Gardiner v R

Medium Neutral Citation: Gardiner v R [2023] NSWCCA 89

Hearing dates: 24 March 2023

Decision date: 24 April 2023

Before: Adamson JA at [1]; Button J at [240]; McNaughton J at [241]

Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the convictions in respect of counts 1 and 6.
(4) Order that there be a new trial of the applicant.
(5) List the matter in the District Court arraignments list on 28 April 2023.

Catchwords: CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate
CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated
CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution
CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

Legislation Cited: Crimes Act 1900 (NSW), ss 66EA, 79, 81, 418
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), ss 33, 133, 161A
Evidence Act 1995 (NSW), ss 95, 97, 98, 164, 165B
Jury Act 1977 (NSW), ss 68A, 68B

Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
BQ v R [2023] NSWCCA 34
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Eade v The King (1924) 34 CLR 154; [1924] HCA 9
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Fuller v R [2022] NSWCCA 203
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Green (A Pseudonym) v The Queen [2017] VSCA 277
Higgins v R [2020] NSWCCA 149
Hodgson v R [2022] NSWCCA 72
Hofer v R [2019] NSWCCA 244
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Hopgood v R [2019] NSWCCA 246
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Jobst v Inglis (1986) 41 SASR 399
JS v R [2022] NSWCCA 145
Kanbut v R [2022] NSWCCA 259
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
Macri v R [2022] NSWCCA 177
Minagall v Ayres [1966] SASR 151
Morton v R [2020] VSCA 49; [2020] 281 A Crim R 307
Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75
Pound v The Queen [2019] VSCA 279; (2019) 280 A Crim R 109
R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46
R v Isaacs (1997) 41 NSWLR 374
Reg v Kilbourne [1973] AC 729
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29
Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Zhou v R [2021] NSWCCA 278

Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 2020

Category: Principal judgment

Parties: Leonard Gardiner (Applicant)
Rex (Respondent)

Representation: Counsel:
T Game SC / D Barrow (Applicant)
E Baloudis (Respondent)
Solicitors:
Blair Criminal Lawyers (Applicant)
Office of the Director of Public Prosecution (Respondent)

File Number(s): 2019/373949

Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant or tendency witnesses is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

HEADNOTE

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

Leonard Gardiner (the applicant) was charged under the Crimes Act 1900 (NSW) for persistent sexual abuse of a child (TR) between 1 January 1964 and 18 March 1968 (Count 1), and an act of buggery (on PS) between 1 February 1966 and 31 December 1967 (Count 6), while he was a mathematics teacher at a school in Armidale. The complainants, TR and PS, were boarding students at the school. The other offences on the indictment (Counts 2 -5) were alternatives to Count 1. Following a trial by judge alone before English DCJ, the applicant was convicted of Counts 1 and 6 and sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 11 years.

Prior to the trial, the applicant applied for a permanent stay of proceedings, submitting that he could not have a fair trial because of the inordinate delay. The trial judge did not accept that there was prejudice to the applicant and considered that any prejudice was outweighed by the public interest in charges for sexual offences committed against children in institutions by people responsible for their care being tried.

In acceding to the applicant’s application to be tried by judge alone, the trial judge also made a number of pre-trial rulings excluding evidence identified by counsel for the applicant. The parties agreed on the form of a forensic disadvantage direction. The Crown relied on tendency reasoning and the evidence of tendency witnesses – former boys who had similar experiences with the applicant during their time at school – which necessitated the primary judge also giving herself a tendency direction.

The following is a summary of the Crown case in relation to the alleged offences. TR was a boarder at the school in Armidale between 1964 and 1967. The applicant committed sexual offences (including penile-anal intercourse) against him throughout the time he was at the school (counts 1-5). TR told no one of the applicant’s conduct until he became aware of a police investigation into the applicant’s conduct at the school in 2019 and reported to the police.

PS was also tutored by the applicant in mathematics outside school hours. After grooming PS, the applicant had penile-anal sexual intercourse with PS. At a school reunion in 2000, PS disclosed the applicant’s conduct. After the reunion, several former students contacted PS to express support and he contacted the Royal Commission into Institutionalised Child Sexual Abuse but did not give evidence. In 2019, PS met TR, who had contacted him because he had heard that PS was making an allegation against the applicant.

The applicant’s case at trial was that he had never given mathematics tutorials to either boy and that he had never touched them.

The primary judge accepted the evidence of the complainants and the tendency witnesses. She found each of the counts proved beyond reasonable doubt and returned verdicts on Counts 1 and 6.

The applicant sought leave to appeal from his conviction on nine grounds based on the trial judge’s reasons, which included that the trial judge erred: in refusing to permanently stay the proceedings (ground 1), in holding her observations of the appellant’s conduct in the dock contributed to her conclusion that he was not giving genuine evidence (ground 2), in holding that aspects of the evidence of the complainants were corroborated (ground 3(a)), in her treatment of the tendency evidence (ground 3(b)), in taking into account in her assessment of credibility an alleged disparity between what the applicant’s trial counsel had put to TR in cross-examination and the applicant’s own evidence (ground 5), in concluding that each count had been proved beyond reasonable doubt without considering the appellant’s evidence beforehand (ground 8) and in the application of the onus of proof when considering whether the evidence of witnesses for the prosecution had been contaminated (ground 9). The applicant also contended that the trial miscarried when the trial judge repeatedly used coincidence reasoning to make adverse findings against the applicant (in circumstances where the Crown did not seek to rely on coincidence reasoning) (ground 4), when the trial judge took into account aspects of the original Crown case statement that had been excluded from evidence (ground 6) and because the directions pursuant to s 165B of the Evidence Act 1995 (NSW) were inadequate (ground 7).

The Court held, allowing the appeal (Adamson JA, Button and McNaughton JJ agreeing):

In relation to ground 1 (permanent stay)

(1) It was open for the primary judge to refuse a permanent stay: [122]. For a permanent stay to be appropriate on the grounds of delay, the delay must render the trial necessarily unfair so that any conviction would bring the administration of justice into disrepute: [109]. The delay was not such as to give rise to an irremediable forensic disadvantage or to make the applicant’s trial other than fair: [116], [119].

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 34, applied.

In relation to grounds 2 and 5 (credibility of applicant)

(2) There was a denial of procedural fairness to the applicant. His credibility was found wanting because of an unspecified matter (in respect of his demeanour) of which he was not given fair notice: [145].

(3) The trial judge also denied the applicant procedural fairness by failing to raise the alleged disparity between what was put in cross-examination to TR and the applicant’s evidence: [160].

(4) It is not appropriate to apply the proviso. While the Crown case was apparently very strong, if there was a reasonable possibility that the applicant’s denials were true, he was entitled to be acquitted. Matters that were apparently significant in the assessment of his credibility, such as observations of his conduct in the dock, were not brought to the parties’ attention, and can be taken to have been material to the outcome: [168].

(5) Given the strength of the Crown case and seriousness of the alleged offences, it would not be in the interests of justice to order an acquittal: [238].

In relation to grounds 3, 4 and 9 (tendency, coincidence and contamination of witnesses)

(6) The tendency evidence is that which is classically relied on in support of tendency reasoning: [180]-[183]. The trial judge did not err in not requiring that each charge be proved beyond reasonable doubt before it could be used for a tendency purpose. This conformed to the requirements of s 161A of the Criminal Procedure Act 1986 (NSW): [198].

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, applied.

JS v R [2022] NSWCCA 145, followed.

(7) The trial judge denied the applicant procedural fairness by engaging in coincidence reasoning when the evidence was not relied on by the Crown for that purpose and by failing to warn the parties of her intention to use the evidence in that way: [203].

(8) The trial judge did not reverse the onus of proof in relation to contamination of witnesses: [214]-[215].

In relation to ground 6 (pre-trial rulings)

(9) The trial judge erred in referring to allegations which had been excluded by pre-trial rulings in her judgment: [224].

In relation to ground 7 (forensic disadvantage direction)

(10) While it was not given in the precise terms of the authorised direction, there was no error of law in the forensic disadvantage direction. A fair reading of her Honour’s judgment as a whole shows that her Honour abided by the direction: [230], [232].

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30], applied.

In relation to ground 8 (consideration of applicant’s evidence)

(11) Reasons are not designed to replicate the thought processes which led to the conclusions expressed in them; just because the trial judge set out her findings as to the applicant’s credibility after the findings of guilt does not indicate that her Honour did not consider the applicant’s evidence together with the whole of the evidence before coming to a conclusion about the applicant’s guilt: [234].

JUDGMENT

1. ADAMSON JA: Leonard Gardiner (the applicant) seeks leave to appeal against his conviction for two offences: an offence contrary to s 66EA of the Crimes Act 1900 (NSW) of persistent sexual abuse of TR, a child, between 1 January 1964 and 18 March 1968 (count 1); and an act of buggery, contrary to s 79 of the Crimes Act, between 1 February 1966 and 31 December 1967 against PS (count 6). The other offences on the indictment, counts 2-5, were alternatives to count 1. At the time of the commission of the alleged offences, the applicant was a mathematics teacher at a school in Armidale, where TR and PS were boarding students.

2. The applicant was convicted of counts 1 and 6 on 1 June 2021 following a trial by judge alone conducted by English DCJ (the trial judge).

3. The trial judge imposed an aggregate sentence of 16 years’ imprisonment commencing on 1 June 2021 and expiring on 31 May 2037, with a non-parole period of 11 years commencing on 1 June 2021 and expiring on 31 May 2032. There is no application for leave to appeal against the sentence.

4. The applicant seeks leave to appeal on the following grounds:

1 The trial judge erred in refusing to permanently stay the proceedings.

2 The trial judge erred in holding that her observations of the appellant’s conduct in the dock over many days during the trial contributed to her conclusion that he was “someone not giving genuine evidence” (Judgment, pp 34 and 42).

3 The trial judge erred:

(a) in holding that aspects of the evidence of the complainants were corroborated (Judgment, pp 26-28)

(b) in her treatment of the tendency evidence relied upon by the prosecution.

4 The trial miscarried when the trial judge repeatedly used coincidence reasoning to make adverse findings against the appellant, in circumstances where the prosecution had not served a Coincidence Notice and did not seek to rely on coincidence reasoning.

5 The trial judge erred in finding that trial counsel's questions to TR about whether a space where an offence allegedly occurred had no doors cast doubt upon the evidence of the appellant (Judgment, p 30).

6 The trial miscarried when the trial judge took into account aspects of the original Crown case statement that had been excluded from the evidence adduced at the trial.

7 The trial judge's directions pursuant to s165B of the Evidence Act 1995 (NSW) were inadequate and occasioned a miscarriage of justice.

8 The trial judge erred in concluding that each count on the Indictment had been proved beyond a reasonable doubt without considering or evaluating the appellant's evidence before reaching these conclusions.

9 The trial judge erred in the application of the onus of proof when:

(a) considering the question whether the evidence of the complainants, JT and AR was contaminated;

(b) considering aspects of the defence case.

The indictment

5. As referred to above, the indictment charged six counts. As counts 2-5 were an alternative to count 1 and the evidence led in support of counts 2-5 was relevant to count 1, it is convenient to reproduce the indictment in full:

1. between 1 January 1964 and 18 March 1968, at Armidale and other places in the State of New South Wales, did maintain an unlawful sexual relationship with [TR], a child under the age of 16 years, namely between 11 and 15 years of age, in which he engaged in the following two or more unlawful sexual acts:

1. Using his hand to masturbate the complainant’s penis;

2. Having penile-anal intercourse with the complainant; and

3. Penetrating the complainant’s anus with an object.

[s 66EA(1) of the Crimes Act]

In the alternative to count 1

2. between 1 April 1964 and 1 September 1964, at Armidale in the State of New South Wales, did assault [TR], a male person, and commit an act of indecency on him.

[s 81 of the Crimes Act]

3. between 1 April 1964 and 1 September 1964, at Armidale in the State of New South Wales, did commit an act of buggery with [TR].

[s 79 of the Crimes Act]

4. between 1 January 1965 and 31 December 1966 at Armidale in the State of New South Wales, did assault [TR], a male person, and commit an act of indecency on him.

[s 81 of the Crimes Act]

5. between 1 September 1966 and 1 December 1966, at Armidale in the State of New South Wales, did commit an act of buggery with [TR].

[s 79 of the Crimes Act]

Further charge:

6. between 1 February 1966 and 31 December 1967, at Armidale in the State of New South Wales, did commit an act of buggery with [PS].

[s 79 of the Crimes Act]

The applicant’s application for a permanent stay

6. By notice of motion filed on 15 February 2021, the applicant applied for a permanent stay of the proceedings, submitting that he could not have a fair trial because of inordinate delay.

