DAO v R

Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2009/60628 Publication restriction: Non publication of any information or material that may lead to the identification of the complainants: Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A.

Judgment

1. MEAGHER JA: It is a long established common law rule that the Crown neither receives nor pays costs, particularly in criminal proceedings. That position was modified in New South Wales, in respect of criminal proceedings, first by the enactment of s 81 of the Justices Act 1902 (NSW) (now repealed), and later by the enactment of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act): see Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 560. The Costs Act provides for the issue of a certificate "in any proceedings relating to any offence, whether punishable summarily or upon indictment": s 2. The person to whom the certificate has been granted may apply to the Director-General of the Attorney General's Department under s 4 of the Act for payment from the Consolidated Fund of the costs incurred "in the proceedings to which the certificate relates". See the discussion in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [12], [15].
2. The applicant (DAO) applies for a certificate under the Costs Act in the following circumstances. He was arrested in February 2009 and charged with sexual offences against six complainants. In November 2010, a judge of the District Court ordered that the counts involving three of those complainants be tried separately from the remaining counts. DAO's appeal from that determination was dismissed: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63.
3. On 21 March 2012, DAO was arraigned in the District Court on an indictment containing 23 counts (two of which were pleaded as alternatives) relating to the three complainants - SM, MB and JC - as well as a further complainant, DP. DAO entered a plea of not guilty to each of those counts and, after a six week trial before Zahra DCJ and a jury, he was convicted on each of the 21 primary counts.
4. His appeal against those convictions was upheld: DAO v R (No 2) [2014] NSWCCA 126. The convictions and sentences in respect of counts 1, 2, 3, 5, 7 and 8 (being those relating to complainant DP), and counts 22 and 23 (relating to complainant JC) were quashed and verdicts of acquittal entered. His convictions and sentences in respect of counts 9 to 21 (relating to complainants SM and MB) were also quashed. However, an order was made that there be a new trial of those counts: Criminal Appeal Act 1912 (NSW), s 8(1).
5. DAO applies for a certificate under the Costs Act in respect of the prosecution of the counts involving DP and JC.
6. It is convenient at this point to set out s 2 of the Costs Act in its current form: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
7. The Crown opposes DAO's application on two bases. First, it submits that this Court's power to grant a certificate in the proceedings as to the counts involving DP and JC has not been enlivened because the second and relevant precondition in s 2(1)(b)(i) is not satisfied. Although DAO's convictions on those counts were quashed on appeal, the Crown says that he was not "discharged as to the indictment upon which he … was convicted" because a new trial was ordered of the remaining counts involving SM and MB.
8. Secondly, the Crown submits that even if that condition is satisfied, DAO's application must be refused because the Court cannot form the opinion required by s 3(1). The relevant parts of ss 3 and 3A, as they apply to DAO's application, are extracted in [36] and [38] below. It was not submitted that a certificate should not be granted in the exercise of the Court's residual discretion: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160; Ramskogler v Director of Public Prosecutions (NSW) (1995) 82 A Crim R 128; cf Solomons v District Court at [50] (McHugh J).

Was DAO "discharged as to the indictment" upon which he was convicted of the counts involving DP and JC

The arguments

1. The Crown submits that DAO was not "discharged" on the 23 count indictment upon which he was convicted because a new trial was ordered of the counts involving SM and MB. This argument treats the "indictment" as being the document presented to the Court when DAO was arraigned on 21 March 2012. In R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281, Howie J observed (at [231]): the term "indictment" has been used in this State, in the absence of any established system of grand jury, to describe the document that is presented to the court by a person, or on behalf of a person, empowered to commence a criminal trial.
2. In response, DAO submits that because verdicts of acquittal were entered in relation to the offences against DP and JC, he was discharged in relation to those counts. For the purpose of considering the question of discharge, DAO contends that each count is to be treated as charged by a separate indictment so that the entry of a verdict of acquittal on those counts relevantly discharged him as to that indictment.

Discussion

1. The purpose of the Costs Act is to enable the payment in appropriate cases of costs incurred by an accused in successfully defending a criminal charge. Section 2(1) recognises that such success may occur in proceedings at first instance or following an appeal from conviction. To enliven the power to grant a certificate, the outcome in either case must finally dispose of the proceedings relating to the offence in favour of the accused. Section 2(1)(b)(i) is addressed to that character of finality in the outcome of an appeal.
2. As first enacted, s 2 (which through amendment became subs 2(1)) provided: 2. The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; or (b) where, on appeal, the conviction of the defendant is quashed and - (i) he is discharged as to the indictment upon which he was convicted; or (ii) the information or complaint upon which he was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section three of this Act and relating to those proceedings.
3. It is apparent (from the current text of the section, extracted in [6] above) that paragraph (a) has been substantially amended, whereas paragraph (b) has not. The introductory words have not materially changed. They continue to provide that the power to issue a certificate arises with respect to proceedings "relating to any offence, whether punishable summarily or upon indictment".
4. When the legislation was introduced, criminal proceedings were most commonly commenced by the laying of an information. That was so whether the offence was punishable summarily as a summary offence or as an indictable offence which could be dealt with summarily or upon indictment. In either case, the information could only be for one offence; and could be laid before a magistrate as an indictable offence or as an offence liable to be punished summarily (Justices Act, ss 21, 52, 57).
5. For indictable offences that were not able to be tried summarily (see Crimes Act 1900, (NSW), ss 476, 477 (repealed)), committal proceedings were conducted before a magistrate. In those proceedings, after all of the evidence for the prosecution and any evidence for the defence had been taken, the magistrate, if satisfied that the evidence was not sufficient to warrant a trial, could discharge the defendant "as to the information then under inquiry" (Justices Act, ss 41(2), (6)). The making of such an order had the effect of bringing the proceedings on the information to an end. It did not, however, have the effect of an acquittal so as to enable a subsequent plea of autrefois acquit: see, for example, R v Baxter (1904) 5 SR (NSW) 134. These procedures as they applied in practice, including in relation to the prosecution of indictable offences after a defendant had been committed for trial, were described by Gleeson CJ in R v Hull (1989) 16 NSWLR 385 at 390-393.
6. Indictable offences not tried summarily were prosecuted by indictment. Under the common law, a bill of indictment was a written accusation of crime for which a grand jury was asked to find on oath that there was a prima facie case. A defendant could be charged in the one bill of indictment with more than one offence, provided that each was charged in a different count. The jury's finding of a prima facie case was endorsed on the bill as the notation billa vera (true bill). At that point, the bill became an indictment in relation to that count. Where the bill contained two counts the grand jury could find a true bill as to one count and ignoramus ("we know nothing of it" or not found) as to the other. In that event, the indictment proceeded in relation to the first count as if originally there had been only one count charged: R v Fieldhouse (1775) 1 Cowp 325; 98 ER 1111. See generally Sir John Jervis, Archbold's Summary of Law relating to Pleading and Evidence in Criminal Cases (7th ed 1838, Sweet and Stevens) at 55-57, 58-61 and Sir William Blackstone, Commentaries on the Laws of England (1826, W Walker London) vol 4 at 305-306.
7. The term indictment now describes the document presented or filed in the District or Supreme Court for the prosecution of an offence or offences: see Crimes Act, s 4. The position remains that it may include one or more counts provided each alleges the commission of a separate crime. It may also, as was the position under the common law, charge more than one person where the defendants have joined in the commission of an offence. The indictment may be amended and one or more of the counts in the indictment may be ordered to be tried separately from the remaining counts, whether against the same or different defendants. The procedures in relation to these matters were until January 2000 governed by the Crimes Act, ss 360-374. Those provisions were repealed when the same or similar provisions were included in Ch 2, Pt 2 of the Criminal Procedure Act 1986 (NSW) (see Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), Sch 3, Pt 2).
8. As McHugh JA observed in Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 689, a "very curious" aspect of s 2(a) of the Costs Act as originally enacted was that, in relation to proceedings for the prosecution of an indictable offence, it did not appear to address the event that the defendant was acquitted after a trial on indictment. His Honour made that observation assuming the words "acquitted" and "discharged" where they appeared in paragraph (a) were both to be read as qualified by the words which followed ("as to the information then under inquiry"). That construction produced an unlikely outcome because the reference to proceedings by way of indictment in the opening words of the section was a clear indication that paragraph (a) was intended to include success at first instance by means of a jury verdict of acquittal. To give effect to that intention, McHugh JA ventured that the reference to "information" in paragraph (a) was to be read as including an indictment (notwithstanding that s 2(b) used those terms "in apparent contradistinction"): at 689-693.
9. The construction of s 2 arose for determination in Allerton. The Court (Kirby P, Meagher and Handley JJA) resolved it by reading paragraph (a) as if it was expressed as follows: (a) Where, after a hearing on the merits, a defendant is - (i) acquitted; or (ii) discharged as to the information then under inquiry.
10. The Court explained its reasons for adopting that construction (at 555-556): It involves minor surgery to the applicable paragraph of s 2, being the transposition of the words between the commas. So read, the paragraph limits the reference to "the information" to the "discharge". That would be an entirely appropriate limitation. The discharge would typically occur at the committal stage where the defendant stands before the court on an "information" which is "then under inquiry". The procedure by which the defendant is before the court upon an indictment is not mentioned. However, although this is curious given the express mention of "indictment" in the opening words of the section and in s 2(b)(i), it seems likely to us that the explanation offered is the correct one. The paragraph should therefore be read in the way suggested.
11. That construction, when read with the opening words of the section ("relating to any offence"), made clear that a defendant who had been acquitted of an offence charged by an indictment which included other counts of which he or she had been convicted, was able to apply for the grant of a certificate in respect of the proceedings relating to the former offence.
12. The position in that respect did not change when the language of paragraph (a) was amended by the Courts Legislation Amendment Act 2001 (NSW), which took effect from 18 January 2002. After that amendment, s 2(1) read: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned; or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. [Emphasis added to indicate amendment]
13. That amendment was made, in part, to provide that a costs certificate might be granted if the defendant was acquitted or discharged at any time "after the commencement of a trial". The original provision had required that the acquittal or discharge be "after a hearing on the merits". For the purpose of this amendment, "trial" was defined to include preliminary proceedings forming part of the trial: s 2(3). At the same time the reference in paragraph (a) to an "information" was removed so that the character of finality required of proceedings at first instance was that the defendant have been "acquitted or discharged in relation to the offence concerned", meaning the offence which was the subject of the proceedings in respect of which the application for a certificate is made.
14. No amendment was made to paragraph (b) which, although directed to the outcome of appeal proceedings, continued to refer to the process or document by which the proceedings in question had been instituted (namely indictment, information or complaint). It did so notwithstanding that by 2001 the definitions of "indictment" in s 4 of the Crimes Act, s 15 of the Criminal Procedure Act and s 2 of the Criminal Appeal Act included court attendance notices, any information presented or filed for the prosecution of an offence and any other process or document by which criminal proceedings were commenced.
15. For completeness, I note that s 2(1) was further amended by the Courts Legislation Miscellaneous Amendments Act 2002 (NSW). That amendment involved the addition of the words "or a direction is given by the Director of Public Prosecutions that no further proceedings be taken" at the end of paragraph (a).

