DAO v R

Procedural history

1. The matter has a considerable procedural history. The appellant initially faced trial in 2010. He was then charged with sexual offences against six young males, including SM, MB and JC. The counts alleging offences against DP were not then the subject of the indictment. The Director of Public Prosecutions ("the Director") proposed a single trial of the allegations involving all six complainants. By Notice of Motion filed shortly before the trial was due to commence, the appellant sought orders for the separate trial of the counts involving each of the complainants. In response, the Director gave notice under s 97 of the Evidence Act 1995 (NSW) of his intention to adduce tendency evidence. He proposed that the evidence concerning each complainant be admitted, as tendency evidence, in respect of the allegations concerning each other complainant. It was accepted that, if the evidence were to be so admitted, then an order for separate trials would be pointless, and the appellant's application should fail.
2. The Notice of Motion came on for hearing before Bozic DCJ, who was to be the trial judge. After hearing argument, his Honour took a middle course. He ruled that the evidence relating to the allegations concerning SM, MB and JC was admissible in each case as tendency evidence. He accordingly ordered a joint trial of those allegations. However, he ordered that the trials of the allegations concerning the three remaining complainants be severed: DAO v R (NSWDC, 4 November 2010, unreported).
3. Pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW), the appellant sought leave to appeal to this Court against the order that the trials of the allegations concerning SM, MB and JC proceed in a joint trial. He continued to seek separate trials of the allegations concerning each individual complainant. The basis of the application was that the evidence the Director proposed to adduce as tendency evidence was not admissible as such and that therefore overwhelming prejudice would result from a joint trial, and, accordingly, separate trials should be ordered.
4. A five judge bench of this Court granted leave to appeal, but upheld the decision of Bozic DCJ and dismissed the appeal: DAO v R [2011] NSWCCA 63; 81 NSWLR 568, per Spigelman CJ, Allsop P and Simpson, Kirby and Schmidt JJ. The appellant sought special leave to appeal to the High Court. On 28 October 2011 special leave was refused: DAO v The Queen [2011] HCA Trans 298.
5. The trial of the allegations concerning SM, MB and JC was fixed to commence in the District Court on 21 March 2012 before Zahra DCJ. At some time prior to that date, the Director notified the appellant that he intended to include on the indictment the counts relating to DP. Those counts were not the subject of the indictment presented to Bozic DCJ, nor of the appeal to this Court. On the presentment of an indictment to Zahra DCJ that included those counts, the appellant, by Notice of Motion, sought that they be severed. In making that application, senior counsel who appeared for the appellant (both at trial and on appeal) expressly acknowledged that, having regard to the decision of this Court in DAO, the application would fail. On 22 March 2012 Zahra DCJ dismissed the Notice of Motion. His Honour concluded that the reasoning of Bozic DCJ in the earlier ruling, upheld by this Court, equally applied to the counts concerning DP. He therefore ruled that the evidence concerning the DP allegations was admissible as tendency evidence with respect to the counts concerning each other complainant, and vice versa. There is, in the present appeal, no ground that expressly challenges that ruling.
6. The trial proceeded and finished with the conviction of the appellant on all 21 primary counts.
7. At this stage, it is convenient to note a subsequent development. Following the jury verdict in the trial the subject of this appeal, the appellant was tried in relation to the allegations involving the three complainants the trial of which Bozic DCJ had separated. He was acquitted on all counts. I mention this because, for the purpose of this appeal, the appellant seeks to adduce evidence derived from that trial.
8. With that background I now turn to the issues raised on the appeal.

The grounds of appeal

1. As originally filed, the grounds of appeal were as follows: "1. His Honour erred in failing to order separate trials for each of the four complainants. 2. His Honour erred in admitting the evidence of tendency with respect to each of the respective complainants pursuant to ss 97 and 101 of the Evidence Act 1995. 3. The verdict[s] with respect to the DP matters were unreasonable and not supported by the evidence. 4. The verdicts with respect to the SM matters were unreasonable and not supported by the evidence. 5. The verdicts with respect to the MB matters were unreasonable and not supported by the evidence. 6. The verdicts with respect to the JC matters were unreasonable and not supported by the evidence. 7. At the hearing of the appeal the appellant will seek to rely on fresh evidence."
2. At the commencement of the hearing the appellant sought and was granted leave to amend the Notice of Appeal by adding two additional grounds, as follows: "GROUND TWO A: and/or; The appellant has suffered a miscarriage of justice as a result of the evidence regarding each of the four complainants being admitted with respect to each other in the course of the trial. GROUND SEVEN A: and/or; The appellant has suffered a miscarriage of justice as a result of the absence of the fresh evidence from his trial."

