BJS v Regina

Court of Criminal Appeal (NSW)|2011-04-19|Before: Basten JA, Hulme J, Hall J

Background 53The applicant was committed for trial in relation to a number of counts of alleged child sexual assault dating from 1 January 1971 through to 31 October 1990. 54On 1 April 2010, the Director of Public Prosecutions filed an indictment containing 146 counts involving 31 complainants. 55On 27 August 2010, the Director indicated that, in lieu of that indictment, multiple trials would be brought against the applicant on several different indictments. 56In the period 29 September 2010 to 29 October 2010, various pre-trial applications in relation to the indictment were determined by Finnane DCJ. 57On 2 November 2010, a jury was empanelled in relation to that indictment. 58The applicant pleaded not guilty to all counts and the trial continued until 20 November 2010. On the latter date, the jury returned verdicts of guilty in relation to Counts 5, 6 and 11. 59On 30 November 2010, the jury delivered further guilty verdicts in relation to Counts 1, 2, 7, 8, 9 and 10. 60The jury were unable to reach agreement in relation to Counts 3 and 4 and were discharged in relation to those counts. 61The applicant is yet to be sentenced in relation to the offences that resulted in convictions. 62On 25 November 2010, an indictment was filed containing 30 counts involving eight male complainants. This indictment was the first of a number involving allegations of child sexual abuse upon students at St Stanislaus College, Bathurst ("the College") allegedly committed by the applicant when he was employed at the school and that are relevant to the present proceedings. 63That indictment was subsequently withdrawn and the current indictment (the subject of the present application) was filed containing 14 counts involving seven complainants.

The indictment 74The Crown intends, following the judgment of Finnane DCJ, to proceed with the indictment in relation to the following counts:- (1) Count 1 - 1 February 1984 to 31 December 1984: s.61E(1), Crimes Act 1900 (complainant: AM). (2) Count 2 - 1 September 1984 to 31 December 1984: s.61E(1), Crimes Act (complainant: PK). (3) Count 3 - 1 April 1986 to 31 August 1986: s.61E(1A), Crimes Act (complainant: GS). (4) Count 4 - 1 May 1986 to 15 July 1996: s.61E(1A), Crimes Act (complainant: DJS). (5) Counts 5, 6 and 7 - 1 April 1988 to 31 August 1988: s.61E(1A), Crimes Act (complainant: DS). (6) Count 8 - 1 September 1988 to 31 December 1988: s.61E(1A), Crimes Act (complainant: AK).

Tendency and coincidence notices 75The prosecution served a Notice of Tendency Evidence pursuant to s.97 of the Evidence Act and a Notice of Coincidence Evidence pursuant to s.98 of the Evidence Act. During the proceedings, there was some amendment to these notices in order to reflect the fact that the prosecution had reduced the number of counts on the indictment and this resulted in a reduction of the number of complainants. 76The notices disclosed that the Director of Public Prosecutions sought to prove that the applicant had four tendencies:- · To have a sexual interest in 11 to 14 year old boys. · To engage in sexual activities with 11 to 14 year old boys. · To use his pastoral relationships with 11 to 14 year old boys so that he could engage in sexual activities with them. · To use his position of authority to obtain access to 11 to 14 year old boys so that he could engage in sexual activities with them. 77The Tendency Notice then listed a number of activities which alleged the applicant had engaged in and which were said to demonstrate the four tendencies set out above. 78The Notice of Coincidence Evidence identified three complainants who the applicant was alleged to have indecently assaulted whilst in his bed. The Notice made it apparent that it extended to four of the complainants and five others (who were also tendency witnesses). 79The evidence of each of the complainants was relied upon as tendency evidence concerning the other counts on the indictment in respect of each of the other complainants. The evidence of the seven other witnesses was relied upon to support the alleged tendency for all counts. 80The Notice of Coincidence Evidence stipulated that the evidence related to the actions involved in Counts 3 and 4-5 which allegedly concerned three separate complainants. However, the body of the document clarified that one other complainant (Counts 1 and 4) of the tendency witnesses were also relevant and to be included. The Crown annexed to its submissions a coloured schedule identifying the complainants, the witnesses as to tendency only and the witnesses as to both tendency and coincidence. 81The Crown case in relation to the above counts is that the applicant, at the relevant times, was a priest who held the position of chaplain at the College, a boarding school. The alleged victims were boarders who were under the age of 16 years. The offences charged allegedly occurred in the period 1984 to 1989. The applicant was arrested in May 2008. He made a number of appearances at Court during 2008. 82There were reports in the media of the arrests of the applicant and others. Each complainant was aware, at least in a general way, of at least one or more of those media reports. Some also looked at the internet and saw the applicant's name. Some accessed a website entitled "Catholic Cover Up". The website had extensive material on it. The relevant facts as to these matters is discussed below.

The application under s.5F, Criminal Appeal Act 1912 83The Crown acknowledged that this Court has jurisdiction to entertain the application under s.5F: Dao v R [2011] NSWCCA 63; Saunders v R (1994) 72 A Crim R 347. However, it submitted that, although jurisdiction lies, leave should not be granted: Crown's written submissions at [16]. 84The Crown observed that the substance of the application (as in Dao (supra)) concerns a ruling on the admissibility of evidence, noting that it was the admission of the evidence as tendency/coincidence evidence that formed the basis of the ruling that the counts not be severed. In this respect, the Crown relied upon the observations of Simpson J in Dao (supra) at [126] and [209] that leave ought not be readily granted where the appeal concerns an evidentiary ruling of a trial judge.

The issues before the trial judge 85In general terms, the following matters were relied upon in support of the application made to the trial judge:- (1) That the probative value of the evidence of the complainants and the proposed tendency/coincidence witnesses was significantly diminished as there was a real risk that their evidence had been affected by their knowledge of the nature and the multiplicity of similar allegations made against the applicant (the issue of publicity and commentary). (2) That there was a risk of concoction sufficient to justify the exclusion of the evidence. That risk, it was submitted, went to the substance of the witnesses' testimony and not merely to incidental details of no materiality. Accordingly, the evidence lacked the significant probative value required by s.97 and s.98 of the Evidence Act and such value as it had did not substantially outweigh its prejudicial effect: s.101 of the Evidence Act. (3) That there was insufficient similarities between the alleged conduct of the applicant on each occasion to render the evidence of each witness of sufficient probative value to meet the requirements of s.97, s.98 and s.101 of the Evidence Act. 86The Crown submitted, inter alia, that:- (1) None of the witnesses had had any prior contact with each other (hence there was no risk of contamination). (2) The evidence did not demonstrate that any of the witnesses had been relevantly affected by the publicity referred to in the submissions for the applicant. (3) The evidence of each witness demonstrated the tendencies contended for. (4) In respect of witnesses said to constitute coincidence evidence, there was a reliable basis for coincidence reasoning. (5) That the requirements of s.97, s.98 and s.101 of the Evidence Act were met.

Ruling on the issue of concoction or contamination of evidence 87The trial judge, in his judgment delivered on 21 February 2011, determined:- (1) With the exception of the brothers MB and CB, he was not satisfied that any of the other witnesses had spoken to one another about the crimes they allege the applicant had perpetrated on them. (2) Each of the witnesses were, to some extent, aware of the publicity surrounding the arrest of the applicant. However, the trial judge was not convinced that any were affected by the publicity or media. (3) The trial judge was of the opinion that there was no relevant evidence of contamination, concoction or fabrication in the case of any of the witnesses other than with the brothers MB and CB. 88In his judgment delivered on 22 February 2011, his Honour concluded and found:- (1) There was no evidence that any of the witnesses were affected by anything in the media. (2) There was no evidence that any media coverage had any relevance to any memory any of them had about what happened. 89Accordingly, the applicant's argument to the effect that there was a real chance of contamination as a result of the witnesses' exposure to the media was rejected. 90Finnane DCJ concluded that the evidence claimed to constitute coincidence evidence had striking similarities justifying admission as coincidence evidence. 91In accordance with his Honour's determination and rulings, orders were made removing MB as a complainant. CB evidence was ordered to be excluded.

The findings as to a risk of contamination 92The trial judge referred in his judgment of 21 February 2011 to events that occurred after the applicant's arrest in 2008. His Honour noted the arrest was followed by considerable publicity in the print media, in television news programmes and on radio news programmes. He also noted that there were a number of web sites that contained material about the charges against the accused. 93The submissions in support of the application by the accused for a series of separate trials, his Honour observed, emphasised that the Crown presented seven separate indictments so that the complainants would each give evidence at trial in relation to the relevant charge with the accused facing multiple counts only in trials concerning the complainants DS, AK and MB. 94On the application, the Crown called each of the complainants and the tendency and coincidence witnesses, tendered their statements and each was examined and cross-examined. 95His Honour noted in his judgment of 26 February 2011, that the argument advanced on behalf of the accused was that because the trial concerned sexual offences, where the Crown was relying on the evidence of more than one complainant (at [14]):- "... consideration had to be given to the question whether there was a reasonable possibility of concoction/contamination between a complainant or other witnesses after he became aware of some like event or allegation by another complainant or witness. It was also contended that there might have been concoction or contamination because the complainant or the tendency/coincidence witness may have been affected by what he saw or heard in the media, including the Internet ..." 96The trial judge noted that the accused, at relevant times, was a priest holding the position at the College as chaplain and that the witnesses the Crown intended to call as tendency or coincidence witnesses were, at the relevant times, boarders at the school. His Honour noted at [15]:- "... Each of them knew [the accused], but with the exception of [CB] and [MB], they did not know each other complainant or tendency/coincidence witness [sic]." 97Following a consideration of the evidence given on the voir dire by the complainants and each of the tendency/coincidence witnesses, his Honour stated at [16]:- "... Each of them, including [the brothers, CB and MB], said they had not ever spoken to any other pupil about these assaults; nor had they sought to speak to anyone who had been a pupil at the school at any time after they left the school." 98His Honour then observed:- "17. Some had spoken to family members after there was widespread news of the arrest of the accused and the laying of charges against him and other men who had worked at the school in the 1980s. 18. ... 19. Each complainant was aware in at least a general way of some media reporting of the arrests of the accused and others. Some of them looked at the Internet and saw the name of '[the accused]'. Some got access to a website entitled 'Catholic Cover up'. This website was created by a former pupil called Nielson, whom none of the complainants knew. The witnesses called as tendency and coincidence witnesses did not know him. 20. The website has extensive material on it. 21. I set out in this judgment a table setting out the contact of the witnesses who gave evidence before me claimed to have had with media reports. It can be seen from looking at this material that each of these persons had very little contact with the media. 22. There is no evidence that any of the complainants or the tendency or coincidence witnesses in giving statements to the police and in giving evidence before me, were affected by anything in the media, nor that any media coverage had any relevance to any memory any of them had about what happened." 99Finnane DCJ referred to the contention by Mr Boulten that there was "... a real chance that all of the witnesses were influenced by the publicity such that their evidence was contaminated or concocted": at [23]. His Honour further stated at [23]:- "... I have carefully examined the evidence of each of the witnesses and, in my opinion, there was no real chance that the evidence of any of them, with the exception of the brothers [CB and MB], was contaminated or concocted. The evidence of [the brothers CB and MB] was not affected by any publicity in the media or on the Internet." 100His Honour proceeded to state that the claim as to the "real chance" of contamination could not be accepted (at [24]):- "... because there is no evidence that any of the witnesses to whom I have referred were affected in their evidence by reading anything or listening to anything. There must always be a bare possibility that one or other of these witnesses did have greater regard to media reports than he claimed to have, but that would not be sufficient to show a 'real chance' of contamination. There is no evidence at all from which any conclusion could be drawn that any of the witnesses concocted their statements to the police or that any of them were influenced in any way by any media or Internet material to give a false or exaggerated account to the police or to this Court." 101The learned judge subsequently concluded at [26]:- "With the exception of the two witnesses, [MB] and [CB] who are brothers, I am satisfied that none of the other witnesses spoke to one another about the crimes they alleged that the accused had perpetrated on them. I am satisfied that each of them, to some extent, was aware of the publicity surrounding the arrest of the accused but I am unconvinced that any of them was in any way affected in the making of a police statement or giving evidence before me by the publicity. In my opinion, there is no relevant evidence of contamination, concoction or fabrication in the case of any of the witnesses other than [MB] and [CB]." 102His Honour then stated that he proposed to allow the evidence of each of the complainants to be given as tendency evidence in relation to each other count in the indictment, with the exception that he would not allow the evidence of MB or his brother, CB, to be given as evidence in the trial at [27]). His Honour stated that he was satisfied that the evidence had significant probative value that substantially outweighed any prejudicial effect it may have on the accused (at [28]).

The ruling as to similarities in the evidence 103His Honour proceeded to deal with the proposal by the Crown to lead the evidence of AM, GS, DS and AK as coincidence evidence in the case of each other's complaints as well as the proposal to call the evidence of FD, LC, FVA and PW as coincidence witnesses in the case of those four complainants only. 104The submission for the applicant was that those witnesses should not be called as coincidence witnesses because the similarities in their evidence may be explained by concoction/contamination arising from the excessive media coverage of the group prayer session and the alleged abuse that occurred therein. In any event, it was submitted to his Honour there was nothing remarkable or noteworthy in the complainant seeking the presence of boys in his room because he was the Chaplain: at [30]. 105It was further argued for the applicant that there was no underlying unity in the evidence that would warrant its admission as coincidence evidence. The submission to that effect was supported by reference to the analysis of the Victorian Court of Appeal in PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88. 106His Honour rejected that submission, stating at [35]-[36]:- "The complaint witnesses all speak of sexual assaults in the room of the accused, which served as his office and his bedroom. The assaults allegedly occurred during night prayers in his room. These sessions happened during weekdays after the night study period was over and after the conclusion of the normal night prayers in the Chapel. The room of the accused was away from that of other priests. In my opinion, the circumstances could not be equated to that of children in a juvenile detention centre. The accused was a Chaplain, the children (allegedly) abused were not captive and there is something quite striking about the abuse occurring at a time of night when other boys were in bed and its being carried out the Chaplain's room under the guise of it being part of a prayer session." 107His Honour subsequently stated at [37] that the similarities had to be considered carefully, and concluded :- "... In my opinion, the evidence of the coincidence witnesses has a striking similarity and an underlying unity and it should be admitted as coincidence evidence at the trial." 108His Honour also concluded that the similarities in the accounts of the witnesses in question made it improbable that the events spoken about by each of them happened coincidentally. He again expressed the opinion that there was significant probative value in the evidence which outweighed any prejudicial effect. 109Accordingly, the trial judge rejected the application for separate trials.