Determination

1. Because of the "one indictment one jury" rule, it is not possible for counts charged by more than one indictment to be tried together: R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67. In proceedings brought by an indictment which charges more than one count, it is clear that a certificate may be granted in the proceedings for an offence of which the defendant has been acquitted, notwithstanding that an outcome of the same trial is that the defendant is convicted of other counts charged by that indictment. That follows from s 2(1)(a). In such a case, the opinion which the certificate must specify in accordance with s 3 is directed to the institution of the proceedings for that offence. That is confirmed by the closing words of s 2(1) which require that the certificate specify the matters in s 3 (see [36] below) with respect to the institution of proceedings relating to the relevant offence.
2. The language of paragraph (b) is engaged when on appeal "the conviction of the defendant is quashed". The conviction is of the offence to which the proceedings the subject of the application relate. A person "convicted on indictment" brings an appeal under s 5(1) of the Criminal Appeal Act. That section has been construed as providing for only one appeal from convictions on an indictment, notwithstanding that the indictment may contain a number of counts on which the defendant was convicted: Grierson v The King (1938) 60 CLR 431; Morgan v R (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80.
3. However, the subject matter of the appeal remains the defendant's conviction of one or more of the offences charged. If the court allows an appeal against a conviction, it is required, subject to the "special provisions" of the Criminal Appeal Act, to "quash the conviction and direct a judgment and verdict of acquittal to be entered": s 6(2). Those "special provisions" include, by s 8(1), the ordering of a new trial where to do so would more adequately remedy the miscarriage of justice that resulted in the quashing of the conviction than any other order which the court could make.
4. The directed judgment and verdict of acquittal is final, discharges the defendant from the offence charged and bars any subsequent proceeding for the same offence. The old form of judgment following a verdict of acquittal (quorum eat quietus sine die) in terms recorded that the accused was forever free and discharged: see W F Craies and G Stephenson, Archbold's Pleading, Evidence, & Practice in Criminal Cases (22nd ed 1900, Sweet and Maxwell) at 200; United States v Ball 163 US 662 (1896) at 666-667, where there is consideration of Vaux's Case (1598) 4 Co Rep 44; 76 ER 992 and the distinction, for the availability of a plea of autrefois acquit, between a verdict of acquittal and a verdict of not guilty for insufficiency of the indictment; and the discussion in Broome v Chenoweth (1946) 73 CLR 583 at 599 (Dixon J) of the defence of prior acquittal.
5. In an indictment which contains more than one count, each count is regarded as if charged by a separate indictment. In Latham v The Queen (1864) 5 B & S 635; 122 ER 968, it was argued that the accused's conviction on one count was liable to be set aside because there was no verdict entered in relation to the other count charged by the indictment. In rejecting that argument, Blackburn J said (at 642-643; 970-971): In civil cases there is only one process against the defendant, and therefore if a new trial is granted on one part of the case it is granted on the whole. But in a criminal case, where each count is as it were a separate indictment, one count not having been disposed of no more affects the proceedings with error than if there were two indictments. In O'Connell v the Queen (11 Cl. & F. 155), which has been referred to, Parke B says, p 296-297, "So in respect of those counts on which the jury have acted incorrectly, by finding persons guilty of two offences (on a count charging only one), if the Crown did not obviate the objection, by entering a nolle prosequi as to one of the offences, ... , and so in effect removing that from the indictment, the Court ought to have granted a venire de novo [denoting a new trial] on those counts, in order to have a proper finding; and then upon the good counts it should have proceeded to pronounce the proper judgment. In short, I should have said that the defendants should on the face of the record be put precisely in the same condition as if the several counts had formed the subject of several indictments". That is exactly what I say here. Each count is in fact and theory a separate indictment, and no authority has been produced to show that we ought to defeat the ends of justice by such a technical error as this.
6. In R v Stringer [1933] 1 KB 704, the accused was charged on the one indictment with manslaughter and driving in a manner dangerous to the public, contrary to s 11 of the Road Traffic Act 1930 (UK). He was acquitted of the charge of manslaughter and appealed against his conviction on the charge of dangerous driving on the basis that the two verdicts were inconsistent. In argument the accused's counsel accepted that if there had been two indictments and the accused had been acquitted of manslaughter, he could not have pleaded autrefois acquit to the charge of dangerous driving. In delivering the judgment of the Court, Lord Hewart CJ said (at 712): With regard to these two counts it is to be observed that each count in an indictment is really a separate indictment, and it is conceded that upon the first count of this indictment - namely, the count which charged manslaughter, the appellant could not have been convicted of the offence under s 11 of the Road Traffic Act 1930; in other words upon the charge of manslaughter the appellant was never in jeopardy in respect of the charge under the Road Traffic Act 1930. If there had been two separate indictments tried at two separate times he could not in reply to the charge under s 11 of the Act 1930 have put forward successfully a plea of autrefois acquit.
7. Section 2(1)(b) is engaged in proceedings relating to an offence punishable on indictment, where the conviction of the defendant (necessarily, of that offence) has been quashed on appeal. In that event, a certificate may be granted if, in addition, the defendant "is discharged as to the indictment upon which he or she was convicted".
8. The foregoing discussion shows that the only relevant sense in which a defendant may be "discharged" on appeal from a conviction on indictment is with respect to the offence in relation to which the appeal against conviction has been successful. That is so irrespective of whether there is more than one offence charged by the indictment. The description "discharged as to the indictment" is satisfied if following the appeal the defendant is acquitted of the offence. The same conclusion is required if each count is treated as charged by a separate indictment. The effect of a directed acquittal on appeal is that the defendant is "discharged as to the indictment" which charged the offence.
9. Accordingly in a case such as the present, it is not necessary that the or a consequence of the appeal be that the defendant is discharged in relation to all of the counts charged by the indictment presented at trial before s 2(1)(b)(i) can be satisfied. To read that provision otherwise would not be consistent with the scheme of the Act. That scheme permits an application for a certificate in proceedings relating to "any offence" which result in the defendant being discharged or acquitted of that offence, whether at first instance or on appeal. The matters which that certificate is required to specify are directed to the reasonableness of the decision to institute proceedings for the prosecution of that offence.
10. Accordingly the Court may grant a certificate to DAO in this case if it forms the opinion in s 3(1). The Crown's argument that the precondition in s 2(1)(b)(i) is not satisfied should be rejected.

