial judge would be disposed to exclude the evidence of K if the prosecution called her as a witness. These layers of speculation demonstrate nothing more than that the trial could have been conducted differently.”

90. Although the present appeal did not involve a suggestion that trial counsel ought to have sought a pre-trial ruling, the remarks of Gleeson CJ extracted above are entirely apposite to the argument advanced by the Appellant. To attempt to determine, in the hypothetical, whether the trial judge would have admitted the hospital records in rebuttal would be an entirely artificial exercise. More importantly, whether the decision by the Appellant’s defence counsel not to adduce evidence of good character had a “rational forensic justification” does not turn upon this Court’s assessment of whether the trial judge would or would not have admitted the hospital records in rebuttal. It is sufficient that defence counsel’s decision was capable of being justified by a rational apprehension that there was a risk of exposing the Appellant to damaging adverse evidence in rebuttal (whether in the form of the hospital records or some other rebuttal evidence).

91. In this context, it may have been the case that trial counsel formed the view that the good character evidence would be of limited benefit to the defence case, especially if it did not relate to the time period of the alleged offending. The extent to which evidence of good character will assist a person accused of child sexual assault offences of the kind alleged in this case may be legitimately open to question. While the forensic value of good character evidence will inevitably turn on the nature and importance of that evidence in all the circumstances of the case, it may be accepted that there is now greater community recognition that persons who are otherwise thought to be of good character may commit offences involving child sexual assault: see JW at [122]. Counsel for the Appellant did not point to any reasons why, in the circumstances, evidence of good character would have been of particular importance to the defence case, such that it would necessarily have outweighed the potential prejudice of adverse rebuttal evidence.

119. As to the issue of delay, there is no reason to conclude, contrary to the Appellant’s submissions, that the trial judge, in forming her views as to the reliability and credibility of the three complainants, was not mindful of the effect of the long delay between the incidents the subject of the charges and the time at which they gave their evidence, and the forensic disadvantage experienced by the Appellant arising from that lengthy delay: see Pell at [91]. That point was no doubt self-evidently obvious to the trial judge, as it is to me in conducting my independent review of the evidence. But it may be noted that the trial judge expressly referred to disadvantage consequent upon delay in a section of her judgment entitled “Forensic Disadvantage”.

120. It is convenient to deal with the various discrete attacks on the verdict in respect of each complainant, with particular emphasis upon alleged inconsistencies in relation to questions of timing. In addition to written submissions, the Appellant provided a supplementary document titled “table of key evidence and inconsistencies at hearing”, which included a list of extracts from the complainants’ oral evidence, together with annotations drawing attention to various asserted inconsistencies (most of which related to questions of chronology and timing). The majority of these asserted inconsistencies were not further addressed in written or oral submissions. Particular emphasis was placed on the following matters:

• PT’s evidence that another boy, GM, was present on a number of occasions when the Appellant was alleged to have sexually assaulted him even though GM did not commence at the School until some time after the Appellant had left;

• RE’s evidence in relation to window smashing, which was said to have been linked in time to an assault by the Appellant, in circumstances where it was submitted that the window smashing occurred in 1981, some 6 months or so after the Appellant had left the School; and

• GB’s evidence that his assaults by the Appellant occurred some 10 or so months after he started at the School, in circumstances where GB did not in fact start at the School until mid-June 1980 and the Appellant left at the end of 1980.

Criticisms in relation to acceptance of evidence of PT

122. PT gave evidence that another boy, GM, was present immediately before Counts 7, 8 and 9 occurred. This is referred to in the trial judge’s reasons summarised at [46(2)–(3)] above. GM was at the School between 9 June 1981 and 29 February 1984, overlapping with PT until he left in December 1982.

123. It is necessary to set out some of the evidence that PT gave about GM. It was not as absolute as the Appellant’s submission might suggest. In evidence in chief, PT said the following:

“Q. How was it that you came to initially have his penis in your mouth? What can you remember about how that, sort of, all started?