7. The applicant relied on affidavit evidence of his solicitor, Jessica Caligiore, as to his instructions (denying the charges and the allegations made in statements tendered by the Crown from tendency witnesses). Ms Caligiore deposed to the unavailability of the following witnesses who could not be located, had died or were presumed dead. Ms Caligiore’s evidence as to the witnesses, their role at the time and the evidence which it was expected that, had they been available, they could have given are summarised in the following table.

| Unavailable witness | Role | Potential evidence | | Alan Cash (deceased) | Headmaster of the school between 1964 and 1968 Alleged recipient of contemporaneous complaint by TR and, in 1967, TR’s mother. Was told by John McIntyre that Mr McIntyre had seen the applicant take TR into his room, which led to the applicant’s replacement. | A. Lack of complaints by the school’s students or staff about the applicant. B. That between 1965 and 1968, Mr Cash lived with his wife and children in close proximity and within sight of the applicant on the school campus. C. The unlikelihood of a student visiting the applicant without Mr Cash or his family noticing it. D. That the applicant resigned from the school and left on amicable terms. E. That another named teacher had been dismissed in 1964 following complaints of a similar nature. F. The school rules for teachers and students (which forbad students entering teachers’ rooms and which governed tutoring arrangements). | | Maris Cash | Wife of Mr Cash (see above) According to TR, witnessed TR hiding in the headmaster’s garden after an assault by the appellant and was sympathetic to TR because she suspected that the applicant was sexually assaulting him. | F (as for Mr Cash) | | AR | TR’s mother. According to TR: had concerns about TR and returned to the school from Papua New Guinea to visit the school in 1967; raised her concerns with Mr Cash, who said that TR was the loneliest boy he had ever seen. | | | Desmond Graham | A teacher at the school between 1964 and 1968. According to TR, Mr Graham was a witness to TR’s contemporaneous complaints about the applicant, took no action to help him and punished TR by caning him for telling lies about the applicant and humiliating him in front of other students. | A-F (as per Mr Cash) | | Brian Mattingley | A teacher at the school between 1939 and 1979; senior house master between 1964 and 1968. According to the applicant, Mr Mattingley was the applicant’s supervisor and lived at the school. For the first few months of 1964, he shared the same residence as the applicant. | Similar evidence to that set out above for Mr Cash (see above). Mr Mattingley gave the applicant a written professional reference. Mr Mattingley was responsible for supervising students who attended the sick rooms and informed relevant staff of the reason for the student’s absence from class. | | Geoff Bell | A teacher and swimming coach at the school between 1964 and 1968. TR alleged that Mr Bell attempted to interfere with him in the change rooms and that there was a confrontation. | Similar evidence as for Mr Cash (see above). | | Alan Cane | Director of Studies at the school between 1964 and 1968. | Similar evidence as for Mr Cash (see above). Mr Cane gave the applicant a written professional reference. | | Mary Stevenson | Teacher in the primary school from 1964 until at least 1968. | She was TR’s sole teacher in the primary school in 1964. The applicant was not involved with students from the primary school. A and F (as per Mr Cash, see above) | | W A Jennings | Teacher at the school from 1964 to 1968. | Mr Jennings was the Senior Science Master at the school from 1964-1968. Similar evidence to Mr Cash as to A, C and F above. | | Reverend Kitley | School chaplain from 1964-1968. | Similar evidence to A and F (see Mr Cash, above). | | Basil Heath | According to TR: - Mr Heath was the principal of Ipswich Grammar School - the applicant came to Ipswich Grammar School and told the staff that he was TR’s uncle - the applicant took TR out of school for extended periods on three occasions - TR told Mr Heath in 1968 about the sexual assaults perpetrated by the applicant on him - Mr Heath told Mr Cash and/or the police about what TR had told him. | | | Peter Steward | Teacher at the school in at least 1964 and 1967. | Similar evidence to that of Mr Cash in A, D, E and F above. | | Matrons of sick rooms | According to TR: - TR regularly attended the sick rooms to escape the applicant - the applicant tried to see TR when he was in the sick rooms but was thrown out by the matron - the matron knew that the applicant had sexually assaulted TR, in some cases violently. | Similar evidence to that of Mr Cash in A, D and F and that what TR said (see previous column) was not true. |

8. Ms Caligiore also prepared a table of documents which had been sought pursuant to subpoenas issued at the applicant’s request. She set out the categories of documents which were not produced, the reason given for the non-production and the alleged significance for the applicant’s trial. The documents not produced included: maps of the school detailing the location of particular buildings; school policies and procedures; the teaching timetable for the applicant; and documents relating to Mr Holmes, including complaints and disciplinary action against him as well as the school’s reasons for dismissing him.

9. Mr Boulten SC, who appeared for the applicant in the Court below, submitted that, in light of the number of unavailable witnesses, neither evidentiary rulings, nor jury directions, nor warnings would be adequate to remedy the presumptive and actual prejudice to the applicant. He relied on Green (A Pseudonym) v The Queen [2017] VSCA 277 (Green) at [105] in which the Victorian Court of Appeal allowed an appeal against the trial judge’s refusal of a permanent stay of criminal proceedings and granted a permanent stay.

10. The trial judge dismissed the application for a permanent stay. Her Honour set out the chronology of the alleged offending and the narrative as revealed by the evidence before her. Her Honour referred to each of the apparently unavailable witnesses and the role each played in the narrative, as well as to the documents which could not be accessed. The trial judge recited the relevant authorities and the submissions of each party.

11. Her Honour addressed the jurisdiction to grant a permanent stay and the steps which were available by way of jury directions and warnings to ameliorate any prejudice arising from delay. She referred to the public interest (as a result of the Royal Commission into Institutionalised Child Sex Abuse (the Commission)) in sexual offences alleged to have been committed against children in institutions by people responsible for their care. The trial judge referred to the applicant’s mental state and said:

“As to specific prejudice the fact that the application is to my mind nothing other than a product of delay [sic]. There is no evidence before me in regards to [the applicant’s] health and no evidence in regards to any cognitive difficulties, dementia related or otherwise, relevant to his age. Indeed it would appear to the contrary. If it is foreshadowed that he would be called to give evidence if the trial proceeds.”

12. The trial judge distinguished the applicant’s mental state from other decisions cited by counsel for the applicant in which the accused’s, or the complainant’s mental state was a “decisive additional factor” in granting a stay.

13. The trial judge said, of the absence of documents:

“The primary source of records appear to be yearbooks and it is said that the yearbooks for the relevant years are said to be missing. In the circumstances of this matter there is no dispute that the complainants and other witnesses were bo[a]rders at the school when the applicant was a maths teacher at the relevant time apart from the dispute as to what class [TR] was in when he commenced at the school. The overall importance of the records is not a central issue at trial.”

14. Her Honour noted the lack of challenge to the location of the applicant’s residence when he was living at the school near the headmaster’s residence. However, the trial judge accepted that the lack of records could be significant with respect to count 1 (and, in particular, counts 2 and 3, which were relied on in support of count 1) and foreshadowed giving a forensic disadvantage warning under s 165B of the Evidence Act 1995 (NSW).

15. In addressing the prejudice occasioned by the unavailability of witnesses, the trial judge said:

“Whether the unavailability of witnesses renders a trial unacceptably unfair depends upon the importance of the potential evidence of that witness or those witnesses and its effect on the issue in dispute. Here many of those witnesses are contextual evidence witnesses only. They were not eyewitnesses to any charged event. Accordingly the inability of the defence to cross-examine is to be characterised as a potential lost opportunity rather than lost evidence.

Whilst there are witnesses who potentially could have given evidence of contemporaneous complaint the Crown at this juncture has indicated it will not be adducing evidence of complaint unless the provisions of s 108(3) [of the Evidence Act] arise.

It is of course not known what those witnesses would have said. …”

16. The trial judge quoted Maxwell J (in dissent in Morton v R [2020] VSCA 49; [2020] 281 A Crim R 307) who referred to “the counter balancing forensic advantage to the applicant flowing from the exclusion of complaint evidence”. Her Honour also addressed the issues of potential contamination, concoction and collusion (arising from witnesses speaking to each other in the course of, and following, the school reunion).

17. The trial judge concluded:

“The applicant has not demonstrated that, by reason of the combination of factors in his trial, on the counts asserted by each complainant, is unfair so that any conviction would bring the administration of justice into disrepute. Undoubtedly the applicant’s case is attended by a number of difficulties. As I have said relevant material is no longer available. Witnesses who might possibly have given evidence that contradicted aspects of a complainant’s evidence have died. Documentary evidence relating to the applicant’s employment at [the school] and elsewhere and potential routes and/or methods of travel to Queensland are no longer available.

As I have stated already a fair trial does not equate to a perfect trial and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence.

The Courts have developed directions to juries to address and mitigate any prejudice arising from delay generally, decaying memory, and the unavailability of evidence. Any concerns arising from the potential influence of contamination can also be addressed with a robust direction and of course explored in cross-examination. The trial process is adequately equipped to deal with any unfairness arising from the passage of time through a combination of rulings on admissibility of evidence including complaint evidence, directions as to weight, and warnings as to the danger caused by the absence of witnesses or deterioration in recollection.

…

The prejudice to the applicant, which I accept does exist, is not outweighed in [sic, by] the public interest of having these charges tried and I do not accede to the order sought.”

Pre-trial matters

Tendency notice

18. On 24 June 2020, the prosecutor served a tendency notice as follows:

“Notice is hereby given that the prosecution presently intends to adduce evidence of ‘tendency’ pursuant to the tendency rule in s 97(1) and 97A of the Evidence Act 1995, i.e. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind.

1. The person whose ‘tendency’ is the subject of the evidence sought to be adduced is [the applicant].

2. The tendency sought to be proved is his tendency to have a particular state of mind and to act on that state of mind as follows:

a) Between 1962 and 1966;

b) To have a sexual interest in male children aged 12-17 years;

c) To use his position as a teacher at all-boys schools to gain access to male students;

d) To use his position as a teacher to gain one-on-one access to the students by inviting them into his bedroom for private tutoring;

e) To groom the students with unnecessary physical touching such as reading their palms;

f) To act on his sexual interest by looking at and touching the students' penises under the guise of a special study about growth that required him to measure their penises;

g) To act on his sexual interest by fondling the students' penises;

h) To act on his sexual interest by having penile-anal intercourse with the students; and

i) To continue to act on his sexual interest until he lost access to each of the students.

…”

Pre-trial evidentiary rulings

19. On 10 May 2021, the applicant applied to be tried by judge alone. His application was opposed by the Crown. Following the hearing of argument, the trial judge delivered ex tempore reasons, acceding to the application. After delivery of reasons, Mr Boulten applied for certain identified evidence to be excluded. Submissions regarding these applications for pre-trial rulings occupied the rest of 10 May 2021 and 11 May 2021. At the commencement of 12 May 2021, the trial judge made rulings and delivered ex tempore reasons for those rulings.

20. The rulings included the rejection of the following evidence:

21. evidence of four witnesses and the second statement of TR on the grounds that they were served late;

22. paragraph 39 of TR’s statement in which he deposed to having gone to the headmaster’s garden after one of the sexual assaults and been found by the headmaster’s wife, Mrs Cash, who took him inside and tried to comfort him (in circumstances where Mr and Mrs Cash had died);

23. evidence of TR that Jim Graham, a teacher at the school, had punished him for complaining about the applicant;

24. evidence of TR’s complaint to Mr Cash;

25. TR’s evidence of going to the sick bay to get away from the applicant (on the ground that no staff members of the sick bay had been identified by TR);

26. TR’s evidence that his school results dropped (as a consequence of the applicant’s conduct) to “failure across the board”;

27. TR’s evidence of the applicant visiting him at Ipswich Grammar School, pretending to be his uncle, taking him away from the school and sexually assaulting him;

28. TR’s evidence about the contents of a letter he wrote to the headmaster of the school in 1997 (which was rejected because the letter could not be produced);

29. evidence of KZ (a tendency witness) that he had complained to his brother and sister-in-law about the applicant sexually assaulting him (in circumstances where the brother and sister-in-law were not to be called);

30. evidence of John McIntyre, a boarder at the school, that he told Mr Cash that he had seen the applicant take TR to his room and that Henry Nicholson, another student, had also seen the applicant taking TR to his room; and

31. TR’s evidence of complaint that he told his wife what had happened a year or two after the birth of his first son (in circumstances where she was deceased).

32. Over objection by the applicant, the trial judge ruled that the following evidence was admissible:

33. TR’s evidence that he began to demand that the applicant buy him a portable record player with an automatic charger;

The trial

The Crown opening

23. At the commencement of the trial (after the luncheon adjournment on 12 May 2021), the prosecutor informed the trial judge that Mr Boulten had no objection to the Crown Case Statement being handed up and used instead of an oral opening. The Crown Case Statement, dated 1 September 2020, was not marked up to take account of the pre-trial rulings made by the trial judge on the morning of 12 May 2021 and therefore included references to parts of the Crown case which had been excluded as a consequence of the trial judge’s evidentiary rulings referred to above.

The Crown case and issues raised by the applicant

24. The offences were alleged to have been committed at the school, where the applicant was a mathematics teacher, between 1964 and 1967. It is not necessary to summarise the whole of the evidence in the Crown case since there is no unreasonable verdict ground. The evidence will be referred to in so far as it is germane to the grounds of appeal.

25. The Crown case was that the applicant lived on the school grounds and remained a teacher at the school until 1967.

26. TR, the complainant for counts 1-5, was born in 1952. His adoptive parents moved to Papua and New Guinea (PNG) when he was very young. He was schooled in PNG until 1964 where he obtained a scholarship to study and board at the school. He was a boarder at the school between 1964 and 1967. The Crown case, based on TR’s evidence, was that TR had started at the school in Form 1 and that the applicant had not only taught him mathematics but also tutored him privately in mathematics in 1964 and in subsequent years.

27. TR’s evidence was that the applicant had committed sexual offences against him that extended throughout the time he was at the school. TR said that the first offence was committed when the applicant was tutoring him privately in mathematics.

28. TR also gave evidence of four specific incidents (counts 2-5). TR said that the conduct, which comprised counts 2 and 3, occurred in 1964 in a weatherboard cottage, known as the “White House”, where he said the applicant was living at the time. TR said that counts 4 and 5 occurred in 1965 and 1966 respectively in the applicant’s room, which was located behind the headmaster’s lodge.

29. The applicant denied that he had ever lived in the White House. His evidence was that, in the early part of 1964, he had lived with Brian Mattingley, the Deputy Headmaster, and that for the second part of 1964 he had lived with a local man, “Vic”, in a house near the school. The applicant said that he lived in a room on the second floor of the main school building between 1965 and 1967. The applicant denied ever indecently or sexually assaulting any schoolboy in the time he worked at the school.

30. The applicant also disputed that he had taught TR in 1964 or that TR was in Form 1 in 1964. He contended that TR was in Grade 6 in 1964 and that he may have been taught by Ms Stevenson. The applicant said that he had only the vaguest memory of TR and denied ever tutoring him.

31. TR’s evidence was that in 1964, while the applicant was his teacher, the applicant had invited him to come to the White House, where the applicant lived, for tutorials. The applicant was initially kind to TR, who was extremely isolated and miserable at the school.

32. TR said that the first sexual incident occurred in the applicant’s accommodation when TR had fallen asleep after the applicant had given him a hot chocolate. When TR woke, the applicant’s hand was down his pants and was masturbating his penis (count 2).

Count 6: buggery against PS

Background to count 6

41. PS started at the school in 1965 (having undergone his primary education in Queensland). He was initially in Dangar House. He sat the School Certificate in 1968 and the Higher School Certificate in 1970. He was at the school for a total of six years.

42. PS gave evidence of having been taught mathematics by the applicant in 1966 and 1967. PS was tutored by the applicant in mathematics outside school hours from about 1967, which PS regarded as “quite unusual” as he was “reasonably good at maths”. The tutoring took place in the applicant’s room behind the headmaster’s residence “on a quite high up floor … at least, the third floor”. The applicant’s room was “very small” and had a bed and a desk.

43. PS said that, “initially, the tutoring was normal” but later the applicant mentioned to PS that he needed to measure his “body parts…to check for growth”. PS allowed the applicant to measure parts of his body. Over a period of three or four occasions, the applicant went from measuring PS’s fingers and hand, to his chest (following a request that PS take his shirt off), to his leg (following a request that he take his trousers off) and, eventually, to his penis (following a request that he remove his pants). PS complied with these requests because “[the applicant] was [his] teacher, [he] trusted him.”

Conduct which comprised count 6

44. Subsequently, in 1967, the applicant asked PS to remove his clothes and lie down on his bed. The applicant showed PS a condom and asked him whether he knew what it was, to which PS replied that he had “no idea”. The applicant asked PS to roll over. The applicant then lay beside him and forced his penis into PS’s anus and had intercourse with him. PS said in evidence:

“I had no idea what was going on, I felt strange. It became a blur, after that.”