The prosecution case: an overview

1. What follows is a brief overview of the prosecution case. It will be necessary, when I come to a consideration of grounds 3 to 6, to expand considerably the reference to the evidence alleged and the factual issues. Although some background facts are uncontroversial, the factual accounts that follow are accounts of what was alleged in the Crown case. They are not intended to represent any findings of fact, or acceptance of the Crown allegations. All of the allegations of conduct constituting the offences charged were disputed.
2. At the time of the commission of the offences, the appellant was either a trainee priest or an ordained priest in the Catholic Church in the Hunter Valley area. Each complainant was a male child of a Catholic family living in the parish to which the appellant was, at the relevant time, assigned. (It may here be noted that the evidence established that, in 1982, the beginning of the range of dates alleged in counts 1-8, the appellant was a university student, living in accommodation provided by the Catholic Church but not a trainee priest.) The allegations concerning DP
3. The indictment alleged offences against DP committed between 1 January 1982 and 31 December 1984. In 1982 the appellant was in his final year of an Arts degree at the University of Newcastle, and living in a hostel in or near Maitland. Between 1983 and 1985 he was studying for the priesthood at St Patrick's College, Manly. He was posted to the Maitland parish in December 1985.
4. DP was born in May 1973. In 1982 he and his family lived in Maitland and he attended a local Catholic school, St John's Primary School, where he was in year 3. He knew the appellant from having seen him in the playground at his school, prior to becoming an altar boy. He was an altar boy at a local church known as the Pro-Cathedral. The priest in charge of altar boys at the Pro-Cathedral was Father Wilson. The appellant assisted in that role at the Pro-Cathedral. On an occasion when DP was helping to prepare for a Mass, the appellant began to feel DP's body and told him to take off his clothes. The appellant fondled DP's body by running his hands over his chest, and holding his genitals. The appellant told DP that this was in order to ascertain if DP was worthy of being an altar boy. This gave rise to count 1 on the indictment, of indecent assault.
5. Thereafter, on many occasions, the appellant fondled DP's body, held his genitals, and performed oral sex on him. He used a Polaroid camera to take photographs of DP either naked, or wearing robes. He threatened DP that if he told anybody, he would be removed from altar boy school, that life would be difficult for him, and that his family would be embarrassed. Incidents of this kind happened on many occasions. The second incident of which DP gave evidence occurred on a Sunday afternoon, as DP was, in his role as altar boy, preparing for a Mass. The appellant knelt in front of DP, rubbed his thighs and buttocks, kissed his chest and belly and cuddled him. He fondled his genitals. This allegation gave rise to count 2 on the indictment, also of indecent assault.
6. One incident occurred on a camp, about which it will be necessary to say considerably more in due course. The camp was arranged to commemorate a boy who had died of leukaemia. Under the pretext of inspecting DP for ticks or leeches, the appellant held DP by the genitals, and checked around his penis and buttocks. The appellant said that this was part of altar boy school. The appellant repeatedly told DP not to tell anybody about their activities or their relationship.
7. The appellant performed fellatio on DP. This gave rise to count 3 on the indictment, of sexual intercourse without consent (of which the appellant was convicted) and the alternative count 4, of indecent assault. There was another occasion on which the appellant performed fellatio on DP (giving rise to count 5, of sexual intercourse without consent, and the alternative count 6, of indecent assault). The allegations concerning SM
8. In January 1987 the appellant was appointed as assistant parish priest in Muswellbrook.
9. SM was born in December 1973. He lived in Muswellbrook. At the time the appellant was appointed to Muswellbrook SM was 13 years of age and in year 8 at local Catholic high school (St Joseph's). He, too, was an altar boy. He attended the St James' Catholic Church in Muswellbrook. The appellant, with another priest (Father Nugent), lived in the presbytery adjoining the church.
10. The appellant conducted a youth group of which SM was a member. One of the activities was wrestling. SM was having a difficult time at home and at school; the appellant invited him to come to the presbytery "to have a chat". SM did so. After a brief talk, the appellant initiated wrestling. The wrestling became sexual. The appellant inserted his penis between SM's buttocks. This gave rise to count 9 on the indictment, of indecent assault. On another occasion, again after wrestling and again at the presbytery, the appellant took hold of SM's testicles and penis. This gave rise to count 10 on the indictment, also of indecent assault. There was a third occasion, also at the presbytery, and again in the course of wrestling, when the appellant pushed with his penis on SM's anus, groped his buttocks sexually, and slid his penis across SM's face. This event gave rise to counts 11, 12 and 13 on the indictment, all of indecent assault. The allegations concerning MB
11. In April 1990 the appellant was transferred to Cessnock as assistant parish priest. The parish priest was Father Vince Ryan.
12. MB was born in March 1980. He lived at Cessnock and attended St Patrick's, a local Catholic primary school until 1991, and then the local Catholic high school. From the time he was in year 3 he was an altar boy at the Catholic Church, St Joseph's. He first met the appellant in 1990, in the playground at St Patrick's. In 1990 his behaviour deteriorated, and he was "playing up" and "getting into a bit of trouble". His teachers suggested that he might talk to the appellant.
13. MB became friendly with the appellant. At the suggestion of the appellant, and with the permission of his parents, he began to attend the Police Citizens' Youth Club, where he played squash with the appellant. Once or twice a week, the appellant would pick him up from his home, and drive him to the squash courts. After a time, instead of driving to the squash courts, the appellant began to take MB to a park called Kitchener Park. The appellant talked to him about his behaviour. The appellant drove a white sedan, like a Holden or Toyota. On one occasion the appellant parked at Kitchener Park and talked to him. The appellant then took MB's hand, placed it on the appellant's leg, and moved it under his shorts and then onto his penis, causing MB to masturbate the appellant. The appellant placed his own hand on MB's penis. He told MB that this was what God wanted, and that it was their secret and it would make things better. This gave rise to counts 14, 15 and 16, all of indecent assault. On another occasion, after squash, the appellant took MB to the presbytery and told MB to take off his clothes. The appellant removed his own clothes. His penis was erect. He touched MB's penis, and then had MB perform fellatio on him. This gave rise to count 17, of sexual intercourse with a person under the age of 16 years, while in a position of authority. There were other occasions, either at Kitchener Park or at the presbytery, when similar offences were committed, giving rise to counts 18 to 21, all of sexual intercourse with a person under the age of 16 years by a person in a position of authority.
14. MB gave evidence that the appellant had organised a party at the presbytery for his 11th birthday which was in March 1991. A number of boys attended, and slept overnight. There was no sexual activity. The allegations concerning JC
15. In July 1991 the appellant was appointed as parish priest in Windale.
16. JC was born in June 1979. He lived at Windale and attended a local Catholic primary school. He was an altar boy. At the church JC met the appellant who conducted the altar boy classes. JC mowed lawns at the presbytery for pocket money. He became friendly with the appellant. They talked together, listened to music, and wrestled. After the wrestling JC showered in the presbytery. On one occasion the appellant also was in the shower and asked JC to play a game, spitting on each other. This gave rise to count 22, of committing an act of indecency.
17. On an occasion in about 1991 JC attended a camp somewhere on Lake Macquarie with the appellant and other altar boys. JC shared a tent with the appellant. One night he awoke to find the appellant on top of him, his penis erect. He was moving around JC's buttocks. This gave rise to count 23, of aggravated indecent assault by a person in authority. JC said that, the following morning, he told another of the campers, a boy called Chris, whose father was also present. He remembered that they were there with a ski boat. They did not take him seriously, and told him he must have been dreaming, and to forget about it.

The defence case

1. The appellant gave evidence. He denied all allegations. He called a number of witnesses who gave evidence relevant to various matters of detail in the Crown case. I will deal with these below. They are material to grounds 3 to 6 of the appeal.
2. The appellant said that, between 1980 and 1982 he was a student at Newcastle University. He lived in a facility called Edmond Gleeson House (also, or formerly, known as "Monte Pio") in Maitland, which was a "formation house" (which I interpret to be a hostel), conducted by an Order of Catholic priests, specifically for young Catholic men contemplating entering the priesthood. He and the other residents followed a regular routine, rising early, having morning prayers, and 7.00am mass. They then drove to Newcastle for lectures. On at least two nights a week he did not return until 9.00pm.
3. He attended Mass at a church called Sacred Heart Church at Campbell's Hill, near Maitland. He had nothing to do with the Pro-Cathedral at Maitland. On one occasion only, as a member of the congregation, did he attend Mass at the Pro-Cathedral. He was dressed in civilian clothes. He never wore priestly vestments at the Pro-Cathedral.
4. He spent university vacations working at a hospital. He said that he had never set foot in St John's Primary School. He gave evidence about organising a camp in order to support the family of a young boy who suffered from leukaemia (see below).
5. In 1983 he joined the St Patrick's College at Manly in order to train for the priesthood. He lived in the seminary, and only occasionally returned to the Maitland/Newcastle district. On one occasion in 1983 he attended the Pro-Cathedral for his institution as an acolyte. He did not recall attending the Pro-Cathedral in 1984, although he may have done so if a colleague were being ordained as a priest.
6. In December 1985 he was made a deacon, in a ceremony that took place at the Sacred Heart Church at Hamilton (Newcastle) and he was ordained as a priest in December 1986, in a ceremony at the Maitland Pro-Cathedral.
7. The appellant said that he was appointed to Muswellbrook in 1987. He was instrumental in forming a "social youth group". He involved the parents in supervising the group. He said that he insisted that, as a condition of the their children being permitted to participate, the parents contribute to the group activities. The group engaged in various activities, including ten-pin bowling, rock climbing and excursions, and games nights. It was common, after games nights, for the boys to begin "rumbling and wrestling" with each other and with him, and he took part. He did not recall SM being part of this.
8. The appellant was chaplain of the St Joseph's school that SM attended.
9. The appellant's first recollection of coming across SM was when SM's grandmother asked the appellant to counsel the M family, who, she thought, were experiencing a marriage breakdown. SM's mother told the appellant that SM was having difficulties and asked him (the appellant) to speak to SM. When the appellant approached SM, SM refused to engage with him.
10. The appellant said that he had never, before or after that, had SM in the presbytery, unless it was as one of the youth group at some activity. He denied perpetrating any indecent assault on SM in the course of, or under the guise of, wrestling.
11. The appellant said that, in September 1988, he took a group of young people to the Snowy Mountains where they stayed at Perisher Valley. SM was one of the group. (SM had acknowledged in cross-examination that he had attended this excursion.)
12. With respect to the allegations of MB, the appellant said that, in 1989, he purchased a red Toyota Camry, which he retained until 1991. It was not until May 1991, shortly before he left Cessnock, that he purchased a white Toyota Camry. Father Vince Ryan drove a white Holden Commodore.
13. He said that, before hearing the allegations made by MB, he was not aware of Kitchener Park. The first time he went there was on an inspection with his legal representatives. He said that he had never been to MB's house. He denied ever taking MB to Kitchener Park or to the presbytery.
14. He said that, in 1990, a Ms Alberta McGowan, in voluntary capacity, looked after the garden at the presbytery. She attended each weekday.
15. The appellant denied organising or playing any part in the organisation of a birthday party for MB's 11th birthday.
16. In July 1991, the appellant was transferred to Windale, where he met JC and developed a friendship. JC helped by doing some gardening and lawn mowing around the presbytery, in return for small amounts of money. The appellant agreed that he and JC developed a friendship, and that at times they wrestled together. He agreed that there were times when he and JC were alone in the presbytery together. He denied that anything "untoward" occurred, and denied the spitting incident described by JC.
17. The appellant said that he went on camping trips that included JC on two occasions, although he could not recall the dates. One was at Telegarry Park, near a location called Frying Pan Creek. The other was at Coachwood, which was nearby. He never took JC on a camping trip to Lake Macquarie, and had never taken him to a camp with ski boats. He did recall parish picnics from time to time at Lake Macquarie (among other places) and that there were sometimes ski boats present at these. There were no camping facilities at the Lake Macquarie sites.
18. The appellant recalled the camp at Telegarry Creek because, early in the evening, a severe storm blew up that became quite frightening. JC was present with his brother. He did not share a tent with the appellant. As a result of the storm, the appellant slept on the back seat of his car. During the course of the night, JC came to the car and complained that he was wet in his tent. He slept the remainder of the night on the front seat of the appellant's car.
19. The appellant said that he remained at Windale until 1994. JC continued to mow the presbytery lawns and the two continued to wrestle. When the appellant left Windale, JC helped him in the removal of his belongings.
20. Fourteen witnesses, besides the appellant, were called in the defence case. Essentially, their evidence was directed to rebutting some of the details of the evidence given in the Crown Case. It will be convenient to deal with this evidence in the consideration of grounds 3 to 6, in which the capacity of the evidence to support the allegations is challenged.

