JG v R

Grounds of Appeal 205In the Notice of Appeal filed on 9 September 2013 the appellant relied upon six grounds in support of the appeal against conviction as follows: "1. The learned Trial Judge erred in refusing an Application pursuant to s 130A Criminal Procedure Act in respect of separate trials of the counts in the indictment relating to [GB] and [TE]. 2. The Trial Judge erred in refusing an Application pursuant to s 130A(a) Criminal Procedure Act as to tendency and coincidence evidence relied upon by the Crown. 3. The conviction of the appellant was unsafe and unsatisfactory. 4. His Honour erred by permitting the Crown Prosecutor to cross-examine Matron Clarke as to "masking" symptomatology relating to [TE]. 5. That a miscarriage of justice occurred as a result of the Crown Prosecutor being permitted to cross-examine the Accused contrary to Palmer v R. 6. The learned Trial Judge erred in refusing an application for a permanent stay of the Indictment in respect of [GB]."

Ground 1: The trial judge erred in refusing an Application pursuant to s 130A of the Criminal Procedure Act in respect of separate trials of the counts in the indictment relating to GB and TE

Ground 2: The trial judge erred in refusing an Application pursuant to s 130A of the Criminal Procedure Act as to tendency and coincidence evidence relied upon by the Crown 206It is convenient to address Grounds 1 and 2 together.

The Counts in the Indictment 207On 11 February 2013, the appellant was indicted before Garling A-DCJ at the Sydney District Court. He entered not guilty pleas to all counts. 208The indictment presented at the second trial was in the same terms as that left to the jury in the first trial, with the exception of Count 1 being amended (as to the commencement date of the period referred to in Count 1) during the course of the first trial. That is a matter discussed below. 209The counts in the indictment concerning the two complainants, GB and TE, were in the following terms: (1) Between 1 September 1965 and 31 December 1967, at Bathurst in the State of New South Wales, did commit with GB an act of buggery, contrary to s 79 of the Crimes Act 1900. (2) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, and at the time of the assault did commit an act of indecency upon TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(1A) of the Crimes Act. (3) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, and at the time of the assault did commit an act of indecency upon TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(1A) of the Crimes Act. (4) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did commit an act of indecency towards TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(2A) of the Crimes Act. (5) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (6) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (7) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (8) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (9) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, contrary to s 61 of the Crimes Act. (10) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (11) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (12) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (13) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act.

Coincidence and Tendency Notices 210On 19 April 2012 the Crown served notices under ss 97 and 98 of the Evidence Act 1995.

(a) The Coincidence Notice 211The Crown served a Coincidence Evidence Notice pursuant to s 98 of the Evidence Act dated 19 April 2012. 212The Coincidence Notice referred to evidence intended to be adduced by the Crown as to "two or more events" the subject of a number of statements, including statements of GB dated 23 September 2008 and TE dated 7 November 2009. 213The evidence was to be adduced to prove that the appellant did numerous specified acts in relation to, inter alia, both complainants GB and TE. Those included that the appellant:

• Had penile anal intercourse with GB.
• Had penile anal intercourse with TE.
• Showed TE homosexual pornographic videos. 214The evidence was also to be adduced to prove that the appellant:
• Engaged in sexual activity with 12-15 year old boys;
• Used his position of authority to obtain access to 12-15 year old boys so that he could engage in sexual activity with them.
• Had a particular state of mind, namely, to have a sexual interest in 12-15 year old boys. 215In paragraph [2] of the Notice the relevant "events" were identified. In section C of paragraph [2] reference was made to "events" referred to in particular paragraphs of the statement of a witness (who may be identified by the initials JF) and in the statement of the complainant TE. It was stated in respect thereto: "The evidence is to be tendered to prove that [the appellant] showed homosexual pornographic videos and magazines to [TE]." 216In paragraph [2]D the "events" in question were identified by paragraph numbers in statements of coincidence witnesses and in the statement of TE. Again, it was noted: "The evidence is to be tendered to prove that [the appellant] showed homosexual pornographic videos and magazines to [TE]."