45. PS’s next recollection was that he was running down the road in the school to the White House where he was residing as a boarder. He went straight to the bathroom and defecated.

Complaint evidence

46. In 2000, PS went to an old scholars’ reunion dinner, which was attended by about 50 people. Each “old boy” stood up and spoke about his recollections of the school. PS, who had been drinking alcohol at the dinner, stood up and said that he was married, had children and also spoke about his employment. He also said, “I was fucked by Frankie Gardiner”. PS recalled people coming up to him afterwards but he could not identify them. Between a week and a couple of months after this event, two former students who had been present, Greg Cornelson and Greg Kosch, contacted him separately to express support. PS could not recall whether they spoke about the applicant.

47. After the 2000 reunion, JT, another former student, said to PS, “I had a problem, but it was nothing as bad as you.”

48. In 2013, PS was contacted by Peter Lawless, who had been in the same year as PS for at least part of his time at the school. Mr Lawless said that he remembered what PS had said at the reunion and asked if he wanted to contact the Commission. PS did contact the Commission but did not make a statement to, or give evidence at, the Commission. Although PS and Mr Lawless spoke several times about PS’s experience at the school, PS did not discuss the details of what actually happened when the applicant had anal intercourse with him.

49. Subsequently, JT spoke with Rob Busby, a member of the “old boys” club of the school, who arranged a meeting with the school’s then principal, Murray Guest. The meeting took place in January 2014 and was attended by the principal, PS, JT, Mr Busby and another male. PS reported the incident to Mr Guest.

50. In 2019, before the school reunion dinner, PS met TR, who had contacted him because he had heard from Mr Lawless that PS was making an allegation against the applicant. PS had not met TR before as they had not been in the same class at school. On 1 August 2019, PS and TR went to see Mr Guest. PS told Mr Guest about the incident but “not the detail.” Mr Guest informed them that he would say something at the reunion dinner on 3 August 2019. Mr Guest mentioned the allegations at the dinner, after which PS received some phone calls of support from others who had attended the dinner.

Tendency evidence

JT

51. JT was called as a tendency witness to establish that the applicant had a sexual interest in male children aged between 12 and 17 years; that he used his position as a teacher at an all-boys schools to gain access to male students; that he used his position as a teacher in an all-boys school to gain one-on-one access to the students by inviting them into his bedroom for private tutoring; and that he had a tendency to act on his sexual interest by looking at and touching the students’ penises under the guise of a special study about growth that required him to measure their penises.

52. JT gave evidence that he had started high school at the school in 1965 as a boarder in Form 1 and had initially lived in Dangar House. He enjoyed sport and had lots of friends, including PS. In 1966, when he was in Form 2, he moved to Abbott House where he resided in dormitory 5, above the headmaster’s residence. Various staff, including the applicant, were housemasters and supervised the students.

53. JT thought that the applicant, whom he knew as “Stinky”, had been a maths teacher, but he had not been taught by him. In late 1966 the applicant directed JT to go to the applicant’s room. JT, who was 14 years old at the time, did as he was told. When he arrived, the applicant told him to take his shorts and pants down. They were around his ankles. The applicant asked JT to sit on the bed, whereupon the applicant started playing with the end of JT’s penis with a pencil. JT felt confused. The applicant then said to him, “That's enough ... we’ll finish this research later on ...”.

Mr Austin

54. Mr Austin gave evidence that he first came to the school as a student in 1964. He remembered the applicant as his maths teacher. He recalled that TR was in his year. He saw the applicant take TR to his room for maths tuition and recalled that, when the applicant asked TR to go to his room, TR looked haunted, tired and distressed.

KZ

55. KZ gave evidence that he had been taught by the applicant at Immanuel College in Adelaide in 1961 or 1962. When he was 16 or 17 years old, the applicant had visited his family's farm and indecently assaulted him. The applicant had visited on a subsequent occasion and had entered KZ’s bedroom at night. KZ had screamed. The applicant ran from his room and left the location in his car.

56. The applicant gave evidence that these incidents never occurred.

Evidence of contamination

57. The following evidence of discussions between TR, PS and others was elicited in the Crown case but was relied on by the defence and was summarised in the applicant’s submissions in this Court.

58. Before any complaint to police was made about the applicant, Mr Lawless conducted his own investigation into the applicant and other teachers at the school. Further, TR, PS and other former students of the school (including JT and AR) discussed the applicant’s sexual abuse of students. They communicated by email. Further, there was a meeting in August 2019 which was attended by Mr Guest, TR and PS (referred to above). Subsequently, Mr Guest gave a speech at a 50-year reunion of students, where the applicant’s conduct towards both TR and PS was referred to.

59. On 4 September 2019, Mr Guest wrote a letter to past students of the school in which he referred to PS and TR as victims. The letter (marked Exhibit 16) included the following paragraph:

“[TR] and [PS] have come forward and offered to be conduits in this exercise and I encourage anyone with information about past abuse, in particular involving former staff members at the School between 1964 and 1967, to contact either [TR] or [PS] as outlined below, me, or indeed the Armidale Police.”

The defence case

60. As referred to above, the applicant’s case at trial was that he had never given mathematics tutorials to either TR or PS in his room and that he had never touched either boy.

61. Further, the defence case was that the evidence of TR, PS, JT and AR was contaminated (see the summary above).

The reasons for the findings of guilt

62. In summary, the primary judge accepted the evidence of the complainants and the tendency witnesses. She found each of the counts proved beyond reasonable doubt but returned verdicts only on counts 1 and 6 (as the verdict on count 1 made it unnecessary for verdicts to be returned on counts 2, 3, 4 and 5). Although the reasons were not given ex tempore, they bear some of the hallmarks of reasons delivered in that way in that they are discursive and, at times, repetitive.

63. In these circumstances, rather than summarise the reasons by reference to topics or grounds, I propose to extract from the reasons the particular parts which are the subject of grounds of appeal, in the order in which they appear in the judgment. There are no headings in the judgment but I have added them below to indicate, in general terms, the structure of the judgment, in so far as it can be discerned from its contents.

Directions given by the trial judge to herself

64. The trial judge gave herself a tendency direction (which is raised with respect to ground 3(a)) which said, in part:

“The Crown alleges that the accused had a particular tendency being to have a particular state of mind and to act on it in a particular way, to have a sexual interest in male children aged between twelve and seventeen years of age and to act upon it by using his position as a teacher to engage in sexual misconduct with not only the two complainants but also others.

The evidence on all counts may be used to prove he had this tendency and may then be used in proving all other counts, but a complainant’s evidence can only be used in this way in proving counts concerning another complainant. The evidence on any count need not prove this tendency beyond reasonable doubt before it is used in proving another count but it cannot be used in proving another count except insofar as it proves this tendency and the evidence on one count cannot be substituted for that on another and nor can it be used as showing general bad character.

The Crown also relies on the evidence of other witnesses who are not the complainants to prove the accused had a particular state of mind asserted and acted upon it, that evidence does not have to be proven beyond reasonable doubt.

…

In respect of tendency witnesses, [JT], [KZ] and [AR] were called. In directing myself that the tendency evidence cannot be used in any other way as I have described, part of what I am saying is that I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge. If I am not satisfied that an incident that is not the subject of the charge occurred then the evidence relating to it should be put completely aside; there is no other issue in the case to which it is relevant.”

65. The trial judge continued in the following paragraph (which is relevant to ground 4):

“The evidence of the complainants’ in respect of the counts on the indictment can be used together but only if it shows the similarities in the complainants’ accounts such that the explanation is unlikely to be coincidence and rather that the accused had the state of mind and did the act alleged with both. If it does not, it cannot be used together and that of each complainant must be considered alone. Even if it does, each complainant’s evidence must be reliable before the court concerning him may be proven.”

[The applicant relied on the portion in bold in support of ground 4.]

66. The trial judge gave herself a forensic disadvantage direction (which is relevant with respect to ground 7) as follows:

“I am asked to give myself a direction pursuant to the provisions of s 165B of the Evidence Act because of the significant delay in this matter and I do so. The delay impacts upon the accused to defend himself by testing the prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. There was delay in complaint being made to others including the police.

The complainant, [PS], first raised his allegation in 2000. The police investigation did not commence until 2013 when his complaint was referred to the Armidale Police by someone from the Royal Commission. The delay in respect of the allegation brought from the time alleged until the first complaint was approximately thirty-four years. Until 2013, something like forty-nine years and up until now, fifty-five years. In respect of [TR], fifty-five years until he first raised the allegations in 2019 and approximately fifty-seven years to date.

The accused was unaware of the complaints made at the time and did not learn of them until he was approached by police in Adelaide in November 2019, delay for which the accused has not been responsible.

There are difficulties which include the possibility of distortion of human recollection including a witness’ capacity to remember events that occurred so long ago including for example, specifics of conversations, the complainants’ inability to recall precise details of the circumstances surrounding the incidents which make it more difficult for the accused to throw doubt on their evidence. Had the accused learned of the allegations much earlier, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainants and other witnesses.

Had he learned of the allegations much earlier, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.

Because of the significant delay the accused has lost the opportunity to bring forward evidence, including records from [the school], Immanuel College and records such as banking records, diary notes, travel records, to cast doubt as to whether he was in South Australia in 1963 or 1964 or travelled to Ipswich in the late 1960s, records of where he was residing in 1961 and 1964 and evidence from others with whom he resided. Witnesses who may have been able to give relevant evidence as to the movements of [TR] and or [PS], the school at the relevant time, details of vehicles relating to the ownership of vehicles by him, evidence from the headmaster and his wife about movements of visitors to and from the accused’s bedroom when it was located in out of house.

These types of matters put the accused at a significant disadvantage and he has been prejudiced in the conduct of his defence. As a result I am aware that before I can convict the accused I must give the prosecution case the most careful scrutiny.”

67. It was common ground that the forensic disadvantage direction was not precisely in the terms of the direction which the parties agreed ought be given. Mr Game SC, who appeared with Mr Barrow on behalf of the applicant, accepted that it was not necessary for the trial judge to reproduce verbatim the whole of the agreed direction but contended that the balance of the reasons indicated that the trial judge had not appreciated the extent of the forensic disadvantage (which was principally relevant to ground 1).

The summary of the respective parties’ cases

68. The trial judge set out the various counts concerning TR (counts 1-5) and summarised the Crown case on these counts. At the conclusion of this summary, the trial judge said:

“… The complainant sat the School Certificate in 1967 and left [the school] at the end of that year. Thereafter, he transferred to Ipswich Grammar School.

It is the Crown case that the accused pursued [TR] to Ipswich and removed him from the school on occasions and continued to have a sexual relationship with him until it ceased. That the accused permitted [TR] to drive his motor vehicle. That the accused purchased an LP record player for [TR] during his last year at the school.”

[The applicant relied on the portion in bold in support of ground 6.]

69. In the course of the summary of the defence case, the trial judge said:

“It is the accused case that he did not visit [TR] in Ipswich and nor could he have done so relying upon records produced by what is now the University of South Australia.”

[The applicant relied on the portion in bold in support of ground 6.]

The summary of the evidence

70. After summarising the respective cases of the prosecution and the applicant, the trial judge summarised the evidence on count 6. The trial judge also referred to the contact between PS and others about the alleged offences, including Mr Lawless, who was not called as a prosecution witness.

71. As count 1 was a composite count, the trial judge first addressed the evidence (adduced by the Crown and the applicant) in respect of each of counts 2, 3, 4 and 5.

Assessment of credibility of prosecution witnesses in the consideration of various counts

Count 6: PS’s evidence

72. The trial judge then addressed the evidence of PS and assessed his credibility. Her Honour said:

“Count 6 involved [PS]. He was a most impressive witness. I am not persuaded that his evidence was in any way contaminated as a result of discussions with others or that that in some way has impacted upon his demeanour in the witness box.

[The applicant relied on this paragraph in support of grounds 2 and 9]

His first complaint was made well before those of others. His first disclosure was in 2000. His first statement was made as long ago as 2014. His evidence has not changed. He appeared to be very, very genuine when giving evidence. He was thoughtful and considered in his account. He was genuinely surprised that the accused had sought him out for tuition. When he was being cross-examined, he appeared dumbstruck when it was suggested to him that he was fabricating his evidence. He responded meticulously under extensive cross-examination, fairly and with quiet dignity. He made concessions where appropriate. He did not take opportunities to implicate the accused in any other way than to give evidence of what he says this accused did to him.

There was hearsay evidence of him saying on an earlier occasion that he had been sexually assaulted by the accused on numerous occasions; that was not his evidence in court. His account of what took place comprised of detail consistent with his recollection of an experienced event.

[The applicant relied on each of the paragraphs extracted above in support of ground 4.]

His evidence of the accused’s behaviour on the earlier occasions measuring his body parts and penis is corroborated by the evidence of [JT] who gives evidence of the accused inviting him into his room at Abbott House, discussing with him a family study he was undertaking, asking him to undress and then proceeding to touch his genitals with a pencil or a pen. Admittedly, PS and [JT] have spoken but they say not in detail**.** Had their evidence been concocted or contaminated in some way, I would have expected it to be identical; it was not**.** Each gives an account of an experience at the hands of the accused which cannot be explained by coincidence.”

[The applicant relied on the italicised portion in support of ground 3(a), the portion in bold in support of ground 9 and the whole final paragraph in support of ground 4.]

73. The trial judge also said, of PS’s evidence:

“[PS] came from … a rural town in Queensland …. I infer that he would have been naïve in the extreme, growing up in a remote rural community, a vulnerable target for the accused and accepting of what a teacher told him to do as he said. I find that the evidence of [TR] strongly supports the evidence of [PS]. I find the evidence stands up to a level of scrutiny required taking into account the difficulties faced by the accused due to delay, death of witnesses, loss of documents and deterioration of memory over time. I am not persuaded that the contamination is such that it impacted upon the credibility of [PS] and I find the accused guilty of count 6 on the indictment.”

[The applicant relied on the portion in bold in support of ground 3(a); the underlined portion in support of ground 7; and the italicised portion in support of ground 9.]

The credibility of TR in the context of counts 2-5 generally

74. The trial judge then assessed the credibility of TR. Her Honour said:

“Counts 2 to 5 concern [TR]. I find despite his distress and apparent anger, that he was genuine in the evidence he gave**.** He was frank and unguarded in his responses**.** I find the evidence that he was tutored and sought out by the accused to be honest and accurate. He was not the only one who was targeted by the accused, so too was [PS].”

[The applicant relied on the portion in bold in support of ground 2.]