A.   I think he was talking to me about the birds and the bees, and all that sort of thing. I don’t know – I have a distinct memory I was wrestling with someone. I think I might’ve been playing on the floor with a boy, and he came and broke us up, I think. I think he came and broke us up, we were – I think [GM] was doing a sexual wrestle on me. He used to play out on me what Brother Bernard did to him. I think I was under my bed if I remember rightly.

Q.   All right. We might just–

A.   And he–

Q.   Yes, and then?

A.   And then [GM] was trying to pull my pants down and dry hump me, because he used to do that. We’d start off wrestling, then it would change into a sexual wrestle. I think Brother Daniel came in and busted us, and he pulled us apart, and then he took me away. And that’s when it all started.

Q.   If you think back, as accurately as you can recall, what happened that led up to his penis, like immediately before, ending up in your mouth?

A.   I think I might’ve been masturbating him.

Q.   That’s okay, if you can’t recall, I’m not going to push you. Your Honour – so the sequence, if I’ve got this correct [Mr T] was that you had his penis in your mouth. Is that correct?

A.   Yes. First, he did it to me. He somehow got me to suck his penis, and I think there was a bit of – something happened before it, but I can’t recall exactly what it was. I think he might’ve been kissing and cuddling me first, and it might’ve led to some fondling and touching. There was something like that. I think I might’ve been playing with his willy. And then it got involved to anal sex, where he got me to suck his willy, and then I was choking. And I think I might’ve bit him with my teeth, and then he stopped me and pulled his penis out of my mouth. And then he showed me how to do it and what it was. All I really remember when he did it, it was like a sensation I’d never felt, and I know I liked it and enjoyed it because it sticks in my mind. And it was my first sexual experience I ever had that I actually enjoyed. And it felt warm, wet, sloppy, nice. And then he’s asked me if I liked it, and I remember saying “it felt good”. And then he said “well, this is how you do it, now do it to me and don’t use your teeth, you’ve got to suck and move your head backwards and forwards”. But I didn’t get to move my head backwards and forwards, he held my head and virtually thrusted in and out of my mouth. And all I can remember is hurting my jaw and gagging while he did it. It was like he was half choking me while he was doing it. And I was on the verge of throwing up while he was doing it, because he was pushing it right down the back of my throat.” (Emphasis added)

124. The portion of this evidence which has been emphasised illustrates initial but clear tentativeness on PT’s part as to the identity of the boy with whom he was wrestling prior to the Appellant entering the room. That same lack of certainty as to the identity of the boy with whom PT was wrestling is evident in the following question and answer while PT was under cross-examination:

“Q.  Do you recall or don’t you recall a time when [Brother] Daniel broke up a fight between you and [GM] and then took – as I understand the suggestion – both of you into his room and there was kissing and cuddling? Nothing else is being suggested at this stage.

A.   I can’t remember, your Honour.”

125. The lack of certainty to which reference has been made may be contrasted to the detailed recollection towards the end of the passage extracted in [123] above. The trial judge’s advantage of hearing and seeing PT was particularly strong, given that his evidence ran over the course of two days and was far lengthier, for example, than the relatively brief evidence of GB (discussed in more detail below). It may also be observed that elsewhere in PT’s evidence, he said that GM was his roommate when PT first arrived at the school, and that GM was at the School before PT arrived and remained there after he left. This recollection was clearly incorrect: as has been noted, school records show that GM arrived at the School in June 1981, after PT had been there for some time. This fact supports a conclusion that PT’s recollection of GM and the period he was at the school was faulty, and cannot be relied upon to support a finding about when the alleged incident occurred.

126. On my own assessment of the transcript of PT’s examination and cross-examination, and having regard to the advantages of the trial judge in considering the entirety of PT’s evidence, I am not satisfied that PT’s references to GM in the context of the evidence relating to Counts 7, 8 and 9 give rise to a reasonable doubt about the accuracy of his identification of the Appellant as his abuser. Similarly, I am not satisfied that the other timing inconsistencies raised in the Appellant’s “table of key evidence and inconsistencies” document, such as PT’s brief references to other boys who were not at the School at the same time as the Appellant, give rise to any such reasonable doubt. Those references were not made in the context of the alleged offences, and PT did not give evidence of specific occasions on which he recalled the Appellant abusing or being in the same place as the boys in question.