Ground 2: tendency evidence

1. Apart from what amounted to a formal application to sever from the indictment the counts relating to DP, no application was made to Zahra DCJ for separate trials. In the light of the decision of this Court in DAO (see [8] above) no such application could properly have been made. The only basis upon which it is now said that Zahra DCJ ought to have ordered separate trials concerned the admission of tendency evidence. Accordingly, these grounds are identical in substance. Moreover, so far as the grounds relate to the tendency evidence admitted in relation to the allegations concerning SM, MB and JC, they are all the subject of the earlier decision of this Court, constituted by five judges, in DAO. Zahra DCJ made no ruling on the admissibility of the tendency evidence in respect of SM, MB or JC. No objection was, or could have been, taken to that evidence. In admitting the evidence, Zahra DCJ was acting in accordance with the ruling of this Court, as he was obliged to do. He can hardly be held (by this Court) to have been in error in doing so. By these grounds, properly characterised, the appellant seeks to challenge the decision of this Court. As senior counsel for the appellant pointed out, the question of reconsideration by this Court of an issue litigated in an appeal where leave has been granted under s 5F(3), and the issue determined, was left open by both the Chief Justice (at [61]-[67]) and the President (at [107]). In DAO, at [207] I expressed the view that: "… a real question exists as to whether, if leave is granted, and the appeal dismissed, that issue is foreclosed, in the event of conviction, from any appeal [to this Court] against that conviction [based on that ground]."
2. In my opinion, where leave is granted to appeal under s 5F(3) of the Criminal Appeal Act, the ruling of this Court on the issue raised is final (subject, of course, to any further appeal to the High Court). An applicant for leave to appeal on an interlocutory basis must understand that this Court will rule once only on any evidentiary or other issue. As I sought to make clear in DAO (at [206]-[207]), s 6 of the Criminal Appeal Act provides scope for a further challenge, not on the same basis as that the subject of the previous appeal, but on the basis that a miscarriage of justice has occurred. That is not the same as an appeal with respect to the admissibility of a particular item of evidence, or a particular procedural ruling (or any other question of law the subject of a s 5F(3) appeal). To establish a miscarriage of justice by reason of the admission of evidence already ruled by this Court to be admissible it would be necessary to demonstrate some departure from the evidence ruled admissible, or some unanticipated consequence of the admission of the evidence. If the evidence emerges substantially in accordance with the proposed evidence the subject of the ruling, there is no further scope for this Court to rule on its admissibility. This court does not sit on appeal from its own decisions. It may be different, of course, if some unanticipated development casts a different light on the evidence.
3. The position taken on behalf of the appellant with respect to these grounds fluctuated. Lengthy written submissions were filed, challenging the admission of the tendency evidence. On the hearing of the appeal, senior counsel realistically accepted the difficulties he faced in seeking to re-litigate the admissibility of that evidence, and accepted (as he had to) that he could not identify error in the decision of Zahra DCJ to admit the evidence, nor in his Honour's failing to order separate trials (something he had not been asked to do other than of the counts concerning DP). However, senior counsel sought to maintain an objection in relation to s 101(2) of the Evidence Act. Section 101(2) provides as follows: "(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."
4. As I observed in DAO (at [171]-[172]), s 101(2) does not call for a separate decision. What s 101(2) does is to introduce into a s 97 decision, in criminal cases only, an additional barrier to admissibility, or an additional hurdle, for the prosecution to overcome.
5. The specific issue in DAO was whether Bozic DCJ erred in declining to order separate trials of the allegations concerning SM, MB and JC. The substance of the appeal, however, was the correctness of the ruling that the evidence of each complainant was admissible as tendency evidence in relation to the allegations concerning each other complainant. In my opinion, that issue cannot be re-litigated in this Court. This Court is, effectively, functus officio in that respect. Were it not so, this Court would sit as an appeal court from itself. In my opinion this Court as presently constituted has no jurisdiction to entertain grounds 1 and 2 of the appeal, so far as those grounds relate to complainants SM, MB and JC. That does not apply to the counts concerning DP, which is not the subject of determination in this Court. However, no argument was advanced that that evidence is in any different position to the evidence of the other complainants; nor was it argued that Zahra DCJ's ruling of 22 March 2012 that that evidence was, on the same basis, admissible, was wrong. I would therefore reject grounds 1 and 2 of the appeal.

Ground 2A: miscarriage of justice

1. It was, no doubt, in anticipation of such a ruling that ground 2A was added. However, no argument was advanced that anything that occurred during the trial cast the admission of the evidence in any different light to what had been anticipated. That is, it was not suggested, for example, that the evidence emerged differently than had been anticipated, nor that, by reason of some other factor, the evidence had unexpected or unforeseen consequences. That is to say, no miscarriage of justice resulting from the admission of the evidence was identified. I would therefore reject ground 2A.

Grounds 3-6: unreasonable verdicts

1. I now turn to grounds 3 to 6, which call for consideration of the allegations concerning each complainant separately. The issue in each case is whether the verdicts of guilty could not be supported by the evidence. The task of this Court where such a ground is raised is well established and well known. The court must make its own independent assessment of the sufficiency and quality of the evidence. The question, ultimately, is whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdicts of guilty to stand: M v The Queen [1994] HCA 63; 181 CLR 487 at p 492; or whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In making that assessment, the court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having seen and heard the witnesses: see M v The Queen; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400.

Ground 3: DP - unreasonable verdict (counts 1-8)