The grounds of appeal 110Before turning to the individual grounds of appeal, I will set out the general submissions made on behalf of the applicant. 111Mr Boulten acknowledged that the House v King (1936) 55 CLR 499 principles are applicable in this appeal. He submitted that there were errors in the trial judge's reasons which fell within those principles. In particular, it was contended that his Honour had acted on wrong principle in determining the application. 112In rejecting relevant material, namely, the Walsh affidavit (including the exhibited material), it was submitted that his Honour ignored relevant facts and thereby failed to take into account relevant considerations that were "enlivened by the evidence". 113It was further contended that, in material respects, his Honour had failed to reveal his reasons as to how s.101 of the Evidence Act operated in the exercise of his discretion. 114The "centre point" of the applicant's challenge, Mr Boulten emphasised, was the risk of contamination of evidence. That risk was a matter of central importance in determining "significant probative value" in terms of s.97, s.98 and, on the issue of "probative value", in the context of s.101 of the Evidence Act. 115Mr Boulten contended that the nature of the publicity provided "the source of potential adverse motive, whether it be adverse motive deliberately hatched to maliciously giving false testimony or whether it was the sort of publicity which in its graphic detail and prejudicial flavour was likely to shape a person's attitude more subtly" (transcript, 19 April 2011 at p.4) 116It was, however, accepted in argument that not all publicity of the fact that a person had been charged with an offence would give rise to "such passion and feeling as to change a person's attitude ..." (transcript, 19 April 2011 at p.5). However, it was submitted:- "... but when one looks at what was actually published in this case, this shows that this was not an ordinary case and the publicity was not artificial publicity, which is why it is important to look at the evidence that was received by his Honour and the evidence that his Honour rejected as being irrelevant. We say that there was such prejudicial publicity that was designed almost certainly to inflame people's passions against the accused in a way which almost certainly was prejudicial in an unfair sense, in a way that would be likely to raise the sorts of problems that judges must guard against or jurors, if they were exposed to this sort of publicity. But in this instance it was the witnesses who were exposed to it in a period before they made their allegations to the police and, indeed, in some instances, it was demonstrated in the evidence, contrary to his Honour's broad findings, that the publicity itself changed the manner of the witness or witnesses concerned."

Ground 1: His Honour erred by rejecting relevant evidence on the application

Applicant's submissions 117In support of the application, the applicant sought to rely upon the affidavit of his solicitor, Gregory Alexander Walsh, sworn 17 February 2010 ("the Walsh affidavit"). That affidavit exhibited copies of media reports and commentary including internet material concerning the applicant's alleged offending. 118In his affidavit, Mr Walsh stated that the applicant had been arrested on 22 May 2008 and charged with 33 offences in respect of alleged (historical) sexual assaults involving five named complainants. 119Mr Walsh, on information and belief, stated that in the period 22 May 2008 to 8 September 2008, there was extensive publicity concerning the arrest and charging of the applicant and other former members of the same order of priests who taught at the College. Mr Walsh exhibited to his affidavit extensive extracts from various sources. He identified, in particular, the internet site entitled "The Catholic Cover-Up" and a number of well-known newspapers and radio and television channels as having reported on the above events. 120Mr Walsh stated, again on information and belief, that certain representations had continuously been made on the Catholic Cover-Up website since it was set up in August 2001. He stated that certain of the representations made by a Mr Tor Nielsen were directed against the applicant. 121Mr Walsh referred in his affidavit to the fact that investigating police had caused a media release to be published in August 2008. 122On 17 February 2011, Mr Boulten sought to read Mr Walsh's affidavit. The trial judge stated that he would admit it subject to relevance (transcript, 17 February 2011, p.311). 123The affidavit was marked as Exhibit 4. On 21 February 2011, the trial judge ruled that the material in the affidavit was irrelevant and excluded it (transcript, 21 February 2011, p.2). 124The Crown objected to the admission of the material exhibited to the Walsh affidavit on the basis that it was irrelevant. As noted above, the trial judge said that he would "admit it subject to relevance" (transcript, p.311). He stated "I can't judge anything until I see what it is exactly". 125Accordingly, the affidavit of Mr Walsh and the exhibited material was received conditionally. The Crown's objection to the affidavit was ultimately upheld. 126In the course of oral submissions to this Court, Mr Boulten stated that the exclusion of the Walsh affidavit was a "central feature of our argument about the judge's failure to have regard or sufficient regard to the evidence about publicity" (transcript, 4 May 2011, p.7). It was contended that at material times there was a "campaign" which in submissions he described as (transcript, 4 May 2011, p.9):- "... a massive media campaign in graphic and highly prejudicial terms over a period of many months and a witness says, yeah I saw some of that but I can't remember which parts but I remember seeing things about the accused, about him sexually assaulting boys, about him being charged, about him conducting ritual religious practices that were opportunistic attempts to get access to victims, et cetera, then if there is evidence that there was such publicity then that's relevant especially if they say they saw such publicity." 127It was contended that the widespread publicity at the relevant times resulted in the witnesses being exposed to "highly prejudicial media articles and internet sites which was a crucial factor to be considered in determining whether there was, in any case, a real risk that a witnesses' evidence was contaminated". 128It was argued that, although a particular witness could not recall exactly what information he had seen, nonetheless the material in the Walsh affidavit established the detail as to the nature and type of publicity to which it was likely the witnesses had been exposed. This was significant given that it would be impossible now to ascertain precisely what particular articles or news bulletins they had seen. 129The material exhibited to Mr Walsh's affidavit, it was submitted, was directly relevant to fact-finding by the trial judge. Exclusion of the material amounted to error insofar as:- "... his Honour's fact finding occurred without reference to the nature of the evidence concerning the publicity that was seen or likely to have been seen by the witnesses. His Honour determined the application based on the assertions of the witnesses that they were not affected by the publicity. He did not adequately consider the potential risks of contamination of witnesses' testimony as a result of their exposure to the media because, in part, he rejected the tender of the relevant evidence." (Written submissions at [32]) 130It was argued for the applicant at [28] of the written submissions that:- "Most of the witnesses had seen publicity about the applicant's alleged offending in the media and/or had accessed internet sites containing commentary about the applicant and his alleged offending ... In some circumstances witnesses were able to identify particular articles in newspapers that they had read or at least perused. In those cases, the relevant articles were admitted into evidence ..." 131It was additionally submitted that, for reasons discussed, "the witnesses' exposure to highly prejudicial media articles and internet sites was a crucial factor to be considered in determining where there was, in any case, a real risk that a witness' evidence was contaminated" (at [29]. 132Through media reports, it was argued, some witnesses had become aware of invitations by investigating police to former students to come forward with further allegations. Media reports containing such invitations as well as press releases by police were therefore said to be relevant material. 133The finding by the trial judge that his Honour was "... unconvinced that any of (the witnesses) was in any way affected by the publicity" (judgment, 22 February 2011 at [26]) and his Honours conclusion that there was no evidence that any of the complainants or tendency/coincidence witnesses were affected by anything in the media, it was submitted, were made without reference to the nature of the evidence concerning the publicity that was seen or "likely to have been seen by the witnesses" (at [32] of the applicant's written submissions). Accordingly, so the submission went, that findings of that nature were flawed as they failed to take into account relevant material. 134The findings were further criticised on the basis:- (1) That they were made without an adequate consideration of "the potential risks of contamination of witnesses testimony as a result of their exposure to the media because, in part, he (the trial judge) rejected the tender of the relevant material" (at [32] of the applicant's written submissions). (2) They were founded on assertions by the witnesses that they had not been affected by publicity.

Crown submissions 135The Crown observed that certain articles were identified by witnesses as having either been seen by them or they were similar to articles they had read. Articles of that kind were tendered and became Exhibits 1 to 3 on the voir dire. 136The Crown also observed that many of the annexures to Mr Walsh's affidavit sworn 17 February 2011 (Exhibit 4 on the voir dire) constituting "media and internet publicity" had been identified as having been seen by some of the witnesses. Accordingly, the evidence concerning them went only so far as to prove that they were in circulation. Some of them, the Crown noted, were not generally available. These included media releases and statements made by police. 137It was contended that the trial judge's determination that the evidence was not relevant was correct. His Honour had been assisted by witnesses identifying what they had been exposed to in various media forms. Where there was no evidence that any witnesses had had access to or seen such, the same such material could not possibly have been of assistance in determining the issues on the voir dire: Crown submissions at [27]. 138The Crown submitted that the trial judge had appropriate regard to the evidence that was admitted concerning media publicity and specifically referred to the same at [19] to [21] and the table annexed to the judgment.

Consideration 139The trial judge was required to consider two matters. First, did some or all of the witnesses read material of the kind referred to and described in the applicant's submissions (by way of radio, television, print media and/or on the internet)? 140Second, if some or all of the witnesses did read the material, was the content of it such as to give rise to a real risk that it would affect or influence the individual complainants and witnesses? 141The evidence before the learned judge established that there was considerable public interest in and media exposure of the fact that the accused (and others) had been charged and that the charges related to allegations of sexual abuse of former school boys at the College. 142Not surprisingly, it would have been difficult for many witnesses to identify the particular media reports and articles that they had actually read or heard. I consider, however, that the material exhibited to Mr Walsh's affidavit ought nonetheless have been admitted into evidence. It constituted material, some of which at least, is likely to have come to the attention of one or more of the Crown witnesses, having regard to the prominence that had been accorded by the print and electronic media to the matter. The judge was required to assess the risk of possible influence from widely publicised material. By reason of the widespread media coverage of the above matters and the fact that many of the witnesses agreed that they had read or heard media reports (and, in two instances, had read internet commentary), the risk had to be assessed against the nature and extent of the publicity. 143Mr Walsh's affidavit evidence established that there had been significant publicity. It was relevant in that it was quite possible that the complainants and other witnesses had seen or heard much of it. However, given that the evidence as a whole could not establish exactly the full extent of what a particular complainant or tendency/coincidence witness had read or heard, that fact itself would clearly reduce the weight that could be accorded to it. 144I have concluded that the copies of the media news reports or articles published at and after the laying of the charges in question against the accused were relevant under s.55 of the Evidence Act on the basis discussed above. In other words, it constituted evidence which, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a face in issue, namely, innocent contamination. (The issue of contamination is discussed below in relation to other grounds of appeal.) Accordingly, I consider that error, as asserted in Ground 1, has been made out. 145It remains a matter for determination as to whether or not that error was one of any consequence to the ultimate decision and ruling made by the trial judge. That aspect is considered below.

Ground 2: His Honour erred by applying an inappropriate test concerning the risk of concoction 146It was not contended in the present proceedings that there had existed either relationships or "circumstances of association" between the complainants and/or the tendency and coincidence witnesses which led to any of them getting together to discuss the charges. The risk of contamination was principally argued on the basis of a risk arising from of a prejudicial effect said to have arisen from media reporting of charges that had been brought against the applicant and from other publicity concerning events that allegedly took place in the relevant period at the College. 147This ground raises the question as to whether the trial judge applied an "inappropriate test" or whether his Honour correctly determined the question of alleged "concoction" or "contamination" by inquiring whether there was a real chance or a real possibility of concoction or contamination. In paragraph [11] of the judgment of 22 February 2011, his Honour quoted at length from the judgment of Hodgson JA in BP v R; R v BP [2010] NSWCCA 303. In paragraph [110], Hodgson JA stated that tendency evidence will not be of sufficient probative value to be admitted where there is a "real" chance, as opposed to a "speculative chance" of concoction. At [111], his Honour noted that:- "Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely, relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111]-[112]." 148Before turning to how his Honour concluded that there was no evidence of contamination, I set out the submissions of the parties.

Applicant's submissions 149On behalf of the applicant it was submitted:- (1) The terms of the judgment of 22 February 2011 indicates that the trial judge approached the issue upon the basis that it was for the applicant to positively prove that the witnesses were affected by the publicity. (2) That there was a need for the applicant to prove that there was actual evidence of contamination, concoction or fabrication. 150It was further argued that his Honour "misguided himself because he required proof of actual contamination. This error was compounded when he rejected the tender of evidence of the media to which the witnesses were likely exposed (Ground 1) ..." (written submissions at [38]). 151Accordingly, it was submitted that the trial judge's ruling was grounded in an approach which required the applicant to demonstrate or prove that the complainants and the other witnesses were confabulating their evidence rather than considering whether the prosecution had negatived a real chance that they were. 152Finally, it was submitted that the trial judge seemed to consider that the witnesses' denials that they were influenced by the media was decisive but that he failed to consider the real potential of the media to influence a witnesses' approach.

Crown submissions 153On behalf of the Crown, it was submitted that his Honour had determined that there was no evidence from which it could be concluded that there had been concoction. Accordingly, that there was no real chance of concoction or contamination as distinct from a bare possibility. It was contended that the evidence called on the voir dire supported a finding to that effect. 154The Crown also observed that his Honour specifically cited (at [11]) the relevant passages from BP (supra) which included reference to the fact that the onus was on the Crown to negate a real chance of concoction. 155Accordingly, the trial judge, it was submitted, had utilised the correct approach or test in determining the issue of contamination.

Consideration 156The passages in the judgment referred to in the written submissions for the applicant must be read in the context of the judgment. There can be no doubt that the trial judge was conscious of the correct approach, having set out at length the relevant observations of the High Court in Hoch v The Queen (1988) 165 CLR 292 and of Hodgson JA in BP (supra). This is reflected in the trial judge's observations at [14] as follows:- "... consideration had to be given to the question whether there was a reasonable possibility of concoction/contamination between the complainant or other witnesses after he became aware of some like event or allegation by another complainant or witness. It was also contended that there might have been concoction or contamination because the complainant or the tendency/ coincident witness may have been affected by what he saw or heard in the media, including the Internet." (emphasis added) 157His Honour, firstly, proceeded to deal with the question of concoction by referring to the evidence which established that there was no "relationship" between the complainants or the tendency/coincidence witnesses. The evidence in that respect clearly established that each had not spoken to any other former pupils of the College on the subject of alleged sexual assaults: at [16]. 158His Honour also referred, at [21], to the table in his judgment which set out the extent to which the witnesses who gave evidence before him claimed to have seen media reports. His Honour concluded that it could be seen from looking at the material that each of the persons concerned had "... very little contact with the media". Having read the statements and evidence given by the witnesses, that finding was certainly open. I will deal with the evidence on that aspect below. 159The references in paragraphs [23] and [24] of the judgment to the phrase "real chance" or "no real chance" indicates, as I have earlier stated, clearly enough that his Honour was mindful of the proper test to be applied in accordance with the relevant authorities. The criticism was directed to statements such as "... I have carefully examined the evidence of each of the witnesses and in my opinion, there was no real chance that the evidence of any of them, with the exception of the brothers [MB and CB], was contaminated or concocted" at [23] and the statement "... there is no evidence at all from which any conclusion could be drawn that any of the witnesses concocted their statements to the police or that any of them were influenced in any way by any media or internet material to give a false or exaggerated account to the police or to this court". 160In order to analyse and determine whether the trial judge did, in fact, apply the correct test, it is necessary, in my opinion, to examine the observations made by his Honour in paragraphs [21], [22], [23] and [24] of the judgment of 22 February 2011. 161The statement that there was "no evidence" that the witnesses were affected or influenced by the media coverage (paragraph [22] and [24]), should, in my opinion, be considered in light of the conclusion or finding expressed by his Honour in paragraph [23], namely:- "... I have carefully examined the evidence of each of the witnesses and, in my opinion, there was no real chance that the evidence of any of them, with the exception of the brothers [MB and CB], was contaminated or concocted ..." 162That conclusion was expressed in terms that reflect the correct test, namely, that "there was no real chance ..." of contamination or of concoction being the test enunciated by Hodgson JA in BP (supra) at [110]. 163Although consideration of Ground 2 is somewhat obscured by the trial judge's reference to there being "no evidence" of contamination or concoction, on analysis, it is, in my opinion, apparent that his Honour did correctly apply the relevant test. It was on that basis that he determined, as expressly stated, that there was no real chance on the evidence and, in particular, the evidence of the complainants and the coincidence/ tendency witnesses, of contamination or concoction. 164A critical question before the learned judge was whether, having regard to the particular content of the media and/or internet material, the published reports and articles had the potential or capacity to influence a complainant or witness in making statements to police. 165In relation to this last-mentioned question, I accept the submission for the applicant that the effect of publicity is not one that can simply be determined by an acceptance of a witness' denial that the publicity had any effect upon him. In determining the question of leave for the purposes of the present application, a detailed examination of the content of the published material has been essential. For the reasons discussed below in relation to Grounds 3 and 4, there was, in my assessment, no basis for a finding as to a real possibility of a contamination. 166I have, for reasons earlier set out, concluded that Ground 2 has not been made out and should be dismissed.