The credibility of Mr Austin

75. The trial judge made findings about Mr Austin’s credibility as follows:

“Mr Austin gave evidence that he was aware of [TR] being tutored by the accused*.* He was present when he was taken out of class*.* He was present when the complainant could not attend a group activity because he was required to see the accused*. He gave evidence of recalling the complainant as looking haunted and tired and even distressed. His evidence corroborates* [t]he evidence of this complainant. Mr Austin was disarmingly honest. He was not aware of the location of the accused’s room, he says he had no reason to go there. Had there been concoction or contamination of his evidence I would have expected him to say he knew exactly where the accused’s room was in Abbott House; clearly he did not.”

[The applicant relied on the italicised portion in support of ground 3(a) and the bold portion in support of ground 9.]

The credibility of TR in the context of count 2

76. The trial judge returned to an assessment of the credibility of TR, when addressing count 2, in the following passage:

“In respect of count 2, the incident which [TR] says took place in the weatherboard cottage, this was the first incident in time. His evidence of his reaction to what occurred had the ring of truth to it**.** Shock, on his part and a desire on his part afterwards to avoid the accused at all cost. The only inconsistency between his evidence in court and his police statement regarding this incident was the position of the accused and the complainant at the time, an inconsistency which can be explained by the trauma he has experienced over time and his endeavours to put this abuse behind him, not an inconsistency that significantly affects the reliability of his account. He acknowledges that his initial markings on a plan of the school as to where the accused was residing were incorrect. It was the visitation to the school before the trial commenced that clarified the building and it is to be remembered that he has lived overseas for many years. I am not persuaded that he was in some way reconstructing what he says occurred or indeed, fabricating his evidence.”

[The applicant relied on the portion in bold in support of ground 2.]

77. Immediately after this passage, the trial judge said:

“The accused denies ever having been in that weatherboard cottage. He was represented by an extremely experienced senior counsel. It was put to this complainant that the space where this offence took place was in a space where there were no doors, clearly something I find would have been put on instruction. The evidence of the accused was that at Wakefield House, Mr Mattingley’s cottage had doors. The suggestion was not that it was Wakefield House which was doorless, it was a question about the weatherboard cottage. Clearly for that question to have been put, the accused must have been inside that cottage, contrary to his evidence. That casts doubt upon the evidence of the accused in that regard.”

[The applicant relied on the passage in bold in support of ground 8 and the italicised portions in support of ground 5.]

78. The trial judge concluded, with respect to count 2:

“Despite the delay, loss of potential witnesses and documentation, I find that the complainant has given clear, consistent and cogent evidence of the accused touching him on the penis and fondling on the genitals in the manner described. I find in respect of this particular count that the Crown has proved each of the essential elements of the offence to my satisfaction beyond reasonable doubt.”

[The applicant relied on the portion in bold in support of ground 7.]

The credibility of TR in the context of count 3

79. The trial judge addressed TR’s evidence with respect to count 3 and said, as follows:

“The next incident is the occasion when the complainant says the accused came to Dangar House in the early hours of the morning and to use the words of his senior counsel, ‘Kidnapped him,’ from his bed and took him to the weatherboard cottage. Clearly the complainant sought to embellish his evidence about the moonlight on this particular night however, it does not diminish his consistency as to what he says occurred when he was taken from Dangar House that night and into the weatherboard cottage and anally penetrated by the accused. His description of the state of his pyjamas and legs after the event is entirely consistent with what he said took place**.** He described with clarity his terror and his embarrassment and his shame**.** It is the sort of description I would have expected from a complainant who found himself anally penetrated by a male in the circumstances**.** The level of detail has the ring of truth to it.”

[The applicant relied on the portion in bold in support of ground 2.]

80. The trial judge said:

“I find that this accused had access to the dormitories including after lights out and I find he was not concerned about being detected for reasons I will come to. Clearly the complainant complied with his demands to remain silent and accompany him across the open field to the cottage to which he had access, even if he did live off campus at the time. It is something the complainant wrote about in an email in March 2019 before he had been back in Armidale for the reunion later that year. The words used in that email were, ‘As a twelve year old boy gagged, forcibly removed from the dorm at 3am and raped by Mr Gardiner.’ It supports his credibility.

I have taken into account the detail and the forensic disadvantage to the accused to which I have referred and I have scrutinised the evidence of this complainant with care. I find myself satisfied beyond reasonable doubt that the accused anally penetrated the complainant in the weatherboard cottage as alleged by the complainant.”

[The applicant relied, in support of ground 8, on the absence of findings about the applicant’s credibility (which appear later in the reasons) when the trial judge was addressing count 3 and relied on the portion in bold in support of ground 7.]

Count 4

81. When addressing count 4, the trial judge said:

“The next incident, count 4 is the incident said to have occurred after the complainant had written a formula on a notice board which resulted in the accused giving him a public thrashing with a steel edged wooden ruler, lifting him up off the ground and thrashing him in front of the class. There is specific detail about the classroom; a hatch which the boys used to their advantage against teachers, detail which has the ring of truth to it, something that has also stood the test of time in terms of his memory. A lead-up to the incident which founds count 4, an offence which was violent and sexual in nature, entirely consistent with what others have said about the accused and the administering of corporal punishment, something which the accused denies.”

[The applies relied on the portion in bold when addressing ground 2.]

82. When addressing count 5, the trial judge described the applicant’s demeanour in part as follows:

“For reasons I will come to, I found the accused’s evidence to have the hallmarks of a person playing a role, having had the opportunity to observe him both in the dock and in the witness box as I have done over many days; someone not giving genuine evidence*.* I found his evidence to be unconvincing but it is of course not for him to prove his innocence but for the Crown to prove his guilt to my satisfaction beyond reasonable doubt.”

[The applicant relied on the italicised portion in support of ground 2 and the portion in bold in support of ground 8.]

Count 5

83. The trial judge, when considering count 5, said of TR:

“Count 5 is the last offence concerning TR. Once again, he appeared entirely genuine when he gave evidence about this incident**.** He was distressed at times but I find he did his best to give evidence of the essential matters**.** He made appropriate concessions, he acknowledged that at times he was unable to recall detail.”

[The applicant relied on the portion in bold in support of ground 2.]

84. The trial judge, when still addressing count 5, referred to the similarity between counts 5 (concerning TR) and 6 (concerning PS), as follows:

“There is some similarity in respect of this incident with the evidence given by [PS] regarding the assault of him by the accused and that is, the use of a condom. Both boys were innocent, naïve young boys yet they give detail of the use of a condom. The explanation is unlikely to be coincidence and nor am I persuaded that there has been contamination of their evidence in this regard. Both say they did not go into detail. It is not the sort of piece of evidence I would have expected either of them to have discussed and to give evidence about if they were seeking to bolster one another’s evidence.

These complainants did not know one another at the time and I find had not spoken in detail with one another about what they say occurred except in more general terms. The explanation I find is that the accused used a condom on each occasion that the boys said he did when he anally penetrated them as they say.”

[The applicant relied on the whole of this passage in support of ground 4. The bold portion is relied on in support of ground 9.]

85. The trial judge, immediately after the passage set out above, said:

“I find myself satisfied beyond reasonable doubt that the accused anally penetrated the complainant with his penis**.** Giving the suddenness of the assault upon him both physically and sexually that it is an incident emblazoned in his memory and is not an incident that has been fabricated or reconstructed**.** I find that the complainant’s evidence stands up to the level of scrutiny required, even taking into account and having regard to the delay and the forensic disadvantage to the accused and even the possibility of distortion of memory over time**.** I find myself satisfied beyond reasonable doubt that the essential elements of the fifth count have been made out*.* That being so, I now return to count 1.”

[The applicant relied on the portion in bold in support of ground 7 and the italicised portion in support of ground 4.]

Count 1

86. The trial judge said, in respect of count 1:

“I find that the passage of time has not diminished [TR’s] memory of the violence and sexual assaults perpetrated upon him by the accused. I find at times the accused was gentle and kind towards him whereas other times, he was violent and angry. I find that the accused befriended the complainant, took him on outings and towards the end of the complainant’s time at the school, purchased him an LP record player consistent with there being a relationship between them. I find the accused did have a motor vehicle which he allowed the complainant to drive and I will shortly return to why I make that finding.”

[The applicant relied on this paragraph in support of ground 4 and the portion in bold in support of ground 6.]

Tendency evidence

87. The trial judge referred to the tendency evidence as follows:

“The Crown relied upon tendency evidence of the charged acts in relation to tendency. The uncharged acts are relied upon as evidence of relationship. The tendency sought to be established is that the accused had a sexual interest in male children between twelve and seventeen, that he used his position as a teacher to access male students, that he groomed students with physical touching and that he acted upon his sexual interest by looking at [and] touching the male students’ penises, that he acted on his sexual interest by engaging in penile anal intercourse and he continued to act on his sexual interests until he lost access to each student.

Evidence of conduct on occasions not the subject of the counts has not been used as tendency evidence as it was not admitted for that purpose. Tendency reasoning has been confined to evidence of conduct involving sexual contact between the named complainants. Tendency evidence was submitted only as far as it directly affects the facts in issue which concern sexual or indecent acts.

I find that the evidence of each complainant supports that the accused had the alleged tendency and this in turn supports my findings that he committed the alleged acts committed against each of the complainants. I find the tendency evidence removes any reasonable doubt as to whether he did the alleged acts that might have subsisted when the complainant’s evidence was regarded in isolation**.** The essential issue on every count was whether he did the act alleged**.** Tendency evidence confirms beyond reasonable doubt that the accused did commit the acts constituted in count 1 and count 6.”

[The applicant relied on the portions in bold in support of ground 3(b).]

88. The trial judge referred to the evidence of KZ and said, as follows:

“The Crown did rely upon the evidence of [KZ], a student at Immanuel College who says the accused was a teacher at the school in 1961 and 1962, in support of the tendency argument. He says he became aware of the accused at the school as a maths and science teacher but not one of his. He says the accused was a boarding house master and had his dormitory on the lower level of the boarding house. He used to look after the boys after they went to bed.

…

[The trial judge outlined KZ’s evidence of the applicant coming to stay on his family farm and sexually assaulting him.]

I was urged on behalf of the accused to find that the evidence has no probative value, I reject that submission. True it is that there are inconsistencies as to dates but his evidence about the behaviour of the accused bears a similarity to that of [TR] and [PS]. It is the evidence of the accused acting brazenly in the house of [KZ’s] parents consistent with his behaviour at [the school], brazenly going into the dormitory at night and kidnapping [TR] and taking [TR] and [PS] and others into his private residence and indecently and sexually assaulting them with a high risk of being detected, going to some lengths to attend the [Z] family farm located some distance from Adelaide, offending of a boy in a school environment. His evidence bears a similarity to that of [TR] and the fondling of [TR’s] genitals. His evidence is similar to that of [AR] about palm reading. The accused denies palm reading and can recall two different teachers from two different schools undertaking palm reading.

[KZ’s] evidence is similar to that of [TR] as to the ownership of a motor vehicle by the accused and being allowed the drive the accused’s motor vehicle. The explanation for all these similarities is unlikely to be coincidence or indeed, contamination.”

[The applicant relied on the passages in bold in support of ground 4 and the whole passage in support of ground 3(b).]

The applicant’s credibility

89. The trial judge returned to the subject of the applicant’s credibility in the following passage:

“The accused gave evidence, as I have already directed myself, he was not obliged to do so but he chose to subject himself to cross-examination. Whilst he was eighty-three years of age, it is fair to say he purported to have a remarkable memory. It is difficult to articulate my impression of this evidence accept to say that I found much of it to be unconvincing. To an extent, I am referring to his demeanour in both the dock and the witness box.

Mr Boulten SC quite properly reminded me of the caution I need to exercise in placing reliance, not only on the complainants’ but also on the accused’s demeanour but I do not think I should put aside my impressions of the accused altogether. As I may have already stated, he struck me as someone playing a role, telling a story that neatly fitted with the objective evidence but no more than that.”

[The applicant relied on the portion in bold in support of ground 2 and the whole paragraph in support of ground 7.]

90. The trial judge addressed whether the applicant had visited KZ at the family farm and TR at Ipswich Grammar School and said:

“I find it highly likely that he did visit [KZ] at the time he left South Australia and he certainly had the wherewithal to do so. I find it highly likely that he visited [TR] in Ipswich after [TR] left [the school].”

[The applicant relied on the trial judge’s consideration of this matter in support of ground 6.]

Consideration

A trial judge’s obligation to give reasons in a criminal trial by judge alone

91. As is apparent from the grounds of appeal, there is no ground that the reasons are inadequate. Rather, it is contended that the reasons reveal several errors.

92. In a trial by judge alone, the trial judge is obliged to give reasons: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]-[98] and [101]. The requirement is imposed by statute and by the common law. The accused’s right to reasons carries with it a right to appeal on the basis of error in the reasons, which will usually constitute a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming) at [27].

93. Section 133 of the Criminal Procedure Act 1986 (NSW) provides:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

94. The common law obligation on judges to give reasons is broader than the requirements of s 133(2) of the Criminal Procedure Act. In Fleming, the High Court said of s 33 of the Criminal Procedure Act (the statutory predecessor to s 133) at [28]:

“… whilst s 33(2), when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.”

95. The standard required of trial judges conducting criminal trials by judge alone was addressed in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, where Nettle J said at [132]:

“[A judge in a criminal trial without a jury is] bound to produce reasons for judgment of at least the quality expected of his or her civil brethren. It is, however, even more important in criminal proceedings than in civil that a trial judge's reasons meet the standard required. It follows that a judge's failure to deliver adequate reasons is an error of law productive of a miscarriage of justice which, subject to application of the proviso, will necessitate that a conviction be set aside.”

[Footnotes omitted.]

96. The trial judge’s obligation to give reasons constitutes a fundamental difference between a trial by judge alone and a trial by jury. Not only are juries not required to give reasons, but it is also a criminal offence for a juror to disclose information about jury deliberations or how a juror came to a particular opinion (s 68B of the Jury Act 1977 (NSW)) or to solicit information from a juror about such matters (s 68A of the Jury Act). A jury is not generally asked to articulate the basis of its verdict: R v Isaacs (1997) 41 NSWLR 374 at 379-380 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); cf. Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [28]-[45] (Kiefel CJ, Keane and Nettle JJ).

97. The distinction between the two modes of trial also has consequences for sentencing. Following a conviction after a trial by jury, a sentencing judge is required to find the facts on the evidence, consistently with the jury’s verdict: Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29. A sentencing judge ought not speculate on what findings the jury would or could have made on the basis of the evidence: Fuller v R [2022] NSWCCA 203 at [9]-[13] (myself) and [105]-[106] (N Adams J). By contrast, in a trial by judge alone, the trial judge’s findings in the reasons for verdict form the basis for the reasons for sentence (together with any further evidence adduced on sentence).