127. Nor does the fact that PT made relatively brief reference to the Appellant in his first police statement in 2011 generate doubt in my mind about the accuracy of PT’s evidence. PT elaborated on his evidence in relation to the Appellant in a subsequent police statement and explained that the police’s focus in the first statement was on McGrath, who was the subject of a criminal trial and who was subsequently convicted. The trial judge accepted this explanation and enjoyed the significant advantage of hearing and observing PT’s evidence in this regard, as well as more generally.

128. Important in that regard was a letter from PT’s solicitors to the solicitors for the Catholic Church in March 2013 in which allegations were made in relation to various alleged assaults committed on PT by the Appellant during his time at the School: see [44] above.

129. Finally, the Appellant contended that the trial judge ought to have entertained a reasonable doubt about the Appellant’s guilt in light of the Crown’s failure to call a number of witnesses who may have been able to support or contradict PT’s account. These witnesses were SL (a student who PT said was present at the time of Count 3), PT’s mother, to whom he said he had made a complaint about violence at the School, and GM.

130. In Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 (Mahmood) at [27], the High Court held that in a criminal trial:

“… where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.”

131. As to SL, any suggestion that the failure to call him as a witness gave rise to a miscarriage of justice, or to a reasonable doubt about the Appellant’s guilt, must be rejected. Although the Crown Prosecutor at the special hearing decided not to call SL as a witness, he offered to make the witness available to give evidence if the defence wished to call him. During a discussion about the logistics of calling SL, who was in custody, the following exchange took place:

CROWN PROSECUTOR: There is one – Mr [SL] … is obviously explicitly mentioned in the evidence of [PT] and in fact as being present – he is currently in custody, and I have had some discussions with my learned friend. The Crown does not propose to call him as a witness to give evidence on the Crown case but has offered to make him available to assist. I think defence are going to get back to the Crown about that.

…

LOOMES: We don’t want him.

HER HONOUR: Okay. If you change your mind and we find out where he is being held and his wing number, what I was going to suggest is, I might issue a s 77 order to bring him in so he can be spoken to.

CROWN PROSECUTOR: Yes. Otherwise an AVL link could always be established if we can’t get him present at court.

HER HONOUR: But an AVL not for Court, for private conversation – but if you don’t want him, you don’t want him.

LOOMES: No, I don’t want him.”

132. In this context, it is helpful to recall the repeated statements of high authority to the effect that parties are bound by the conduct of their counsel at first instance: see [78]ff above. More importantly for present purposes, and having regard to the statement of the High Court in Mahmood, the lack of evidence given by SL does not lead me to entertain any reasonable doubt about whether the Appellant committed Count 3. For the reasons I have given, the evidence of PT is itself capable of establishing the Appellant’s guilt for Count 3 beyond reasonable doubt.

133. Similarly, the failure to call PT’s mother does not give rise to reasonable doubt about whether the Appellant committed the offences involving PT. PT’s evidence was that he told his mother about being beaten and bullied at the School, but that he did not complain about the Appellant because he was not particularly violent. He did not give evidence that he complained to his mother about sexual abuse at the School, and he said that he generally didn’t speak to his parents about things “of a sexual nature” because he was “too ashamed”. In these circumstances, it is difficult to see how the evidence from PT’s mother could have been material to the issues in dispute at the special hearing. The absence of her evidence does not give rise to a reasonable doubt about the Appellant’s guilt.

134. As to GM, the agreed fact that he was not at the School in 1980 in my view obviated any need on the part of the Crown to call him as a witness. Further, unlike SL, GM was not said to have been present during any of the acts of sexual abuse, but was only in the dorm before the acts constituting Counts 7, 8 and 9 occurred.

135. To the extent that an attack is made on the trial judge’s process of reasoning (which did not fit squarely within the ground of appeal as formulated), it should be noted that her Honour clearly took into account the fact that certain witnesses were not called. After noting that a number of witnesses including SL and GM were not called, her Honour said:

“I must and will not speculate what those witnesses might have said had they been able to be located or called. It is a further disadvantage that the accused has had in being able to challenge the prosecution case. This fact reinforces the need for this court to scrutinise the evidence of each complainant in the manner set out above.”