Ground 3: His Honour erred by finding that there was no relevant evidence of contamination, concoction or fabrication in the cases of any of the witnesses other than MB CB

Ground 4: His Honour erred by failing to find that there was a real chance of contamination of concoction on the part of all of the witnesses except MB and CB

Applicant's submissions 167It was contended on behalf of the applicant that the following matters had to be taken into account:- (1) All of the witnesses were former students at the College and, accordingly, they had a relationship to the school, to the applicant and to each other. This was said to form an essential factual background against which to consider the potential risks of concoction. (2) The "shared experiences" at the school were said to provide them with "a special interest in the media reports" in respect of the applicant's alleged offending. It was submitted at [46]:- "... It would be likely to make them especially sympathetic to plight of other, fellow former students who were claiming to have been sexually abused by the applicant." (3) The issue of timing in the making of witness statements and the publicity over allegations of indecent assault had to be taken into account. The contention was that, by the time the witnesses came to make their statements to police, they were aware of other allegations of indecent assault by the applicant upon students at the College as having occurred in the relevant period. Furthermore, it was submitted they were aware that the allegations in their terms raised issues of indecent assaults on boys and said to have taken place in the applicant's bedroom at the school as well as other allegations that included claims of abuse of boarders during prayer groups. 168The submission for the applicant was that awareness in the complainants of the allegations against the accused provided the "opportunity" for concoction as contemplated by the majority in Hoch (supra). In other words, the opportunity was said to stem from the witnesses' exposure to information that provided a source of knowledge about the fact of other, similar allegations. 169This, it was argued, constituted an opportunity for them to gain the type of knowledge that was necessary to concoct allegations of a similar type against the applicant. Mr Boulten cited as an example the case where there was a real possibility that complaints about alleged misconduct by a psychiatrist were not truly independent where some of the complaints were not spontaneous but prompted by a common source as occurred in R v Ananthanarayanan (1994) 98 Cr App R 1 where the Department of Social Services sought potential complainants who may have been in a position to make allegations of indecency against the appellant. 170Additionally, it was submitted that the allegations created an opportunity for the complainants and the witnesses to become familiar with some of the details of matters raised by others, including details concerning time frames, locations and settings (including pastoral care and prayer groups sessions). 171In the assessment of these matters, it was submitted that account had to be taken of the fact that media reports were "... extremely provocative and prejudicial" at [49]. Some articles were said to portray the applicant's alleged misconduct "... in sensational and graphic terms laced with vitriol". 172It was submitted that the published articles employed sensationalised, prejudicial and pejorative use of language "... designed to deliberately prejudice the applicant in these proceedings ..." and that these were "... likely to cause significant risks of prejudice such as to make a joint trial unfair" (at [50]). 173Further, it was submitted "... the publicity was such as to provide potential witnesses with a relevant motive for concoction like that considered in the majority judgment in Hoch" (at [52]). 174Mr Boulten contended that the trial judge erroneously failed to find that there was "a real chance of contamination or concoction" on the part of all witnesses (except MB and CB) and, in doing so, relied upon the test espoused by Hodgson JA in BP (supra) at [110]-[111]. 175It was submitted that the evidence indicated that there had been an awareness in almost every case that other allegations of indecent assault by the applicant had been made in the same period that the complainants and witnesses had been students at the College. Some were aware of the circumstances surrounding those allegations including the allegations of events said to have occurred during prayer group meetings. The exposure to such allegations, it was argued, gave rise to the risk of concoction of allegations of a similar type against the applicant. 176The analysis undertaken by the trial judge in determining the issue of contamination, it was contended, was impeded by the fact that his Honour excluded from evidence the material in the Walsh affidavit which was described as "graphic and prejudicial material". 177It was submitted, as noted above, that it was no answer that the complainants and other witnesses claimed that the publicity had no effect on them. It was contended that one would expect them to deny or downplay any such suggestion. The trial judge, it was submitted, had not dealt with what was described as "these fundamental problems": at [56]. 178In summary, it was submitted that the "publicity and commentary provided a sufficient relationship [and] opportunity" and "motive for concoction" (per Mason CJ, Wilson and Gaudron JJ in Hoch (supra)) "so as to justify the exclusion of each witness' testimony and thereby justifying an order for separate trials". 179The risk of concoction in this case, it was argued, went to the substance of the witness' testimony and not merely to incidental details of no materiality. Accordingly, it was contended the evidence lacked significant probative value as required by s.97 and s.98 and the probative value of the witness' evidence did not substantially outweigh the prejudicial effect: s.101. 180As to the requirements for admissibility under s.97 and s.98, it was submitted that there were insufficient similarities between the alleged conduct of the applicant on each occasion to vest the evidence of each witness with sufficient probative value to meet the requirements of s.97, s.98 and s.101.

Crown submissions 181The Crown acknowledged in its written submissions that it was not in dispute that concoction could occur independently of contact with another person, and could arise purely by exposure to information (Crown's written submissions at [44]). The issue, the Crown observed, was whether, despite the proof of exposure to information, the prosecution was able to establish that there had been no reasonable possibility of concoction. 182In paragraph [43] of its submissions, the Crown set out a summary of the evidence of the media and internet material accessed by the complainants and the witnesses the Crown proposes to call. The Crown submitted that the most that the trial judge found was that there had been an awareness of publicity. His Honour did not find that this awareness equated with a real possibility of concoction. It was noted that, consistent with what was found in BP (supra) at [117], whilst there may have been an opportunity for concoction, the circumstances proved in evidence weighed strongly against the possibility of concoction occurring: Written submissions at [49]. 183The Crown submitted that the trial judge had adopted the correct test. Based on the analysis of evidence before him, the finding made was open. In other words, the Crown contended that the finding that there was no real possibility of concoction was not one that was at all indicative of error.

Consideration 184The real possibility of a risk of contamination of evidence may, of course, occur "in isolation" after a particular complainant or witness becomes aware of allegations against an accused person and/or having read media reports and/or internet commentary. 185Reference was made to dicta of Simpson J (with whom Mason P and Dowd J agreed) in R v OGD (No 2) (2000) 50 NSWLR 433 in which her Honour at [70] stated:- "... concoction is not limited to the circumstance where the witnesses might have agreed, in what was referred to in Hoch as a conspiracy, to give false evidence; the term is wide enough to include concoction by a potential witness in isolation, but after becoming aware of the allegations against the accused person." 186In this respect, it was observed that her Honour was following dicta of Gaudron J in BRS v The Queen (1997) 191 CLR 275, where, at 301, her Honour stated:- "In some cases, the possibility of joint concoction is the only issue that arises. In other cases, however, there may be a question whether the complainant might have concocted his or her account after becoming aware of some like event or some like allegation involving the accused and, in some cases, it may be necessary to consider both questions." 187The nature of the decision that the trial judge was required to make attracts the House (supra) principles. Accordingly, the applicant must point to some error of law or mistaken principle concerning the way in which the trial judge evaluated and determined that there was no real possibility that the various accounts given to police were contaminated by reason of prejudicial publicity in relation to the College and the applicant. 188Mr Boulten submitted that error arose in circumstances where:- (1) In determining whether the statements and evidence of the complainants and the tendency/coincidence witnesses were contaminated, the trial judge applied an incorrect test as earlier discussed in relation to Ground 2. (2) In determining the issue of the risk of contamination, his Honour proceeded on the basis of accepting the evidence of individual witnesses to the effect that they did not believe that their respective accounts had been infected or influenced by media or other publicity. 189The trial judge's decision was made in the context of the exercise of a discretion to order a separate trial of counts in an indictment. The task in that respect, therefore, involved a decision concerning the admissibility of evidence. That issue of contamination was one directly relevant to the issue of the probative value of the evidence which the Crown intends to call at the trial pursuant to s.97 and s.98 and s.101(2) of the Evidence Act. 190However expressed or understood, I proceed upon the basis that Grounds 3 and 4 are to be taken as embodying a contention on behalf of the applicant that Finnane DCJ, in dismissing the application (other than in respect of the brothers MB and CB), acted on wrong principle. In particular, in relation to the issue of alleged contamination of evidence, the argument for the applicant included the contention that the failure of the learned judge to conclude that the Crown had not discharged the onus on it to establish that there was no real risk of contamination manifested latent or patent error: House (supra) at 505. 191In order to consider and determine the challenge raised by Grounds 3 and 4, it has, in my opinion, been necessary to examine in detail the evidence concerning each complainant and each tendency/coincidence witness and the circumstances in which each came to provide their statements to police. In light of that examination, the Grounds 3 and 4 may then be considered. 192Attached to this judgment are Schedules 1 and 2. Schedule 1 provides a summary of the evidence of each of the complainants and the coincidence/ tendency witnesses based upon statements each provided to police. The particular accounts given by each have been examined in order to determine, in light of the media publicity and internet commentary, the issue as to whether or not the evidence before Finnane DCJ was capable of establishing a real possibility of contamination. Schedule 2 to this judgment, records the evidence concerning the exposure of an individual complainant/ witness to particular media publicity/internet commentary. 193It may be noted at this point that the analysis in Schedule 1 proceeds upon the basis that the complainant and non-complainant witnesses, in terms of the assaults alleged, can be separated into two categories, namely, those who alleged assault occurring at prayer group meetings and those that alleged assault in private session with the accused. 194Complainant witnesses AM and AK and non-complainant witnesses FD and SP all allege that they attended prayer groups, and that assault in some form, usually kissing or brushing up against them, by the applicant, occurred. It is important to note that none of those witnesses alleged any of the graphic sexual detail, including, inter alia, rape and masturbation, referred to in the articles and websites. Importantly, PK, GS, LC, FVA and PW all state that they attended the prayer sessions, and that no abuse is said to have occurred to them, or that they witnessed any abuse upon others during such sessions. DJS is said to have never attended a prayer session. 195In relation to the second category, AM, PK, GS, AK, LC, FVA and PW all alleged, to varying degrees of severity, that the applicant sexually assaulted them in his bedroom when he was alone with them. DJS reported that the applicant performed an "exorcism" upon him, once, in his office. DS also reported that an exorcism was performed on him in a room adjacent to the main staff room. It is noted that FD reported that although he was in the applicant's bed on occasion, no alleged sexual activity occurred. AM also stated that alleged abuse did not occur on all occasions that he was present alone with the applicant. 196Importantly, none of the complainant or non-complainant witnesses make reference to the alleged occurrence of the sort of graphic sexual misconduct as referred to in the websites, newspaper articles and various media at the time including rape or "orgies". 197Further, there is no reference in any media reports or other commentary to assaults in private session as are to be found in some of the statements given to police. It is those alleged assaults that arguably form the basis for the most serious offences alleged to have been committed by the applicant. 198In Hoch (supra), Mason CJ, Wilson and Gaudron JJ stated that, when assessing evidence for the purpose of ruling on an issue of concoction of evidence, the trial judge's function is not to make a preliminary finding whether there was or was not concoction. The same would equally apply to an issue of contamination. In R v Dawson-Ryan (2009) 104 SASR 571 the Court stated at 578 [28]:- "The Court in Hoch was stating the principle that a judge on a voir dire should not make findings of credibility for the purpose of determining the truthfulness of the complainant's account of the alleged act constituting the offence. Rather, the purpose of receiving evidence from a complainant, or any other witness, on the voir dire is to determine whether there was such a possibility of concoction that it would render the similar fact evidence capable of a reasonable explanation other than guilt. When receiving a complainant's evidence viva voce for this permissible purpose, an assessment by a judge inevitably involves findings as to credibility." (emphasis added) 199In that case, the issue was joint or collaborative collusion. The Court stated at [25]:- "Thus, a bare possibility of collusion, as opposed to a real or reasonable possibility, is not sufficient to warrant exclusion of the similar fact evidence in the present case. Accordingly it is not sufficient to identify merely that the complainants had a mere opportunity to collude; that they discussed the alleged offences amongst themselves; that one complainant encouraged another to make a complaint to the police; and that witnesses encouraged a complainant to make a complaint to the police. Therefore, the possibility of concoction has to be understood as a reasonable possibility based upon a factual foundation and not merely a fanciful possibility." 200In the present case, his Honour made findings as to credibility of the complainants, not for the purpose of determining the ultimate issue of whether the complainants' allegations were truthful, but in determining the issue as to whether there was a reasonable possibility of concoction. In carrying out the inquiry and making findings, his Honour was required to apply the correct test and in doing so, to consider the weight to be given to the evidence given by the complainants as witnesses and to the evidence of the non-complainant witnesses. 201In relation to the issue discussed in Hoch (supra), namely, whether the evidence "is capable of reasonable explanation on the basis of concoction", the following propositions may be derived from relevant case law:- (1) In a sexual assault case, contact or antecedent friendship between complainants may be an insufficient basis to warrant a conclusion that there is a real chance of conspiracy between them: Hoch (supra) per Brennan and Dawson JJ at 304. (2) However, particular circumstances or contact or friendship may warrant an inquiry as to whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire: Hoch (supra) at 304. (3) The unconscious influence or innocent infection of statements provided by complainants may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication: R v Glennon (No 2) (2001) 7 VR 631 at [155] per Callaway JA (with whom Winneke P and Ormiston JA agreed). (4) As noted above, on such an inquiry, it is not for the judge to make findings of credibility for the purpose of determining the truthfulness of the complainant's account of the alleged act constituting the offences. The purpose of receiving evidence on the voir dire is to determine whether there was a possibility of concoction that it would render the similar fact evidence capable of a reasonable explanation other than guilt: Dawson-Ryan (supra) at [28]. 202It has been observed that, just as collusion deprives disputed similar fact evidence of its probative value, the same may well arise with unconscious influence or innocent infection from media publicity. In Glennon (No 2) (supra) at [155] it was stated that:- "... The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at a trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies ..." 203When there is an issue raised as to whether complainants and other witnesses have been affected or influenced by media publicity or internet material such to have contaminated their evidence, the inquiry, in my opinion, involves the investigation of a number of issues. In general terms, these include the following:- (1) The content of media releases or articles or internet material to which complainants and/or non-complainant witnesses have had access or to which they are likely to have had access. (2) In particular in that respect, the extent and level of detail in the discussion of factual matters concerning the accused person and his/her alleged conduct or that of others. (3) Whether the subject matter of published material related to matters that were central to proof of charges made against the accused. (4) Whether the complainants and/or witnesses discussed such material amongst themselves. (5) Whether there are signs of contamination having infiltrated or influenced the contents of the statements of complainants and/or witnesses. 204Whatever the criticism as to the terms in which the trial judge expressed himself in relation to the issue of contamination, there is no basis, in my opinion, for a conclusion that the decision was either unreasonable or plainly unjust or contrary to the evidence. 205Whilst the accounts provided by the complainants and tendency/ coincidence witnesses exhibit similarities, the matters to which they relate do not, in my assessment, indicate that the statements were infected by the type of publicity to which I have referred. I note the following are matters are referred to in the statements of complainants and witnesses:- (1) The applicant's practice of conducting prayer meetings at a relatively late hour in his room. (2) That the meetings were conducted without any other adult being present. (3) The atmosphere of the meetings which included talking in tongues, chanting and incense. (4) The inclusion of alleged physical contact either by way of the applicant allegedly kissing students by way of greeting or otherwise at the prayer meetings and other forms of alleged physical contact by the applicant with students. (5) Occasions, other than prayer meetings, in which accounts were given of alleged intimacy of contact between the applicant and certain students. 206Although references are to be found in the material exhibited to Mr Walsh's affidavit to the applicant having held prayer meetings and the chanting, speaking in tongues and laying on of hands and such matters, the level of detail concerning such meetings as given by the complainants and other witnesses in their individual statements to police travel well beyond the publicised material. 207Furthermore, as earlier indicated, there was no reference in any of the statements made by the complainants or tendency/coincidence witnesses to police of the following matters as recorded in some of the internet commentary:- (1) The raping of students. (2) Forced sexual or other abuse by one student upon another. (3) The forced masturbation of the applicant by students. 208In addition, an examination of the statements to police reveal what I consider to amount to a discernible restraint in the accounts contained in them. Certain witnesses, for example, stated that, in some situations (including, in particular, prayer meetings), there was no inappropriate conduct by the applicant observed. 209In resolving the question of whether the Crown negatived contamination as a real possibility, it is necessary, as I have earlier stated, for an assessment to be undertaken of the individual statements and evidence of the complainants and tendency/coincidence witnesses in order to determine whether or not the accounts given exhibit or reflect the influence of the published material. 210An exercise of that kind, in my opinion, was required in these proceedings in order to determine whether the Crown discharged the onus on it of establishing that the evidence of each of the witnesses does not have a common source in media reports and/or internet commentary. 211The issue of contamination as argued in this Court was put upon a number of bases:- (1) That there was highly prejudicial and even vitriolic publicity on the subject of alleged predatory sexual conduct having been carried out by persons who occupied positions of trust at the College. (2) The substantial amount of publicity concerning the applicant's arrest and that he had been charged with sexual offences. (3) Public invitations or requests by police for persons with information concerning alleged sexual misconduct at the College to provide information to police. 212In relation to the first, the allegedly highly prejudicial publicity, it is relevant to inquire whether any of the statements of the complainants and/or other witnesses exhibit any influence from such "vitriolic" or extreme material referred to in submissions. In that respect, I have noted in paragraph [207] that there are no references in any of the statements to the more extravagant accounts published on the internet of extreme allegations of sexual misconduct. Given the emphasis that was placed upon such material in the submissions for the applicant, the absence of any references of that kind in the statements is significant in determining the present application. It, of course, points against infection or contamination having occurred. 213I do not consider that publicity as to the applicant's arrest and charging with other sexual offences, of itself, can be taken as having given rise to a risk of contamination. The publicity was limited in its terms. It lacked specificity as to precisely what it was that the applicant had allegedly done. The fact that the charges related to alleged sexual assault does not in itself suggest there was a real possibility of contamination. Accepting that some media reports stated that the charges related to some form of alleged sexual assault occurring at prayer meetings, that, as earlier noted, is to be considered against the fact that the detail of the accounts provided in the statements vary in relation to matters of detail, whilst, as also noted above, some statements said that no inappropriate conduct was observed. 214In relation to the third category, invitations by police to those with relevant information to make contact, again the evidence does not establish that there was released any material that gave rise to a risk of contamination. I do not accept that, insofar as such invitations may have prompted persons to make a complaint to police that that of itself carries the real possibility that the particular complainants or tendency/coincidence witnesses were influenced in the detailed accounts they provided to police. Certainly, there is no suggestion that any of them were actuated by spite, vindictiveness or revenge in making their statements. 215A similar issue arose in Glennon (No 2) (supra). Although that case was concerned with the effect of publicity on the jury in an application to set aside a conviction, the approach taken in that case is nonetheless instructive. 216There had been wide media coverage prior to the trials of the applicant in that case in 1986 and 1992. It was argued that the prejudicial and widespread publicity which had attached to the applicant's criminal activities had been enlivened and compounded by desultory references to him in the media since the conclusion of the proceedings 1992. In one advertisement placed in a newspaper in 1996 by a firm of solicitors seeking information from victims of the applicant, he was referred to as a "paedophile". In 1998, in an interview, a person referred to the applicant and his prior activities and called him "a very evil priest". 217The Court of Appeal observed (at [66]):- "Although there may be circumstances where an appellate court might be moved to set aside convictions on the ground that they have been shown to be unsafe by reason of adverse pre-trial publicity, thus effectively granting to an accused person immunity from prosecution for the offences concerned, such circumstances must necessarily be extreme and unusual and would require the court's satisfaction that the verdicts were the product of partiality inevitably engendered by the publicity. Only in such a case would the clear public interest in bringing to trial persons charged with serious criminal offences have to cede to the inability of the criminal justice system to provide a fair trial to the applicant." 218The issue of adverse pre-trial publicity in that case and the principles that apply to setting aside a conviction are obviously very different to the issue presently under consideration. However, the proposition that may be drawn from it is this; in cases where there is adverse publicity, even though potentially very prejudicial, it is not, ipso facto, to be assumed that complainants, witnesses or jurors will be influenced or contaminated by it. It is true that jurors, unlike complainants and witnesses, are bound to follow trial directions which are directed at preventing the intrusion of pre-trail publicity into jury deliberations. However, the first paragraph of each of the statements contains the usual declaration by the witness as to the truth of the statement and warning as to the consequences of wilfully untrue statements being made. The warning may be taken as, at least, sounding the need for appropriate caution. It does not, of course, itself address the issue of media publicity, but it does emphasise the seriousness that attaches to statements made to police in relation to alleged criminal activities. 219A further matter touched on above that points against contamination is the fact that the individual statements of complainants and other witnesses do contain statements and descriptions of events that could not be characterised as being extravagant or exaggerated accounts and contain material that, in certain respects, is clearly favourable to the applicant. 220The comparative assessment of the content of each statement and the allegations in media and internet sites has led me to conclude that there was before Finnane DCJ a sound basis in the evidence for determining that the onus on the Crown was discharged. 221A close analysis of the media and other material in the Walsh affidavit and the individual statements does not, in my assessment, support a conclusion that the statements were infected by such material. 222Grounds 3 and 4, in my opinion, should be dismissed.