98. The obligations on the judge to give reasons, in accordance with s 133 of the Criminal Procedure Act and the requirements of the common law, are often too onerous to be discharged by what may, effectively, be a single draft. Unlike sentencing judgments, which are often given ex tempore, reasons in trials by judge alone require the preparation of well-ordered, comprehensive reasons. This task can rarely be satisfactorily accomplished in an ex tempore fashion, which is apt to result in error. Where reasons are deficient or show error, the convictions may be overturned and a re-trial ordered, with the attendant cost, in terms of money, stress, emotion and time.

99. Mr Game submitted that there was no principle of “due deference” to the reasons and that they ought be read as meaning what they said and not given a beneficial construction with any assumption that the trial judge was correctly applying the law. While I accept that there is no such principle, it is important to read reasons fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47] (Johnson J, Price and Lonergan JJ agreeing). They “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

Ground 1: alleged failure to grant a permanent stay

101. In support of ground 1, Mr Game submitted that there was presumptive prejudice arising from extreme delay, given the time between the alleged offending and, first, PS’s complaint to police (57 years); second, TR’s complaint to police (51 years); and, third, the trial (between 53 and 57 years). The applicant, who was born in 1937 was, at the time of trial, 83 years old.

102. Mr Game relied on the substance of the applicant’s case (as outlined in Ms Caligiore’s affidavit of 15 February 2021): that he had never tutored TR or PS, that neither had ever visited his residential premises and that he had never sexually or indecently assaulted either of them. The applicant made similar denials regarding the tendency witnesses, JT, KZ and AR. He also denied ever having asked Mr Taylor to find TR or bring him to his room and denied that TR and Mr Taylor were in Year 8 in 1965.

103. Mr Game, in written submissions, substantially reiterated the submissions made by Mr Boulten on behalf of the applicant before the trial judge on the application for a permanent stay and summarised the evidence adduced by the applicant in support (which has been referred to above in the table and narrative). He contended that a permanent stay ought to have been granted on a similar basis to the stays granted in Green and Pound v The Queen [2019] VSCA 279; (2019) 280 A Crim R 109 (Pound) at [16]-[19].

104. He submitted that the trial judge erred “by failing to recognise that the combined weight of the prejudice occasioned to the appellant by the extreme delay went [to] the very heart of his right to a fair trial.” Mr Game also submitted that her Honour had posed the incorrect test when she concluded (as set out in the extract from the reasons above) that the prejudice to the applicant was not outweighed by the public interest in having the charges tried.

Consideration of ground 1

105. The correct approach where an applicant challenges a conviction on the ground that the proceeding ought to have been permanently stayed was articulated by Beech-Jones CJ at CL in Macri v R [2022] NSWCCA 177 at [4]-[5]. In order to make out ground 1, the applicant must show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error: see Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago) at 31 (Mason CJ); [1989] HCA 46.

106. In DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63, Allsop P summarised the errors which would fall into this category, at [78], as follows:

“There must be error shown in exercising the discretion: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power.”

107. The community has a substantial public interest in bringing those charged with serious criminal offences to trial. Thus, fairness to the accused, while an important consideration, is not the only relevant factor: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (Dupas) at [37].

108. The High Court in Dupas went on to state that the following passage in the reasons of Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon) (which concerned pre-trial publicity) at 605-606 can be regarded as authoritative:

“[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre‑trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.”

109. Similar considerations determine the question of whether a permanent stay should be granted in the case of inordinate delay as those considered in Glennon in the context of pre-trial publicity. For a permanent stay to be appropriate on the ground of delay, the delay must render the trial necessarily unfair so that any conviction would bring the administration of justice into disrepute: Jago at 34.

110. The means to ameliorate the effects of delay include directions and warnings to the jury (or to the judge in a judge-alone trial). For example, s 165B of the Evidence Act provides that a judge in criminal proceedings where there is a jury must, in certain circumstances, if satisfied that the defendant has suffered a “significant forensic disadvantage” as a consequence of delay, inform the jury of the nature of the disadvantage and the need to take it into account when considering the evidence. Section 165B was inserted into the Evidence Act in 2001 and later amended in 2007 to refine the directions authorised by the High Court in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 to ameliorate the prejudice occasioned by delay: see, generally, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551–553 (McHugh J); [1996] HCA 25.

111. The factors which may constitute “significant forensic disadvantage” include the unavailability of a potential witness or piece of evidence: s 165B(7).

112. It was common ground that, in accordance with the passage extracted from Glennon above, this Court, when considering whether the convictions ought be set aside on appeal on ground 1, was required to address how the trial was actually conducted, including the warnings the trial judge gave to herself.

113. In support of ground 1, Mr Game submitted that the trial judge had made two distinct errors: first, that it was not open to the trial judge to regard the prejudice as not compromising the fairness of the applicant’s trial in a material way; and, second, that the trial judge erred because she applied an incorrect test, namely, whether the prejudice to the applicant was outweighed by the public interest in bringing him to trial.

114. As to the first alleged error, for the reasons the trial judge gave, I am not persuaded that it was not open to her Honour to refuse a permanent stay. The applicant, though elderly, was still of sound mind. The assaults were not witnessed, which lessened the importance of the unavailability of witnesses. The objective documentary evidence established that the applicant was teaching and residing at the school when the complainants and the tendency witnesses were students. It could not be assumed that documents which have been lost or destroyed or witnesses who have died or could not be located would have favoured the applicant’s case.

Ground 2: alleged misuse of demeanour finding in assessing applicant’s credibility and Ground 5: alleged error in finding that trial counsel's questions to TR about whether a space where an offence allegedly occurred had no doors cast doubt upon the evidence of the appellant

124. These two grounds will be considered in sequence because Mr Game contended that they were related as they each involved an assessment of the applicant’s credibility.

Ground 2: alleged misuse of demeanour finding in assessing the applicant’s credibility

125. In closing address, Mr Boulten said:

“While I’m on this topic [credibility of witnesses], there’s only a limited amount of assistance that your Honour can get from assessing demeanour in a case like this. Demeanour can be very important in assessing what someone’s like in the moment. Or in the day after something occurred, but when it comes to assess the actual reasons and the relevance for someone being upset in the witness box, nearly 60 years after an event, it’s very difficult to work out exactly why it is that they are like the way they are. My client’s been crying too, you know. He’s been very upset too. And it may well be that the witnesses in this case undoubtedly believe what they are saying. It may well be. But that doesn’t mean it’s true.

What’s more, your Honour, when it comes to determining whether particular allegations are proved, whether a particular incident occurred in a way it was said to have occurred, as opposed to whether or not there was some other more generalised but different form of impropriety, demeanour is no help in assessing the reliability of the evidence.”

126. The trial judge’s reasons regarding the applicant’s credibility are extracted above. The portions particularly relied upon in support of ground 2 are as follows:

“I found the appellant’s evidence to have the hallmarks of a person playing a role, having had the opportunity to observe him both in the dock and in the witness box as I have done over many days; someone not giving genuine evidence. I found his evidence to be unconvincing ...

The appellant gave evidence, as I have already directed myself, he was not obliged to do so but he chose to subject himself to cross-examination. Whilst he was eighty-three years of age, it is fair to say he purported to have a remarkable memory. It is difficult to articulate my impression of this evidence [except] to say that I found much of it to be unconvincing. To an extent, I am referring to his demeanour in both the dock and the witness box.

Mr Boulten SC quite properly reminded me of the caution I need to exercise in placing reliance, not only on the complainants’ but also on the appellant's demeanour but I do not think I should put aside my impressions of the appellant altogether. As I may have already stated, he struck me as someone playing a role, telling a story that neatly fitted with the objective evidence but no more than that.”

[Emphasis added to indicate the emphasis Mr Game placed on the reliance on the applicant’s conduct and demeanour in the dock.]

127. Mr Game contrasted the trial judge’s credibility findings with respect to TR with those with respect to the applicant. He contended that it was plain from her Honour’s reasons that she took into account the applicant’s demeanour not only in the witness box but also in the dock. Mr Game also relied on the circumstance that although the applicant’s evidence was completed within a single day (20 May 2021), the pre-trial argument and the trial continued over a total of 11 days: 31 March 2021 (application for a permanent stay); 10-11 May 2021 (application for trial by judge alone and evidentiary rulings); 12-14 May, 17-20 May and 24-25 May 2021 (the trial proper). Thus, the trial judge had ample opportunity to observe the applicant in the dock, but limited opportunity to observe him in the witness box. The importance of this opportunity is evident from her Honour’s statement that she had the opportunity to observe the accused in the dock and the witness box “as I have done over many days”.

128. Mr Game contended that the reasons were insufficient to indicate to the applicant what part of his demeanour was being referred to since the trial judge failed to identify any particular gestures or other matters which formed the basis for her impression that he was playing a role. He submitted that, had her Honour confined her assessment to the applicant’s evidence, the assessment might not be able to be impugned. However, since it did not appear to be so confined, he submitted that the applicant had been denied procedural fairness by his attention not having been drawn to the aspect of his demeanour in the dock which was germane to her Honour’s assessment.

129. In addition, Mr Game submitted that it was erroneous for the trial judge to place so much weight on demeanour when the offences were alleged to have occurred over 50 years previously.

130. The Crown submitted that it could reasonably be inferred that the trial judge, when making credit findings with respect to the applicant based on his demeanour, was referring to the matter raised by Mr Boulten in address about the applicant crying “too”. The Crown contended that there was no denial of procedural fairness for the trial judge to take into account a matter squarely raised by the applicant’s trial counsel in his closing address.

131. Further, the Crown submitted that, although the trial judge had referred to having had the opportunity to observe the applicant in the dock and in the witness box, a fair reading of her reasons indicated that it was the applicant’s evidence (necessarily, in the witness box) which was the basis for the demeanour-based credit findings in respect of him.

Whether the trial judge was entitled to take into account the applicant’s demeanour

132. In Hodgson v R [2022] NSWCCA 72, this Court (Leeming JA, Rothman and Hamill JJ agreeing) summarised the relevant principles about taking into account demeanour (in the witness box).

“94 The primary judge was entitled to take into account the demeanour of S and J and Mr Hodgson.

95 However, it is clear from her Honour’s reasons that she placed considerable weight on the demeanour of all three men, but without relying on an analysis of how their evidence squared with the undisputed and inherently probable considerations mentioned above. That approach goes against the tide of a deal of authority. Kirby A-CJ said in Galea v Galea (1990) 19 NSWLR 263 at 266 that:

“In many cases today, conscious of the mistakes that can be made about credibility based upon the impression of witnesses in the artificial circumstances of a courtroom, judges at first instance disclaim the resolution of factual disputes by reference to witness demeanour.”

…

98 It was open to the primary judge to put those familiar reservations about judges’ ability to discern truth from falsehood and distinguish reliable from unreliable evidence to one side and rely upon demeanour. …”

133. Thus, her Honour was entitled to take into account the way in which the various witnesses, including the applicant, gave their evidence.

Whether the applicant was denied procedural fairness as a consequence of the trial judge taking into account his demeanour in the dock without notice to him

134. A trial judge’s obligation to raise with a party a matter, adverse to that party, arising from the demeanour or conduct of that party or of a witness called by that party, is part of the duty to accord procedural fairness. As with other matters of fairness, it is not necessary to raise a matter which is clearly in issue. Thus, a trial judge is not obliged to alert a witness to the possibility that the witness’s evidence will not be accepted, when there is other evidence in the trial contrary to that witness’s evidence. However, when the trial judge proposes to take into account a matter for which there may be an answer and which the party affected is unlikely to appreciate will be taken into account adversely, it is incumbent on the judge to raise it with that party, so that the party has an opportunity to be heard.

135. In Higgins v R [2020] NSWCCA 149, the Crown, in closing submissions in a judge-alone trial, submitted that the applicant had sworn when he stumbled as he left the witness box and that this reflected adversely on his credit as he had given evidence that he did not use bad language. The trial judge confirmed that she had heard the applicant say, “Shit”. This was disputed by the applicant whose instructions to his legal representatives was that he had said, “Shish.” The applicant unsuccessfully applied for the trial judge to recuse herself. Ultimately, the trial judge in the conviction judgment confirmed that she would disregard this matter as it would not be fair to the applicant to take it into account.

136. The applicant raised it in this Court as a ground in his appeal against conviction. The ground was not made out because the trial judge had expressly disregarded it. However, this Court said (Payne JA, Rothman J agreeing), of present relevance:

“51 I regard as highly undesirable the 18 day delay in the Crown raising this issue and seeking a credit finding based on something outside the written record of the trial. It is even more troubling that the trial judge, who apparently made a conscious decision not to raise what she thought she heard at the time, was at least initially prepared to entertain a credit finding adverse to the applicant based on something that was never put to the applicant and which he had no opportunity to address at the time.

52 If anything was to be made of the applicant’s alleged exclamation it was incumbent on the Crown to seek a timely transcript correction and, if not agreed, to seek a ruling. Regrettably, that did not occur. If the Crown thought this matter was potentially important it should have raised the matter immediately or, at the latest, sought a transcript correction as soon as the transcript became available. Fairness to the applicant should have ensured that he was given an opportunity to address the accusation at the time. It would have been quite unfair in this case for the trial judge to take the alleged exclamation by the applicant into account.”

137. The general principle is that the tribunal of fact (in this case, the trial judge) is to decide the case solely on the basis of the evidence. Nevertheless, it has been accepted that it would be unreal to expect a tribunal of fact to exclude from consideration the demeanour of witnesses in the well of the court. If a matter is to be taken into account which is not evidence (such as demeanour in the dock or the well of the court), then procedural fairness requires the trial judge to draw it to the attention of the parties in a timely manner so that the party affected can have an opportunity to address that matter. This is particularly so as the attention of counsel is usually, and necessarily, on the witness box and the bench and not on the behaviour of the accused person in the dock. By contrast, the trial judge can see the whole court and is in a good position to see the accused in the dock and make observations as to the person’s demeanour.

138. A trial judge’s observation as to the matter observed (if there is a possibility of its being significant) ought be disclosed to the parties as soon as the relevant observation has been made so that the party affected can obtain instructions and respond to the suggestion.

139. In Minagall v Ayres [1966] SASR 151 a Special Magistrate dismissed a drunk driving charge. He said, in his reasons for judgment:

“... I had the opportunity of having the defendant under constant observation for nigh on three days during this case, and as a result I have come to the conclusion that his actions, mannerisms, and idiosyncrasies could have honestly been mistaken by the witnesses for the prosecution.”

140. The magistrate had made no reference to these observations in the course of the hearing, thereby depriving the parties (and in particular the prosecution) from investigating this matter. On appeal, Hogarth J ordered a re-trial on the basis that the magistrate had taken into account the defendant’s conduct while he was sitting in the body of the court “out of range of vision of both his own and opposing counsel” (at 154). An appeal to the Full Court of the South Australian Supreme Court was dismissed. However, in a joint judgment, Napier CJ and Travers J said, at 156:

“... while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as ‘fair play and common sense’. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.”