If the prosecutor had been in possession of evidence of all the relevant facts, would it not have been reasonable to institute the proceedings?

Relevant statutory provisions

1. Section 3 of the Costs Act provides that the Court form the following opinion before it grants a certificate: 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
2. The Crown does not contend that any act or omission of DAO contributed or may have contributed to the institution or continuation of the proceedings against him. For that reason it is not necessary to consider whether, if that was the position, DAO's act or omission was itself reasonable in the circumstances: s 3(1)(b).
3. The reference in s 3(1)(a) to "all the relevant facts" is explained in s 3A(1): 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings.

Relevant principles

1. It is not for the Crown to establish nor for the Court to conclude that the institution of the proceedings was, or would have been, in the relevant circumstances reasonable: Cittadini v R [2010] NSWCCA 291 at [7], citing R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [14]. The applicant must satisfy the Court that it would not have been reasonable to institute the proceedings.
2. The parties have, in addressing that question, treated the relevant proceedings as being those instituted with respect to the offences against DP (of which there were eight) and separately those instituted with respect to the offences against JC (of which there were two). In relation to the counts concerning each complainant, the "relevant facts" include those established by the tendency evidence of the other complainants whose allegations were tried at the same time. In relation to the offences involving DP that includes the evidence of JC, SM and MB which was adduced to show that DAO had a sexual attraction to adolescent boys.
3. The defendant and the Crown also led evidence of further facts to be taken into account by this Court in accordance with s 3A(1)(b) and (c). For DAO's part, those are facts established by the evidence of Mark Sarquis, Daniel Belcher and Anthony Belcher, each of whom was of a similar age to one or other of the complainants at the time of the alleged offences. The additional facts that the Crown contends should be taken into account concern W, a witness called by the Crown, whose evidence at trial conflicted with the evidence of DP as to the frequency and nature of DAO's presence and participation at the Pro-Cathedral in Maitland in 1983 and 1984.
4. In R v Johnston [2000] NSWCCA 197 (which was heard concurrently with the application in Manley), Simpson J (as her Honour then was) described (at [16]) the assessment which the Court is required by s 3 to undertake as involving: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings …
5. The "relevant facts" include facts "established through the evidence of prosecution witnesses, and through the witnesses called by the defence in its case": Manley at [9] (Wood CJ at CL). See also R v Williams; ex parte Williams [1970] 1 NSWR 81 at 83 (Sugerman P). Those facts may also be described as evidentiary facts so as to distinguish them from the ultimate facts that must be proved to establish the elements of the offence charged. This distinction is referred to by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532. See also Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [170] (Kirby J).
6. Finally, as Wood CJ at CL also observed in Manley (at [14]) in relation to the assessment of the reasonableness of the decision to prosecute: … the section calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury.
7. In some circumstances the flaws or weaknesses in the Crown case will be sufficiently clear and inherent to justify a conclusion that in the face of all the relevant evidence, it would not have been reasonable for the prosecution to institute the proceedings. This is illustrated by reference to three of the decisions considered in Manley. In R v McFarlane (Supreme Court (NSW), 12 August 1994, unrep) Blanch J described such a conclusion as justified where the evidence favouring the accused is "overwhelmingly strong". In R v Fejsa (1995) 82 A Crim R 253, the Court considered (at 257) the complainant's uncorroborated evidence in support of a charge of sexual intercourse with a child to be of an "extraordinary and unlikely nature". The critical question in R v Pavey (1997) 98 A Crim R 396 was whether the prosecution could prove beyond reasonable doubt that the accused's act in shaking a baby had caused its death. His evidence was that the baby had stopped breathing before it was shaken. The expert medical evidence was equivocal and was not capable of excluding the reasonable possibility that the accused's version was true. It was held (at 401) that the Crown ought to have been aware of these "significant weaknesses".

The offences involving DP and JC

1. In the case of DP, the sexual assaults were alleged to have occurred between 1982 and 1984. Seven of the eight counts alleged offences committed at the Pro-Cathedral, as the main Catholic church in Maitland was known. Three of those counts were of indecent assault and two were of sexual intercourse (fellatio) without consent, each with an alternative count of indecent assault. The remaining count alleged that under the pretext of inspecting DP for ticks or leeches at a camp said to have been held in late December 1984, DAO committed a further act of indecency.
2. The two offences involving JC were alleged to have happened between 1991 and 1993. The first involved an act of indecency committed at the presbytery at Windale. After wrestling with JC, DAO showered with him and asked JC to play a game of spitting on one another. The second count alleged an indecent assault occurring at a camp attended by JC somewhere on Lake Macquarie. While sharing a tent with DAO, JC awoke to find DAO lying on top of him and rubbing his penis against him.
3. The proceedings involving JC were instituted in 2009 when DAO was first arrested. The committal proceedings commenced in 2010. After April 2011 the proceedings for offences against DP were instituted by an ex officio indictment issued under s 8 of the Criminal Procedure Act. The trial before Zahra DCJ began in March 2012, between 20 and 30 years after the alleged events occurred.
4. It follows that the question whether it would not have been reasonable for the Crown to institute proceedings is to be addressed as at mid-2009 in the case of the offences involving JC and as at mid-2011 in the case of those involving DP, in each case at least 25 years after the charged events.
5. The Crown case in relation to the four complainants was that they came into contact with DAO in his role as a trainee or parish priest in the areas of Maitland, Muswellbrook, Cessnock or Windale. Each complainant was a male child of a Catholic family living in one of those parish areas. The tendency evidence relied on included that the complainants were altar boys or members of youth groups with which DAO was associated; that they were young males with whom DAO developed a special relationship; and that each had problems within his family or at school.
6. I will deal first with the alleged offences involving DP as they were first in time.