Ground 5: His Honour erred by finding that the contended tendency evidence of each complainant had significant probative value

Ground 6: His Honour erred by finding that the probative value of the contended tendency evidence substantially outweighed its prejudicial effect 223These two grounds were argued together.

Statutory provisions 224For the purposes of the present appeal, the relevant provisions of the Evidence Act are s.97 s.98 and s.101(2). Those provisions are in the following terms:- "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1)(a) does not apply if:- (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1)(a) does not apply if:- (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. ... 101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

Applicant's submissions 225The written submissions for the applicant emphasised the need for particular care when considering the admissibility of tendency and coincidence evidence relying, in that respect, upon observations of the High Court in KRM v The Queen (2001) 206 CLR 221, Phillips v R (2006) 225 CLR 303, CGL v DPP (2010) 24 VR 486 and PNJ (supra) at [19]. 226The submissions drew attention to the statutory dictionary meaning of the expression "probative value" in the Evidence Act and the meaning to be accorded to the phrase "significant probative value" (as meaning "important" or "of consequence": R v Lockyer (1996) 89 A Crim R 457). 227Reference was made to the observations of Beazley JA in R v PWD (2010) 205 A Crim R 75 at [64] (with whom the other members of the Court agreed) in which the proposition was confirmed that tendency evidence need not show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. 228In R v Ford (2009) 201 A Crim R 451, Campbell JA (at [125]) noted that there was no need for there to be a "striking pattern of similarity between the incidents". The evidence should make more likely however, to a significant extent, that the facts make up the elements of the offence charged. 229The submissions correctly emphasised that, to determine if evidence has significant probative value, it is to be assessed in relation to its connection with the facts in issue. It was contended that striking similarities and unusual features remain relevant in determining whether the evidence is likely to be of significant probative value. The greater the degree of specificity with which similarities can be identified then more likely will it be that the evidence will be probative of the tendency to act in a distinctive way or do acts of a distinctive kind: CGL (supra) at [40]. 230It was argued for the applicant that the tendency evidence which the Crown seeks to rely upon does not possess the requisite significant probative value for the following reasons:- (1) The contended tendencies are very general. (2) The lack of degree of similarity between the alleged conduct on the various occasions. (3) The lack of degree of similarity of the circumstances in which the alleged conduct took place. (4) The risk of concoction and contamination of the proposed tendency/ coincidence evidence. 231The alleged tendencies specified in the Tendency Notice were said to be extremely broad and non-specific. 232It was also contended that there was a lack of degree of similarity between the alleged conduct on the various occasions. Exhibited to the applicant's written submissions was a schedule which was said to particularise the similarities and dissimilarities in respect of the tendency/coincidence evidence. 233It was submitted that, whilst there are a number of common features alleged by the complainants and tendency witnesses, there are also a number of dissimilar features. Particular instances are set out in the written submissions. 234It was further submitted that there was a lack of degree of similarity to the circumstances in which the alleged conduct took place.

Crown submissions 235The Crown stated that the prosecution was not seeking to advocate the admission of the tendency evidence based on striking similarities. In this respect it cited the observations of Beazley JA in PWD (supra) at [35] as follows:- "The Crown does not rely on a case of striking similarities, but rather on a pattern of behaviour, modus operandi, system or pattern and common threads (the pattern) in the respondent's conduct." 236The Crown contended that the trial judge had not engaged in any error of process. 237The Crown relied upon a schedule which was said to identify the claimed vulnerabilities of witnesses and details of the offences by act and location. 238Reliance was also placed upon the following observations of Beazley JA in PWD (supra) as applicable to the present case wherein her Honour stated at [83]:- "... [A] feature of the evidence sought to be relied upon as tendency evidence was an element of selection and encouragement of the boys to whom he directed his sexual attention: only boarders were involved, all of whom reported feelings of isolation, home sickness and not fitting in, although this exhibited itself variously as discussed in the outline of the evidence given above. A combination of the student's vulnerability and the respondent's authority enable the respondent to act on his tendency to be sexually attracted to young male students."

Consideration 239The assessment of the probative force of coincidence evidence, as with evidence of similar facts at common law, depends, inter alia, on the issue to which the evidence is relevant. That is, how does the evidence tend to prove that issue?: Hoch (supra) at 301. 240The grounds on which evidence of particular indecent acts may be admitted as tendency or coincidence evidence has been identified as including the following:-

Where the evidence is relevant to showing "a system".
Where the evidence may be relevant in rebutting a "defence" of innocent association.
Where the evidence may confirm the truthfulness of the complainant's evidence in the particular case: Kilbourne v R [1973] AC 729 at 748 to 749. 241In determining the admissibility of particular special classes of evidence, it is inevitable that the trial judge must make an initial determination of questions of fact which the jury may ultimately have to decide: Hoch (supra) at 303 per Brennan and Dawson JJ. 242Accordingly, in a case such as the present, the trial judge, in essence, makes a preliminary finding whether, on the available evidence, there was or was not a real possibility of concoction. Ultimately, of course, if the evidence is admitted, it will become a question for the jury to determine the reliability of such evidence: see Hoch (supra) at 297. 243The dictionary defines tendency evidence as meaning "... evidence of a kind referred to in sub-section 97(1) that a party seeks to have adduced for the purpose referred to in that section". 244Section 97 permits evidence to be adduced that a person has a tendency to act in a particular way or have a particular state of mind. To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent: BP (supra) at [107]. 245One matter, where present, that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence: BP (supra) at [110] per Hodgson JA:- "... If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen ... However this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the "real chance" of concoction: OGD at [74]." (emphasis added) 246Coincidence evidence admitted under s.98 serves two functions:- (1) Firstly, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. (2) Secondly, as circumstantial evidence of the occurrence of the event or events in issue: Hoch (supra) at 296. 247In the present case, the evidence did not establish:-
The existence of any relationship between the complainants to each other during their adult life.
An opportunity for corroborative or joint concoction between them.
A motive for concoction. 248The probative force of coincidence evidence by a number of witnesses as the basis for its admission is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or otherwise have arisen from a cause common to the witnesses or from pure coincidence. 249In relation to the risk of concoction or contamination of evidence, the expression "a cause common to the witnesses" has been applied where there exists a possibility that the witnesses may have invented a story in concert. 250However, it may also be applied to the possibility that a similar story may have arisen by a process of infection from media publicity or comparable forms of publicity: Lord Wilberforce in R v Boardman [1975] AC 421 at 444. 251The nature and content of the publicity must be carefully considered. There must be "... a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality": BP (supra) at [123]. 252Similarly it has been observed in BP (supra) at [123] per Hodgson JA:- "... However, the risk of unconscious influence as to incidental details would not, in my view, necessarily require the evidence to be excluded." 253At common law, the criterion of admissibility of similar fact evidence was that its probative force clearly transcended its prejudicial effect. 254I do not consider that error has been establishing concerning the finding made by the trial judge that the tendency evidence has significant probative value and that it substantially outweighs any prejudicial effect. In my assessment, that finding was well open on the evidence 255The Crown observed that it did not contend, in respect of each of the complainants and tendency witnesses, that there was an identity or pattern of similarity between the specific incidents. It claimed that the evidence to be adduced would establish:- (1) The applicant, as College chaplain, at all material times was in a position of a trust relationship with each of the complainants and tendency witnesses. (2) The alleged acts are all said to have occurred in the applicant's room or living quarters. (3) The alleged physical acts were said to have occurred when no other adult was present. (4) The alleged acts were each said to have involved some form of physical contact between the applicant and one or more of the students. (5) Each of the students, the subject of the alleged acts, were said to be in the same age range (early teenagers). (6) The nature and circumstances in which the alleged acts occurred were said to fall outside the scope of what might be considered conventional contact between a male chaplain or teacher and male students. (7) The alleged incidents, including both those where the applicant and the student was alleged to be in the applicant's room on a one-to-one basis as well as the prayer meetings, involved (if such conduct were proved) unlawful acts (namely, assault with sexual overtones) and overt sexual assaults. 256In relation to such alleged conduct, there existed a similarity of circumstances, in particular, with respect to the prayer meetings conducted by the applicant and, in the case of alleged conduct involving physical (sexual) assault, one-to-one encounters in the applicant's living quarters. 257The evidence, if accepted by a jury, would demonstrate that the applicant was a person who was sexually attracted to young male students and acted upon the predilection in various ways and at different times. This is alleged to have occurred in a setting where the students to whom the applicant directed his sexual attention were students boarding at the College and who exhibited a certain level of trust in the applicant and who fell into a particular age group. 258The specific conduct alleged by each of the complainants and the tendency/complainant witnesses is set out in Schedule 1 to this judgment. An examination of the statements and evidence summarised in the schedule, if accepted, would constitute evidence that is capable of rationally affecting the assessment of the probability of the facts and matters referred to in paragraphs (1) to (7) in paragraph [255] above and that the applicant engaged in conduct as alleged and had a sexual interest in doing so. 259It follows that it was open to the trial judge to conclude that the evidence of the complainants and tendency witnesses was admissible under the relevant provisions of s.97 of the Evidence Act. In particular, it was open for him to conclude that the evidence had significant probative value in rebutting any suggestion that the applicant's relationship with each of the complainants was innocent. 260It was also, in my opinion, open to the sentencing judge to conclude that, having determined that there was no real risk of concoction that the judge determine under s.101 of the Evidence Act that the evidence had significant probative value that substantially outweighed any prejudicial effect. 261Accordingly, I am of the view that Grounds 5 and 6 should be dismissed.