141. In Jobst v Inglis (1986) 41 SASR 399, a claim for damages for whip-lash injury, the trial judge informed the parties after the close of evidence that his observations of the plaintiff in court did not correspond with his observations of the plaintiff on film and invited them to address him. The Full Court of the South Australian Supreme Court set aside the judgment, finding that the trial judge ought to have raised the matter earlier to permit the plaintiff’s counsel to recall the plaintiff to answer the alleged inconsistency.

142. These decisions were addressed by Kirby P in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (GIO v Bailey) at 312-315 and approved at 317. His Honour considered the consequences of the use of matter that has not been disclosed to the parties and concluded that Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (Stead) required that a new trial be ordered if the matter would “possibly have made a difference” (Stead at 145).

143. In Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11, the High Court (Heydon, Crennan and Bell JJ) considered G**IO v Bailey in the context of a claim relating to a work-related injury, where it was alleged that a party had deliberately withheld the truth of how the accident had occurred. Their Honours said:

“67 It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

…

69 The lack of warning. The second condition is more controversial. … Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem [citing GIO v Bailey]. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness's evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility.”

[Citations omitted.]

144. In the present case, the trial judge’s reasons do not disclose what it was about the applicant’s conduct in the dock (or the witness box) which led her Honour to consider that he was “playing a role”. I am not persuaded by the Crown’s submission that it ought be inferred that the trial judge was referring to the applicant’s crying (which, according to Mr Game’s instructions, occurred once during the trial and is not recorded in the transcript), which was raised by Mr Boulten in address. Although this is a possible construction, the trial judge’s reasons are insufficiently specific to persuade me that this was what, or all, she was referring to. Nor am I persuaded that the trial judge’s reasons ought be read as being confined to a consideration of the applicant’s evidence. Fairly read, I consider that the reasons indicate that the applicant’s behaviour in the dock (over a period of 11 days) affected her Honour’s assessment of his evidence which, as referred to above, was completed within a single day.

145. In these circumstances, there has been a denial of procedural fairness to the applicant. His credibility has been found wanting, in part because of an unspecified matter of which he was not given fair notice. I am persuaded that ground 2 has been made out and that the applicant is, accordingly, entitled to have his conviction quashed, unless the proviso applies (addressed below).

Ground 5: alleged error in finding that trial counsel's questions to TR about whether a space where an offence allegedly occurred had no doors cast doubt upon the evidence of the appellant.

146. Ground 5 arises from TR’s evidence about where the conduct that comprised counts 2 and 3 occurred. TR gave evidence that the incidents giving rise to Count 2 (the act of indecency which began while TR was asleep) and Count 3 (the late-night anal rape) took place in 1964 in “a small cottage or weatherboard structure behind white house” where three or four masters lived. TR said that the applicant gave him maths tuition in his room at that location. In cross-examination, TR was asked about the room in which he said the first two incidents had occurred, to which he responded that there was a desk, a bed and a chair there. It was suggested to TR that he had never been “in that particular part of that house at all”. TR insisted that he had. The cross-examination, which took place on Thursday 13 May 2021, continued:

“Q. There's no door on the space where Mr Gardiner was living, was there?

A. Did I ‑ I don't recall saying anything about a door.

Q. No, but I'm asking you. I'm suggesting to you. I'm suggesting that there was no door. What do you say about that? Are you able to comment?

A. No.”

[Emphasis added.]

147. The applicant’s evidence was that, when he came to the school in 1964, he initially lived in Mr Mattingley’s house, which was in a red brick house behind the White House. The applicant identified the residence from photographs which were shown to him: the top photograph in Exhibit 22 and the bottom photograph in Exhibit 6. He also identified the headmaster’s residence as the bottom photograph in Exhibit 22. The applicant subsequently lived in a room on a higher floor of that building. He denied that he had ever been in the weatherboard house (which was where TR said that the conduct which comprised counts 2 and 3 had occurred).

148. On Thursday 20 May 2021, the applicant gave evidence in chief that on the previous Sunday (16 May 2021) he had visited the school for the first time since mid-December 1967.

149. The applicant said in his evidence in chief that there was “wasn’t a lot of room” in Mr Mattingley’s house. When asked to describe his room in that house, the applicant said:

“[The applicant’s room] was right adjacent to [Mattingley’s] quarters. There could’ve been a door inside, actually, leading from that room into - direct into his residence, but I’m not sure about that, but there could’ve been.”

150. The following exchange also took place in the applicant’s evidence in chief:

“Q: Was there a door that could be closed onto that particular room?

A: From the passageway there would've been, but there was - as I say, I seem to recall there was a door on the wall of that room that went direct into his part of the residence.”

151. In cross-examination, the applicant denied the proposition put by the prosecutor that he had lived in the small weatherboard cottage. The applicant was shown the photograph which TR indicated was where the applicant lived and where the conduct which comprised counts 2 and 3 occurred (Exhibit B). The applicant denied that he had ever lived in, or been into, that house.

152. The applicant was not cross-examined about what Mr Boulten had put to TR about there being no doors in the house where the applicant lived (presumably because TR had no recollection about doors in the weatherboard house). No submissions were made by the Crown about the issue of doors, or no doors. Nor did the Crown seek to make anything of the proposition put by Mr Boulten to TR that the place where the applicant was living had no doors.

153. The trial judge’s reasons (which are also set out above) are, relevantly:

“The accused denies ever having been in that weatherboard cottage. He was represented by an extremely experienced senior counsel. It was put to this complainant that the space where this offence took place was in a space where there were no doors, clearly something I find would have been put on instruction. The evidence of the accused was that at Wakefield House, Mr Mattingley’s cottage had doors. The suggestion was not that it was Wakefield House which was doorless, it was a question about the weatherboard cottage. Clearly for that question to have been put, the accused must have been inside that cottage, contrary to his evidence. That casts doubt upon the evidence of the accused in that regard.”

154. There are several difficulties with the trial judge’s conclusion that the alleged discrepancy between what Mr Boulten put to TR and the applicant’s evidence “cast[s] doubt on the evidence of the [applicant]”. First, the proposition that there were no doors was put in relation to where the applicant was living at the time (1964) and was not specific as to the residence. In particular, it did not relate to the weatherboard cottage since the applicant’s case was that he had not been inside that cottage. Secondly, the applicant’s evidence was that he had not been inside the weatherboard cottage (at least until the inspection in May 2021 which took place after TR’s cross-examination was complete). Thirdly, the applicant’s evidence was that he had returned to the school for an inspection the weekend prior to his giving his evidence. Fourthly, and perhaps most significantly, this point was neither raised by the Crown in address, nor by the trial judge at any time prior to her Honour making the finding set out above.

155. In R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46 (Abdallah), this Court (Sheller JA, Dowd and Kirby JJ agreeing) considered the question of what use a tribunal of fact (in the criminal context, usually a jury) can make of apparent discrepancies between what an accused says and what is put in cross-examination of prosecution witnesses by an accused’s counsel.

156. In Abdallah, there was a difference between the accused’s counsel’s opening statement to the jury and his evidence. Sheller JA (with whom Dowd and Kirby JJ agreed) said (at [24]) that, in that situation and also where the accused’s counsel has failed to cross-examine the complainant on aspects of the defence case:

“… a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in [R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385] and [Manunta v R (1989) 54 SASR 17] is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.”

157. The need for a trial judge to raise a matter such as this will depend on the circumstances. If the Crown has relied on the circumstance to seek to impugn the accused’s credibility, the trial judge will usually be obliged to draw the jury’s attention to other possible explanations for the inconsistency. If the trial judge, after consultation with the parties, considers there to be a real risk that the jury will draw inferences against the accused (such as that his or her story has changed) from any such discrepancy, then the trial judge would generally be obliged, as part of the obligation to ensure that the accused has a fair trial, to adopt a similar approach.

158. In the present case, the “conflict” which the trial judge found was not, on proper analysis, a conflict about the weatherboard house (which the applicant denied visiting). Mr Boulten’s proposition about the lack of doors would appear to relate to Mr Mattingley’s brick residence and not to the weatherboard house. If there was a conflict it would appear to be between Mr Boulten putting to TR that there were no doors and the applicant’s evidence that there may have been a door in the house where he was living in 1964. The applicant’s evidence that he had never been in the weatherboard house was not undermined by his evidence of the inspection since his evidence about the weatherboard house related to the time at which he was a teacher at the school.

159. Of the various possibilities available, one would appear to be that the applicant instructed Mr Boulten that his room in Mr Mattingley’s residence had no door but that after he had visited the residence, he realised that it was possible that it did have one and gave evidence to that effect. Another available inference is that Mr Boulten, or his instructing solicitor, may have misunderstood the instructions they had received from the applicant about whether there was a door. Neither of these possibilities is capable of affecting the applicant’s credibility in any material way, particularly as TR could not say one way or the other whether there was a door to the room in which the conduct the subject of counts 2 and 3 occurred. Had the present case been conducted as a trial by jury, it would not have fallen into the category addressed in Abdallah where the trial judge would have to alert the jury to different explanations, since it was a matter of so little moment: see the discussion in Hofer v R [2019] NSWCCA 244 at [120]-[132] (Fagan J, Fullerton J agreeing). [1] Indeed, Mr Game’s description of this matter as “a completely insignificant evidentiary point” is, in my view, apt.

160. As her Honour must be taken to have been considering finding that the applicant’s credibility was damaged by the alleged discrepancy between his cross-examination of TR and the applicant’s evidence, her Honour, as the tribunal of fact in a judge-alone trial, was obliged to raise this matter with the parties. It may be that the Crown would have said that it did not rely on any such discrepancy and Mr Boulten could have provided an explanation for the cross-examination of TR. By failing to raise the matter with Mr Boulten and then using it to make an adverse credit finding against the applicant, the trial judge denied the applicant procedural fairness. Accordingly ground 5 has been made out.

The proviso

163. It is necessary to address the proviso in s 6(1) of the Criminal Appeal Act which empowers this Court to dismiss an appeal even if a ground is made out “if it considers that no substantial miscarriage of justice has actually occurred”. In this context, it is necessary to consider whether the matter which the trial judge took into account arising from the applicant’s conduct in the dock (ground 2) and the subject matter of ground 5 could possibly have made any difference.

164. Mr Game submitted that the proviso could not apply in relation to the procedural fairness grounds (grounds 2 and 5) because of the centrality of the credit finding against the applicant. The Crown relied on the proviso in respect of all grounds of appeal other than the first (relating to the permanent stay).

165. To establish a miscarriage of justice for the purposes of the third limb of s 6(1) of the Criminal Appeal Act, an applicant is required to establish error, which “had the meaningful potential or tendency to have affected the result of the trial”: Hofer v The Queen at [118] (Gageler J); see also [41] (Kiefel CJ, Keane and Gleeson JJ); Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing) and BQ v R [2023] NSWCA 34 at [241] (Davies and McNaughton JJ and R A Hulme AJ).

166. The High Court in Stead (Mason, Wilson, Brennan, Deane and Dawson JJ) said, at 145:

“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. … It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

167. The assessment of the credibility of the applicant was central to the trial judge’s determination of his guilt. His evidence was required to be taken into account, together with all the other evidence, which included the evidence of the complainants and the tendency witnesses. I regard the trial judge’s error alleged in ground 2 as having deprived the applicant of procedural fairness in a material way. Although the evidence in support of each count was strong, the trial judge unfairly deprived the applicant of the opportunity of responding to her observations of his demeanour in the dock.

168. While the Crown case was apparently very strong, if there was a reasonable possibility that the applicant’s denials were true, he was entitled to be acquitted. Credibility is usually not a divisible concept and, if credibility is impugned in one respect, it is difficult to conclude that it made no difference to the ultimate assessment. Therefore, anything of significance which affected the applicant’s credibility, such as observations of his conduct in the dock (ground 2), or a material misapprehension by the trial judge as to the gravamen of particular cross-examination by the applicant’s counsel (ground 5), neither of which was brought to the parties’ attention, was material to the outcome. In these circumstances, it is not appropriate to apply the proviso. For reasons which are set out later, a re-trial ought be ordered.

Ground 3: alleged errors in finding corroboration and treating of tendency evidence; Ground 4: alleged error in using coincidence reasoning and Ground 9: alleged reversal of the onus of proof

169. Mr Game sought to address counts 3, 4 and 9 together since they raise tendency and coincidence reasoning and contamination of the evidence of the complainants, TR and PS, and the tendency witnesses, JT, KZ and AR.

Ground 3: alleged error in finding corroboration (ground 3(a)) and alleged error in treatment of tendency evidence (ground 3(b))

Ground 3(a): alleged error in finding certain evidence corroborative

170. Mr Game accepted that JT’s evidence was capable of supporting the conclusion that the applicant had the tendency alleged in paragraphs 2(a)-(g) of the tendency notice. He also accepted that Mr Austin’s evidence was capable of supporting the conclusion that TR had private tuition with the applicant in the applicant’s room and that TR’s demeanour when going to the room was negative (haunted, tired and distressed).

171. However, Mr Game submitted that neither JT nor Mr Austin was capable of “corroborating” TR’s evidence of the counts and that the trial judge was in error in so finding. He relied on the following passages:

“[PS’s] evidence of the [applicant’s] behaviour on the earlier occasions measuring his body parts and penis is corroborated by the evidence of [JT] who gives evidence of the [applicant] inviting him into his room at Abbott House, discussing with him a family study he was undertaking, asking him to undress and then proceeding to touch his genitals with a pencil or a pen.”

“Mr Austin gave evidence that he was aware of [TR] being tutored by the accused. He was present when he was taken out of class. He was present when the complainant could not attend a group activity because he was required to see the accused. He gave evidence of recalling the complainant as looking haunted and tired and even distressed. His evidence corroborates the evidence of this complainant.”

[Emphasis added.]

172. The word “corroboration” has both a legal and a common meaning. When used in its legal meaning, it refers to independent evidence which tends to inculpate the accused in the crime charged or a lesser crime. Its common meaning is merely as a synonym for “support”.

173. The meaning of “corroboration”, in its legal sense, was authoritatively stated by the High Court in Doney v The Queen (1990) 171 CLR 207 at 211; [1990] HCA 51. The Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

“The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’ Reg v Kilbourne [[1973] AC 729 at 758] It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’: R v Baskerville [[1916] 2 KB 658 at 667].”

174. The importance of corroboration, used with its legal meaning, has diminished since the abolition of the requirement for corroboration in respect of classes of witnesses (historically, children) or particular evidence: s 164 of the Evidence Act. However, decisions from the period when corroboration was required remain useful to illustrate the type of evidence which will amount to corroboration.