The approach adopted by her Honour in this regard was entirely appropriate.

Criticisms in relation to acceptance of evidence of RE/RN

136. Much emphasis was placed in oral argument upon RE’s evidence in relation to his breaking of windows referable to alleged abuse by the Appellant, with it being submitted that the windows were broken by RE in 1981 shortly before he left the School. If this were correct, given that the Appellant himself left the School in late 1980, it would have followed that RE was mistaken as to who it was that assaulted him and triggered his outbreak resulting in the broken windows.

137. A proper consideration of the evidence discloses that, as the trial judge found, there were in fact two occasions when RE lashed out and broke windows in the school premises: see [55] above. This can be seen, for example, in the following extract of RE’s cross-examination in which he was being asked questions about a statement that he had made to the police:

“Q.  In the statement you said you were expelled a few weeks after breaking the windows.

A.   Yeah, I think I was expelled as far as I know.

Q.   So when you were expelled you said in the statement it was a few weeks after you broke the windows. Is that correct?

A.   Yes, yeah the second time, yeah.

Q.   And if I put to you from the records that your last day of school was 17 July 1981 then do you agree that it must have been either in June or July 81 that you smashed the windows?

A.   Something like that it could have been.”

138. In this passage, the cross-examiner’s questions are predicated upon there only being one window-smashing incident but RE plainly asserts, consistent with evidence that he had given in his police statement, that there were two episodes of window smashing.

139. So much was also clear from an earlier passage of RE’s evidence in chief which was relied upon by the Crown on appeal in answer to this aspect of the Appellant’s submissions. The relevant passage of evidence was as follows:

“Q.   … in 2011, you told the police that after the time when Brother Daniel tried to do something that that was an occasion when you got off the table, picked up a chair, took to him with the chair and then–

A.   Yeah, that was down in the church in–

Q.   What can you remember about that incident down in the church?

A.   Down in the church, he tried doing it to me there. I picked up a chair. I took to him and then after taking to him, I took to the windows on every – every classroom as well as back to him so he would know not to touch me again and the other kids.

Q.   You also described to the police how you smashed the windows on a different occasion in 2011 but that wasn’t because of Brother Daniel.

A.   No, I did that because I wanted to do that. That was my way of treating them back after they – what they’d done to me the first time.

Q.   After the second time you smashed the windows, how long did you end up staying at the school after that?

A.   They didn’t really want me there. They wanted me out of there.

Q.   Did you end up staying there?

A.   I was there for a period of time until I basically didn’t go back.”

140. There plainly would have been force in the Appellant’s submission if there had only been one “window smashing” episode which was proximate in time to RE’s departure from the School in mid-1981. This would have been because a window smashing incident occurred, on RE’s evidence, not long after the “gravel rash” incident which was the subject of Counts 11 and 12 (see [31] above). Under cross-examination, RE agreed that he did the “smashing because [he was] not going to put up with two incidents that were so close together – that is gravel rash and the church incident”.

141. The Appellant’s submission lacks force, however, when it is appreciated that, as with the questions put to him in the passage extracted at [137] above, it wrongly conflates two window smashing episodes into one, and associates the “one” incident with RE’s departure from the School in 1981.

142. A further attack on the reliability of RE’s evidence concerned the fact that, as explained at [55] above, RE’s statement to police stated that the conduct comprising Count 10 occurred about 12 months after his arrival at the School. If that were the case, the offending would have occurred around February 1981, some two months after the Appellant had left the School. When asked in cross-examination if Count 10 occurred about 12 months after he started at the School, RE gave an equivocal answer: “Could’ve been, I can’t remember, but yeah”. By sub-ground 3(c), the Appellant alleges that this amounted to “uncontested evidence of RE that the offending must have happened in 1981, after the appellant had left the school.”