1. All offences against DP were alleged in the indictment to have been committed between 1 January 1982 and 31 December 1984.
2. In order to deal with this ground, it is necessary first to set out, in some greater detail than heretofore, the evidence given by DP and other witnesses in the Crown case. That includes detail on some apparently peripheral matters. DP's evidence calls for close scrutiny. For the convenience of the reader, I will repeat some of what has been set out above. It was as follows.
3. DP was born in May 1973. He has one sibling, an older sister. Both DP and his sister were born with a congenital abnormality. They had six fingers on each hand, and six toes on each foot. These were corrected by surgery during their childhood. However, other children were aware of the abnormality and DP was the subject of teasing at school. (There is a significance in this apparently irrelevant fact.) The family lived in Maitland. In 1982 DP was enrolled in a local Catholic primary school, St John's. He was in year 3. His mother was a practising Catholic, and she and the children attended the main Catholic Church in Maitland, known as the Pro-Cathedral. The Pro-Cathedral was attached to, and around the corner from, St John's. There, in 1982, DP took his first Holy Communion. DP's mother was keen for DP to participate in the affairs of the church, and, at her instigation, he joined "altar boy school", with the aim of becoming an altar boy. This he did following his first Holy Communion, in 1982. "Altar boy school" was conducted at the Pro-Cathedral. DP attended training classes at the Pro-Cathedral. The classes were conducted after school, on weekends, and sometimes during school time. DP was one of the youngest of the altar boys. Others he recalled who were undertaking training ("in different stages of altar boying") were a Mark Sarquis and his brother, a cousin of DP's called MP, and a boy called Dilley.
4. The parish priest who was in charge was Father Wilson. According to DP, the appellant used to assist Father Wilson with "the altar boying". At that time, DP knew the appellant because, prior to joining altar boy school, he had seen the appellant in the playground and at the St John's school. DP referred to the appellant as "Father [O]".
5. DP's evidence was that all of the offences, with the exception of one, were committed at the Pro-Cathedral, in the context of his role as an altar boy. They involved the appellant asking DP to undress, fondling his body, including his genitals, committing acts of oral sex and attempting to bring DP to erection. He explained his actions by telling DP that he was ascertaining whether he (DP) would be a good altar boy, acceptable to God. He told DP to look at a figure of Jesus on the wall. He threatened DP with expulsion from altar boy school, with embarrassment to his family, and with hardship, if he revealed to anybody what was happening. According to DP, this conduct went on over a six month period, at which point it escalated. It took place a couple of times a week, depending upon what Masses were scheduled for the week. DP said that the appellant was present on most of the occasions of school Masses at the Pro-Cathedral. He gave specific evidence of one occasion, on a Sunday afternoon, when the appellant fondled his genitals and performed oral sex upon him. This followed a Sunday afternoon Mass.
6. According to DP's evidence, only one offence was committed other than at the Pro-Cathedral. In order to explain this evidence, it is necessary to fill in some background from sources other than DP's evidence.
7. There was in the parish a young boy called Gavin Smith, who suffered from leukaemia. He died in September 1983. Prior to his death, he expressed a wish to go camping with other boys. The appellant arranged a camp at a location called Frying Pan Creek. A number of local children who were members of the Catholic Church attended. (DP was not among them.) That camp took place (on the appellant's evidence) immediately after Christmas in 1982 until early January 1983.
8. After Gavin died in September 1983 a second camp was arranged for boys who had been friends of his, in order to help them deal with his death. (According to the appellant, that camp took place from very late December 1984 to early January 1985.) It was DP's evidence that he was present at the second camp and that it was at this camp that the single offence that was not committed at the Pro-Cathedral was committed.
9. DP's evidence was that the camp that he attended took place some time in 1984. He said that the activities at the camp involved swimming and sports. On one occasion the appellant asked DP if he had "had the leech and tick inspection". He told DP to take his pants down so that he could check for leeches, held his genitals, checked around his penis and between his buttocks, and said that this was part of altar boy school.
10. The evidence that DP was present at the second camp was the subject of dispute in the trial.
11. In cross-examination, DP confirmed his account that the offending against him commenced in 1982, after his first Holy Communion (which he thought was during the first term of that year). He confirmed that the priest in charge was Father Philip Wilson and that the appellant was also present. On DP's understanding, the appellant was a priest, and "he was always there". He said that in 1983 he was still engaged as an altar boy, assisting with Masses during the week at the Pro-Cathedral and that the appellant was present. He also confirmed that he attended Mass at the Pro-Cathedral on Sunday afternoons or Sunday mornings. He said, however, that the appellant was not present "towards the end" of 1984. He confirmed that all offences (other than that he alleged occurred at the camp) were committed at the Pro-Cathedral.
12. He agreed that, in a statement made to police, he had described the appellant as young, very energetic, and had said that he (DP) had known him (the appellant) from school as well as from church. He said that the appellant used to come to the St John's school and play sport with the students during lunchtime - this happened "quite a lot".
13. He said that he ceased involvement at the Pro-Cathedral after the Gavin Smith camp. He said that, as a result of the abuse he alleged, his behaviour deteriorated, and that, on a couple of occasions, he lit fires in garbage tins. He said that the appellant spoke to him on a number of occasions about his behaviour, and about his non-attendance at church.
14. DP agreed that, in 2010, he was contacted by a police officer who asked him if he had any comments about the appellant. He replied by saying that he did not know what the police officer was talking about, and suggested that he had called the wrong person. He said in evidence that he did this because he did not want to talk about "it".
15. DP's evidence was challenged on a number of bases, to which I will return. The appellant's evidence regarding DP
16. In the following account of the appellant's evidence, I will confine myself to so much of that evidence as relates to the allegations made by DP.
17. The appellant's evidence was that, in 1980, he enrolled in an Arts Degree at Newcastle University, and continued with that course throughout 1981 and 1982. During this time he resided at the hostel called Edmund Gleeson House, which accommodated young men contemplating entry into the priesthood. Edmund Gleeson House was attached to the Sacred Heart Church at Campbells Hill, two or three kilometres from the Pro-Cathedral.
18. The appellant and other residents of Edmund Gleeson House followed a regular daily routine. On weekdays they rose early in order to be in church by 6.15am for morning prayers followed by a 7.00am Mass. They then had breakfast, and left in cars at 8.00am to travel to Newcastle University. Two nights a week the appellant attended evening lectures that finished at 9.00pm. On Fridays the sisters at a local hospital provided them with meals for the weekend, which the appellant picked up. Saturday mornings were occupied with household chores. The residents then lunched together before attending lectures given by the Redemptorists, an Order of priests who conducted Edmund Gleeson House. After a little free time they travelled together to a Catholic establishment in Newcastle. On Sundays they attended two Masses, at 7.00am and 9.00am, at the Sacred Heart Church at Campbells Hill. The appellant said that on one (one only) occasion in 1982 he attended the Pro-Cathedral for a Vigil Easter Mass. He did this as part of the congregation. He had no role in officiating in the Mass, and wore civilian, not priestly, clothes. He occasionally assisted as an altar server at Campbells Hill (not at the Pro-Cathedral), when he wore the traditional altar service outfit. He never wore this at the Pro-Cathedral.
19. The appellant said that his University vacations were spent working at the Mater Hospital at Newcastle. He denied ever having set foot in the St John's Primary School at Maitland.
20. In 1983 the appellant joined St Patrick's College, Manly, a seminary in order to train for priesthood. He lived in the seminary. During that year he returned to Maitland on three occasions: for his graduation from Newcastle University, when he was notified that Gavin Smith's death was imminent, and again in October for his own institution as an acolyte. In respect of that event, he participated in the ceremony, on the altar. That was the only occasion in 1983 that he participated in a Mass at the Pro-Cathedral. He could not recall attending the Pro-Cathedral on any other occasion in 1983.
21. The appellant had no recollection of attending the Pro-Cathedral in 1984, although he accepted that he would have done so, for example, for the ordination of a colleague if one had taken place.
22. The appellant was ordained as a priest in December 1986; that ceremony took place at the Pro-Cathedral.
23. The appellant gave evidence about the camps for Gavin Smith. He said that the first took place between 28 December 1982 and 6 January 1983. DP was not present. Gavin Smith died in September 1983. The second camp took place between late December 1984 and January 1985. DP was not present. The appellant denied conducting any "tick and leech inspections".
24. It will be seen that the evidence of DP and the evidence of the appellant was in direct conflict in a number of respects. The following factual issues emerged:

• whether the appellant was, in 1982 and/or 1983, a priest;
• whether, in 1982 and/or 1983, the appellant participated in Masses at the Pro-Cathedral;
• whether the appellant attended, or played any role at, St John's Primary School;
• whether DP was present at the camp that followed the death of Gavin Smith.