175. In Eade v The King (1924) 34 CLR 154; [1924] HCA 9 (Eade), the then applicable provision, s 418 of the Crimes Act, entitled children to give unsworn evidence: s 418(1). Section 418(2) then provided:

“No person shall be convicted of the offence charged, unless the testimony admitted by virtue of this section and given on behalf of the prosecution, is corroborated by some other material evidence in support thereof implicating the accused.”

176. The Crown case in Eade v The King was that the appellant had asked the complainant, a five-year old girl, and another child to buy pies for him and bring them to his house. When the complainant brought the pies to the house, the appellant assaulted her. The complainant immediately complained of having been sexually assaulted. When the appellant was confronted with the allegation that he had indecently assaulted the girl, he denied asking her to buy the pies or that she had ever entered his house.

177. Evidence of the complainant’s contemporaneous complaints was held not to amount to corroboration because it was not independent, although it tended to confirm her credibility and, therefore, to support the prosecution case: 157 (Knox CJ, Gavan-Duffy and Starke JJ). However, the appellant’s false denials were held to amount to corroboration (as later confirmed in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63). In addition, evidence adduced by the Crown from other witnesses that the complainant had purchased the pies, visited the appellant’s house and entered the house with his consent and that the pies were found in his house near the couch as described by the complainant was also found to be corroborative. As can be seen from Eade, the determination of whether particular evidence amounts to corroboration can only be made in the context of the issues in the trial.

178. Further, it is well established that tendency evidence can be corroborative: Reg v Kilbourne [1973] AC 729 at 749, 751 and 758 and BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 at 285 (Brennan J), 291 (Toohey J), 297-298 (Gaudron J), 304 (McHugh J) and 323-325 (Kirby J).

179. Applying these principles in the present case, the evidence of the applicant’s conduct in measuring and touching JT’s penis corroborated PS’s account of such conduct because it was independent and tended to support the Crown case.

180. Mr Game further submitted that the trial judge was not using the evidence of JT as tendency evidence and relied on Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206 (Elomar) in support of his submission. In Elomar, Bathurst CJ drew the distinction between evidence (in that case, that Cheikho had attended a particular camp) that tended to prove that the accused had a particular state of mind (support for violent jihad) and evidence used to advance tendency reasoning: that because an accused acted in a particular way or had a particular state of mind on another occasion, he had a tendency to act in that way with that state of mind on other occasions, and that he acted in that way with that state of mind on the occasion of the charged conduct. If I have understood this argument correctly, I reject it. JT’s evidence of the applicant’s conduct in measuring his penis and touching it is evidence which is classically relied on in support of tendency reasoning.

Ground 3(b): alleged error in treatment of tendency evidence

184. Before turning to the submissions, it is important to identify the context of the Crown’s submissions as to how the tendency evidence ought be used (as confirmed in the Crown’s submissions in this Court).

185. In closing, the Crown submitted:

“The Crown submits [that the] tendency evidence adduced from [TR], from [PS], the witness, [JT], [KZ], and [AR], is relevant, and bears upon the facts in issue as to whether this accused committed the alleged acts upon each of the complainants, [TR], and [PS]. The Crown submits the tendency evidence demonstrates that the accused derived sexual gratification from activity with male children, and provides powerful support for the evidence of each complainant. Evidence of the complaints and the other witnesses demonstrated a common feature ‑ sorry, that's the evidence of each complainant and the other witnesses, demonstrated a common feature; that this accused, a man of mature years, had a sexual interest in student male children, and used his position as a teacher to groom those male students, that included physical touching, such as reading their palms, and that this evidence demonstrates the accused had a tendency to act upon that sexual interest by committing sexual offences against these male students, and by touching the students' penises, under the guise of special study about growth that required him to measure their penises. It’s the Crown's position that he did so until he lost access to each of the male students.”

186. Following the short adjournment which was taken at the end of the Crown’s closing submissions, the following exchange took place:

“CROWN PROSECUTOR: I’d just like to put it on the record, your Honour. I’ve had a discussion with counsel. Just in relation to ‑ the Crown’s relying on charged acts in relation to tendency evidence. The uncharged acts, as [are] relied on in relation to relationship evidence, I just want to make that clear to your Honour.

HER HONOUR: Thank you.

BOULTEN: And that's in respect of the complainants, your Honour.”

187. In this Court, the Crown submitted that the effect of this concession was that, as far as TR and PS were concerned, the only part of their evidence which could be relied on for tendency was the evidence in support of the separate counts on the indictment (counts 2-6) and not the general evidence of the relationship to which TR, in particular, referred. This qualification did not apply to the evidence of JT or KZ.

188. Mr Game particularly relied on the following passage from the trial judge’s reasons (which is extracted in sequence in the summary of her Honour’s reasons above):

“Evidence of conduct on occasions not the subject of the counts has not been used as tendency evidence as it was not admitted for that purpose. Tendency reasoning has been confined to evidence of conduct involving sexual contact between the named complainants. Tendency evidence was submitted only as far as it directly affects the facts in issue which concern sexual or indecent acts.

I find that the evidence of each complainant supports that the accused had the alleged tendency and this in turn supports my findings that he committed the alleged acts committed against each of the complainants. I find the tendency evidence removes any reasonable doubt as to whether he did the alleged acts that might have subsisted when the complainant’s evidence was regarded in isolation. The essential issue on every count was whether he did the act alleged. Tendency evidence confirms beyond reasonable doubt that the accused did commit the acts constituted in count 1 and count 6.”

189. Mr Game argued that the trial judge failed to indicate either:

190. that when it came to the offences allegedly committed against TR, that her Honour relied upon her acceptance (beyond reasonable doubt) of the evidence of PS as establishing the asserted tendency; or

191. that when it came to the offences allegedly committed against PS, that her Honour relied upon her acceptance of the evidence of TR as establishing the asserted tendency.

192. Mr Game submitted that it was erroneous for the trial judge to use the evidence of, say, TR, in respect of a particular count as tendency evidence in support of count 6 in respect of PS, without first finding that the count against TR sought to be used in that way had been proved beyond reasonable doubt. He contended that the only way the evidence of the counts could be cross-admissible was if the trial judge started with one count and found that count established beyond reasonable doubt without reference to the other counts. If such a finding was made, Mr Game submitted that the trial judge could proceed “crab-like” to the other counts. He contended that the error was apparent from the trial judge’s reference to the tendency evidence “remov[ing] any reasonable doubt … that might have subsisted when the complainant’s evidence was regarded in isolation.” Mr Game made reference to Brennan J’s statement in Perry v The Queen (1982) 150 CLR 580 at 612; [1982] HCA 75 (which his Honour cited again in Sutton v The Queen (1984) 152 CLR 528 at 551; [1984] HCA 5):

“To seek to prove a fact in issue by a chain of reasoning which assumes the truth of that fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts.”

191. Mr Game also relied on Kanbut v R [2022] NSWCCA 259 (Kanbut), a case in which the alleged tendency corresponded with every particular alleged against the applicant in relation to both complainants. This Court found that because the tendency notice was misleading, there was an error which had been productive of a miscarriage of justice, and set aside the conviction. I do not regard Kanbut as assisting the applicant’s argument in the present case. The tendency notice in the present case was in an orthodox form and did not have any of the defects of the tendency notice in Kanbut.

192. One of the difficulties with Mr Game’s submission is that, if accepted, it would deprive tendency evidence of the forensic force which long-standing authority has established that it has. Suppose ten children said that each had been sexually assaulted in similar circumstances by a particular accused and the accused was charged with all ten counts on a single indictment. On Mr Game’s argument, the evidence of one child could not be used as tendency evidence in respect of the charges concerning any of the other children if none of the children’s evidence, by itself, could prove the charge beyond reasonable doubt. If the accused’s indictment contained only five counts and the remainder were relied on as tendency evidence, the remainder would not need to be proved beyond reasonable doubt to be used as tendency evidence (in accordance with The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer) – see the discussion below) but none of the evidence of any of the five counts could be used in support of the other counts unless it established the accused’s guilt beyond reasonable doubt.

193. This Court addressed this question in JS v R [2022] NSWCCA 145 (JS), where the applicant challenged the trial judge’s direction to the jury regarding tendency evidence. There were three pieces of evidence which were relied on as tendency evidence: an uncharged act (where the applicant touched the victim’s penis) and the two charges of sexual intercourse with a child.

194. The applicant’s argument in JS (which was in similar terms to Mr Game’s argument in the present appeal) was set out in Basten JA’s reasons at [35] as follows:

“The gravamen of the applicant’s challenge was that the jury were directed that they did not need to be satisfied beyond reasonable doubt as to each of the three items of tendency evidence before being entitled to take it into account in determining whether, with respect to each count, they were satisfied beyond reasonable doubt of the guilt of the accused. This reasoning process was described as “incoherent”, on the basis that “a fact cannot be proved by a chain of reasoning which assumes the truth of that fact”. Further, it was submitted that the tendency direction undermined the general direction as to proof beyond reasonable doubt with respect to each offence charged, a direction which had been given earlier in the trial and repeated in the course of the summing up. At least with respect to the charged conduct, the jury was being directed to address the same factual circumstances according to two different standards of proof. It was submitted that ‘no High Court authority holds that the jury need not be satisfied of a charged act beyond reasonable doubt before it can be used for tendency purposes.’”

195. Justice Basten referred to Bauer in which the High Court confirmed that a jury ought not be directed that uncharged acts which were relied on for a tendency purpose needed to be proved beyond reasonable doubt. His Honour explained why it did not follow from this that charged acts needed to be proved beyond reasonable doubt before they could be relied on as tendency evidence. His Honour, accordingly, rejected the applicant’s argument and concluded as follows:

“42 The trial judge gave appropriate directions in relation to the two counts on the indictment being relied on for the purposes of demonstrating a tendency, namely a tendency to have a sexual interest in the victim and to act upon that interest. The judge continued:

‘You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges on those occasions. In doing so you do not consider each of the acts in isolation: you should consider all the evidence and decide what conduct you are satisfied occurred. Although you are looking at the two episodes of conduct that are the subject of the charges, you are not, in this exercise, considering whether those episodes of misconduct have been proven beyond reasonable doubt… [Y]ou do not consider each of these episodes of conduct in isolation but you look at them collectively to decide what conduct you are satisfied occurred for the purposes of tendency reasoning. You consider all three of the episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established. It does not follow from this that you are satisfied beyond reasonable doubt of the guilt of the accused; it is simply part of the process of reasoning along the pathway toward whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges.

43 Insofar as the applicant complained that the reasoning was “incoherent”, this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence … relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.”

196. Further, as Basten JA noted in JS, s 161A of the Criminal Procedure Act is to the same effect as the conclusion to which his Honour came. Section 161A provides:

“161A Direction not to be given regarding tendency or coincidence evidence

(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.

(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.

(3) Subsection (1) does not apply if a court is satisfied—

(a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and

(b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.”

197. Section 161A commenced on 1 March 2021 and, accordingly, applied in the present case as the trial commenced after that date. The purpose of its insertion is evident from the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 2020) at pp 3815:

“The second supplementary amendment to the Criminal Procedure Act is in schedule 1.8 [8] to the bill. It clarifies that a jury should not be directed as to the standard of proof required in relation to tendency and coincidence evidence. This implements recommendation 48 of the royal commission. This recommendation was that, “tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.” This recommendation is largely consistent with provisions in Victorian legislation, supported by the royal commission, which makes it clear that a judge may not direct a jury that any matters other than the elements of the charged offence need to be proved beyond reasonable doubt.

The royal commission explained at page 73 of the criminal justice report that recommendation 48 was in response to a decision by the New South Wales Court of Criminal Appeal that tendency evidence should be required to be proved beyond reasonable doubt. The criminal justice report was published in August 2017, before the September 2018 High Court decision of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40. The High Court unanimously found at paragraph 86 that:

Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.

However, the judgment was silent on the topic of evidence that is adduced to establish a dual purpose—a tendency or coincidence on behalf of an accused, and an element of an offence. This has resulted in confusion and inconsistent directions in New South Wales. Some stakeholders have advised that judges are still directing that juries need to be satisfied of such evidence beyond a reasonable doubt, before it can be used for tendency and coincidence purposes. This amendment will make clear that this direction is not required for tendency and coincidence reasoning. The provision, however, is not intended to interfere with the fundamental requirement for courts to direct juries that the elements of any charged offences must be proven beyond a reasonable doubt.

Proposed section 161A (2) ensures that consistent with the fundamental principles of criminal law nothing in section 161A (1) interferes with the requirement to direct a jury that all elements of a criminal offence need to be proved beyond reasonable doubt before they can convict the accused. In order to address some New South Wales stakeholder concerns and provide clarity, proposed section 161A (3) will allow a judge to direct a jury as to the standard of proof that they are required to apply to tendency or coincidence evidence where there is a significant possibility that the jury will rely on that evidence as being essential to its reasoning in reaching a finding of guilt. Proposed section 161A (3) seeks to ensure that in appropriate cases a court can still give a jury the Shepherd direction, following Shepherd v The Queen (1990) 170 CLR 573; affirmed in The Queen v Dennis Bauer (a pseudonym) (2018) HCA 40 at paragraph 86, and to clarify that the reform is not intended to abrogate the Shepherd direction. As with the first amendment, this amendment is not limited to trials for child sexual offences. This is consistent with the common law position. It will ensure that directions as to the standard of proof for tendency and coincidence evidence are approached uniformly in all criminal trials.”

[Emphasis added.]

198. Although this provision was not referred to in the course of the trial, the approach taken by the trial judge, in so far as her Honour did not require that each charge be proved beyond reasonable doubt before it could be used for a tendency purpose, conformed to the requirements of s 161A of the Criminal Procedure Act and was in accordance with the decision of this Court in JS. For these reasons, ground 3(b) has not been made out.

Ground 4: alleged error in using coincidence reasoning

199. The trial judge referred to coincidence at several points of her Honour’s reasons. The first reference is as follows:

“The evidence of the complainants in respect of the counts on the indictment can be used together but only if it shows the similarities in the complainants’ accounts such that the explanation is unlikely to be coincidence and rather that the accused had the state of mind and did the act alleged with both. If it does not, it cannot be used together and that of each complainant must be considered alone. Even if it does, each complainant’s evidence must be reliable before the court concerning him may be proven.”

200. Other references are set out above. In substance, the trial judge purported to exclude coincidence when referring to the similarities between accounts of the complainants and the tendency witnesses.

201. Mr Game submitted that it was erroneous for the trial judge to refer to coincidence at all, in circumstances where the Crown did not rely on coincidence reasoning, had served no coincidence notice and s 98 of the Evidence Act prohibited coincidence reasoning where the pre-conditions for its use had not been satisfied. He also relied on s 95 which prohibits the use of evidence which is otherwise relevant for a purpose within Part 3.6. Thus evidence which is admissible as tendency evidence cannot be used in aid of coincidence reasoning unless it is also admissible for that purpose.