The evidence of DP and DAO as to the offences concerning DP

1. In 1982, DP and his family lived in Maitland and he attended a local Catholic school, St John's Primary School, where he was in year 3. The Pro-Cathedral was around the corner from St John's Primary School. DP maintained that in 1982 he became an altar boy, joining the "altar boy school" conducted at the Pro-Cathedral. Those classes were held after school, on weekends, and occasionally during school time. The administrator of the Pro-Cathedral parish was Father Fletcher and the secretary to the Bishop, and priest in charge of major liturgical services, was Father Wilson.
2. DP was born with a congenital deformity of six toes and six fingers which was operated on in 1982. His evidence was that when he was in primary school he was teased a lot and was quite isolated from other children.
3. Simpson J summarised DP's evidence in relation to the seven offences alleged to have been committed at the Pro-Cathedral: [63] 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 [DAO] 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 [DAO] 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 [DAO] fondled his genitals and performed oral sex upon him. This followed a Sunday afternoon Mass.
4. With respect to the remaining offence, DP's evidence was that he was present at a camp arranged for boys who had been friends of a young Gavin Smith, who suffered from leukaemia and died in September 1983. The evidence suggested that this camp occurred in late 1984 or early 1985. Simpson J summarised DP's evidence as to the offence: [67] 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 [DAO] 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.
5. DAO denied that any of these events occurred. His evidence was that in 1980, 1981 and 1982 he was enrolled in an Arts degree at Newcastle University. During that time he lived in a hostel called Edmund Gleeson House, which was attached to the Sacred Heart Church at Campbell's Hill and at one time formed part of an orphanage known as Monte Pio. That church was about three kilometres from the Pro-Cathedral. In 1981 and 1982, DAO assisted in the training of altar boys at Campbell's Hill. In 1983, he joined the seminary at St Patrick's College Manly in order to train for the priesthood. He was a resident in that seminary until 1985. In December of that year, he was made a deacon and was ordained as a priest in December of the following year, in a ceremony at the Pro-Cathedral. In 1987, DAO was appointed to the Muswellbrook parish, and in July 1991 he was transferred to Windale, where the offences against JC were alleged to have occurred.
6. DAO said that he followed a regular daily routine whilst living at Edmund Gleeson House. Between Monday and Friday he travelled to Newcastle University at about 8am and returned at about 4pm, except for the two nights a week when he attended evening lectures that finished at 9pm. Saturdays were occupied with household chores and lectures given by the priests at Edmund Gleeson House. On Sundays he attended two Masses at the Sacred Heart Church at Campbell's Hill. He occasionally assisted as an altar server at that church. His evidence was that the only occasion that he attended the Pro-Cathedral in 1982 was as a member of the congregation at the Easter Vigil Mass. He denied ever having set foot in the St John's Primary School at Maitland.
7. From 1983, DAO resided at the seminary in Manly. His evidence was that he returned to Maitland on only three occasions; for his graduation from Newcastle University; at some time before September 1983 when Gavin Smith died; and in October 1983 for his own institution as an acolyte. That was the only occasion in 1983 that he participated in a Mass at the Pro-Cathedral. He accepted that he would have attended the Pro-Cathedral in 1984 when other students of the seminary were ordained, although he had no specific recollection of doing so.
8. Finally, his evidence was that there were two camps for Gavin Smith. The first was in late December 1982 or early January 1983 and the second between late December 1984 and January 1985. DAO did not recall DP being present at either of those camps. He denied conducting any "tick and leech inspections".

DAO's argument that the institution of the proceedings involving DP would not have been reasonable

1. DAO's submission that it would not have been reasonable for the Crown to institute proceedings charging these offences relies very much upon the analysis of the evidence at trial undertaken by Simpson J and her Honour's conclusion that the verdicts with respect to these counts were unreasonable and not supported by the evidence: DAO v R (No 2) at [59]-[121]. It is well established that the fact that DAO's convictions on these counts were quashed does not equate to a finding that it was unreasonable to institute the proceedings: Pavy at 401; Manley at [15].
2. Her Honour considered that the conflicts between the evidence of DP and that of DAO and other witnesses were such that the jury should necessarily have entertained a reasonable doubt about the credibility and reliability of DP's allegations: [121]. DAO submits that the "categorical terms" of the findings leading to that conclusion demonstrate that if the prosecution had been in possession of all of the evidence that was before her Honour, it would not have been reasonable to institute the proceedings.
3. The findings leading to her Honour's conclusion are at [119]-[121]: [119] There were, therefore, in a number of respects, sharp conflicts in the evidence. DP, Peter Gogarty and Gary Groves all placed [DAO] squarely in the Pro-Cathedral, on a regular and frequent basis, during 1982 and 1983. Ms Wilton, by indirect evidence, did likewise. I am fully conscious of the advantage that the jury had in observing these witnesses as they gave their evidence. This is one of those cases in which that advantage must be given full weight. [120] Even with that in mind, their evidence is not, I have concluded, sufficient to overcome the doubt that must attend DP's evidence of [DAO's] presence at the Pro-Cathedral in 1982 and 1983. The evidence of [DAO's] activities in 1982 casts considerable doubt upon the contrary evidence of DP. The evidence of [DAO's] residence at St Patrick's College in Manly in 1983 is simply irreconcilable with DP's evidence. Added to this are the very real doubts concerning DP's attendance (or otherwise) at the Gavin Smith camp, and the evidence concerning [DAO's] attendance (or otherwise) at St John's Primary School. [121] In my opinion, the jury ought to have entertained a reasonable doubt about all of DP's allegations. In respect of counts 1-8, the appeal should be upheld, the convictions quashed, and verdicts of acquittal entered.
4. Simpson J identified the following four areas where there were "sharp conflicts" in the evidence: whether DAO was a priest in 1982 to 1984 and had attended the Pro-Cathedral during that period; whether DAO had attended St John's Primary School; whether DP was an altar boy at the Pro-Cathedral between 1982 and 1984; and whether DP was present at the camp for Gavin Smith held in about December 1984.
5. Her Honour considered that conflicting evidence at [85]-[118]. She did so because the prosecution case, which required the acceptance of DP's uncorroborated testimony as to the occurrence of the incidents complained of, depended on an assessment of the reliability of DP's evidence.
6. As to whether DAO was a priest and was involved at the Pro-Cathedral between 1982 and 1984: DAO's evidence was that he attended the Pro-Cathedral on no more than one or two occasions in each of the years 1982, 1983 and 1984. The burden of DP's evidence was that DAO was regularly present at the Pro-Cathedral at times during the week and on weekends, at least in 1982 and 1983. Three other witnesses - Peter Gogarty (who at that time was aged about 21), Gary Groves (then a young boy aged about 6) and Leah Wilton (DP's elder sister, by one year) - gave evidence of seeing DAO "regularly" at the Pro-Cathedral. Peter Gogarty's evidence was significant because he had been in an abusive relationship with Father Fletcher until 1978, continued to have a close association with him and had reason to be aware of those serving in the church. He was in no doubt that he recognised DAO around this time at the Pro-Cathedral assisting at Masses with Father Wilson. Edmund Belcher (the father of two young altar boys) gave evidence of seeing DAO at the Pro-Cathedral at major ceremonies, at least once or twice a year. Anthony Belcher recalled DAO as a deacon who came from Campbell's Hill to attend Mass at the Pro-Cathedral.
7. There was conflicting evidence as to the times at which DAO was said to have been at the Pro-Cathedral. DP's evidence was that he was there on some weekdays in the afternoons or after school, as well as at Masses held during the week and on Sunday mornings and evenings. Leah Wilton and Gary Groves gave evidence that he was at the Pro-Cathedral on Wednesday evenings. Peter Gogarty's evidence was that he saw him on Saturday or Sunday nights.
8. DP's evidence was that he believed DAO was a priest during this period. Other evidence lent support to his being able, albeit mistakenly, to hold that belief. Peter Gogarty and Edmund Belcher recalled seeing DAO at the Pro-Cathedral as a trainee priest. Leah Wilton recalled him standing at the front of the church. Two residents of Edmund Gleeson House (Mark Newell and James Lunn) said that from time to time residents of that House assisted on the altar at the Pro-Cathedral and wore liturgical vestments during major services. Father Wilson, who lived in the Bishop's house from February 1983, could not recall DAO attending Mass at the Pro-Cathedral, although he himself only attended intermittently.
9. There was evidence of the weekday and weekend routines of the residents of Edmund Gleeson House. That evidence (given by Mark Newell and James Lunn) left some periods in DAO's likely routine unaccounted for. Those periods included Saturday and Sunday afternoons and some afternoons during the week. There was some evidence that DAO was "out and about". Mark Sarquis, who attended the school at Campbell's Hill, said he often saw DAO "jogging" around on weekdays and weekends.
10. Mark Newell also gave evidence as to the routine at St Patrick's College Manly. Students could leave the seminary overnight on weekends with permission and were otherwise free to do as they liked between Friday afternoons and Sunday morning Mass. DAO's evidence was that he did not have a car, and that travelling back to Maitland was difficult. His mother gave evidence that he returned to Maitland during term time for special family occasions, and on all breaks and holidays. Those holidays did not always coincide with school holidays. During the period DAO was living at Manly, Mark Sarquis recalled seeing him around Campbell's Hill, either on weekends or during vacation breaks. Mark Brimble also gave evidence of seeing DAO when he was visiting from Manly.
11. Simpson J concluded in relation to this evidence: [98] [DAO's] evidence alone is sufficient to cast serious doubt on DP's evidence in respect of these allegations. His account of his daily routine while living at Edmund Gleeson House in 1982 - attending Newcastle University on a daily basis, and attending church at Campbells Hill - left little room for regular attendances at the Pro-Cathedral. The evidence confirms that, in 1983 and 1984, [DAO] was [a] resident at St Patrick's College in Manly. It was not logistically possible for him to have attended the Pro-Cathedral as regularly as, and in the capacity, asserted by DP. Even allowing some latitude in the dates given by DP, the possibility that, during any relevant time, [DAO] was regularly present at the Pro-Cathedral is remote.
12. As to whether DAO was present at St John's Primary School: DP gave evidence that DAO was at the school "quite a lot" in 1982 and 1983. DAO denied that he had ever set foot in the school. There was no evidence which supported DP's recollection. Evidence not supporting it, or calling it into question, was given by Christine Belcher and John Chambers (teachers at the school), who had no recollection of seeing DAO at the school or in the playground. Nor did Leah Wilton have any such recollection.
13. As to whether DP had ever been an altar boy at the Pro-Cathedral: DP gave evidence that he was an altar boy at the Pro-Cathedral from 1982 until the end of 1984. His father, AP, and Leah Wilton gave evidence to the same effect. However, Peter Gogarty's evidence was that he had never met DP in the period when he was attending the Pro-Cathedral. Brendan Dilley gave evidence that he did not recall DP being an altar boy, although he himself was an altar boy at Campbell's Hill. Anthony Belcher's evidence (led on the application to this Court) was that he was an altar boy at the Pro-Cathedral from about 1979 until 1986 and that he did not remember DP being an altar boy with him. His brother Daniel (whose evidence also was led on this application) was an altar boy during part of that period, but could not recall attending altar boy classes.
14. As to whether DP attended the camp in about December 1984 and following Gavin Smith's death: DAO's evidence was that he organised two camps associated with Gavin Smith, one before his death and one in December 1984 or January 1985. DP's evidence was that the camp he attended occurred after Gavin Smith's death. He could not recall where it was located. He believed the other boys present included his cousins, Mark and Jason, and the Sarquis boys. He could not recall if Brendan Dilley attended. Other boys who attended the second camp organised by DAO did not recall DP being present. Those boys included Jason and Mark Brimble, Brendan Dilley and Mark Sarquis. DP could not be identified in photographs taken at each of the camps. One attendee, Mark Smith, gave evidence that at one of the earlier camps, DAO had instructed the boys to line up for a tick and leech inspection. DP's evidence was that there was no line up and no general inspection involving other boys at the camp he attended. DAO denied the offence alleged and that there was a tick and leech inspection at any camp. Jason and Mark Brimble did not recall any such general inspection.
15. Simpson J at [110] described Mark Smith's evidence as "capable of adding credibility to DP's account of what had happened at the camp he claimed to have attended".