Ground 7: His Honour erred by finding that the contended coincidence evidence had similarities in both the events and the circumstances in which they occurred which made it improbable that the events occurred coincidentally

Ground 8: His Honour erred by finding that the contended coincidence evidence substantially outweighed its prejudicial effect 262These two grounds were argued together.

Applicant's submissions 263It was submitted on behalf of the applicant that the dissimilarities between the alleged offending conduct in each instance and the number of witnesses making allegations against the applicant gives rise to a real risk that the jury will inappropriately conclude guilt on the basis of a general impression that the applicant had a generalised sexual interest in the complainants, rather than focussing on the need for proof of the actual offences charged: Written submissions at [117]. 264It was further submitted that there was a risk that the jury would give undue weight to the tendency and coincidence evidence and thereby misuse it by substituting proof of the uncharged acts with proof of the charged acts. Reliance was placed upon the observations of Hodgson JA in BP (supra) at [109]-[111]. 265It was also contended that the applicant faces the danger of unfair prejudice because he cannot safely introduce evidence of the circumstances in which the complainants came forward with their allegations. To do so, it was submitted, would be to reveal numerous other untested allegations. Further, a full understanding of the potential risks of concoction would require the jury to become familiar with the extremely prejudicial media reports and internet commentary that was viewed or likely to be viewed by the witnesses. 266Accordingly, it was submitted that unless the evidence of each offence charged is admissible in relation to the other offences on some other basis, a separate trial should be ordered in respect of the counts. 267In addition, it was submitted that the risks of considerable unfair prejudice to the applicant are:-

Firstly, because the ordinary person naturally thinks that a person who has an established tendency will yield to the tendency whenever opportunity arises and therefore yielded to the tendency in the circumstance of the particular case.
Secondly, once the evidence of tendency and/or coincidence evidence is admitted, it would require a superhuman effort by a jury not to regard the applicant as a person of depraved character whose uncorroborated evidence could not be acted upon except where it supports the prosecution case.
Thirdly, the particular type of case, the subject of tendency and coincidence notices, involves conduct prone to generating irrational and emotional responses on the part of ordinary persons. In particular, in this context, reference was made to the capacity for "exorcism" allegations to involve concepts of evilness is prone to generating such irrational responses.
Fourthly, the cases that involve evidence of assaults in the prayer groups will, necessarily, involve evidence about charismatic or Pentecostal religious practices. Many potential jurors would be unfamiliar with such practices and sceptical of them. Such matters, it would said, would have the potential for unfair prejudice. 268In addition to the particular matters identified in the written submissions, Mr Boulten adverted to the weight of potential prejudice arising from multiple counts on indictments presented against the applicant as adding a further risk that justice will not be achieved. He urged this Court to sever the counts on the indictment and return the proceedings to the Court of trial for further argument concerning the admissibility of the evidence of non-complainant witnesses in accordance with this Court's rulings.

Crown submissions 269The Crown referred to and relied upon the particular findings made by Finnane DCJ as to the particular circumstances that were said to indicate similarities and an underlying unity sufficient for the evidence to be admitted as coincidence evidence at the trial. 270As to the submission that the appellant would face a risk of unfair prejudice due to the challenge of cross-examining on the media content, the Crown submitted that, whilst cross-examination of witnesses would require skill and structure as well as judgment, such requirements were not prohibited or insurmountable. 271As to the potential risks identified in the written submissions as reproduced in paragraph [267], the Crown contended that all such risks were capable of being addressed through appropriate warnings and directions from the trial judge. 272Finally, the Crown contended that no demonstrable error within the House v King principles had been established and that leave should not be granted.

Consideration 273The common law concept of "similar fact evidence" has, of course, been the subject of consideration in many well-known cases. The case law in that respect is instructive to the extent to which it provides assistance in elucidating the application of the provisions of s.98 and s.101. It is, however, the language of the statute (the Evidence Act) which determines the admissibility of the evidence in question: Papakosmas v The Queen (1999) 196 CLR 297; R v Ellis (2003) 58 NSWLR 700. The issues raised in Grounds 7 and 8 are to be considered with that in mind. 274In assessing probative value under the Evidence Act, the approach to be taken is one based upon an assumption that the evidence in the Crown case will be accepted. 275In determining the admissibility of evidence under s.98(2), it is necessary to consider both evidence as to discrete facts as well as the relevant interrelation in or between facts which make up the Crown case. 276Brennan J, in referring to the observations of Lord Hailsham in Boardman (supra), referred to in the analysis of particular facts in Perry v The Queen (1982) 150 CLR 580 at 610:- "... Lord Hailsham in Boardman referred to the kind of factor which might usefully guide a judge in determining the question: 'the number of instances involved, any interrelation between them, the intervals or similarities of time, circumstances and the details and character of the evidence." 277In Perry (supra), Brennan J also observed at 610:- "... Evidence of strikingly similar facts may be received in an appropriate case, though they occurred on only one other occasion, as Reg v Straffen (74) illustrates. But evidence of a series of occurrences exhibiting a more attenuated similarity may be admissible because the frequency of the occurrence of the similar fact enhances the probative force of the evidence, though the necessary probative force would be lacking if the similar fact had occurred but once or on a few occasions only ..." 278In Perry (supra), Wilson J at 604 stated that "similar facts" involve questions of degree in each case, as probative value will vary with:-

the nature of the similar fact evidence itself;
the issues;
the other evidence in the case. 279Brennan J in Sutton v R (1984) 152 CLR 528, in relation to evidence which may be admitted as coincidence evidence, identified the following as necessary inquiries:- (1) Whether the evidence can be said to be relevant evidence. (2) Whether, having regard to their number, their context, their nature and similarity, including similarities of time and circumstance, the facts said to be similar have significant probative value by reference to their connection with a fact in issue or to a fact in the chain of a fact in issue. (3) The cogency of evidence of the commission of other alleged offences is to be ascertained by reference to the whole body of proof in the case viewed in the light of experience. See Hoch (supra) at 301 per Brennan and Dawson JJ; Phillips (supra) at [26] and R v Folbigg (2005) 152 A Crim R 35 at 80 per Sully J. 280In R v Zhang (2005) 158 A Crim R 504 at [139], Simpson J, in relation to s.98, identified the following principles:- "(i) coincidence evidence is not to be admitted if the Court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of a judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly, (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in the conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s.98 mandates that the evidence is not to be admitted." 281In Lockyer (supra) at 459, Hunt CJ at CL noted that one of the primary meanings of the word "significant" is "important" or "of consequence". His Honour stated:- "... In my opinion, that is the sense in which it is used in s.97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact ..." 282The definition in the Evidence Act of "probative value" ("could rationally affect", namely, "the extent to which the evidence could rationally effect the assessment ...") focuses on "capability" and draws attention to what is "open" for the tribunal of fact to conclude. It does not, by itself, direct attention to what a tribunal of fact is ultimately "likely" to conclude. Evidence has "probative value" as defined, if it is "capable" of affecting the assessment of the probability of the existence of a fact in issue. Gaudron J emphasised in Adam v R (2001) 207 CLR 96, a "test" of "rationality" also directs attention to capability, rather than weight. The issue of significant probative value is considered below. 283In relation to the balancing exercise under s.101(2), the Court is required to consider the facts of each case: Ellis (supra) at [95]. As there observed, this requires consideration of the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. The issue of prejudicial effect goes to the question of the fairness of the trial, being any prejudicial effect the evidence "may" have on both the accused (or either of them). 284In determining the issue, it is necessary to have regard to the evidence in question, the issue or issues to which it is directed and the nature of the evidence. These and other matters need to be considered in determining the degree and the level of any unfairness to the accused. 285In HML v The Queen (2008) 235 CLR 334, Gleeson CJ stated at [12] that prejudice in terms of evaluating similar fact evidence meant the danger of improper use of the evidence - not its legitimate tendency to inculpate. 286In relation to prejudice as referred to in s.101 it has been recognised that some forms of prejudice are amenable to management as, for example, the provision of suitable directions and warnings to juries: HML (supra) per Gleeson CJ at [28]. 287On the other hand, if a trial judge concludes that the risk of prejudice is such as to put it beyond reasonably affective management, then the evidence should be excluded. 288Accordingly, in the present case, the issue is whether or not the trial judge was in error in concluding, as he did, that the probative value of the evidence was so significant as to outweigh its prejudicial effect. In other words, will the coincidence evidence have a prejudicial effect that is disproportionate to the probative force of the evidence? 289In undertaking the balancing exercise required by s.101, the learned judge did not articular the precise bases upon which he concluded that the evidence of "the coincidence witnesses" substantially outweighed the prejudicial effect that it may have on the applicant. The Crown relied upon observations of this Court in PWD (supra) at [71] for the proposition that the prejudicial effect is to be considered in terms of whether there is the risk of an unfair trial or the possibility that the jury "will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue" (BP (supra) at [109]). 290The Crown submitted (at [64]) that, in view of the preliminary finding on the aspect of concoction, and that that was the issue that formed the basis for the attack upon the probative value of the evidence, it is not surprising that the learned judge reached the conclusion that he did and that the findings were open to him. 291Whilst I accept that there are risks of unfair prejudice arising from the use of tendency and coincidence evidence, I do not consider that those risks are beyond management by the provision of appropriate warnings and directions by the trial judge. It would be expected that counsel for the Crown and the applicant would participate in the formulation of suitable directions with a view to ensuring that the jury's determination is based upon a proper evaluation of the evidence. 292The matters raised in the submissions on behalf of the applicant to which I have earlier referred have warranted close consideration. Having done so, I have concluded that the prejudice that would otherwise flow by the admission of the evidence in one count of the evidence given in others is capable of management by an implementation of the approach to which I have referred 293I have concluded that it has not been demonstrated that the trial judge erred in finding either that the evidence had significant probative value nor in finding that the probative value of the evidence substantially outweighed its prejudicial effect. 294I have concluded that Grounds 7 and 8 should be dismissed.

Orders 295I respectfully agree with Basten JA that there should be a grant of leave to appeal on the basis stated by his Honour but that the appeal should be dismissed.

Analysis of statements to police and possible contamination 296The matters to which I have referred to in the principal judgment that point away from the possibility of contamination are based upon an examination of the statements made by each of the complainant witnesses and the tendency/coincidence witnesses. An analysis based on that examination is set out below and is directed to establishing the extent and nature of any similarities between the accounts and the matters of possible relevance to the submissions made on the subject of possible contamination.

(1) AM - a complainant 297AM commenced at the College in 1984 when he was in Year 7 and was 11 years old. He boarded at the College until the end of 1987 when he completed Year 10. 298AM became aware of publicity in relation to allegations against the applicant in the 12 to 18 months prior to giving his statement to police. He saw or heard various articles and news clippings on television and in print. He also looked at media reports on a couple of occasions and saw the Broken Rites website two or three times and saw various articles about other victims of abuse by Catholic staff. He recalled references to students in prayer groups, chanting and speaking in tongues and was aware of leaflets being handed out around Bathurst regarding allegations against the applicant. He recalled reading an article called "Old Boys calls school a paedophile paradise" which said an ex-student received payment after accusing another priest of sexual assault. 299On the issue of possible contamination, it is important to note the details of the account provided by AM in determining whether or not it reflects material that was publicised either in the media or on the internet. In his statement, he referred essentially to one particular occasion, described in his statement as "Incident 1". 300The statement, however, goes beyond one incident in that it alleges (paragraph 30) that it was not uncommon for him to sleep in the applicant's private room off the Year 7 dormitory due to having wet his bed. He said he "would have slept there on various occasions, but I cannot quantify the number of times I did that ...". He stated that, after having wet the bed in the warmer months of Year 7 in 1984, he went to the applicant's room and got into bed with him. 301In the statement (paragraph [32]), AM then proceeds to refer to a particular alleged incident. On this occasion, he alleged, he remembered the applicant's erect penis pressed up against his lower back area. He said he could not remember how long this went on for and that he probably went to sleep. He stated that he did not recall anything happening again to him when he spent nights in the applicant's bed. 302AM also described prayer meetings. He gave an account alleging that, on occasions when he entered the applicant's room, the applicant greeted him by kissing him on the lips. AM also alleged that, at various times, the applicant placed his hands on students at the prayer sessions, similar to what he had done to him but that he could not remember the applicant kissing the boys like he did with him. He added "I do not recall any other inappropriate behaviour occurring during the prayer sessions that I attended ..." (paragraph [53]). His statement does not resonate or reflect the type of extreme or graphic behaviour in the internet material exhibited to the Walsh affidavit. 303He denied having discussed material events with other former students.

(2) PK - a complainant 304PK attended the College from 1984 to 1987 as a boarder and completed his School Certificate before moving to Sydney. 305In 1984, he was in Year 7. His dormitory master and chaplain at that time, he said, was the applicant. 306PK gave an account of a particular incident in paragraphs [8] to [10] of his statement in which he said he had a one-to-one meeting with the applicant. He described the particular circumstances of that meeting which arose out of a request by PK to the applicant to copy a Madonna album onto a tape. The applicant stated that, on this occasion, the applicant hugged him from the front. He noted, however, that it was not unusual for the applicant to hug students when he was clothed. He said he felt slightly uncomfortable and, on this occasion, he said the applicant appeared wet and had only a towel around his waist or a bathrobe on. He said after passing pleasantries, the applicant walked over to him and hugged him from the front. He said he felt slightly uncomfortable, given his attire at the time. He also alleged that, at this time, the applicant leant down and kissed him on his forehead. He alleged that on the occasion in question, the applicant sat on a chair and moved him onto his lap but slightly away from the applicant's groin area. He gave an account of the applicant allegedly kissing the back of his neck and his hair. He stated that he felt uncomfortable at this point. He alleged that the kissing continued to the back of the neck and moved towards the side of his face. He also alleged that, at this time, the applicant had his hands wrapped around his body and was holding him against his chest. This, he said, would have gone on for a couple of minutes at most. 307The applicant stated that he manoeuvred himself out of the chair and pushed against the chair and stood up and walked out of the room. 308PK said that, after this incident, he never had another one-on-one meeting with the applicant. He said that he considered their relationship changed slightly after this event. 309PK statement makes reference to attending a few prayer sessions between 1985 and 1987 at which the applicant was present. Whilst reference is made to things such as candles, chanting and speaking in tongues, no account was provided to any particular events occurring which would reflect or suggest contamination from any publicity. 310PK said that the prayer sessions were conducted in the applicant's room but that he rarely attended such meetings as he preferred to do other things. He said in evidence he saw nothing sexually inappropriate at prayer groups or meetings. 311In summary, PK account does not constitute an expansive version that has the hallmarks of media or internet affectation. 312He could not recall looking at websites that dealt with religious members accused of sexual assaults against minors.