202. The Crown sought to defend the trial judge’s references to coincidence as being merely use of a common English word to reason about factual matters. Further, it submitted that the trial judge was not using coincidence reasoning but rather was taking care to ensure that, in order to be cross-admissible, there had to be a degree of similarity that did not arise coincidentally. The Crown also submitted that, given the delay in prosecution and the disadvantage suffered by the applicant and his arguments regarding contamination and collaboration, the trial judge appeared to retain a concern (expressed in her reasons for the findings of guilt) that any tendency evidence have real force before it could be used in support of tendency reasoning.

203. The trial judge’s reasons demonstrate that she engaged in coincidence reasoning (because two people say the same thing, it is likely to be true because it is unlikely that they would be saying the same thing as a consequence of coincidence) with respect to evidence which was inadmissible for that purpose. Further, as Mr Game submitted, she denied the parties (and, relevantly, the applicant) procedural fairness by not warning them of her intention to use the evidence in that way. Had she done so, it could reasonably be expected that the Crown would have informed her that it did not rely on the evidence for that purpose and that to use it for such a purpose would be a legal error.

204. It is not to the point that, where there is no issue about the identity of the alleged offender, tendency and coincidence reasoning may be related. In Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 (Saoud), Basten JA identified certain “basic propositions which are not in doubt” (at [37]), which included the following, at [43]:

“Fifthly, there is an awkwardness in the separation of ‘tendency’ evidence and ‘coincidence’, at least in some circumstances. Thus, in a case such as the present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused's conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another.”

205. In Saoud, the prosecution had served tendency and coincidence notices pursuant to s 97 (tendency) and s 98 (coincidence) of the Evidence Act. However, in the present case, the prosecution had served a tendency notice but not a coincidence notice. In these circumstances, it was an error for the trial judge to engage in coincidence reasoning as a basis for accepting the credibility of the complainants and the tendency witnesses, since such reasoning was, in the absence of notice or leave, prohibited by s 95 of the Evidence Act.

206. For these reasons, ground 4 has been made out. As I have already found that, as a result of the matters which were the subject of grounds 2 and 5, the convictions ought be quashed there is no utility in considering the application of the proviso with respect to ground 4.

Ground 9: alleged reversal of the onus of proof

207. At the trial, Mr Boulten submitted that the contact between the various witnesses had contaminated their actual recollection of events, rendering their evidence of what had occurred unreliable.

208. As is evident from the reasons, the trial judge rejected this submission. Her Honour said, of present relevance (to ground 9):

“Count 6 involved PS. He was a most impressive witness. I am not persuaded that his evidence was in any way contaminated as a result of discussions with others or that in some way has impacted upon his demeanour in the witness box.”

[Emphasis added.]

209. The trial judge referred to the circumstance that both PS and JT described the applicant on different occasions touching their penises with a pencil or a pen and said:

“Admittedly PS and [JT] have spoken but they say not in detail. Had their evidence been concocted or contaminated in some way, I would have expected it to be identical; it was not.”

[Emphasis added.]

210. Of PS’s evidence generally, the trial judge said:

“I am not persuaded that the contamination is such that it impacted upon the credibility of [PS].”

[Emphasis added.]

211. The trial judge said, of the credibility of Mr Austin, who gave evidence about TR being tutored by the applicant:

“Had there been concoction or contamination of his evidence I would have expected him to say he knew exactly where the accused's room was in Abbott House; clearly he did not.”

[Emphasis added.]

212. When referring to the fact that both TR (Count 5) and PS (Count 6) referred to the applicant using a condom, the trial judge said:

“The explanation is unlikely to be coincidence and nor am I persuaded that there has been some contamination of their evidence in this regard.”

[Emphasis added.]

213. The applicant submitted that the trial judge’s references to “not being persuaded” and her Honour’s used of the words, “I would have expected” reveal that the trial judge regarded the applicant as bearing an onus to establish that the extensive and undenied contact between the prosecution witnesses had contaminated their recollections of events. The applicant submitted that, as the applicant bore no such onus, the correct approach was for the trial judge to have regard to the evidence of prior communications between relevant prosecution witnesses and to determine whether that evidence, by itself or in combination with other evidence, gave rise to a reasonable doubt about the applicant’s guilt.

214. I am not persuaded that the words used by the trial judge indicated that her Honour reversed the onus of proof. The applicant had raised the issue of contamination of witnesses by eliciting from prosecution witnesses evidence of contact between the complainants and tendency witnesses. Mr Boulten had also, at trial, referred to the fact that the prosecution had not called Mr Lawless (who was the originator of much of the contact) as a witness. Thus, the Crown was required to answer that evidence in order to discharge its onus of proving the counts beyond reasonable doubt. However, the trial judge was entitled to say that she was not persuaded by Mr Boulten’s submissions. Further, when addressing the factual questions, her Honour was entitled to test the evidence by considering what the situation would have been likely to have been, had the evidence been concocted or contaminated. While it might have been preferable for the trial judge to find that the Crown had excluded the possibility that the evidence of the complainants and tendency witnesses was unreliable on the grounds of concoction or contamination, it was not necessary for the trial judge to express her conclusions in that way.

215. Further, for the reasons given above, the reasons are to be read as a whole. While there may be some infelicities of language in the reasons, they are not such as to indicate that the trial judge reversed the onus of proof. I am not satisfied that ground 9 has been made out.

Ground 6: alleged miscarriage as a result of the trial judge taking into account aspects of the original Crown case statement that had been excluded from the evidence adduced at the trial

216. As referred to above, the trial judge, in a pre-trial ruling, excluded TR’s evidence of the applicant visiting him at Ipswich Grammar School, pretending to be his uncle, taking him away from the school and sexually assaulting him.

217. The portion of the Crown Case statement which reflected this aspect of the Crown case (based on TR’s statements) included the following:

“21) [TR] left [the school] at the end of 1967 and was enrolled to complete his senior years at Ipswich Grammar School in Queensland.

22. The accused continued his relationship with [TR] by travelling to Ipswich Grammar School to see him. The accused purported to be [TR’s] uncle and requested to take [TR] out of school for the weekend. The accused told [TR] that if he did not come with him, the accused would tell people he had been in a homosexual relationship. [TR] left the school with the accused. The accused took [TR] on an outing and allowed him to drive his car. After this [TR] confided in his principal, Mr Basil Heath, about the accused, who told him he would deal with the matter. [TR] has not seen Gardiner since.”

218. The only mention of Ipswich Grammar School in TR's evidence in chief was that he moved to that school in 1968. In cross-examination, TR, in a non-responsive answer, said that the applicant had “chased [him] across the border to another school”. There was no other reference to Ipswich in TR’s evidence.

219. In his evidence in chief, the appellant denied ever visiting TR at the Ipswich Grammar School, ever going to Ipswich or ever even knowing that TR was in Ipswich. The applicant rejected as “absurd” the suggestion that he had visited TR in Ipswich. The applicant also gave evidence that in 1968 he was working in Whyalla (a town in South Australia) “pretty well every day there” and that he never visited Queensland in 1968. The Crown, presumably mindful of the evidentiary ruling, did not cross-examine the applicant on this evidence.

220. The Crown made no mention of the issue in closing address. In address, Mr Boulten referred to the applicant’s capacity to travel but only in the context of KZ’s evidence, which was that the applicant had twice visited him in South Australia, first in 1963 and again in 1964. Mr Boulten made lengthy submissions about the improbability of these visits having occurred.

221. Notwithstanding the trial judge’s pre-trial ruling (which the parties abided by in their evidence and submissions), her Honour referred to Ipswich in the reasons in the following passages:

“The complainant sat the School Certificate in 1967 and left [the school] at the end of that year. Thereafter, he transferred to Ipswich Grammar School.

It is the Crown case that the accused pursued [TR] to Ipswich and removed him from the school on occasions and continued to have a sexual relationship with him until it ceased. The accused permitted [TR] to drive his motor vehicle.”

“It is the accused case that he did not visit [TR] in Ipswich and nor could he have done so relying on records produced by what is now the University of South Australia.”

“I find that the accused did have a motor vehicle which he allowed the complainant to drive and I will shortly return to why I make that finding.”

“This accused was an inveterate traveller around Australia ... I find it highly likely that he visited [TR] in Ipswich after [TR] left [the school]. I am not persuaded that just because the accused was elsewhere, he [did] not travel as extensively as he had done on other occasions ...

The leave records produced from the University of South Australia do not convince me that the accused could not have been absent to travel to Queensland. The Institute of Technology, the predecessor to the University was a teaching institution. Teaching institutions also have semester breaks. That leave record does not appear to record at any stage semester breaks as I would have expected.

I cannot of course speculate about absent evidence as to the likelihood of there being semester breaks over and above other leave entitlements, but it remains a possibility and may well explain the ability of the accused to travel to Queensland. It is not a matter which needs to be proved beyond a reasonable doubt. It is not such that it causes me to doubt the reliability of the complainant [TR]’s evidence such that I should reject all of his evidence or that of [KZ].”

222. Mr Game submitted that the trial judge’s mistaken use of this evidence to fortify her conclusion that TR was reliable (and, consequently, the applicant was not), occasioned a miscarriage of justice.

223. The Crown submitted that all that the trial judge was doing was referring to the respective cases of the parties. Further, the Crown submitted that it was significant that the trial judge made no finding of what, if anything, had occurred in Ipswich. It contended that the ultimate finding was that TR’s evidence that the applicant “chased him across the border” did not lead her Honour to doubt TR’s reliability.

224. The trial judge’s reference to the allegation in the Crown case (which had been excluded by her ruling) was erroneous. The importance she placed on whether the applicant could have gone to Ipswich to see TR was misplaced in light of her ruling. It can be inferred that Mr Boulten only asked the applicant about Ipswich, with a view to impugning TR’s credibility with respect to the statement that the applicant had chased him across the border. That Mr Boulten did not make anything of this in address was understandable, given its insignificance.

225. A judge may be privy to items of putative evidence which are excluded or aspects of a Crown case which are no longer pressed. In a trial by jury, the judge and the parties are alert to ensuring that nothing which is inadmissible or not part of a party’s case comes before the jury. When these boundaries are broken, an order for the discharge of the jury may follow. It is important when judges sit as the tribunal of fact and law in criminal trials, as they do in judge-alone trials, to ensure that the strict demarcation between what has been admitted and what has been excluded is maintained.

226. Although it is not necessary to form a conclusion about this matter, the reasons in this case tend to indicate that the trial judge delivered her reasons ex tempore, albeit some days after final submissions. Indeed, Mr Game observed in oral submissions that some of the order of the reasons replicated the Crown’s closing submissions. Because the Crown Case statement stood as the Crown opening (and was not marked up to take account of the rulings), the trial judge may have momentarily forgotten, when she referred to the applicant visiting TR in Ipswich, that it was no longer part of the Crown case. The trial judge’s references to Ipswich in the passages extracted above was, as Mr Game described it, a “blemish” on the judgment. Because of the view to which I have come that the convictions must be quashed, it is not necessary to come to a view about the effect of this error or whether it caused a miscarriage of justice as is alleged in ground 6.

Ground 7: alleged inadequacy of the forensic disadvantage direction

227. The applicant relied on the requirement in s 133(3) of the Criminal Procedure Act that a judge in a judge alone trial is required to set out the relevant principles of law to be applied and to take into account any warning which would be given to a jury.

228. In Fleming, Gleeson CJ and McHugh, Gummow, Kirby and Callinan JJ said of this requirement:

“31 Finally, there may be a breach of s 33(3) [which became s 133(3)] with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.

32 The obligation imposed by s 33(3) ‘to take the warning into account’ is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.

33 The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.”

229. The applicant submitted that because the trial judge had not given a complete direction covering all the matters in respect of which the applicant suffered a forensic disadvantage, she had not complied with s 33(3) and, as referred to in Fleming, had not taken the warning into account.

230. While the trial judge did not give the direction in the precise terms of the authorised direction, a fair reading of her Honour's judgment as a whole shows that her Honour abided by the direction.

231. Further, the applicant’s submission does not take adequate account of the qualification in Fleming at [30] where their Honours said:

“Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”

232. In this case, the judgment clearly shows expressly and by implication that the principle was applied. There has accordingly been no error of law or miscarriage of justice.

Ground 8: alleged error in coming to a conclusion about each count without considering the evidence of the applicant

233. In support of this ground, Mr Game made much of the structure of the judgment. He contended that the lack of reference to the applicant’s evidence or credibility in relation to the counts before the trial judge recorded her findings of guilt was a powerful indication that her Honour did not consider all of the evidence (including that of the applicant) before reaching a finding of the applicant’s guilt of each count.

234. The passages extracted from the trial judge’s reasons in the summary of the reasons set out above demonstrate that the reasons were discursive and repetitive in parts. This may have been explained by the circumstances in which they were, or may have been, produced (as to which, see above). I am not satisfied that, just because the trial judge set out her findings as to the applicant’s credibility after the findings of guilt, her Honour did not consider the applicant’s evidence together with the whole of the evidence adduced in the trial, before coming to a conclusion about the applicant’s guilt of particular counts. Reasons are the result of thought, consideration and decision-making and are not designed to replicate the thought processes which led to the conclusions expressed in them.

235. For these reasons, I am not satisfied that ground 8 has been made out.

Whether a re-trial ought be ordered

236. This Court has a discretion when quashing a conviction either to order a re-trial or to order the acquittal of the applicant, but not to order neither: The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35 at [83] (Kiefel CJ and Keane J).

237. As referred to above, I am satisfied that the convictions ought be quashed on the basis of grounds 2 and 5. Mr Game submitted that no order for a re-trial ought be made because of the length of time since the commission of the alleged offences and the consequential loss of evidence and unavailability of witnesses, the applicant’s age (he will be 86 in a few months) and the time he has already spent in custody (since 1 June 2021).

238. I reject this submission. Although the applicant is elderly, he is still of sound mind. The offences with which he has been charged are very serious. The Crown case was apparently strong. It would not be in the interests of justice for this Court to order an acquittal (this being the only alternative to an order for a re-trial) in such circumstances.

Proposed orders

239. For the reasons given above, I make the following orders:

240. Grant leave to appeal.

241. Allow the appeal.

242. Quash the convictions in respect of counts 1 and 6.

243. Order that there be a new trial of the applicant.

244. List the matter in the District Court arraignments list on 28 April 2023.

245. BUTTON J: I agree with Adamson JA.

246. McNAUGHTON J: I agree with Adamson JA.

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Endnote

In Hofer v R, error was established but the appeal was dismissed on the basis of the proviso in s 6(1) of the Criminal Appeal Act (“that no substantial miscarriage of justice has actually occurred”). An appeal to the High Court (Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937) on whether it was open to this Court to apply the proviso was dismissed (see [163]-[168]).