1. In addition to those conflicts thrown up by the evidence of DP and the appellant, an issue emerged as to whether DP had ever been an altar boy at the Pro-Cathedral.
2. These issues cannot be resolved by reference only to the evidence of the two protagonists. It is necessary to look to other evidence that casts light on any of these issues. That is not because it is necessary for this Court to resolve a factual issue - nor, indeed, was it necessary for the jury to resolve each factual issue. However, the prosecution case against the appellant with respect to DP's allegations depended, if not entirely, then very heavily, on DP's evidence. The factual conflicts must be examined in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of counts 1 to 8. Issue 1: was the appellant a priest in 1982-1984? Did the appellant attend the Pro-Cathedral at 1982-1984?
3. It was critical to DP's evidence, and to the Crown's proof of counts 1 to 7, that the appellant was routinely present at the Pro-Cathedral at some time between 1982 and 1984, the dates specified in the indictment. It was, in my view, not so critical that he was present in the role of a priest, although it was implicit in DP's evidence that he wore priestly clothing.
4. There was some evidence to support the account given by DP. Peter Gogarty said that he attended the Pro-Cathedral during the 1980's. He had known the appellant at school, and was reacquainted with him as a "trainee priest", at the Pro-Cathedral. He recalled the appellant, dressed in a white smock, participating in Masses at the Pro-Cathedral. He did not know DP.
5. Gary Groves gave evidence to similar effect. He attended the Pro-Cathedral as a child. He recalled, at the age of 6 of 7 (1982-1983) being urged by his father to become an altar boy, and being introduced to the appellant as "a trainee priest". He recalled that the appellant dressed differently to other priests, more like an altar boy. He did not know the appellant well; the appellant "came in and out of the parish quite often and quite frequently". He said his family were more involved with Father Wilson and Father Fletcher.
6. DP's sister, Leah Wilton, also gave some indirect evidence about the appellant's role at the Pro-Cathedral. She said that she and her mother attended the Pro-Cathedral, and she recalled DP being an altar boy there. She recalled the appellant being present.
7. Notwithstanding that evidence, there is another body of evidence that renders DP's evidence highly suspect.
8. The priest referred to as Father Wilson gave evidence in his present (at date of trial) capacity of Archbishop of Adelaide. His evidence was that he moved into the Bishop's house (which was opposite the Pro-Cathedral) in February 1983. Prior to that, he had been living in the Bishop's residence in Newcastle, but, on an occasional basis, travelled with the Bishop to celebrate Mass at the Maitland Pro-Cathedral. From 1983 Father Wilson celebrated Mass in the Pro-Cathedral.

Ground 5: MB - unreasonable verdict (counts 14-21)