143. This argument should be rejected. As has been noted, RE’s answer in cross-examination was far from certain. His agreement to the question put to him, if it can be considered an agreement, was prefaced by the candid concession that he could not remember. That he could not remember the month of the incident in question is hardly surprising given the length of time that had passed since the events about which he gave evidence. The trial judge observed on many occasions in her reasons that RE’s memory as to dates was vague: see [56]–[61] above. In these circumstances, it is a stretch of language to describe RE’s response that the incident “[c]ould’ve been” 12 months after he commenced at the School as “uncontested evidence … that the offending must have happened in 1981.”

144. I do not consider this very minor inconsistency to undermine the reliability of other aspects of RE’s evidence. As was implicit in the reasoning of the trial judge, the acceptance of the credibility and reliability of a witness’ evidence for some purposes does not necessarily amount to an acceptance of every aspect of their evidence (particularly in circumstances where a lengthy period has passed since the events in question). Having reviewed the evidence, I agree with the observations of the trial judge to the effect that the chronology of RE’s evidence is capable of being matched with the period of the Appellant’s presence at the School by reference to other known events, such as the death of Brother Terrance: see [57]–[58] above. In the circumstances, a disparity of two months, which was not embraced by the witness in cross-examination and which concerned events some 40 years ago, does not taint or compromise the reliability of other aspects of RE’s evidence (in particular, his identification of the appellant as the perpetrator of the sexual abuse).

140. For these reasons, the attack on the reliability of RE’s evidence fails. On a review of all the evidence, and bearing in mind the principles outlined at [113]–[114] above, the Appellant’s arguments about various asserted inconsistencies in RE’s evidence (including those matters raised in the Appellant’s “table of key evidence and inconsistencies” document) do not generate a reasonable doubt about whether the Appellant committed Counts 10–11. In that context, I would add that the failure of RE to identify the Appellant in the photographic identification procedure undertaken by the police in 2018 did not detract from the force of RE's detailed evidence and firm conviction that he was assaulted by the Appellant. A similar observation may be made in relation to the asserted failure to call RE’s mother to give evidence (see [52]–[53] above).

Criticisms in relation to acceptance of evidence of GB

146. Turning finally to the alleged inconsistency in GB’s evidence, according to the agreed facts, GB was at the School between 18 June 1980 and 16 December 1982. In his evidence in chief, GB identified two buildings he slept in during his time boarding at the School. These were identified by reference to photos. The first building was one supervised by Mr McGrath. The second was the one in which he said he was assaulted by the Appellant.

147. GB gave the following evidence in chief in relation to how long he stayed in each building:

“Q.  Mr [B], just in relation to that building that’s in photograph 2, you say that was the first building that you were in?

A.   Yeah, yes.

Q.   How long did you stay in that building for? Doesn’t need to be precise, but if you could give us a rough estimate?

A.   I think I was in there until probably, six months or more? Like I was in there before I left actual school.

HER HONOUR: Sorry, say again. Didn’t quite hear you.

WITNESS: Yeah, the first building was originally, the first building was the, I mean the one that Brother Bernard was in that the photo 2 was the first one I was in, and then I went from, on photo 3 was the second place I went into.

CROWN PROSECUTOR: In relation to the photograph 2 building, how long- was it weeks, months, years- that you spent in the first building? Are you able to say?

A.   Probably months, I can’t, probably months in that one.

Q.   And then the second building? How long did you stay in the second building?

A.   I think the second building till I actually left school, so probably in there, probably over six months or something.”

148. Later in his examination in chief, the following evidence was given:

“Q.  Okay, we will just go over this again. What was the sequence as far as which building you were in first? Was it the photograph 2 or the photograph 3?

A.   I was in actually - first building was number two and then I went from number two to number three.

Q.   In relation to number three, how long did you end up staying in the building, the number three building?

A.   I think I was in there till I actually left school - that one.

Q.   Who was in charge of that building while you were there?

A.   That one - Brother - Brother Daniel.

Q.   How long were you in that photograph 3 building?

HER HONOUR: It might be easier to ask how long he was in photograph 2 because he has already told us he moved from one to the other.

CROWN PROSECUTOR: I think he already answered that as well. I was just trying to clarify.

Q.   Okay. If we go back to photograph 2, how long were you in that photograph 2 building, with Brother Bernard in charge?