(3) GS - a complainant 313GS commenced his schooling at the College in 1985. He was 12 years of age at that time. He gave an account of attending prayer sessions allegedly conducted in the applicant's room. His account included a recollection of him and other students sitting in a circle at the prayer meetings, there being candles burning and speaking in tongues. He was not a witness to any inappropriate behaviour at such sessions. 314GS statement refers to a particular occasion in the middle of 1986. He said it occurred in the applicant's room when he was not feeling well. He described a particular incident occurring when he alleges that he lay on the applicant's bed. He described an incident allegedly involving sexual activity in paragraph [16], [17] and [18]. 315GS alleged that he was pulled on top of the applicant after he had gone to sleep. The account allegedly involved the applicant finding himself completely naked and the applicant wearing pyjamas. GS alleged that the applicant's penis was erect and the applicant was thrusting his pelvis back and forward whilst he embraced GS with both arms. GS further alleged that on this occasion the applicant ejaculated and he felt the sperm on his groin area. GS alleged that he struggled his way out of the applicant's arms to get out of his bed. He said he got dressed and left the room. He further alleges that the applicant apologised to him. GS stated that he did not tell anyone of this alleged incident. 316The account of the alleged incident and the surrounding circumstances does not, in my opinion, resonate or reflect the particular descriptions contained in the internet material relied upon by the applicant in the present application. His allegations were confined to the one occasion referred to in his statement and does not traverse matters the subject of media and other commentary concerning prayer meetings. GS, in fact, stated that he never witnessed or was subjected to any inappropriate behaviour whilst attending prayer sessions. 317GS saw an article in the newspaper and a news bulletin which contained a picture of the applicant outside the Bathurst Court. He also conducted internet searches and came across a website set up for those people who had been sexually assaulted. He said the website had been set up by a man who had made continual complaints to the Bathurst Police. GS also recalled an article talking specifically about being herded into a prayer room by a priest who was chanting hypnotic spells in tongues. 318Detective Hadley was the first person he had spoken to about his allegations. He was initially horrified to receive the call from Detective Hadley as he had not told anyone as to what allegedly had been done to him when at the College. 319Initially, GS said he closed down the conversation with Detective Hadley after Detective Hadley had made contact with him, but shortly after, phoned him back. He was told that there were witnesses that said that something had happened to him and GS said that that was impossible. 320He initially told Detective Hadley that nothing had happened to him because he was embarrassed and did not want anyone to know. 321In his statement, he said he attended prayer meetings with fellow students whose names he supplied to police. He recalled the applicant and recalled the use of candles and that there was always "smelly things" burning in the background during prayer meetings. He recalled that the students would sit in a circle and that the applicant would walk around and touch the students on the head and shoulders. He would speak in some kind of tongue, but he never knew what he was saying. He said the applicant referred to it as a "laying of hand" which involved touching the heads of the students. 322He recalled on some occasions students falling asleep whilst the processions were being conducted. He said that he never witnessed or was subjected to any inappropriate behaviour whilst attending the prayer sessions. 323GS did not give an account of any other incident adverse to the applicant. In other words, the statement he made to police focussed upon one specific occasion. He said that after contact had been made by Detective Hadley, he disclosed the incident to his wife, his lawyer and the Director of Public Prosecutions.

(4) DJS - a complainant 324DJS attended the College at the commencement of 1988 when he was in Year 9. 325His statement does not address prayer meetings. DJS stated that he never visited the applicant in his private room. 326The statement contains general observations about the applicant's alleged conduct towards other students. He said he often saw the applicant cuddling boarding students especially those in Year 7 and also sitting down with them with his hands on or near his legs. 327It refers to an alleged incident referred to in the statement said to have between May and August 1986 when DJS was in Year 9 and was about 14 years of age. The alleged incident is described as having occurred in the applicant's office. The alleged sexual activity that the complainant said occurred on that occasion is described in considerable detail. 328In his account, he alleges that the applicant said he was going to perform exorcism on him to cast out the devil. DJS said that he said words which he could not understand and he, DJS, claimed that he was extremely upset at this point and was crying. He further alleges that the applicant grabbed him around his upper body with both hands and briefly pulled him towards him. He also alleged that, when he was sitting on the applicant's lap, he felt the applicant's erect penis pushing into his upper left leg. He alleges that the applicant undid the button on the fly area of his pyjamas and placed his right hand inside his pyjamas onto his penis and was rubbing it, the applicant allegedly saying to him "it's okay". He said that the exorcism started before this. He said he told his wife and his mother about the incident. In evidence he said he spoke to one student briefly about a similar incident (t.264, t.282) that allegedly involved another student and the applicant. He said that, thereafter, when the applicant approached him, he would walk away. 329The above account differs in a number of respects from the accounts referred to, in particular, in the Daily Telegraph article and the "Catholic Cover up" material on the internet. DJS account of the alleged incident is described in a fashion and detail that does not, in my opinion, suggest contamination from having read publicised material. 330DJS contacted police after hearing a radio broadcast to the effect that, if anyone else had information in relation to events at the College to contact police. 331DJS said that the applicant, on occasions, cuddled him in the playground.

(5) DS - a complainant 332DS attended the College at the start of the second term in 1986 and remained at the College until the end of 1989 when he graduated in Year 10. He was a day student. 333In his statement to police, DS referred to three one-hour counselling sessions which the applicant allegedly conducted and which were said to have been held in private. An aspect of the counselling sessions allegedly involved exorcism by the applicant. 334References are made to the lighting of candles, incense burning and music playing and the applicant chanting. 335The description of the counselling sessions provided by the complainant included references to prayers and to alleged activities of the applicant lightly touching parts of his body (paragraph [12]). DS alleged that the applicant massaged his body, touching his arms, sides, thighs and lightly brushing his penis and testicles for a brief moment with his hands. He further alleged that the applicant's hands would then move back up his body to his shoulders and neck. Reference was made to the prayers and the action of the applicant pushing him on the forehead and lowering him backwards onto the floor while stating that he was expelling the "demons". He said that he did not subsequently mention the alleged sexual contact that had taken place to anyone. 336DS referred to a second visit approximately one week after the first. He described the atmospherics including music and incense at the prayer sessions on that occasion. He alleged that the applicant came from behind him and pressed the front of his body hard up against his back, his hands on his neck and shoulders and then massaged his way down his body. He alleged that this time the movements were a lot slower and on this occasion his hands rubbed his penis and testicles. He said that this physical contact was allegedly more pronounced than on the previous occasion. 337DS referred to a third occasion in which he alleges that the applicant came up from behind him and pressed the front of his body hard up against his back which was more forceful on the previous two occasions. He claimed that the applicant was talking more on this occasion and that there was music and chanting was in the background. He alleged that he was massaging his neck and shoulders on this occasion, more strongly this time and that his hands allegedly moved down his body again to his thighs, testicles and penis. 338DS continued that, on this occasion, instead of lowering him to the floor, he alleges that he guided him to the bed and reached across with his left hand on the bed against his right-hand side. DS said that he believed that the applicant was going to kiss him on the lips. He said he jumped up and pushed the applicant back and left. 339The accounts provided by DS contains a level of detail that does not accord with the publicised material, although, in a general sense, they do contain references to matters concerning prayer meetings that are to be found in such material. A reading of the statement, however, does not, in my opinion, indicate or suggest that the complainant's accounts of the particular incidents described were the result of contamination. The specific details in relation to the alleged incidents do not, accordingly, indicate that published material in the media and otherwise was the source of the accounts described. 340DS said that he was alerted to an article in the Western Advocate by his mother. The article said the applicant had been arrested on sexual assault charges. He then accessed the article on the internet.

(6) AK - a complainant 341AK commenced at the College in the second term of 1988 when he was in Year 8. 342In his statement to police, he referred to night prayer sessions conducted by the applicant in his room. 343AK's statement contains an account of having attended prayer meetings on a number of occasions with the applicant in the second and third terms of 1988. The description of the activities and events were limited to references to the applicant having allegedly brushed up against him during the sessions. There is no description of any graphic sexual activity such as to be found in certain of the "Catholic Cover up" material that was exhibited to Mr Walsh's affidavit. 344The statement, however, does refer to a particular incident that allegedly occurred in the third term of 1988. AK alleged that the applicant started to brush against him during the prayer sessions on the outside of his pyjamas and brushed against his buttocks and genitals. He further alleged that the applicant would press up against him with his hand or another part of his body. However, he stated that he never placed his hands inside his pyjamas at the time. He alleged that the pressing against him was always on the outside of his clothing, but that sometimes he would claim that he definitely felt the applicant's hands touching him. He alleged that whilst the applicant pressed up against him at a number of prayer sessions, this did not happen on every occasion. 345AK statement includes reference to a particular occasion, not in the context of a prayer meeting, in which he alleged there was overt sexual activity by the applicant of which he provided a graphic description (paragraphs [47] to [49]). 346On this occasion, AK alleged that he was homesick and saw the applicant in his bedroom. He recalled the applicant trying to console him. He alleges that the applicant pulled down his pyjama pants and exposed his genitals and placed his arms around the back of his body and guided AK onto him as he started to lie backwards on the bed. He alleges that the applicant held him in a tight hug with his arms around his shoulders and armpits and his head was resting on his chest under his chin. AK further alleged that the applicant moved one of his hands near his genitals and he felt him brushing against them with his hand and that he felt the applicant's genitals against his. He recalls the applicant allegedly repositioning his hand on the small of his back and starting to rub his back gently. He stated he could not recall exactly what happened but alleged that his genitals were allegedly against the applicant's exposed genitals. The statement includes reference to AK recollection of features of the room during the alleged incident. 347In my assessment, the detail and the nature of the accounts included in the statement of AK do not reflect the descriptive material exhibited to Mr Walsh's affidavit. 348AK contacted police in February 2009. Approximately six months before he spoke to police he saw a newspaper article which spoke of allegations against the applicant abusing boys at the College.

(7) FD - non-complainant witness 349FD commenced at the College in 1985 and remained there until the end of Year 9 in 1987. 350He said he attended prayer meetings arranged by the applicant in his room. He referred to various details such as religious music, candles, a scent in the room as well as the applicant allegedly chanting and praying in Latin. He provided a detailed account of what he alleges were occasions involving physical contact. He described the nature of the contact allegedly made by the applicant with him (paragraph [28] and [29]) and the applicant's alleged manner of greeting him which allegedly involved a display of intimacy (paragraph [31]) (kissing on the mouth and "welcome kisses" on the cheek on entering the room). 351FD also included in the statement references to the applicant's alleged conduct towards other students. He referred to a particular occasion during Year 7 in which he alleged that the applicant placed him in the applicant's bed. He stated he could not recall anything else happening on that occasion. The statement does not contain descriptions of graphic or overt sexual activity and does not reflect the intimate detail in material exhibited to Mr Walsh's affidavit or, in particular, that contained in the Daily Telegraph article. 352FD was alerted to allegations against the applicant by Ms Withers. He subsequently heard a long radio broadcast and news bulletin regarding the applicant being charged with inappropriately dealing with students at the school. 353FD stated that he had not visited or viewed any websites that mentioned or outlined allegations against former priests or teachers at the College. 354His account in evidence was that, after having been contacted about the matter, he initially did not have a very good memory of the circumstances in which he dealt with the applicant at the College other than being in the choir with him. It was when he went to the police station and told the police that he did not recall too much that the year books were laid out in relation to the time he was in attendance at the College. He said it was from going through the year books that he actually started to get some memories back which he mentioned to the officer.

(8) LC - non-complainant witness 355LC attended the College in Year 10 in 1988 and was aged 16 years. He started in the fourth term of 1988. 356His statement to police dated 10 September 2008 contains an account of a specific occasion that occurred on a Saturday night in the second term in 1989. He said that, whilst in the dormitory, some boys had jumped on top of him. He flung the bedcovers off and took off to get away from them. He found his way to the applicant's room and knocked on this door. 357LC then set out an account of particular activity by the applicant (paragraphs [13] to [15]). 358He alleged that the applicant took hold of him and allegedly attempted to kiss him on more than one occasion. He also described the applicant allegedly pulling him down on top of him and kissing him passionately on the mouth. LC also alleged that under the bedcovers he was holding him down and could feel the applicant thrusting up and down against his body using the lower half of his body. At this time he alleged that the applicant was holding him firmly and kissing him. He said that he was unable to pull himself away from the applicant. He alleged that this continued for almost 30 minutes or so. In his statement, LC said that the applicant seemed to him to be disassociated with himself as he was doing the activities described. LC did not described any other sexual activity and recalled the applicant stopping his actions, letting go of him and getting out of the bed. He recalled him allegedly getting a mattress from out of his bed and placing it on the floor near the lounge and told him to sleep on that. 359The account does not contain any other graphic or overt descriptions of sexual activity. LC statement to police does not, in my assessment, suggest an account affected by contamination from the exhibited material. 360LC gave an account of having attended prayer sessions but stated that he did not recall anything out of place occurring. 361LC contacted police after viewing extensive publicity. He saw television reports and his wife brought his attention to an article in the local paper which spoke of the allegations and included an image of the applicant. LC made numerous internet searches and read up on media about the sexual assault charges being brought against the applicant. He also located the accounts of the first person who made allegations. LC recalled reading articles which suggested that victims were herded into prayer rooms by the applicant chanting hypnotic spells in tongues and that boarders were forced to assault each other. 362It is to be noted that LC was older than certain of the other witnesses (then 16 years). The description of the alleged activities of the applicant, whilst clearly being of a sexual nature, were not as specific or as grave as the account, for example, provided by GS.

(9) FVA - non-complainant witness 363FVA commenced at the College in Year 8 in 1985 as a boarding student. 364His statement refers to his attendance at prayer groups in the applicant's room. He described events at those meetings but stated that he did not see anything occur whilst he was in attendance. 365His statement referred specifically to one occasion when he was in the applicant's room. He could not recall the year and could not recall why he was there, but that it was during the daytime. He alleged that the applicant hugged and kissed him. He also alleged that, on that occasion, the applicant led him to his bed and they lay down on the bed. The applicant allegedly made, what was described as, strange noises, like heavy breathing and that the applicant allegedly moved in a thrusting motion. He did not describe any other activity having occurred on that occasion. 366The statement does not, in my assessment, suggest contamination arising from published material such as that exhibited to Mr Walsh's affidavit. 367FVA had become aware that the applicant had been charged with sexually assaulting former students at the College before police approached him. Prior to making his statement to police, he conducted some internet searches in relation to the applicant. He recalled reading an article which talked about allegations of chanting, orgies in prayer sessions, speaking in tongues and laying of hands. He said that this article brought back memories of things he had never thought of since he was a school boy. He also saw the website entitled "Catholic Cover Up" and he saw articles about ex-students which contained allegations of abuse by the applicant during prayer groups where chanting was used to hypnotise students.