1. The counts concerning MB allege offences committed between 18 April 1990 and 11 March 1991 at Kitchener and Cessnock. The Crown case with respect to those counts can be recapitulated was as follows.
2. In April 1990 the appellant was assigned to the Cessnock parish as assistant priest. The senior priest was Father Vince Ryan. The appellant and Father Ryan shared living quarters at the Cessnock presbytery.
3. MB was born in March 1980 and grew up in the Cessnock area. He attended St Patrick's Primary School, and St Joseph's Church in Cessnock. In year 3 MB became an altar boy. He first met the appellant in the school playground. By this time MB was exhibiting behavioural problems at school. A teacher considered that he might benefit from greater involvement in the Church. Eventually, he was referred to the appellant. The appellant suggested that the two should play squash together, and MB acceded to this. They played squash once or twice a week. It was the appellant's practice to pick up MB from his home, at about 5.00pm, and drive him to the squash court at the local Police and Community Youth Club ("PCYC"). The appellant drove a white sedan, either a Holden Apollo or a Camry. This occurred over about three months. Thereafter, instead of going to squash, the appellant drove MB to Kitchener Park. The two sat in the car and talked about MB's behaviour, and how it could be improved. MB trusted the appellant and felt good in his company. On other occasions, the appellant drove MB to the Cessnock presbytery where he lived. Again, they discussed MB's behaviour, and how it could be improved. The appellant told MB not to reveal to his parents that he was not going to squash.
4. MB then gave evidence of five separate occasions on which the appellant committed sexual offences against him. The first and fourth occasions were at Kitchener Park. The second, third and fifth were at the presbytery. The offences involved various forms of sexual activity, including masturbation and oral sex.
5. On the first occasion, at Kitchener Park, the appellant told MB to relax, that everything would be "okay". He also told him that what was happening was their "little secret" and that, in any event, nobody would believe MB if he did say anything. He told MB that it was "what God wants" and would "make things better". MB said that he thought that what was happening was "gross", but that he trusted the appellant. After this, the appellant drove MB home.
6. The next offence of which MB gave evidence took place at the presbytery. This was not the first time that the appellant had taken MB to the presbytery. On previous occasions, nothing untoward had occurred.
7. Again, the appellant picked MB up to play squash, but instead took him to the presbytery, and into his room. After some conversation the appellant had MB perform oral sex him. He again reassured MB that everything would be "okay", and told him to relax, and that their "little secret" had become a "big secret", and that MB was not to tell anybody, not even his sister. MB said that he felt "pretty disgusting", but did not know that what he was doing was wrong. The appellant then drove MB home.
8. It is unnecessary to go into the detail of the other occasions. It is clear from MB's evidence that each incident occurred after the appellant had picked MB up from his home, ostensibly to take him to play squash.
9. One of the incidents at the presbytery occurred a few days before MB's 11th birthday. MB said that the appellant had organised an 11th birthday party for him which took place at the presbytery. About 10 or 12 boys attended. Nothing untoward occurred at the birthday party. However, after that, the appellant lost interest in MB, and "just vanished" from his life.
10. MB gave evidence of a rather puzzling incident, which appears to have little direct relevance to the charges, but which must, for reasons that will appear, be recorded in some detail. MB's account was this. Shortly before his 11th birthday, the appellant told MB that he had found a way to fix all his problems, but that MB had to agree to everything the appellant said. The appellant and MB then went to MB's home and spoke to his parents. The appellant told them that MB had told the appellant that MB's father had put a saddle on his back, and had whipped him around the horse yard at their property. Although MB had not told the appellant any such story, in compliance with the appellant's instruction, MB did not deny having done so. Not only had MB not told such a story, such an event had not (and could not have) taken place.
11. The "saddle story" surfaced 17 years later, at MB's 28th birthday celebration at home. MB's father, who had mentioned the incident from time to time over the years, again made reference to it, recounting it to his then partner. It was this that provoked MB, for the first time, to disclose the appellant's sexual abuse. He did this with considerable violence of language. The following day MB spoke to his grandmother, who was still very involved with the church. As a result, MB made a formal complaint.
12. In cross-examination, MB agreed that when he made his initial statement (presumably to police) in June 2008, he had fixed the events by reference to his 12th birthday. He subsequently realised his mistake and corrected the statement to refer to his 11th birthday. It was clear that all incidents of which he gave evidence occurred in the six months prior to his 11th birthday.
13. Also in cross-examination, MB said that from the time he was in year 5 (1991), altar boy nights were held on either every second or every fourth Friday evening. Initially, they were organised by Father Ryan and another priest. Later the appellant became involved.
14. MB was cross-examined about the appellant's car, which he said in his examination in chief was white. After some cross-examination, he said "that's how I remember it".
15. MB's father (Mark B) gave evidence. I will confine the references to his evidence to that which is relevant to the factual issues raised under this ground of appeal. Mark B recalled being told by his wife that MB had been asked to play squash with the appellant at the PCYC. They gave their permission. He recalled MB playing squash with the appellant a couple of times a week over a period.
16. Mark B's account of the "saddle story" varied in some respects from that of MB. He said that a conversation with the appellant occurred. It took place on a Sunday evening, after MB had gone to bed. The appellant came to the door and told him that MB had said that Mark B had put a saddle on him, and whipped him around the paddock. He said that his reaction was of incredulity. He said the appellant asked his wife if it could have happened, and she had the same reaction as he had had.
17. Mark B also gave an account of MB's 28th birthday, when his mention of the incident provoked an angry disclosure from MB.
18. MB's mother (GH) also confirmed that MB had asked for permission to play squash with the appellant, and that permission was given. She said that either she drove MB to the squash courts, or the appellant picked him up at home. She said that, for MB's 11th birthday, the family had had a celebration, and that there was another one, with other altar boys, which she believed was at the parish hall.
19. Her recollection of the "saddle story" conversation with the appellant was consistent with that of Mark B in that MB was not present.
20. MB's grandmother (BB) gave evidence. Of significance, she said that when MB first told her of the abuse, he said that any incident had taken place at his birthday party at the presbytery.
21. Father Ryan was the parish priest in Cessnock from April 1988 to January 1995. He lived at the presbytery, with an assistant priest who was, from 1990, the appellant. The two became (and remain) good friends. Father Ryan, himself was convicted of sexual offences against 27 different complainants. On behalf of the appellant, an attempt was made to suggest that MB had mistaken the appellant for Father Ryan. Father Ryan denied that MB was one of his victims. He said that he had been arrested twice; the second time, he made full disclosure of all of his victims. He said that only two of the 27 victims had been at Cessnock, and, at the time he made his disclosure, his time there was fresh in his memory. He was certain that he had had no contact with MB. He expressly denied playing squash with MB, denied entering the PCYC, and denied being at Kitchener Park.
22. Two school friends of MB gave brief evidence. David Mitchell said that he had also been an altar server, and recalled that on Friday nights, either once a month or once a fortnight, the altar boys had a social gathering in the Church hall. Either Father Ryan or the appellant was present. Mr Mitchell also recalled being invited to MB's 11th birthday party which was held in the presbytery. The appellant and Father Ryan were present.
23. Jaron Apthorp was also a close friend of MB at school. He also said that he attended MB's birthday party, in the presbytery. He recalled the appellant being present. The appellant's case
24. With respect to the allegations made by MB, the appellant gave the following evidence. He denied playing squash with MB. He said that he did not know of Kitchener Park prior to hearing of these allegations. He said he had never been to MB's house. He said he had never picked up MB to take him either to Kitchener Park or to the presbytery. His motor vehicle was not, as MB said, white. From 1989 until May 1991 he drove a red Camry. Father Ryan drove a white Holden Commodore.
25. The appellant's account of the "saddle story" was different to that of MB and his parents. He said that he had first met MB when visiting the school, as part of his priestly duties. He called on a particular teacher who he knew and liked and saw MB sitting outside the classroom, on a veranda, obviously in trouble. The teacher asked the appellant to talk to MB. When the appellant did so, MB told him that his father had put a saddle on his back, ridden him around the yard, and whipped him. The appellant thought this "bizarre", but could not be ignored. He contacted Mark B and asked him to come with MB to the presbytery. Within a day or two, Mark B and MB did so. The appellant said that he was "terrified", and in fear that Mark B would hit him; he therefore held the meeting in a reception room, and he arranged the seating strategically so that he had his back to the door as "an escape route". It is to be noted that on the appellant's account, not only did the conversation take place, not at the B household, but at the presbytery, but also that MB's mother GH was not present. He said that Mark B received the information calmly and sensibly, and pointed out that it was not physically possible for what was described to have happened; he said that MB habitually made up such stories. The appellant said again that he had never been inside B home. The appellant denied playing any part in arranging MB's birthday party. He said that, in 1991 early March (when MB's birthday fell) was Lent and a very busy time, with meetings and services and events. He said that he was aware that Father Ryan involved himself with altar boy nights on Fridays but that he did not.
26. Ms Alberta McGowan gave evidence in the defence case. She lived in Cessnock, not far from the presbytery, and had sons who were altar servers. She assisted in cleaning the Church and the hall. Prior to the appellant's arrival she took on the maintenance of the garden. She did this on weekday afternoons, after her children had come home from school, and left at about 5.00pm. From time to time she saw the appellant come and go from the presbytery. She did not recall ever seeing the appellant with children. She confirmed that the appellant drove a red car.
27. Ms McGowan said that she did see Father Ryan coming and going with children. She did not recall the appellant being involved in sporting activities. The appellant's arguments in support of ground 5
28. It was acknowledged that the appellant's case in respect of the MB allegations is not as "overwhelming" as that in respect of the DP allegations. It was, however, maintained that the court ought to entertain a reasonable doubt, as the jury should have. A number of arguments, of varying degrees of force, were raised. They were: 1. it was unlikely that the appellant and MB could have entered the presbytery in the afternoons without being observed by Ms McGowan, who was regularly in the garden and who did observe Father Ryan entering the presbytery with young boys; 2. the evidence established that the appellant drove a red car, contrary to MB's evidence that his car was white; 3. the Crown called no witness from the PCYC to confirm that the appellant had played squash on a regular basis with a young boy; 4. the Crown called no patron from a hotel near Kitchener Park, nor any neighbour from the vicinity, to confirm that the appellant had been observed parking nearby with a 10 year old boy; 5. given the strict rules imposed by the appellant in respect of the youth groups, it was unlikely that his involvement with a young boy would have escaped attention; 6. it was unlikely that the appellant would have concocted the "saddle story"; the more likely scenario was that it was MB, as a child, who concocted the story, and this made it more likely that he also concocted the allegations of sexual misconduct in direct response to his father's mention of the story at his 28th birthday. Further, the corroboration by his parents of the "saddle story" cast doubt upon their credibility generally, including their evidence that MB had played squash with the appellant; 7. details of the sexual misconduct with MB were different in many respects from those made by other complainants, for example there was no allegation of wrestling, nor of invocation of God's will; 8. there was limited support MB's assertion that the appellant attended altar boy Friday evenings, and it was contrary to the evidence of others; 9. MB initially claimed that the offences took place before his 12th birthday, at which time the appellant had left the Cessnock parish; 10. MB's assertion that the appellant arranged his birthday was not supported by any independent adult; 11. MB's grandmother said that, when he made his disclosures to her, he said that the offences had been committed at his birthday party; 12. the evidence showed that the appellant was too busy during the relevant period to have been able to engage in the activities alleged. Consideration
29. Points (iii) and (iv) can be quickly disposed of. These events allegedly took place in 1991, 21 years before the evidence was called, and many years before the investigations began. There is no reason to think that anybody from the hotel at Kitchener, or anybody from the PCYC, could have made observations of the kind suggested, or if they had, would be likely to have recalled them and been available to the Crown. Point (v) appears to be a reference to evidence given by the appellant himself, concerning his time at Muswellbrook when he arranged a youth group at which, he said, he insisted that parents be involved to a significant degree. No evidence was identified that he adopted a similar practice at Cessnock, and no evidence was identified that supported that evidence given by him.
30. The "saddle story" appears to be relied on as the foundation for a chain of propositions, culminating in the proposition that MB's parents were part of an agreement to give false evidence against the appellant. At trial, in final address, senior counsel for the appellant relied upon MB's response to his father at his 28th birthday that "I made that up as a cry for help". When that evidence was properly read, it is clear that what MB was saying to his father was that his somewhat violent response to the reference to the "saddle story" was "a cry for help". In fact, on the statement made by his father (elicited in cross-examination) MB denied that his account was a story; he said it was "a cry for help". Point (vii) appears again to raise the strength of the tendency evidence, drawing distinctions between the nature of the offences alleged by other complainants from those alleged by MB. It is true that there are differences; there are also similarities. It was quite open to the jury to consider that the similarities were significant. The offences against the various complainants were alleged to have been committed progressively over a period, and in different locations. For tendency evidence to have value, it is not necessary that the offences alleged be identical, or even similar. Small items of evidence may well have probative value although the extent and strength of the probative value will depend upon a variety of factors, and is, ultimately, a matter for the jury. It is not correct to say that there was no invocation of God's will in relation to MB; MB said that the appellant told him that sexual activity was "what God wants" and would "make things better".
31. It is incorrect to assert, as was asserted in point (viii), that support for MB's evidence that the appellant attended altar boy evenings on Fridays was "limited". The evidence of Mr Mitchell was entirely consistent with the evidence of MB.
32. Point (x) suggests that MB's assertion that the appellant arranged his 11th birthday party was not supported by any "independent adult", ignoring the fact that two of MB's friends, who said they had been present at the party, gave significant support to the assertion that the appellant was present.
33. Point (xii) is that the evidence showed that during the relevant period the appellant was too busy to become involved in sexual activity. This is unsupported by the evidence. It may be accepted that the period up to Easter (which was, that year, the end of March) is a busy one in the Catholic Church. MB's allegations go back well before the commencement of Lent and, in any event, it is unlikely that the appellant could not have found time for these activities if that is what he sought to do.
34. It is true that MB initially asserted that the appellant's car was white. After cross-examination, this became "that's how I remember it".
35. Finally, point (i) suggests that it was unlikely that the appellant and MB could have entered the presbytery during the afternoon without being observed by Ms McGowan. The evidence of MB was that the appellant picked him up from his home at about 5.00pm; Ms McGowan's evidence was that she left the premises at about 5.00pm.
36. It is of considerable significance that that appellant denied a number of factual assertions that received independent support. He denied playing squash with MB; that was contradicted by both of MB's parents. He denied organising MB's birthday party; that was contradicted by Mr Mitchell and Mr Apthorp. He denied taking part in the Friday evening altar boy social events; that also was contradicted by Mr Mitchell and Mr Apthorp.
37. In my opinion, it was amply open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant with respect to counts 14 to 21 inclusive. Having reviewed the evidence, I have no doubt of the appellant's guilt of the counts.