A.   Probably from six months onwards, that photograph 2.

Q.   Then photograph 3, how long were you in the photograph 3 building?

A.   Till I actually - I was in there till I actually left school so was in there probably for - for a - I’m guessing a year or so, probably less.

Q.   You have used the term, “I’m guessing,” how accurately do you recall this information about which building you were in and how long you were there for?

A.   Just - just - I’m not sure on that.

HER HONOUR: Sir, we don’t actually want you to guess. If you’re not sure-

WITNESS: I’m not sure.

HER HONOUR: Yes, simply say that you’re not sure. It’s going to be more--

WITNESS: Yep, just not sure, sorry.

HER HONOUR: That’s fine. It’s going to be more useful to us if you say you’re not sure than you try and make a guess. That’s more helpful to us. Thank you, sir.”

149. GB was approached by the police in 2011 about any recollections he had of his time at the School. He gave a statement to the police at the time which was not in evidence during the trial but by reference to which he was cross-examined. That statement was more precise as to matters of timing than his evidence in chief. GB agreed that he was satisfied when he finished his statement that it had been as accurate as his memory would permit, and that his memory in 2011 was more accurate than his memory in 2021. GB’s 2011 police statement contained the following propositions which he confirmed in his evidence:

• he lived in the dormitory supervised by Mr McGrath for about 10 to 14 months;

• the abuse by Mr McGrath started about two months after GB started boarding at the School;

• the abuse by Mr McGrath went on for 8 to 12 months; and

• two months before he left the School, he moved to another dormitory where the Appellant was in charge.

150. GB’s evidence as to timing raises a real doubt in my mind as to whether he was assaulted by the Appellant, because GB places that assault (which formed the basis of Count 13) after the Appellant had left the School which, according to the agreed facts, was on 14 December 1980.

151. On his evidence in chief, GB was in a building under McGrath’s supervision for “probably, six months or more” or “[p]robably from six months onwards”. On his evidence given in 2011, confirmed as accurate whilst under cross-examination, he was under McGrath’s supervision for even longer (10–14 months), and his assaults by the Appellant occurred two months before his departure from the School, namely in late 1982.

152. GB’s evidence was far briefer than that given by PT, for example, and I do not consider that the doubt I feel in relation to Count 13 which concerned GB is able to be assuaged by the advantage that the trial judge had in observing GB give evidence. Nor does the tendency which was relied upon by the Crown at trial arising from the evidence in relation to the other charges assist in overcoming what is a fundamental discrepancy or inconsistency in relation to timing. This is not to doubt GB’s evidence that he was sexually molested in the way he described or to suggest that he failed to differentiate between two molesters, but it is to doubt the correctness of his identification of the second perpetrator as being the Appellant.

153. I am conscious of the fact that the trial judge noted, in assessing the reliability of GB’s evidence, his recollection that the person he said was the Appellant had a beard, and it is correct that other evidence supported the fact that the Appellant had a beard during 1980 when he was at the School. What the evidence did not exclude, however, was the possibility that there was another brother at the School in 1981 and 1982 whilst GB was still there who was also bearded.

154. For the above reasons, the qualified finding of guilt in relation to Count 13 should be quashed. I will return to discuss the consequences of this finding for the other qualified findings of guilt in due course.

The “improbability” submission

155. In written submissions, the Appellant advanced a further argument relating to all three complainants, to the effect that the trial judge ought to have had a reasonable doubt about the Appellant’s guilt due to the improbability that the sexual offences would have been committed in a dormitory in front of other students. In support of this argument, the Appellant relied on the following passage of the High Court’s judgment in Pell at [118]–[119]:

“… It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the appellant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests' sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests' sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.

Upon the assumption that the jury assessed A's evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.” (emphasis added)

156. Drawing upon the language of the High Court in the extract quoted above, the Appellant submitted that “the compounding improbabilities caused by the unchallenged evidence [namely, that Counts 1, 3, 7, 8, 9, 10 and 13 occurred in the dormitory in front of other boys] required the tribunal of fact to have entertained a doubt” about the Appellant’s guilt. (In light of my conclusion at [154] above, Count 13 may be disregarded for present purposes.)