Decision

1. Simpson J concluded that the jury ought to have entertained a reasonable doubt as to DAO's guilt because there were real questions as to the reliability of DP's evidence and recollection. Those questions principally arose because of the inconsistencies between DP's evidence as to the frequency and nature of DAO's presence at the Pro-Cathedral in 1982 and 1983 and the evidence of DAO and others as to his activities and whereabouts in those two years.
2. DP's evidence, and the Crown case, was that his contact with DAO during this period was at altar boy classes and Masses held at the Pro-Cathedral, in the afternoon or evenings on a school day and on Sunday evenings. The difficulty for this case was the uncontroversial evidence that until 1982, DAO was attending Newcastle University and living at Edmund Gleeson House. He was involved in training altar boys, but at the church at Campbell's Hill. And from 1983, DAO was residing and studying at Manly, returning to the Maitland area intermittently on some weekends and during holiday periods.
3. DP's evidence was that the first two indecent assault offences were part of a course of sexually abusive conduct which continued for a period of about six months, occurring up to two times a week depending on the number of Masses at which he served. That was followed by conduct including fellatio which DP estimated went on for a further three to six months, on a weekly basis. For some period thereafter, the conduct complained of also included incidents of masturbation.
4. That evidence, in describing events which continued during 1983, could not be reconciled with the fact that DAO was residing and studying in Manly, even accepting that he was returning to Maitland on some occasions and holidays.
5. So far as the allegations relate to 1982, the evidence was more equivocal as to whether DAO had the opportunity to engage in the conduct described by DP. Although the evidence of Peter Gogarty and Gary Groves did not support DP's evidence as to the frequency and regularity of DAO's presence, it did place him at the Pro-Cathedral in or after 1982 on a more frequent basis than DAO's evidence conceded. The evidence as to his likely daily routine also left periods during 1982, including some weekdays and parts of the weekend, when DAO could have been present at the Pro-Cathedral.
6. There were however other aspects of DP's evidence which raised doubts about the reliability of his recollection and his identification of DAO as the person who had abused him. His evidence that he had seen DAO "a few times" in the St John's Primary School playground during 1982 and 1983 was contradicted by two teachers at that school and denied by DAO. DP's evidence that he was an altar boy at the Pro-Cathedral was supported by his sister and father, but not corroborated by any other witness.
7. Assuming that all of this evidence was available to the prosecution before the proceedings relating to DP were instituted in mid-2011, I am satisfied that it would not have been reasonable to institute those proceedings. DP's evidence and the Crown's case were that he was subject to a pattern of sexual abuse which occurred regularly, meaning once or twice a week, and continued over a period of more than a year. There was no evidence that directly corroborated DP's account of that abuse. As I have noted, the relatively uncontroversial evidence as to DAO's residence and activities in 1983 could not be reconciled with DP's evidence as to the ongoing sexual abuse to which he was subjected. That alone was sufficient to give rise to reasonable doubt as to whether those alleged events could have occurred in the way DP recalled and the Crown alleged.
8. My conclusion as to the existence of that doubt does not depend on a weighing of conflicting evidence or any evaluation of the reliability of a particular witness' evidence, about which minds might reasonably differ. The fact of DAO's at least weekly residence at Manly was established by available church records (at [92]) and the general practice for seminarians to stay at Manly, at least on most weekends was proved by Mr Newell (at [93]).
9. Nor could that doubt be excluded on the basis that the Pro-Cathedral offences had all occurred in 1982, consistent with the opportunities described in [79] above. The Crown's case could not depart from DP's evidence that the conduct occurred throughout 1983 as well as in 1982. That there was a significant doubt as to its occurrence in 1983 could not be ignored and meant that there must be a significant doubt as to whether it had occurred in the way described and at all.
10. None of the other evidence was capable of excluding that reasonable doubt. And it is not excluded or affected by the additional facts established by the Crown on this application in relation to the witness, W. That witness gave evidence as to whether DAO participated in Masses at the Pro-Cathedral. Even if, on this application, that witness' credibility was called into question to the extent that his evidence should be disregarded, DP's account would remain at odds with the evidence outlined above.
11. Once the Crown determined not to prosecute the seven offences alleged to have been committed at the Pro-Cathedral (see [46] above), for the reasons earlier given, it also would not have been reasonable to prosecute the remaining offence said to have occurred at the camp for Gavin Smith. There was no evidence which directly corroborated DP's account that he was at the relevant camp (see [73] above).
12. Since writing these reasons I have had the opportunity to consider Fagan J's draft judgment which follows. His Honour is not satisfied, making the assumptions required by s 3(1)(a), that it would not have been reasonable to institute the proceedings in relation to the alleged offences at the Pro-Cathedral. I have reached the contrary conclusion, principally because of the fundamental inconsistencies between DP's evidence as to the nature and frequency of DAO's presence at the Pro-Cathedral in 1982 and 1983 and the evidence of DAO and others as to his whereabouts and activities in those years.
13. Accepting that there were such inconsistencies, Fagan J raises several matters as standing in the way of the conclusion which I have reached. It is said that a reasonable prosecutor could have proceeded on the basis that it was open to the jury to find DP a truthful but confused witness who retained a false memory as to the frequency of the abuse which he suffered. It is said that notwithstanding the evidence as to DAO's whereabouts and movements in 1982 and 1983, that prosecutor also could have considered that it remained open to the jury to be satisfied that DAO had the opportunity to attend the Pro-Cathedral and carry out the assaults described by DP on at least the five occasions charged; and that the jury could reasonably have concluded that there were less numerous and frequent assaults than as described by DP, that all or most of them had taken place in 1982, and that if any had occurred during 1983 this must have been on irregular occasions.
14. The difficulty I have with this analysis is that for the prosecutor to so reason would not have been consistent with DP's evidence, which was that he was not and could not be mistaken in his recollection of the relevant events, and when they occurred. Nor was it the Crown case that he could have been mistaken as to those matters, but not as to DAO's involvement in the offences charged.
15. DP's evidence was that he became an altar boy in the first term of 1982 straight after he had first taken Holy Communion. He described the person he identified as DAO as being present at the Pro-Cathedral from the time when he first started training as an altar boy in 1982 through to the end of 1983. DP's evidence was that during this period DAO attended at weekday and Sunday masses at the Pro-Cathedral on a regular basis; that DAO also participated in special altar boy classes which occurred on weekdays, either during school hours or after school hours and that those classes occurred fairly regularly, meaning 12 or so in each term. DP also described DAO as having attended St John's Primary School and taught the bible studies class on occasions. DP maintained that the sexual abuse which he suffered at the hands of DAO extended from when he first became an altar boy, through 1982 and throughout 1983.
16. At the conclusion of his evidence it was suggested to DP that he could be mistaken as to the identity of the person who sexually abused him. It was also suggested to him that the person that he identified as having done so could not have been DAO because of DAO's whereabouts and activities in 1982 and 1983. In response to those suggestions, DP maintained his evidence that DAO was present at the Pro-Cathedral in 1982 and 1983, during the week, including school weeks, and on weekends; and that he participated in the events and activities described above. The sexual abuse which DP described was abuse which occurred regularly and continued over a period of more than a year. As I have earlier said, that evidence could not be reconciled with the relatively uncontroversial evidence as to DAO's place of residence and activities, particularly in 1983. That alone was sufficient to give rise to a reasonable doubt as to whether those alleged events could have occurred and involved DAO, as DP maintained.
17. I remain of the view that a prosecutor acting reasonably would have recognised the existence of that doubt and also concluded that it could not be excluded or explained away on the basis that DP was mistaken, not as to DAO's identity, but as to the sexual abuse having occurred over a period of a year and a half rather than in a period in 1982 or on only five or so separate occasions. In those circumstances it would not have been reasonable to institute the proceedings.
18. There remain to be considered the offences involving JC.