Ground 4: SM - unreasonable verdict (counts 9-13)

1. Counts 9-13 allege offences against SM committed between 31 January 1987 and 28 December 1988 at Muswellbrook. The Crown case against the appellant in respect of SM may be briefly recapitulated as follows. SM was born in 1973. He lived in Muswellbrook, where he attended the St James Catholic Church and the St James Primary School. At about 7 or 8 years of age he became an altar boy, and continued in that role until age 14.
2. In 1987 the appellant was assigned as a parish priest to Muswellbrook. Shortly after the appellant's arrival, he organised a youth group, which SM joined. He was then in year 8 and aged 13.
3. SM said that the appellant was "one of the boys", and a "great friend". One of the activities of the group in which SM participated was wrestling, which was taught by the appellant.
4. SM was having some difficulties at home, and told the appellant that he was "not doing too well at the time", and was suffering from stress, anxiety and depression. The appellant invited him to the presbytery to have some talks. On three separate occasions SM went to the presbytery. Nobody else was present, although another priest lived at the presbytery at the time. On each occasion SM and the appellant talked for a time, after which the appellant suggested wrestling. On each occasion, the wrestling was followed by a sexual offence. It is not necessary to repeat the details of the nature of the sexual offences. SM said that he thought the appellant's conduct was "disgusting", and that the appellant was "a sick freak". He did not tell anybody at the time because he thought it was shameful, and he was scared. He returned on subsequent occasions because the appellant was the only person he had to talk to, from whom to obtain some assistance with respect to his personal difficulties.
5. SM said that on each occasion he went to the presbytery he knocked on the front door and the appellant let him in.
6. SM said that, after the last occasion, he took the appellant's head in a headlock, squeezed him until he gave in, and then left. Thereafter, he had no further contact with the appellant.
7. In cross-examination, SM was pressed to confirm his evidence that he had knocked on the front door of the presbytery in order to gain access. The following exchange in cross-examination is recorded in the transcript: "Q. Are you sure about that? A. I would have knocked or a bell, whatever it was, it would have been obviously to get the attention of whoever it was, [the appellant] inside, so. Q. Well can you remember? A. Knocking. Q. We don't want you just to take a stab at this, if you can't remember, then tell us? A. It would have been obviously that is to me just to get the attention of someone inside so either knocking or pressing a bell so, what, just to get the attention of [the appellant] inside. Q. In other words you don't remember? A. To be 100% specific, no. Q. But your best recollection is you knocked? A. Yes."
8. SM also agreed in cross-examination that, in 1988, he and a group of others went on a skiing trip. It was put to him that the appellant was also present, but he was not sure that that was so.
9. SM said that he first told his mother about the sexual offences when he was about in his mid 20s. The evidence of SM was significantly corroborated by his mother, who recalled occasions when he had gone to the presbytery in order to wrestle with the appellant. The defence case
10. The appellant not only denied having committed any sexual offence against SM; he denied that SM had ever been alone with him at the presbytery. He took issue, for example with SM's evidence that when he attended the presbytery he knocked on the door. The appellant's evidence was that there was an aluminium screen door (which may have been a security door) with a bell to one side. He said that the building was of sandstone and that: "there was no chance on earth of anyone hearing anyone knocking at the front door."
11. He also gave evidence that, in September 1988, he took a group on a trip to the Snowy Mountains. SM was a member of that group.
12. He gave evidence about the formation of the youth group. He said that he had insisted on the involvement of parents in the activities of the group.

The appeal

1. It was acknowledged in the appellant's written submissions that his case in respect of counts 9-13 is less forceful than that in relation to counts 1-8. It is not entirely easy to follow the argument that was advanced. It seems to me that the argument was to the following effect:

• it was inconsistent behaviour for SM to return to the presbytery on the second and third occasions after having been sexually assaulted by the appellant, and to have attended the Snowy Mountains skiing trip and other events with the appellant after the commission of the offences;
• the allegations made by SM were different from the allegations made by other complainants, particularly DP and MB. (As best I could understand, this was intended to be an argument about the strength of the tendency evidence, although it was never so articulated.);
• there were some inconsistencies in the detail of evidence given by SM, such as when he was confused, and when he disclosed the offences to his mother.

1. Attention was drawn to some confusion in SM's evidence about when he had first made a complaint (to this mother) about the appellant's conduct. On this issue he was cross-examined at considerable length. Just how this bore upon the core allegations is unexplained.
2. It was submitted that SM's evidence was unreliable, and insufficient to found the convictions.
3. I do not accept this argument. This is a case in which the jury had ample opportunity to observe the witnesses, and to consider and weigh up the competing evidence. I have carefully considered the evidence of SM, and of the appellant. I am satisfied that it was open to the jury to convict on these counts. My review of the evidence satisfies me beyond reasonable doubt that the appellant committed the offences. I would reject this ground of appeal.

Ground 6: JC - unreasonable verdict (counts 22-23)