(10) PW - non-complainant witness 368PW commenced at the College in Year 8 at the beginning of the school year in 1987. He was 13 years of age at that time. 369He said that he attended on the applicant on a number of occasions. These attendances allegedly occurred in the applicant's bedroom. He stated that he also went to some prayer group meetings at night in the applicant's room. 370He described a particular occasion when he attended on the applicant in the applicant's room (paragraph [18]). He alleged that the applicant kissed him. PW alleged that on this occasion, the applicant placed his hands on either side of his face and said "you know I love you, you can come to me any time". He then alleged that the applicant kissed him on the lips. He stated he did not know what to do and was in shock. 371His next few visits to the applicant's room, he said, were normal and no adverse event occurred. 372PW gave an account of a further incident when he said he attended upon the applicant in his room. PW alleged that, on this occasion, the applicant kissed him and told him to sit on the bed and then lay on the bed. He alleges that the applicant got onto the bed and lay behind him, curled up around his back. He said "I don't remember anything else happening". He said he fell asleep and when he woke up he left the room. 373PW statement (paragraph [21]) alleges that the alleged kissing by the applicant became more frequent. He described the alleged sequence of events as the saying of a prayer and that the applicant would then allegedly place his hands on either side of his face and kiss him on the mouth and would make him sit with his legs either side of him so that he was facing him in a straddled position. He further alleged that the applicant pulled him closer to his body and he realised that the applicant had an erection when so sitting. There was no other description of any overt sexual act and PW stated that he could not particularise any incident "... as the same thing happened each time" (paragraph [21]). 374The statement does not contain graphic references to matters referred to in the internet commentary exhibited to Mr Walsh's affidavit. In my assessment, the statements does not reflect contamination based upon the exhibited material. 375PW saw publicity about the applicant being involved in a number of sexual allegations in the late 1980's at the College through national news reports before he made his statement.

(11) SP - non-complainant witness 376SP attended the College as a full-time boarder from 1983 to 1988. 377He referred to having attended prayer meetings at night and that the applicant ran the sessions. 378SP referred to one particular occasion at such a group meeting allegedly sitting on the applicant's knee. Although he alleges that the applicant instigated physical contact with him using his left hand, he stated he did not touch his genitals. He said that he did not return to the applicant's room thereafter. 379The statement does not, in my assessment, reflect or convey contamination from the exhibited material. 380Six to nine months before making his initial statement to police, SP had seen a news story on the television which said that the applicant had been arrested and was charged with indecent assaults on former students at the College.

Evidence regarding access of witnesses to media reports and internet commentary Publication Reference Synopsis Media viewed re Statement 16.9.08: "Facing trial by the media", Western Advocate Exhibit 1 Article stated that BJS is facing 93 charges. No further relevant detail provided (news paper story not complete). AM - Agreed that he saw this article (t.202). Provides a contemporaneous picture of BJS. DS - Found this article online after being told about it by his mother, and prior to making a statement to police (t.100). Stated that the article only stated that the accused had been charged with sexual assault offences, but gave no particulars thereof (t.100-101). LC - Stated that he saw media coverage in the local paper, but which paper it was was not identified in the transcript. He saw the paper a week prior to his statement (t.168). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179) 27.8.08: "Darkest Secrets: 40 victims of sex abuse ring", The Daily Telegraph Exhibit 2 The article mentions that BJS has been charged with 33 counts of "sexual assault and gross acts of indecency". It alleges there was a paedophile ring made up of staff and teachers. AM - Shown the document, stated that he could not recall it specifically, but confirmed that he had seen similar references (t.203-204). The article reports that two victims told the Telegraph that "they were headed into a prayer room by a priest chanting 'hypnotic' spells in tongues... [and] said they were subjected to horrendous sexual abuse or forced to assault each other". PK - Did not see any articles prior to Statement (t.18, 21). One of the victims stated that he alleged the abuse began when a priest took him aside for private tutoring, and a group of 8 or 12 students was mentioned. GS - Recalls Telegraph article, but does not think that it was this one, but does state that he recalls it saying similar things (prayer room, speaking in tongues etc) (t.242-242). The victims are reported to have said "It was like an orgy" and a second victim stated "You'd pass out ... they spoke in tongues ... another element was called laying on hands, that was the basis on which he would engage in physical contact". DJS - No media exposure at any time (t.272). The article stated that it had confirmed with police that 13 victims had come forward. DS - Denied reading this article (Western Advocate only) (t.104). AK - Agreed that had seen a Telegraph article, which could have been this one. Some detail from the article remembered. Stated that he may have seen further articles, but cannot recall what they were (t.6-7). FD - No television or print news exposure (only 2GB radio station) (t.131). LC - Remembers viewing articles that contain similar content to the present, but cannot recall which ones (t.173). FVA - Agreed that he read this article (t.149). PW - Only saw TV coverage (t.118-120) SP - Only saw TV coverage prior to making statement (t.227). 6-7.9.08: "Old boy calls school a pedophile [sic] paradise", Sydney Morning Herald Exhibit 3 Recites the views of a student called "John", whom "recalled priests 'grooming' pupils with pornographic magazines, students hiding from staff members when they came 'hunting' for first and second formers, and a teacher he knew by the nickname of 'Toad' who was notorious for grabbing pupils by their privates if they answered questions incorrectly in class". AM - Stated that he saw and read this article in the SMH (t.202) The article mentions that BJS was charged with 93 offences whist at the school. Provides a periodical picture of BJS.

Annexures to the Affidavit of Gregory Walsh dated 17.2.11 Exhibit 4 Media Advisory's from NSW Police regarding sexual assault claims at "Bathurst Schools" Tab 1 Noted that "We are continuing to follow up and thoroughly investigate information surrounding sexual assault allegations at the college around this period": 27 August 2008 No suggestion that any of the complainants or tendency witnesses saw or read these releases. Reports that priests and/or teachers were arrested and charged with the sexual assault of a number of boys at two Bathurst Schools: 3 September 2008 (x 3). Noted that one of the men arrested was an assistant dorm master: 15 December 2008. On 4 May 2009, a man was arrested and charged with "attempt homosexual intercourse of a student by a teacher, gross act of indecency and supply a prohibited drug": 5 May 2009 Extract from the Catholic Cover-up Tab 2 States that ex-priest BJS was arrested on 33 charges "relating to allegations made on this website": 22 May 2008 AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202). GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250). LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179). FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151). Extract from Catholic Cover-up Tab 3 Not pressed at hearing. Extract from the Catholic Cover-up Tab 4 This extract purports to recount in part the proceedings before Magistrate Thomas Hodgson at Bathurst Local Court. The following comments were made:- "The charges against [BJS] include six allegations of homosexual sexual intercourse as a teacher at the college with pupils aged 11, 12 and 13. The former priest is facing 18 counts alleging he engaged in acts of gross indecency with the pupils he allegedly solicited and incited to commit gross act [sic] indecency. Other allegations against [BJS] relate to male to male sexual intercourse with person from 10 years to 16 years-of-age under authority": 22 July 2008. Extract from the Catholic Cover-up (by Gemma Jones) Tab 5 Reproduces Exhibit 2: 26 August 2008. Extract from the Catholic Cover-up (by Gemma Jones) Tabs 6, 7 Tab 6 reproduces another article contained in Exhibit 2 that contains no detail of the offending: 26 August 2008. Tab 7 contains the same information, printed from the Daily Telegraph website: 26 August 2008. Extract from the Catholic Cover-up Tab 8 Entitled "widespread sex abuse alleged at school", this extract notes that the Seven Network reported on the relevant allegations at the school and that around 40 children have made complaints that they were victims of sexual assault. It was also stated that Macquarie Radio reported some of the abuse dated back some two decades. 28.8.08: Tab 9 The article makes mention of a paedophile ring and that a police probe currently in operation concerns three former staff members. It also named the applicant, and stated that 13 former students had come forth regarding abuse in the 1970's and 1980's. None of the witnesses specifically recognised this article. "Catholic community in shock", Central Western Daily

28.8.08: Tab 10 This internet publication cites an article from the Australia to the effect of "The NSW police sex crimes squad has been called in to investigate a flood of new abuse claims involving St Stanislaus College as a former college boarder subjected to horrific late night prayer sessions told his story yesterday". None of the witnesses specifically recognised this article. "33 charges for ex-Stan's priest", CathNews Further, "Mr McInerney yesterday described the 'unorthodox' prayer sessions as filled with 'chanting, music, no electric lighting, the whole atmosphere was one of sedation". It also reports that children were given a recommended reading list including the publication "Penthouse", a pornographic magazine. The article mentions BJS by name. 28.8.08: Tab 11 States that police are investigating and have charged BJS with sexual assault and gross acts of indecency. No further detail given. GS - Although the witnesses does not make mention of this release specifically, he does note that he saw an ABC News story on the issue. "Sex crimes squad sent to Bathurst", ABC News (post) 28.8.08: Tab 12 The article states that BJS is accused of repeatedly raping the students under his charge. It notes that a former pupil blew the whistle on BJS. None of the witnesses specifically recognised this article. "Priest faces 33 college sex charges", ABC News (post) 29.8.08: Tab 13 This article makes mention of a man, Mr Stephen Wade, who was previously convicted of offending of a similar nature, but was released. It is asserted that he is assisting police. AM - Stated that he had seen articles from the Daily Telegraph (t.202). "Bathurst sex abuser now helping police", The Daily Telegraph The article also states "Alleged victims have made claims of horrific sexual abuse in late night chanting sessions in the school's prayer room in the mid 1980's". GS - Stated that he had seen articles from the Daily Telegraph (t.241-242). The article mentions BJS by name. AK - Stated that he had seen articles from the Daily Telegraph (t.4). LC - Said he saw numerous articles, but did not identify which publication (t.173). FVA - Said that he saw articles in the Daily Telegraph and identified a specific article, but not this one (t.144, 147). 3.9.08: Tab 14 This publication names BJS. Extract from the Catholic Cover-up (by Katelyn John and Eoin Blackwell), entitled "Welcome to the Catholic cover up" The article notes "Former students of St Stanislaus' College at Bathurst in central west New South Wales have alleged that boys were sexually abused during hypnotic late-night prayer and chanting sessions". It also quotes Detective Superintendent Michael Goodwin to say "I encourage anyone that may consider themselves a victim of sexual abuse at a school in Bathurst to make contact with the police". 5.9.08: Tab 15 This article mentions that police are investigating a "Paedophile ring at St Stanislaus' College". It also calls for people to come forward if they have further information. AM - Stated that he had seen articles from the Western Advocate (t.202). "Strike force Belle's investigation widens", Western Advocate DS - Viewed an article by the Western Advocate, having been referred to it by his mother (t.100). Also reproduced on the Catholic Cover-up website LC - Viewed a "local paper", unnamed (t.168). He did, however, view a number of publications (t.173). Collection of various transcripts of television news broadcasts Tabs 16, 17 The transcripts purport to cover news from Channel 7, Channel 9, Channel 10, SKY News Australia, Prime Organ, WIN Orange, NBN Coffs Harbour and ABC1 from 22 May 2008 to 27 August 2008. The news coverage variously mentions the following:- ● The name of the applicant. ● The name of the school and that a paedophile ring there was being investigated. ● That the abuse was of a sexual nature, or gross indecent assault. ● That the abuse occurred in or around 1980's. ● That nearly 100 charges have been brought, with over 40 alleged victims. ● "It is claimed staff chanted hypnotic spells while raping students". ● "Former students say they were raped by former staff and were forced to abuse each other". Extract from the Catholic Cover-up Tab 18 The Catholic Cover-Up AM - He became aware of media some 18 months prior to giving his statement (t.201). Stated that he knew the name of the author of the Catholic cover-up website, but could not confirm that he had been to the website or if he had seen any articles written by the author (Tor Nielsen) (t.202). He did confirm going to the Broken Rites website 2 or 3 times. He saw the Broken Rites site before giving his statement (t.202). Statement of Tor Steven Nielsen given to police, dated 6.9.07 Tab 19 This extract is a personal recount of the creator of website the Catholic Cover-up, although the story itself is unsigned. The following are relevant extracts:- GS - Noted that he had been to a website written by a former student that had an article stating what had happened to him (t.248). He does not recall if it was called Catholic Cover-up. He read this information before giving his statement, but maintains it did not trigger his memory as he thought most of it was made up (t.250). "The story outlines the constant 20 year battle between the power and influence of a corrupted Catholic Church and an innocent Victim of circumstances who's only crime was to wake up from hypnoses during a rape at boarding school at the age of 13 in 1986. LC - Stated that he had read numerous articles on this issue and that he read about 5 or 6 pages of the story by the original person (t.169). He stated that he did not see this on the original website, but in a forum (t.174). Stated that he did not recognise the Catholic Cover-up website (it may have been Broken Rites) and that he does not recognise the name Tor or Arnie Nielsen (t.147-178). Stated that seeing the photo of BJS in an article brought all the memories back to him - he had had no memory of the abuse by BJS for some 20 years (t.179). Because the Vincentian Fathers (who are still at large) are masters of hypnosis, my memory at different stages of my life became distorted". FVA - Admitted to viewing Catholic cover-up, but does not remember Arnie or Tor Nielsen from school, but has seen articles by him. Stated that he regularly looked at the site (and Broken Rites) and kept up to date with it (t.149-157). He stated that he had not thought of these things for 20 years and seeing and reading the articles brought all the memories back (t.150). He remembered seeing that the author of Catholic Cover-up also remembered the abuse after a long period of time (t.151). He goes on to describe one method of hypnosis:- "Mr Haynes told me to forget staring at the light and to never stare at it again. I don't know what happened that day but I have since learnt that is one technique that is used for mind control". ... "[BJS] put his hands on either sides of my body and started to press his fingers into my ribs. Then [BJS] started to chant. He was chanting the words "char char char" over and over again. [BJS] asked me to chant with him. After a while he started chanting softer and slower until he finally stopped. When he finished he put my hand on his penis and used my hand to masturbate himself. I did not know what was happening when he started moving faster I let go. [BJS] looked at me and started chanting again and I drifted off to sleep". The applicant described a number of scenes similar to this one. He also recounted an encounter with a de-identified science teacher in which he went to his house and played "strip poker". He went on to state:- "... [the teacher] said that if I lost the next hand he would give me a headjob. At the time I did not know what a headjob was. I lost the next hand and [the teacher] started sucking my penis. Then he sat back on his bed and masturbated himself until he came". He also stated that similar acts were committed in the teacher's office at school. The author described the night prayer sessions as follows:- "When we got to [BJS] room we all sat on the floor and waited for [BJS] to start prayers. [BJS] stood up in front of all of us and started to chant the words 'cha cha cha'. We all drifted off to sleep when we woke up we were lying on the floor. After that we left [BJS] room and went back to the dormitory". On another occasion, the author asserts the following occurrence:- "I remember another occasion in [BJS] room when I woke up on my knees and I was crying. I heard [BJS] saying something like 'so your going to cry are you' it wasn't until he said that I realized that he was inside me physically raping me. All of the other boys in the room started crying as well". The author also describes a situation where between 50 and 100 students attended a large gathering in a hall and were asked to chant in unison. He states that he refused to chant, but was eventually told to and did after some coercion by BJS. He states that he remembers nothing thereafter, but the following day, he thought that the gathering in the hall had been some time ago (the inference being that he had been hypnotised). Despite a large volume of other material, the above is the relevant portion regarding what could be considered evidence that could contaminate other witnesses. In respect of the Police Statement, the detail provided therein is substantively similar to that recounted in the Extract from the Catholic Cover-up. Further statement of Tor Nielsen Tab 20 Not pressed Extract from the Website (or a link thereof) entitled "The Cover up" Tab 21 This appears to be a document of the Catholic Cover-up website. It contains the insignia of the NSW Police and the Commonwealth DPP. The document suggests that the author had referred a teacher, Mr Steven Wade (a science teacher) to the police regarding a number of sexual assaults. It suggested that nothing had been done in that respect. It alleged at one point that the teacher sat on the penis of the author, causing him some damage. The author states that the school, in assessing "[his] claim" instructed a psychologist, Dr Wendy Roberts, who wrote a report. He states that upon reading that report, he "had a breakdown and got flashbacks about [BJS] is [sic] it not been for the report I would not have remembered about [BJS] at all ...".