The evidence of JC and DAO as to the offences concerning JC

1. JC's evidence was that the first incident happened at the presbytery at Windale, at a time when DAO was the parish priest and JC attended the local Catholic school. JC mowed lawns at the presbytery for pocket money. He became friendly with DAO. They talked together, listened to music and wrestled. JC's evidence was that he and DAO wrestled at least once a week and sometimes without shirts. JC would usually shower by himself afterwards, but on three occasions DAO showered with him and suggested they spit on one another. DAO did not deny being alone in the presbytery with JC while wrestling, but did deny that anything further or inappropriate happened.
2. JC's evidence was that the second offence happened at a camp somewhere on Lake Macquarie. While sharing a tent with DAO, JC awoke to find DAO on top of him and rubbing his penis against him. JC recalled telling "Chris", an older boy at the camp, and his father about the assault the next morning. DAO denied this incident. He gave evidence that JC attended two camps, one at Telegarry Park and the other at Coachwood. He recalled there was a storm on one night of the camp at Telegarry and that JC slept in the front seat of his car because of the rain.
3. There was other evidence suggesting that the camp JC was referring to was that at Telegarry. Chris and George Graham attended that camp and fit JC's description of the father and son that he disclosed the incident to. There was also evidence from other attendees that JC was present at this camp and that there was bad weather. However that evidence did not support JC's allegations as to how the offence occurred. Simon Walsh and Peter Turnbull gave evidence that they and the other boys slept in one tent, while DAO slept in another. Chris and George Graham did not recall any report to them of an assault or incident involving DAO and JC.

DAO's argument that the institution of the proceedings involving JC would not have been reasonable

1. DAO's argument regarding these proceedings again relies on the analysis of the evidence undertaken by Simpson J. It is submitted that the "irreconcilable differences between JC's account and that of the Grahams" demonstrates that it would not have been reasonable to institute these proceedings.
2. Having referred to the accounts of the various witnesses as to what happened at the camp and describing those accounts as varying "considerably from witness to witness", Simpson J concluded: [189] The submissions made on behalf of [DAO] 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. … [190] Senior counsel also referred to JC's "difficult youth", apart from his contact with [DAO]. This appeared to be a veiled suggestion of fabrication, although the logic was not articulated. ... [191] The strongest point made on behalf of [DAO] concerned the evidence about the camping trip, particularly the evidence of the Grahams denying any complaint of sexual assault by [DAO]. 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.

Decision

1. I am not satisfied that it would not have been reasonable to prosecute these offences. The first count was the subject of similar fact evidence concerning an alleged tendency of DAO "[t]o seek sexual gratification from involvement with male children in wrestling and other games": see DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [110], [128]; and DAO did not deny that there was wrestling leading up to the shower incident. That incident was unusual and of a kind that JC might have remembered. The second count depended on JC's uncorroborated evidence as to the happening of the sexual assault. The fact that the Grahams had no recollection of any report of the incident was, as Simpson J observed, equally consistent with their having received and dismissed the report summarily, as JC claimed. Mr Graham's evidence that he would have investigated such an allegation did not cast sufficient doubt on the likelihood of JC's account as to make it unreasonable to proceed with the prosecution of the offence.