(b) The Tendency Notice 217The Tendency Notice pursuant to s 97 of the Evidence Act sought to prove that the appellant had the following tendencies: (1) To have a sexual interest in 12-15 year old boys. (2) To engage in sexual activities with 12-15 year old boys. (3) To use his position of authority to obtain access to 12-15 year old boys so that he could engage in sexual activities with them. (4) To have a sexual interest in young males. 218The tendency evidence was said to be relevant to the following facts in issue (only the identified facts in the notice relating to the complainants GB and TE are reproduced below, not those identified in respect of four other named complainants) "(a) Whether the [Appellant] had penile anal intercourse with [GB]. (b) Whether the [Appellant] restrained [GB] when having penile anal intercourse with him. ... (f) Whether the [Appellant] touched [TE's] groin. (g) Whether the [Appellant] touched [TE's] bare chest. (h) Whether the [Appellant] showed [TE] heterosexual pornographic videos. (i) Whether the [Appellant] showed [TE] homosexual pornographic videos. (j) Whether the [Appellant] gave [TE] money (k) Whether the [Appellant] showed [TE] videos depicting a young male fellating an adult male. (l) Whether the [Appellant] showed [TE] a movie depicting an adult male having penile anal intercourse with a young male. (m) Whether the [Appellant] showed [TE] his erect penis. (n) Whether the [Appellant] asked [TE] if he had an erection. (o) Whether the [Appellant] masturbated in the presence of [TE]. (p) Whether the [Appellant] told [TE] to look at him when he was masturbating. (q) Whether the [Appellant] fellated [TE]. (r) Whether the [Appellant] asked [TE] to fellate him. (s) Whether [TE] masturbated the [Appellant]. (t) Whether the [Appellant] put his finger in [TE's] anus. (u) Whether the [Appellant] had penile anal intercourse with [TE]. (v) Whether the [Appellant] forced [TE] to fellate him. (w) Whether the [Appellant] held [TE] down when having penile anal intercourse with him. ..."

Proceedings before Cogswell DCJ 219In the previous trial of the counts on the indictment, Cogswell DCJ heard and determined a number of pre-trial issues. The application heard by Cogswell DCJ sought the separation of counts involving various complainants and rulings as to the admissibility of the evidence of various tendency and coincidence witnesses. His Honour conducted a voir dire examination between 14 May 2012 and 22 May 2012. The prosecution in the course of the inquiry called evidence in order to establish the nature and extent of any risk of concoction or collusion between the complainants and the tendency witnesses. 220On 23 May 2012, Cogswell DCJ delivered judgment on the voir dire issues that his Honour was required to determine. These centred around the admissibility of tendency and coincidence evidence. At that time the prosecution had presented an indictment containing fifteen counts concerning four complainants. 221Cogswell DCJ ruled that the evidence of the tendency witness, who may here be referred to as JR, was inadmissible. His Honour severed the counts relating to two complainants who may here be referred to as R and C. His Honour ordered that there be a joint trial involving the complainants GB and TE. 222His Honour noted that, in assessing the probative value of the evidence which the Crown proposed to adduce, Mr Walsh asked him to take into account the good deal of media publicity that surrounded the arrest and charging of the appellant and another person associated with the same school at which the acts relating to the counts on the indictment were said to have taken place.

The Issue of Contamination or Concoction 223Having regard to the issues raised by Mr Walsh in the appeal proceedings, I set out below, in summary form, certain of the observations and findings of Cogswell DCJ on the issue of contamination and concoction. 224His Honour noted: "... [Mr Walsh] asks me to take into account that publicity, any contact between the former pupils, any ill feeling which the former pupils may have towards his client as well as the circumstances in which they gave their statements to the police. Those factors, Mr Walsh argues, may be relevant to the question whether the evidence of those witnesses might have become contaminated, either by concoction or in some other way." (at [35]) 225In relation to the complainant GB, his Honour noted that GB had not discussed what had happened to him with any former pupils up until the time he gave his statement to police. His Honour also noted that he had spent a good deal of time outside the State. As to media publicity, GB's evidence was that he saw something on television, but apart from that, he did not read any other material before making his statement to the police. 226So far as information that GB may have gained from the internet, it was noted that it was only in the last two years (that is, before the voir dire) that he had become familiar with using the internet and his Honour accepted that he could not have used it before giving his statement to the police. 227GB had acknowledged that the story was "all over the media back home" in his regional city. His wife had kept articles for him to read when he got back after he had been away. 228Cogswell DCJ noted that what prompted GB to come forward was seeing Mr Walsh being interviewed on the television. That angered him because he said that Mr Walsh was describing the events as a "witch hunt" and GB's view was that the events did in fact happen and what Mr Walsh was saying should not be said: at [37]. 229GB denied having seen an article that was shown to him by Mr Walsh called "Darker Secrets". 230GB acknowledged, frankly, his Honour noted, that he had no affection whatsoever for the appellant, but when pressed about why that was, he made it clear that that was because "I was raped by him in the classroom": at [37]. 231Cogswell DCJ stated that in his opinion there was no real chance that GB's evidence had been relevantly concocted. He noted that that was because of the limited discussion he had had with fellow pupils or former pupils and also because of his limited means of access to the internet. He noted that he had not seen one of the articles that Mr Walsh had shown him and his motivation was as stated above: at [39]. 232In relation to the complainant TE, Cogswell DCJ noted that he had been examined "... in all four areas of possible contamination": at [44]. His Honour noted:

• That TE had not discussed anything about what had happened to him whilst he was at school, nor was he told about any inappropriate things by other boys at school.
• He had not maintained contact with former schoolmates after leaving school.
• His statement was made to police on 7 November 2008, a couple of months after the appellant was arrested. He had heard a radio broadcast which was "how I initially found out about it". He did pay, he acknowledged "particular attention that night to see what the go was on television" but he did not take the effort to go "looking it up or anything like that": at [44]. 233The first time that TE saw anything on the television was the same night that he had heard the radio broadcast in the morning. He remembered seeing a picture of one of the other members of staff and heard the appellant's name mentioned in the broadcast, but did not recall any image of the appellant. 234As to access to the internet, TE acknowledged that he had used the internet in a very limited way "only in the last six months": at [44]. 235TE's evidence was that he had not looked anything up on the internet concerning the appellant, that he did not know how to and nor did he have a friend or anyone look it up for him. 236TE acknowledged that he was accused of stealing by the appellant and as a result he was expelled from the school. He said that he did not entertain any hostility against the appellant in relation to what he regarded as the false allegations from the appellant about him setting fires "but I certainly have some hostility for what he did to me as a student there": at [44]. 237What TE regarded as the false accusations were, TE considered, "just his scapegoat of me opening my mouth about what was happening". 238Cogswell DCJ concluded that the prosecution had satisfied him that there was no real chance of any relevant contamination so far as TE was concerned. His Honour observed that TE's hostility towards the appellant was directly related to the incidents which he said occurred to him by the appellant. He noted that his internet access was extremely limited as was his access to former students: at [45]. 239The provisions of the Criminal Procedure Act 1986 in relation to the power to order separate trials are contained in s 21(2)(a) and (b). 240Applications under s 21(2)(a) and (b) may arise in a variety of circumstances. They include cases where tendency evidence is relied upon at a trial where the allegations involve offences against two or more complainants. Section 101 of the Evidence Act provides that tendency evidence about an accused relied upon by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In Hoch v The Queen (1988) 165 CLR 292, the High Court's observations, though related to "similar facts" at common law, provide guidance in a case such as the present in relation to coincidence evidence under s 98 where concoction or collusion arose for consideration: "...that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused. ... "In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility. Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction." (at [9]-[11]) 241The findings of Cogswell DCJ in relation to the issues of contamination and concoction accordingly support or confirm that the evidence of GB and TE had the probative force which rendered the same admissible, assuming that the provisions of ss 98 and 101 were otherwise satisfied.