157. Relevantly, PT’s evidence was that the dormitory was made up of a number of small bedrooms connected by a hallway, some of which did not have doors. He said that most bedrooms contained two or three students, and there were a couple of single bedrooms. RN’s evidence was that some bedrooms had two or four beds, and one room had about six or seven. The dorm master (being the supervising Brother) had their own bedroom.

158. In essence, the contention advanced on behalf of the Appellant was that, as in Pell, it was improbable that the Appellant would have committed acts of sexual abuse in the presence of others, giving rise to a reasonable doubt about whether he committed the offences charged.

159. This submission may be disposed of briefly. First, it should be noted that, contrary to the Appellant’s submission, only Counts 1, 3 and 10 were alleged to have occurred in the presence of other boys. Count 1 (against PT) was alleged to have occurred in the TV room in the presence of other boys. PT gave evidence that directly after the offending, he saw the Appellant “cuddling and kissing and indecently touching” another boy on his lap. Count 3 (also against PT) was alleged to have occurred in SL’s room in the presence of SL (who was also sexually abused as part of the offending). Count 10 was alleged to have occurred in RN’s bedroom at night, after RN had been asleep. RN said that there were at least two other boys who slept in his room, and that on other occasions he saw the Appellant kneeling beside their beds in the same way as he had next to RN’s own bed.

160. Implicit in the argument advanced on behalf of the Appellant is the proposition that it is inherently improbable that the Appellant would have committed acts of sexual abuse in the presence of other boys, presumably because of the risk of detection that would be involved. However, the abundance of evidence about the frequency and nature of sexual abuse experienced by students at the School at the hands of the Brothers makes it difficult to accept this premise.

161. The evidence of the complainants depicts a pattern of violent and sexual abuse committed by Brothers at the School, often in the presence of others, with little concern for any risk of detection. Indeed, both PT and RE gave evidence that the Appellant had sexually touched other boys in their presence. PT’s evidence about Count 4, if accepted, compels the conclusion that at least Mr McGrath witnessed the Appellant sexually abuse a student. PT gave evidence that he thought the sexual abuse was normal most of the time. Further, the Appellant occupied a position of authority, and the students under his supervision were young boys with varying degrees of intellectual difficulties. In the circumstances, I am not satisfied that the presence of other boys would have made the alleged offences any less likely to have occurred. This argument should be rejected.

Dr Kasinathan’s evidence

162. The written submission in relation to the evidence of Dr Kasinathan was extremely brief and to the effect that the trial judge was dismissive of the evidence and failed to give it sufficient weight. Contrary to this submission, her Honour expressly stated that she took the evidence into account (see [39(2)] above) and the fact that she was critical of aspects of it does not justify the Appellant’s description of her Honour’s approach to it as “dismissive”. In any event, given the nature of the review required by Dansie, the Appellant’s complaint about the trial judge’s treatment of this body of evidence is not to the point. On my own assessment, the evidence of Dr Kasinathan does not give rise to any reasonable doubt about the credibility or reliability of the evidence of PT or RE.

163. Counsel for the Applicant did not develop his written argument on this aspect of the appeal in the course of his oral submissions.

Conclusion and orders

164. For the reasons I have given, my own review of the evidence leads me to entertain no reasonable doubt that, on the limited evidence available, the Appellant committed Counts 1 to 11 on the indictment. I do, however, have a reasonable doubt that the Appellant committed Count 13, of a kind that is not capable of being resolved by the trial judge’s advantage in seeing and hearing the evidence.

165. That my conclusion about the timing inconsistency relied upon in respect of GB’s evidence raises a doubt that the Appellant committed Count 13 does not carry consequences for the qualified findings of guilt in respect of the other counts.

166. The Appellant submitted that, as the trial judge relied on tendency reasoning between the complainants, “the quashing of counts in respect of any one complainant must undermine the findings in respect of counts in respect of other complainants”. In this context, it should be noted that the trial judge’s use of tendency reasoning was limited: see [72] above. Importantly for present purposes, her Honour had reached her conclusions about the reliability and credibility of the complainants’ evidence before turning to consider the tendency evidence, and did not refer to tendency evidence in assessing the reliability and credibility of PT and RE.