Conclusions

1. In my view, it is appropriate to grant DAO a certificate under s 2 of the Costs Act in the proceedings relating to the offences alleged against him involving the complainant DP. (It is not submitted that the residual discretion not to grant a certificate should be exercised.) The position is different in relation to the offences alleged against him involving JC and a certificate should not be granted in respect of those proceedings.
2. Section 17(1) of the Criminal Appeal Act has been held to provide that no costs can be awarded in an application to this Court made under the Costs Act following a successful conviction appeal: Manley at [19] (Wood CJ at CL). That conclusion treats that provision as not limited in its application to the appeal and any proceedings under the Criminal Appeal Act that are preliminary or incidental to the appeal. That construction of s 17(1) is not challenged. On that basis, I propose that there be no order as to the costs of this application.
3. Accordingly, the Court should make the following orders: 1. Grant a certificate to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), that certificate to specify that in the opinion of this Court it would not have been reasonable to institute the proceedings relating to the alleged offences involving the complainant DP, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts. 2. Otherwise dismiss the application. 3. Make no order as to the costs of the application.
4. HALL J: I agree, for the reasons of Meagher JA, that it is appropriate to grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 in the proceedings relating to the offences alleged against him involving the complainant DP, but not in respect of the offences alleged against him involving JC. I agree with the order proposed by his Honour.
5. I also agree that there be no order as to the costs of the application.
6. FAGAN J: For the reasons given by Meagher JA at [11]-[35] I agree with his Honour that it is open to the Court to grant a certificate to DAO under s 2 of the Costs in Criminal Cases Act 1967 (NSW) if the Court should form the opinion specified in s 3(1)(a). Like his Honour and for the reasons given at [93]-[98]. I am not satisfied that it would have been unreasonable to prosecute counts 21 and 22 concerning JC if, before the prosecution was instituted, the Crown had been in possession of evidence of "all the relevant facts" in the sense explained in s 3A.
7. However I respectfully differ from Meagher JA regarding counts 1, 2, 3, 5, 7 and 8 concerning DP. I would refuse a certificate in relation to those counts, also. The respective cases of the Crown and of DAO on the DP counts are summarised in the judgment of Simpson J (as her Honour then was) in DAO v R (No 2) [2014] NSWCCA 126 at [59]-[120]. Sections 3 and 3A require that the Court, on an application such as this, should look at the entirety of the evidence as it emerged at the trial and any additional evidence adduced on the costs application, of which there was a small amount in this case.
8. Having undertaken that review I am not satisfied that, in the hypothetical circumstances which s 3(1)(a) requires the Court to contemplate, the prosecution of the DP charges would have been unreasonable. To begin with, it could not in my opinion be said that the evidence of DP himself, viewed in isolation, was inherently deficient or implausible. That evidence, concerning how the opportunity for the indecent assaults arose, the particulars of the assaults and what DAO said to induce DP to tolerate what was occurring and to keep his silence about it, was detailed and believable.
9. One putative contradiction to emerge at the trial concerned the frequency of DAO's attendances at the pro-Cathedral in Maitland during 1982 and 1983. In 1982 DAO lived in a hostel for trainee priests named Edmond Gleeson House. This was at Campbell's Hill about 3 kilometres North of Maitland. DAO and his witness Lunn gave evidence of a schedule of attendance at the University of Newcastle and of duties at Edmond Gleeson House during 1982 which would have made the frequency and regularity of his activities at the pro-Cathedral, as described by DP, impossible. A Crown witness, Mr Newell, confirmed the details of the routine at Edmond Gleeson House.
10. DP was a boy of nine at the time of the events he described. They were repeated indecent assaults of a kind which would have traumatised any such child and particularly DP because of his sensitivity and vulnerability. He had been teased and isolated at school on account of a slight physical deformity. He gave evidence that the assaults by DAO did traumatise, disturb and confuse him. A jury could take the view that whilst he may have exaggerated in his own mind and memory the number of occasions on which DAO attended the pro-Cathedral they should entertain no reasonable doubt as to DP's veracity regarding the five assaults charged as having occurred there. A reasonable prosecutor could proceed on the basis that it would be open to a jury to find DP a truthful witness, so confused and upset by the conduct of DAO as to have retained a false memory that his abuser had been present much more often than was in fact the case.
11. It would have been reasonable for the prosecutor to proceed in the expectation that the jury would be satisfied DAO's lectures and tutorials at Newcastle University would not have occupied him for seven days a week, 52 weeks of the year. Nor would his routine at Edmond Gleeson House have prevented him from slipping 3 kilometres down the road to Maitland on at least the five occasions when assaults were alleged to have occurred at the pro-Cathedral and on a sufficient number of additional occasions to have given a bewildered young boy the impression that DAO was regularly at the church. There was evidence that two cars were available to the trainee priests who lived at Edmond Gleeson House. A reasonable prosecutor would have expected to be able to satisfy a jury that an alibi for the whole of 1982 was absurd.
12. Much the same can be said about DAO's evidence of having lived at St Patrick's College Manly in 1983 and during the next two years. His mother gave evidence that he returned home on weekends from time to time during that period and also for holiday breaks. Her home was at Millers Forest, about 15 kilometres from the town of Maitland. The evidence did not show that on the occasions when he was back in the Maitland area he never left his parents' home. Mark Brimble was of similar age to DP. He lived at Windella, about 5 kilometres to the west of Maitland. He said that it was common for DAO to visit the Brimble family home during the years when he was in residence at St Patrick's College Manly. He said that DAO "sort of hovered between Manly where he was training to become a priest and his parents' place at Millers Forest".
13. It was open to the jury to be satisfied that DAO had opportunity to attend the pro-Cathedral and to carry out indecent assaults on DP during 1983, albeit that it was improbable he attended with the frequency and regularity which DP purported to recall. DP said assaults occurred twice per week over a period of six months (T 35.13). That is, he referred in a general way to many more assaults at the pro-Cathedral than the five which were charged. The context of his evidence (at T 34) suggested that the six months commenced in 1982 although it was not elicited from him whether it stretched into 1983. He also described indecent assaults which occurred "weekly" over "three to six months" (T 37.19-.27). It was not clear whether this was an additional period to the six months referred to at T 35.
14. The indictment charged all five of the counts relating to the pro-Cathedral as having taken place between 1 January 1982 and 31 December 1984. The jury could have concluded that there were less numerous and less frequent assaults than as described by DP and that all or most of them had in fact taken place during 1982 whilst DAO lived close by at Campbell's Hill. Alternatively they might find that if any occurred during 1983 this must have been when DAO travelled back from Manly on irregular occasions, not as part of a closely repetitive sequence in the way described by DP. The closely repetitive sequence could nevertheless have been accurate for late 1982 and the jury may have inferred, in light of evidence adduced by the defence, that DAO's assaults and attendances at the pro-Cathedral generally must have tapered off in 1983.
15. The jury could conclude that DP had more frequent contact with DAO in 1982 than in 1983, albeit that the the total number of occasions in either year or in both years was not as great as DP recollected. They could legitimately infer that DP erroneously recalled a continuity of contact at the same frequency in 1983 as in 1982. Again in this respect the Crown was entitled to proceed with these charges upon the basis that the jury would be told they could accept parts of DP's evidence and reject other parts.
16. Philip Wilson had been a priest at the pro-Cathedral in 1982 and 1983. In 1982 he resided in Newcastle but during that year had travelled up to Maitland to celebrate Mass on an occasional basis. In February 1983 he had commenced to live in the Bishop's house at Maitland, opposite the pro-Cathedral. He had no recollection of DAO having attended Mass at the pro-Cathedral or of him having acted as an altar boy there. I do not consider that this should have been regarded by a reasonable prosecutor as a ground for not proceeding on the indictment. If Philip Wilson was residing in Newcastle during 1982 DAO could have attended at the pro-Cathedral, from his accommodation nearby at Edmond Gleeson House, without Wilson having come in contact with him. His mere lack of recollection of any attendances of DAO in 1983 was not a refutation of DP.
17. DP's evidence included that during the period in which the assaults took place DAO assisted the priest with the conduct of Mass at the pro-Cathedral and that at that time he dressed in robes which DP thought were those of a priest. Having regard to the evidence of other witnesses, the clothing may in fact have been the dress of an altar boy. It would have been open to the jury to consider that DP might be mistaken as to DAO having taken part in Mass or as to how he dressed but not as to DAO having fondled DP's genitals, put his mouth around DP's penis, masturbated in his presence and wiped ejaculate on his body and so on. When cross-examined about his evidence that DAO had taken part in Mass, DP said "we would have practice runs and he would be the priest and we would know when to ring the bell, know when to bring the things out and what to do". If all of this had been part of the evidence known to the prosecutor when the indictment was presented, it would have been reasonable for him or her to expect that a jury could find DP's account credible as to the essentials of the charges but wrong as to DAO ever having actually assisted in the conduct of a live Mass, as opposed to having played the part in a trial run for the purpose of training altar boys in the rituals.
18. Three witnesses called in the Crown case, Peter Gogarty, Gary Groves and DP's sister, all gave evidence that DAO had frequently attended the pro-Cathedral in or about 1982 and 1983. Gogarty and Groves recalled him as a "trainee priest" and described some kind of ceremonial attire worn by him, different from that of ordained priests. Although DP gave evidence that DAO was in fact a priest and wore the robes or vestments of priest, other evidence established that he was not made a deacon until December 1985 and was not ordained as a priest until October 1986. I see no reason why a prosecutor, possessed of this evidence at the outset of the case, should have regarded it as any significant risk to verdicts of guilty. To a boy of nine under the authority of an adult male teaching him liturgical procedure, the teacher would most likely have been perceived as a priest. Whatever ceremonial dress he wore may have been regarded by DP as priestly attire, accordingly. A reasonable Crown prosecutor could have expected the jury to view the matter that way. He or she could have expected a jury would find that the traumatising course of sexual abuse was proved beyond reasonable doubt and that they would not be deflected by a small boy's confusion about the status of his abuser, painfully recalled 30 years later.