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Nature of application for leave to appeal 4Section 5F of the Criminal Appeal Act relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings ... for the prosecution of offenders on indictment in the Supreme Court or in the District Court .... (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal .... ... (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 5An undoubted line of authority in this Court establishes that a ruling on the admissibility of evidence is not "an interlocutory judgment or order" for the purposes of s 5F: R v Powch (1988) 14 NSWLR 136; 34 A Crim R 360 and other authorities referred to by Spigelman CJ in DAO v R [2011] NSWCCA 63; 278 ALR 765 at [6]. 6Pursuant to s 29 of the Criminal Procedure Act 1986 (NSW), two or more counts can be joined in the one indictment: "29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character." 7No issue arose as to the power of the prosecution to seek to have the various counts heard together, presumably on the basis that they formed part of "a series of offences of the same or a similar character", within the terms of s 29(1)(c). Rather, the applicant relied on the power of the Court to order separate trials, pursuant to s 21 which, relevantly provides: "21 Orders for amendment of indictment, separate trial and postponement of trial ... (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. ... (4) An order under this section may be made either before trial or at any stage during the trial. ... (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes." 8In Ludlow v Metropolitan Police Commissioner [1971] AC 29, at 39, Lord Pearson cited with approval a statement in Reg v Kray [1970] 1 QB 125 at 130-131: "... Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases." 9After referring to that principle, Gibbs CJ in De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 2 noted an established line of authority in cases involving sexual offences that "the charges should not be tried together if the evidence on one count is not admissible on another count": citing Sutton v The Queen [184] HCA 5; 152 CLR 528 at 531. In De Jesus, Brennan J (at 7) and Dawson J (at 10) accepted that approach, without adopting categorical language. 10Dawson J in De Jesus noted that the concept of a "series" of offences appeared to impose an additional characteristic beyond the fact that the offences must be of the same or a similar character, while noting that similarity is itself a feature capable of enabling the offences to be described as a series, quoting Lord Pearson in Ludlow at 39. 11The general principle that there should be separate trials unless the evidence to be called in respect of one count is admissible in respect of another, was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by a ruling on the admissibility of the evidence. In DAO, Spigelman CJ identified the fact that "what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave": at [16]. However, his Honour also acknowledged a countervailing consideration at [17], namely that: "... the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial." 12There was a further factor militating in favour of a grant of leave in DAO, namely a conflict of authority as to the appropriate test to apply to an appeal from a ruling on the admissibility of tendency evidence: DAO at [18]. It appears that the Chief Justice was significantly influenced in granting leave by the second factor referred to above; Allsop P expressly stated that he would have refused leave had a five judge bench not been assembled not to consider the latter question. Simpson J (with whom Schmidt J agreed) would also have refused leave if the substance of the application had only been an appeal against an evidentiary ruling: at [208]-[209]. 13Although this case too turns on rulings with respect to evidence, it is, in the words of the Chief Justice in DAO, "of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial": at [17]. In contrast to the circumstances in DAO, the applicant had reasonable prospects of success in demonstrating an erroneous approach by the trial judge with respect to his refusal to admit evidence of media coverage of the applicant's arrest and the charges laid against him. Accordingly, this is an appropriate case to grant leave to appeal.

Tendency and coincidence evidence 14There was no challenge to the requirement that the various counts involved a series of offences of the same or a similar character, for the purposes of s 29(1) of the Criminal Procedure Act. Rather, the issue was joined over the proper application of s 21(2), conferring on the Court a power to order separate trials. It was further accepted that the power was engaged wherever evidence admissible in respect of one count was inadmissible in respect of another. Once engaged, it was further accepted that the power should properly be exercised. 15In this way, the issues were narrowed to the operation of the rules of evidence with respect to tendency and coincidence evidence. Thus, the prosecution proposed to rely upon evidence which was admissible with respect to one count in relation to each of the other counts, either as demonstrating a tendency on the part of the applicant to act in a particular way or to have a particular state of mind or to demonstrate the improbability that particular events occurred "coincidentally". The rules of evidence impose significant constraints on the admissibility of such evidence, because of its potential to be used impermissibly against an alleged offender. 16This case is concerned with what used to be described generally as "similar fact" evidence, prior to the commencement of the Evidence Act 1995 (NSW). That epithet was described in a leading text as "doubly misleading because it describes the exclusionary rule in a phrase more apt to describe one of the principal exceptions to it, and because it suggests a unifying factor between the situations in this area which they do not necessarily possess": D M Byrne QC and J D Heydon, Cross on Evidence (3rd Aust ed, 1986) at [11.1]. The exclusionary rule under the general law related to evidence which tended to discredit the accused by reference to character or reputation, or conduct on occasions other than those the subject of the charge. There were a number of reasons for excluding such evidence, some of which were readily capable of amelioration, but others less so. 17One difficulty with such evidence is the risk that the accused might be surprised by the evidence and not be in a position to meet it. That potential unfairness has been addressed by a requirement that the prosecution give reasonable notice in writing of an intention to adduce such evidence: Evidence Act, ss 97(1)(a) and 98(1)(a). Secondly, such evidence could distract from the focus of the trial by requiring the accused to deal with events on other occasions, and possibly numerous other occasions, than the events giving rise to the charge. That concern is of limited significance in circumstances where the conduct on other occasions is itself the subject of charges which the accused will need to meet, if not in the course of the current trial, then at a future time. Thirdly, and critically, there is a risk that such evidence will form the basis of an impermissible chain of reasoning in assessing guilt. That danger can be ameliorated by directions to the jury, but their effectiveness may be contestable: Director of Public Prosecutions v Boardman [1975] AC 421 at 453 (Lord Hailsham). 18An exclusionary rule is, of course, premised on the proposition that the evidence could, by a permissible ("rational") process of reasoning, affect the probability of a fact in issue in the proceeding: Evidence Act, s 55(1). If there is no such rational effect, the evidence has no probative value and is inadmissible for that reason: s 56. 19The exclusionary rule, as it arose under the general law, placed significant weight on the risk of "prejudice", that is the tendency of such evidence to affect a verdict improperly, whether by unacceptable processes of reasoning, or by working on unconscious prejudices or attitudes: R v Zhang [2005] NSWCCA 437; 227 ALR 311; 196 FLR 152; 158 A Crim R 504 at [41]. As explained in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 488 by Mason CJ, Deane and Dawson JJ: "Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a high level or degree of cogency." 20Indeed, to be admissible, their Honours accepted that such evidence must possess "a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged: at 481, following Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294 (Mason CJ, Wilson and Gaudron JJ). The judgment in Pfennig continued: "In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged." 21As will be noted shortly, that test no longer applies under the Evidence Act. However, in addition to the inherent cogency required of propensity evidence, the general law also required that it not be subject to inherent weakness which would potentially preclude its acceptance. That proposition was illustrated by Hoch, which, in circumstances not entirely dissimilar to the present case, involved a student teacher employed at an institution for young boys who was charged with separate offences of indecency involving each of three boys. After referring to a passage in the opinion of Lord Wilberforce in Boardman, Mason CJ, Wilson and Gaudron JJ accepted that "the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible": at 296. Their Honours explained why that approach was adopted in the following passage at 296: "In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility." 22As mentioned above, the general law principles have been varied by the Evidence Act. That Act deals separately with what is described as "the tendency rule" and "the coincidence rule". Each has been described as a "contingent exclusionary rule": see J Anderson, N Williams SC and L Clegg, The New Law of Evidence (2nd ed, 2009), par 97.2. In each case, the exclusion, subject to exceptions, is set out in ss 97 and 98 respectively, but is subject to a further restriction imposed by s 101. Those provisions, so far as relevant, are as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency ... to act in a particular way, or to have a particular state of mind unless: ... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. ... 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: ... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 23The language of ss 97(1)(b) and 98(1)(b), each referring to the evidence having "significant" probative value is not consistent with the requirement that there be no rational explanation for the evidence, apart from its cogency in respect of the charge. Further, the balancing test required by s 101(2) is also inconsistent with a general requirement as to probative value in terms of the Pfennig test. As explained by Spigelman CJ (with whom Sully, O'Keefe, Hidden agreed) in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]: "The 'no rational explanation' test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s 101(2) to that effect." 24As explained in Hoch, the rejection of propensity evidence on the basis that there is a reasonable possibility of concoction followed logically from the proposition that the evidence was inadmissible if there were any reasonable explanation for it, inconsistent with the guilt of the accused. The conclusion that the general principle is inconsistent with the Evidence Act must mean that, at least as a general rule, the subsidiary principle falls away. No doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the "prejudicial effect" of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case: cf Ellis at [96]. 25That approach is consistent with the approach preferred by Hulme J in R v Le [2000] NSWCCA 49 at [115] (Hidden J agreeing) and in R v Andrews [2003] NSWCCA 7 at [16] (Heydon JA noting the issue as one not requiring resolution). On the other hand, there is a line of authority to the contrary, requiring that the principles adopted in Hoch be applied in trials conducted in accordance with the Evidence Act: R v Colby [1999] NSWCCA 261 at [107] (Mason P, Grove and Dunford JJ agreeing), applied in R v OGD [No 2] [2000] NSWCCA 404; 50 NSWLR 433 at [74] and [112] (Mason P and Dowd J agreeing) and R v F [2002] NSWCCA 125; 129 A Crim R 126 at [23]-[27] and [48] (Wood CJ at CL, Meagher JA and Bell J agreeing). The authority of this category of cases has been removed by the decision of a five judge Court in Ellis, which post-dated each of them. 26There are, however, authorities subsequent to Ellis which continued to apply the approach adopted in Colby and its progeny: BP v R; R v BP [2010] NSWCCA 303, and, most recently, FB v Regina [2011] NSWCCA 217 at [35] (Whealy JA, Buddin and Harrison JJ agreeing). In BP, Hodgson JA (with the agreement of Price and Fullerton JJ) stated: "[109] The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue .... An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis ... at [94]-[95]. ... [110] One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch .... However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby ..., R v OGD (No 2) .... The onus is on the Crown to negate the 'real chance' of concoction: OGD at [74], R v F ... at [48]." 27The statements at [109] and in the first sentence of [110] are unimpeachable; the second and third sentences (relying on Hoch and Colby) at [110] are, in my view, inconsistent with Ellis and should not be applied as a general rule.

Application of principles 28The trial judge set out at [9]-[11] critical passages from the joint judgment in Hoch (recognising that it was handed down before the commencement of the Evidence Act) and from the judgment of Hodgson JA in BP, including [106]-[111]. He applied those principles in addressing the motion for separate trials. In adopting that course, his Honour acted in accordance with the authority of this Court in BP; by applying the strictness of the principle articulated in Hoch, he approached the matter on a basis which was, according to the analysis set out above, likely to be more favourable to the accused than the law required. However, because the prosecution did not challenge the correctness of that approach as a matter of law, either in the Court below or before this Court, the appeal should be approached on the basis of the principle articulated in Hoch. 29There is a further live issue, not authoritatively resolved in this Court, as to the nature of the exercise to be undertaken by this Court on an appeal under s 5F. To the extent that the order on a motion seeking a separate trial is discretionary, pursuant to s 21(2), there is no doubt that the intensity of scrutiny is constrained by the principles in House v The King [1936] HCA 40; 55 CLR 499. In the present case, however, there appears to have been no element of discretionary judgment in the refusal to grant separate trials: the outcome was controlled by the finding with respect to the admissibility of the evidence. Relevantly, the appeal was limited to that issue. As explained by Spigelman CJ in Ellis (with the concurrence of the other four members of the Court) s 101(2) "requires the Court to make a judgment, rather than to exercise a discretion": at [95]. That view was confirmed by a further five judge Court in DAO v R [2011] NSWCCA 63 at [40] (Spigelman CJ); [98] cf at [171]-[173] (Simpson J). 30In principle, the distinction between the exercise of a discretionary power and the formation of an evaluative judgment is clear: in respect of a discretionary power, mandatory, permissible and impermissible considerations are generally derived by implication from the subject matter, scope and purpose of the statutory provision conferring the power. In relation to an evaluative judgment, the criterion is identified (with greater or less precision) by the applicable statute or the general law. Further, a discretionary power may permit a decision as to where the appropriate judgment of the court should settle, within a range or, alternatively, it may permit only a binary decision. (The power under s 21 fell into the latter category, there being a choice only to accept or reject the application for separate trials.) Further, a discretionary power may be linked more or less directly, to the formation of an evaluative judgment. 31These considerations lead, not to a rejection of the validity of the distinction, but to the adoption of a functional approach in respect of the intensity of scrutiny of what is, in substance, a ruling on evidence, for the purposes of an interlocutory determination of a procedural application. In DAO, the whole Court appears to have accepted that the test to be applied involved a level of constraint close to, if not precisely equivalent to, the principles stated in House v The King. However, even on a less constrained approach, no error was identified: at [205]. Again, the resolution of this somewhat technical question is unnecessary: for the reasons explained by Hall J and for the further reasons given below, the trial judge erroneously rejected a volume of evidence tendered by the applicant. 32To determine whether the error was material, it is necessary to reconsider the evaluative exercise undertaken by the trial judge. On the assumption, accepted by Allsop P in DAO at [83], that the appeal is by way of rehearing, as explained in Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 at [11]-[13] and in R v Ford [2009] NSWCCA 306; 273 ALR 286; 201 A Crim R 451 at [69]-[72] (Campbell JA), it is open to this Court to re-exercise the powers available to his Honour. That can be done in such a case as the present, as no issue of credibility arose from his Honour's findings with respect to the oral testimony before him and, indeed, his findings as to primary fact are undisputed. The exercise is thus reduced to an assessment of the factual material and the formation of the relevant evaluative judgments for the purposes of ss 97, 98 and 101 of the Evidence Act.

Ground 2 41Undoubtedly there are passages in the reasons for Judgment of Finnane DCJ which tend, at times strongly, to indicate that his Honour did not apply the test concerning the risk of concoction set out in Hoch v The Queen (1988) 165 CLR 292 and BP v R; R v BP [2010] NSWCCA 303. Nevertheless, when his Honour's reasons are considered in totality, I am satisfied he did. 42I agree with Basten JA that the approach to tendency and coincidence evidence for which Hoch (supra) stands as authority is not consistent with the terms of s 97 and s 98 of The Evidence Act 1995. However, as his Honour observed, Finnane DCJ's use of the Hoch test did not disadvantage the Applicant and in the absence of a challenge as to its correctness it is appropriate to proceed on the assumption it is correct.

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