167. In my own assessment, and having regard to the advantages enjoyed by the trial judge which I have discussed, the evidence of each of PT and RE is independently capable of being accepted without recourse to tendency evidence or tendency reasoning. Further, once accepted, each of PT and RE’s evidence is capable of supporting the convictions on the counts to which that evidence relates, without recourse to tendency evidence or tendency reasoning. As such, the Appellant’s submission should be rejected and the convictions on Counts 1–12 should remain undisturbed.

168. Finally, it is necessary to address the consequences of quashing the qualified finding of guilt on Count 13 for the limiting terms which have been imposed on the Appellant. The Appellant was not sentenced by way of an aggregate limiting term, but by individual limiting terms for each offence. The penalty imposed for Count 13 was a limiting term of two years, but it was made wholly concurrent with the limiting terms imposed for a number of other counts (namely, Counts 5, 6 and 11). As such, the quashing of the qualified finding of guilt for Count 13 (and the associated limiting term) does not, of itself, alter the total effective limiting term to be served by the Appellant.

169. In the event that the Appellant seeks to contend that any of the remaining limiting terms should be varied by reason of the quashing of the qualified finding of guilt on Count 13, it is appropriate that leave be granted to file supplementary submissions with respect to any possible consequential variation of the limiting terms.

170. Accordingly, I propose the following orders:

1. Grant leave to appeal other than in respect of Ground 4 of the Notice of Appeal;

2. Allow the appeal in part, quash the qualified finding of guilt in respect of Count 13, and enter a verdict that the Appellant is not guilty of the offence charged as Count 13;

3. With respect to the remaining limiting terms –

1. grant leave to the Appellant to file written submissions with respect to any possible variation of the limiting terms within two weeks of the date of this judgment;

2. grant leave to the Director to file submissions in reply within four weeks of the date of this judgment; and

3. direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 7 days of the filing of the Director’s submissions in response.

4. Otherwise dismiss the appeal.

171. WARD P: I have had the benefit of reading in draft the comprehensive reasons of Bell CJ, with which I am in agreement. In particular, as to ground 1 of the grounds of appeal, I agree that the forensic decision taken by trial counsel not to adduce evidence of the appellant’s good character cannot be said to have had no rational justification, for the reasons that the Chief Justice has identified; and I do not consider that there has been any miscarriage of justice (in the sense that the appellant has been deprived of a real chance of acquittal) by reason of that decision. As to grounds 2 and 6 of the grounds of appeal, again (for the reasons set out by the Chief Justice) the appellant has not established that the trial miscarried (in the sense of the appellant being deprived of a real chance of acquittal) by the fact that trial counsel did not adduce evidence, or put to the complainants, prior convictions of dishonesty. Nor would I grant leave for the new evidence sought to be tendered by the appellant to be adduced.

172. Finally, as to the grounds of appeal in which it is contended that the verdicts were unreasonable (see grounds 3-5), I have approached these grounds of appeal bearing in mind the principles stated by the High Court in the authorities to which Bell CJ has referred at [111]. I have assessed the whole of the evidence (which has been helpfully summarised by Bell CJ and which need not here be repeated) and I am satisfied beyond reasonable doubt on the basis of that evidence that the appellant was guilty of the charges relating to each of PT and RE; and hence that those verdicts were not unreasonable and the qualified findings of guilt in respect of the counts concerning those complainants should stand. However, as does the Chief Justice, I am left with a doubt as to whether GB correctly identified the appellant as the person responsible for the assault the subject of count 13 because of the inconsistency between the evidence of GB as to the timing of that offence and the period in which the appellant was at the School. Hence, I agree that the qualified finding of guilt in relation to count 13 should be quashed.

173. For those reasons, I agree with the orders proposed by Bell CJ.

174. WILSON J: I also agree with the orders proposed by the Chief Justice, for the reasons his Honour has given. Whilst I do not doubt for one moment that GB was sexually abused in the way he has described, there is room for doubt as to the identity of his assailant, because of the problematic evidence as to timing. The appellant must have the benefit of that doubt.

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Decision last updated: 19 May 2023