19. A witness named Edmund Belcher was closely associated with the Catholic Church in Maitland and attended the pro-Cathedral often. He gave evidence that he could not recall DAO having been involved in the training of altar boys there in the 1980s and saw him at the pro-Cathedral "probably only once or twice a year". I do not consider that such evidence of non-recollection, had it been in the possession of the Crown when the indictment was to be presented, would have made it unreasonable to proceed. Such evidence could cast doubt upon DP's recollection of the frequency and regularity of attendances by DAO at the church. It is another thing to say that on that account there should not have been placed before a jury the plausible and detailed descriptions by DP of the very serious assaults upon himself. The frequency of attendance of DAO at the pro-Cathedral, as asserted by DP, was not so integrally connected with or fundamental to his allegations of the assaults as to make it unlikely the five relevant counts would be proved if his evidence as to that frequency was not also accepted. The jury could reject parts of his evidence about frequency of contact and yet accept beyond reasonable doubt that the assaults occurred as charged, in the setting of a briefer more intermittent course of altar boy instruction than that which DP recalled.
20. Although DP gave evidence that he had first encountered DAO "a few times" in the grounds of St John's primary school at Maitland, this was in conflict with evidence of two teachers from the early 1980s who did not recall seeing DAO at the school. There is no reason why this evidence should have deterred a reasonable prosecutor from pursuing these counts. Lack of recollection on the part of the teachers does not amount to refutation. A reasonable prosecutor could have predicted that a jury might prefer the evidence of DP, to whom a recollection of DAO having been in the schoolyard would, in the circumstances, have been vivid. On the other hand, if they thought he was mistaken about it, they might regard this as a collateral issue and not feel any reasonable doubt, on that account, about the grave acts of indecency which he described.
21. As related by DP, the occasions for the assaults upon himself arose in the course of DAO training him as an altar boy. His sister confirmed that he had trained as an altar boy in 1982 and 1983 and recalled DAO having been present. Peter Gogarty, who had been an altar boy at the pro-Cathedral from 1978 until 1987, corroborated DP's evidence that DAO was frequently there but said he had never met DP. Of course, if there was no reasonable case to establish that DP had been an altar boy under the instruction of DAO then there would have been no reasonable basis for proceeding with counts 1, 2, 3, 5 and 7. But it was not unreasonable for the Crown to have relied upon the evidence of DP and his sister on this issue. In relation to Mr Gogarty as with all witnesses the jury would be told that they could accept parts of his evidence and reject other parts. It would have been reasonable to anticipate that the jury may have accepted the Mr Gogarty as to DAO's frequent presence but have discounted his evidence that he had not met DP.
22. Alternatively, the prosecutor might have considered the prospects on this issue as follows. Gogarty was 51 years old at the date of trial and must have been about 21 years old in 1982. That is, he was 11 years older than DP. In possession of all of this evidence it would have been reasonable for a prosecutor to expect that a jury might find it quite inconsequential that a 21-year-old should not have noticed a 9-year-old trainee altar boy at the Maitland pro-Cathedral and/or should not have remembered him 30 years later.
23. In so far as the jury accepted evidence adduced in cross examination of Crown witnesses and/or evidence called by the defence and to the extent they regarded it as contradicting aspects of DP's account, it was open to them to view the errors in DP's recollection as pertaining to contextual details. It was open to them to consider that whether or not the charges were sustained depended upon much more fundamental matters. Did DP present as sincere and truthful with respect to his very specific descriptions of DAO's acts of gross indecency? Did he behave as ordinary men and women on the jury would expect of a person who had suffered what he claimed to have suffered, recalling it 30 years on? In answering these questions the jury would have been entitled to take into account the reluctant manner in which DP had come forward to give his evidence, after having first rebuffed police enquiries. This conduct was consistent with DP being a person who truly had experienced what he described, with the consequent disgust and humiliation, and who wished to forget.
24. If the jury assessed him as a witness genuinely attempting to give his recollection of painful experiences from his childhood, it would be open to them to conclude that the details essential to the five counts relating to the pro-Cathedral could not be in the nature of mistaken misinterpretations of DAO's conduct. Further, the jury would be entitled to infer that there was no reason why DP should have fabricated a story of the particular assaults which were charged. He rejected the suggestion put to him in cross-examination that he was building up a case for compensation. The jury were entitled to accept him on that. He also rejected the suggestion that he had named the wrong man and that Father Fletcher had really been his abuser. There was ample material, relating to the differences in appearance of the two men, upon which the jury could accept him on that also.
25. It would have been reasonable for the Crown, at the outset of the case, to expect that all these aspects of assessment of DP could be decided favourably by the jury and that they would not regard his erroneous recollection of contextual details about frequency of contact, DAO's status as a priest or the description of the vestments he wore as enough to raise a reasonable doubt.
26. Count 8 on the indictment concerned an alleged assault on DP at a camp in the countryside when, he said, DAO touched him in an indecent manner whilst purporting to inspect him for ticks or leeches. DAO and his mother gave evidence that there were two camps, one in late December 1982 continuing into January 1983 and the other in late 1984 or very early 1985. The first was organised for the benefit of boy named Gavin Smith who was very ill with leukaemia and who had expressed a wish for such an event. The second was organised after he had died of his illness, to commemorate his life. He died in late 1983. DP gave evidence that the assault upon him occurred on a camp during the December 1983 to January 1984 holiday. There was evidence that no camp had been conducted at that time. There was conflicting evidence as to whether DP attended either of the two camps acknowledged by DAO. This included photographs of attendees, upon one of which DP purported to identify himself. His self identification was shown to be in error. Other evidence indicated that not all of those who were at the relevant camp had been captured in that photograph.
27. There was some conflict between DP's evidence at the trial and a statement he had made to police beforehand concerning the circumstances of the purported tick inspection. On one version DAO had required the boys at the camp to form a line and enter a tent one by one, whereupon, in DP's case, the assault occurred. On another version DP did not join any such line or queue but was isolated by DAO and assaulted individually.
28. It could not be said that the totality of the evidence as it had emerged by the conclusion of the trial showed definitively that DP had not been present with DAO on any camp at which an incident of the nature he described could have occurred. Nor has it been shown by the whole of the evidence that at no camp which DP may have attended could there possibly have been an incident such as he described. Had all of this evidence been in hand when DAO was to be arraigned a reasonable prosecutor would recognise that a verdict of guilty on count 8 would depend heavily upon the jury accepting the complainant rather than DAO as to an incident which the former alleged had occurred out of the view of others, which he described in realistic and plausible detail and which DAO denied. It is not uncommon for a Crown case to be dependent upon such a contest. Proceeding with it whilst recognising that particulars of the surrounding circumstances, as given by DP, would also be disputed both by DAO and by other witnesses, could not in my opinion be said to have been unreasonable.
29. The manner in which DP's evidence was led in chief was less than optimal. Crown counsel did not attempt to clarify apparently conflicting timeframes and sequences as given by the Crown's principal witness on the subject counts. This is particularly evident at T 33-40. I have already referred to the lack of clarity about the period of six months and/or of three to six months to which DP referred (see [111]). Also, the Crown accepted answers in terms of what DAO "would" do to him, of an indecent nature. Answers in that form gave the impression that the witness was describing recurrence and regularity which he may not have intended at all. The use of the word "would" appears to have been a mannerism or habit of speech of the witness to which literal meaning could not be attached. If the Crown had been alert from the outset to the evidence which would be adduced concerning infrequent opportunities for contact by DAO in 1983 more care to clarify the intent of DP's evidence would no doubt have been taken. The transcript pages referred to contain significant ambiguity and conflict which Crown counsel did not attempt to resolve.
30. This Court's decision in DAO's appeal (cited at [99]) that the jury's verdicts on the DP counts were unreasonable and could not be supported by the evidence does not dictate the application of ss 3 and 3A of the Costs in Criminal Cases Act. In Regina v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 Wood CJ at CL stated the following: "[15] Fejsa [(1995) 82 A Crim R 253] at 257 and Pavy [(1997) 98 A Crim R 369] at 5, each make it clear that the mere fact that this Court allows an appeal and enters a verdict of acquittal, upon the "unsafe and unsatisfactory" ground, as it was then comprehensively described, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant I agree with the observations to that effect, in those decisions. I also agree with Simpson J, that the onus falls upon the applicant to show that it was not reasonable to institute the proceedings."
31. It does not follow that because this Court concluded on the appeal that the jury should have felt a reasonable doubt upon all the evidence they received, therefore the Crown, prospectively, should have recognised that the jury would have to have such a doubt, so that the DP counts should not have been pressed. It is common, perhaps typical, that in historical sexual abuse cases such as this there will be extensive conflict of recollections about the specific incidents alleged and about a plethora of surrounding and contextual circumstances, including those which relate to opportunity. Presented with a prima facie plausible account, from an apparently genuine complainant, of grave acts of indecency by a trainee priest, misusing his position of trust with the children of parishioners, I consider there would have to be clear contradiction of the allegations or a strong measure of improbability or doubt about them before it could be said that a prosecutor acted unreasonably in bringing the allegations before a jury to decide. On all the evidence which now can be seen I do not consider that there was such a clear contradiction or substantial improbability or doubt with respect to DP's allegations on counts 1, 2, 3, 5, 7 and 8 in this indictment
32. For these reasons I would dismiss DAO's application. I agree with Meagher JA there should be no order for the costs of the application.

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