1. Two offences against JC were alleged by the Crown, committed between 27 July 1991 and 31 January 1993, the first at Windale and the second at Lake Macquarie. The Crown case was as follows.
2. JC was born in June 1979. He attended St Pius Catholic Primary School at Windale, where he became an altar boy. From year 7 he attended St Mary's Catholic School at Gateshead. In July 1991 the appellant was appointed as parish priest at Windale, where he remained until early 1994. He took the altar boy classes. In order to earn extra money, JC mowed the lawns at the presbytery. He became friendly with the appellant. They talked together, "had some fun", and wrestled in the lounge room of the presbytery. After wrestling, they showered. Usually, when JC showered, he was alone in the shower. But on one occasion when the appellant was showering he asked JC to join him and play a game. The game involved spitting on each other. Both were wearing underwear. Although JC spat at the appellant, he declined to have the appellant spit at him, because he found it "repulsive". This conduct occurred on three occasions. It is the subject of only one charge, count 21.
3. The offence the subject of count 23 occurred on an altar boy camping trip JC made with the appellant. JC said that the camp was at Lake Macquarie, probably later in 1991. JC shared a tent with the appellant. They slept in separate sleeping bags. One night JC awoke to find the appellant on top of him, his penis erect, and the appellant "gyrating" slowly. JC asked the appellant what he was doing; the appellant replied that he was just lying on top of JC. JC told him to get off. The appellant asked to be allowed to lie on top of JC. JC refused and told him to go away.
4. Also present at the camp were an older boy, Christopher Grahame, and Christopher's father George Grahame. On the day after the event, JC told both Christopher and George Grahame of what had happened. They told him that he must have been dreaming and to forget about it. He did not tell anybody else for about six years, when he told his brother. He did not tell his brother about the spitting episodes.
5. In cross-examination, JC agreed that it was possible (although he could not remember) that another boy, Simon Walsh, was present at the camp.
6. After their return to Windale, JC continued to mow the lawn at the presbytery and continued to wrestle with the appellant. He still liked him and thought of him as a role model.
7. In cross-examination it was put to JC that he had had a difficult childhood, and had experienced two highly traumatic events. One was a serious assault upon him at the hands of his father. The second was a motor vehicle accident in which he, as a pedestrian, had been knocked over by a car, suffering significant and long enduring effects. These events were put as providing the foundation for a suggestion that he had somehow fabricated (if unwittingly) his allegations against the appellant. It was expressly put to him that both allegations against the appellant were the result of a dream. He rejected that suggestion.
8. He agreed that he continued to be friendly with the appellant until the appellant left the district. He said that he had "looked up to him", and that he still did.
9. JC's mother also gave evidence, including evidence of the assault upon JC and the effect of the motor vehicle accident. In cross-examination JC expressed a low opinion of his mother, and said: "Her words have always been misguided most of the time so I have had a hard time believing most of the things she says I'm sorry."
10. There was some confusion in the evidence about the camping trip. JC agreed that he had subsequently accompanied the appellant on another camping trip, at which JC's brother was also present. JC's brother recalled this because he had had a leech between his toes.
11. JC's brother gave evidence of the account given to him by JC some years after the event. He associated the camp with the leech incident. The defence case
12. The appellant denied each allegation made by JC. He said that, although he had been on two camps with JC, neither was at Lake Macquarie. He described in some detail one of the camps when, he said, it had rained heavily during the night so that he and JC took refuge and slept in his car. Both Christopher Graham and his father George gave evidence in the defence case. Christopher Graham's evidence was that he had once - and once only - been camping with the appellant, at Frying Pan Creek, in Dungog - that is, not Lake Macquarie. He did not recall JC being present. He categorically denied having been told by any camp participant that he had been indecently or sexually assaulted by the appellant. George Graham also recalled the camp as being at Frying Pan Creek, which he had attended with his two sons and other children. He said there was heavy rain and the camp was called off after one night. He was equally firm in denying that he had been told of any indecent or sexual assault by the appellant. He said that, as a father, and "like any decent parent", had he been informed of something like that, he would have investigated. He was not challenged on this evidence.
13. Simon Walsh gave evidence of a camping trip, also at Frying Pan Creek, at which both JC and the appellant were present. One other boy was also present. Simon Walsh said that the three boys slept in one tent, the appellant in another. He said that on the last day of the camp Christopher Graham and his father arrived.

The appeal

1. It will be seen that accounts of the camp varied considerably from witness to witness.
2. The submissions made on behalf of the appellant as to why this Court ought to have (and the jury ought to have had) a reasonable doubt about JC's allegations are again not easy to follow. Senior counsel described the spitting allegations as quite "bizarre". He referred to JC's evidence that he had had a good relationship with the appellant, and that, even when giving evidence, he said that he still "looks up to" the appellant. This seems to have been an attempt to cast doubt upon the credibility of JC's allegations.
3. Senior counsel also referred to JC's "difficult youth", apart from his contact with the appellant. This appeared to be a veiled suggestion of fabrication, although the logic was not articulated. In this context, reference was also made to JC's evidence that his mother could not be believed (which somewhat overstates the evidence given by JC). JC's mother had described the assault on JC by his father, which JC did not recall. There is no apparent connection between JC's distrust of his mother and his allegations against the appellant.
4. The strongest point made on behalf of the appellant concerned the evidence about the camping trip, particularly the evidence of the Grahams, denying any complaint of sexual assault by the appellant. In my opinion, if the Grahams had indeed brushed off JC's report as summarily as JC claimed, it is quite likely that they would not recall the event. However, the evidence of George Graham that he would have investigated any such allegation was not challenged, and must be given due weight. Moreover, the evidence of Simon Walsh, while it does not establish that the camping trip to which he referred was the same trip as that to which JC referred, is sufficient to cast serious doubt on JC's evidence.
5. In my opinion, the discrepancies are such that the jury ought to have had a reasonable doubt about JC's allegations. Those convictions must be quashed and verdicts of acquittal entered.
6. I would therefore uphold ground 6.

Grounds 3-6

1. I have considered above the evidence in relation to each complainant separately. In relation to grounds 4 and 5, I have concluded that the evidence in each case amply supported the Crown case, and was such as to entitle the jury to be satisfied beyond reasonable doubt of the appellant's guilt. It is not to be overlooked that the evidence in each case was, in accordance with the ruling of this Court in DAO, admitted as tendency evidence in the case of each other complainant. Zahra DCJ gave appropriate directions in respect of the use the jury might make of the tendency evidence. No complaint is made about the content of those directions. The tendency evidence strengthened the Crown case in relation to each complainant. My conclusions above were drawn without regard to the tendency evidence.
2. There is, however, a complication arising by reason of the view I have come to in relation to the allegations concerning DP and JC. Notwithstanding the admission of the tendency evidence, I have concluded that convictions on counts 1-8 and 22-23 cannot stand. The question that then arises concerns the impact of that conclusion on the convictions on the remaining counts.
3. It might be argued that the tendency directions linked the cases concerning all four complainants in such a way as to make the convictions interdependent. That calls for examination of the directions that were given. Zahra DCJ outlined the tendency upon which the Crown relied. He then said: "Ladies and gentleman this evidence is before you because the Crown says there is a pattern of behaviour that reveals that the accused has a tendency to act in a particular way or to have a particular state of mind. Namely the Crown alleges that the evidence sought to be relied upon would demonstrate firstly that the accused was a person who had a sexual attraction towards male children. Secondly that he identified male children who were having difficulties at home or at school and thirdly that the accused gave attention to those children by way of specialised, individualised attention or counselling and then engaged in inappropriate sexual conduct. The evidence of the accused having that tendency can only be used by you in the way the Crown asks you to use it if you make two findings beyond reasonable doubt. Firstly, the first finding is that you are satisfied beyond reasonable doubt that one or more of the acts occurred. In making that finding you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you satisfied that a particular act relied upon actually took place. If you cannot find that any of these acts is proved beyond reasonable doubt then you must put aside any suggestion that the accused had the tendency advanced by the Crown. If you do find beyond reasonable doubt that one or more of those acts occurred then you go on to consider the second finding. Secondly you ask yourself whether from the act or acts that you have found proved you can infer or conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that inference or conclusion beyond reasonable doubt then again you must put aside any suggestion that the accused had the tendency alleged. So if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can from the proved act or acts infer or conclude beyond reasonable doubt that the accused had the tendency to act in the particular way or had the state of mind that the Crown alleges you may use the fact of that tendency or state of mind in considering whether the accused committed the offences charged. That is if you were satisfied that the accused did have that tendency then that would lend support to the evidence of those complainants who are the subject of specific charges in the indictment. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one matter, he is therefore generally a person of bad character and for that reason must have committed the offences. That is not the purpose of the evidence at all."
4. In my opinion, in these remarks, Zahra DCJ emphasised that the jury had to be satisfied beyond reasonable doubt in relation to each of the offences alleged. In the final two sentences he took a good deal of the sting out of the tendency evidence.
5. It is also necessary to examine the nature of the evidence called by the Crown in relation to each complainant. As will appear from the analyses above, the Crown case in relation to DP and JC was shown to have serious deficiencies. That was not so in relation to the Crown case concerning MB and SM. In each of those cases the Crown case was strong. This would have been apparent to the jury.
6. However, I am unable to exclude the real possibility that the jury used the flawed cases in respect of the allegations of DP and JC in support of their conclusions on the allegations of MB and SM. The inevitable result is that those convictions must also be quashed. It does not follow that verdicts of acquittal ought be entered in respect of those counts on the indictment. The appropriate order is that there be a new trial of those counts.

Ground 7A: fresh evidence

1. The fresh evidence sought to be admitted concerned only the convictions with respect to counts 1-8. It is therefore unnecessary to consider this ground.
2. The orders I propose are: 1. The appeal against the conviction is allowed; 2. The convictions and sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 are quashed, and verdicts of acquittal entered; 3. The convictions and sentences in respect of counts 9 to 21 inclusive are quashed; 4. In respect of those counts there be a new trial.
3. ADAMS J: I agree with Simpson J.
4. PRICE J: I agree with Simpson J.

Amendments 12 May 2016 - Judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2016