Coincidence and Tendency Evidence 242His Honour then analysed the coincidence evidence and the tendency evidence at [49]-[84]. 243It is clear that the trial judge's findings on the admission of tendency and coincidence evidence would have a significant influence on the outcome of the separate trial application. If the challenge to the evidence were unsuccessful, there would be less basis for ordering separate trials, a position that arose in R v Daley [2001] NSWSC 1211 at [3]. If the opposite were the case, the exclusion of the tendency or coincidence evidence in relation to one or the other complainants (that is, GB or TE), the case for separating the trials would be stronger. 244In relation to the coincidence evidence, his Honour noted that that evidence concerned allegations of penile/anal intercourse made by GB and TE. 245The coincidence evidence also concerned claims by TE that the appellant showed him what were regarded as homosexual pornographic videos and magazines. 246His Honour observed that when the appellant was arrested in 2008, police found certain DVDs and magazines depicting homosexual sex in his possession. The prosecution wished to tender that material to support TE's claim that he was shown such things by the appellant. 247He noted that the evidence sought to be adduced was directed to proving that each event was not just an isolated one-off or a coincidental occurrence that may never have occurred at all or may have been misunderstood. The fact that they were similar events pointed to the appellant doing them deliberately. The fact that they were similar complaints pointed, the prosecution argued, to the unlikelihood that those complaints were untrue. 248As to the tendency evidence, the Crown wished to prove that the appellant had a tendency to act in a particular way in two areas, and had a particular state of mind in two areas. These were identified in the Tendency Notice dated 19 April 2012. 249The two areas where the prosecution claimed the appellant had a tendency to act in a particular way were to engage in sexual activities with 12-15 year old boys and to use his position of authority to obtain access to boys in that age range so that he could engage in sexual activities with them. 250His Honour then proceeded to analyse the relevance and the probative strength of the coincidence and tendency evidence. He separately analysed the issue of prejudicial effect and, with one stated exception, his Honour concluded that the probative value of the proposed tendency and coincidence evidence substantially outweighed any risk of unfair prejudice to the appellant. His Honour emphasised that he expressed that opinion having regard to the directions that would be given to the jury: at [77]. 251His Honour separately noted that a submission had been made by Mr Walsh that the gap in time between GB's allegation and the other allegations was significant. His Honour stated: "... I do not regard it as so significant that it deprives the evidence of its significant probative value. It is still an extraordinary thing for two boys to claim that a member of staff at the school anally penetrated them ..." (at [87]) 252Finally, his Honour concluded that the magazines and DVDs had significant probative value as coincidence evidence. His Honour noted that what would obviously occupy the minds of jurors was the likelihood (in considering whether they were satisfied beyond reasonable doubt) of a religious brother at the school showing homosexual videos, pornographic or not, to one of the pupils at the school. The location or finding of such DVDs or other material in the possession of the appellant "at the time of his arrest was relevant to the jury's assessment of that likelihood": at [89].

Decision 253The assessment of the coincidence and tendency evidence by Cogswell DCJ required a consideration of the tests of admissibility for such evidence imposed by ss 97 and 98 of the Evidence Act. In general, such evidence is not to be admitted unless either alone or in conjunction with other evidence adduced or to be adduced, it would, in the opinion of the court, have significant probative value. 254"Significant", as his Honour noted, is to be interpreted as meaning "important" or "of consequence": Re Lockyer (1996) 89 A Crim R 457, approved in R v PWD (2010) 205 A Crim R 75. In order to determine the significance of the coincidence and tendency evidence, the trial judge in this case was required to give consideration to the fact or facts relevant to the facts in issue in the proceedings and to which the evidence was directed. 255His Honour referred to Mr Walsh's contention that the relevant fact in issue was "whether [the appellant] engaged at all in the conduct alleged against him": at 33. Cogswell DCJ stated that he was prepared to accept that as "a composite representation of the facts in issue in this case". 256Whilst his Honour did not analyse all of the discrete factual circumstances in relation to the sexual assaults alleged by GB and TE, "relevant" facts going to the facts in issue, may be considered to include at least the following: (1) The location of the alleged sexual assaults concerning GB and TE, namely, on the school premises. (2) The age of GB and TE as at the time of the alleged assaults. (3) Their positions at the school, namely, as young teenage students (in the age range 13-15 years.) (4) The actions/conduct of the appellant as described by GB in relation to the offence the subject of Count 1, and as described by TE in relation to the offences of sexual intercourse contrary to s 66(2) of the Crimes Act 1900, the subject of Counts 7, 10 and 12, involving physical force and restraint by the appellant. (5) The appellant's position of authority over TE at the time of the alleged offences, and, so far as GB was concerned, the appellant's position as staff member 257The above factual matters may be considered in the determination of the existence of similar facts for the purpose of s 98 of the Evidence in proof of the particular sexual assaults, anal/penile penetration, as alleged by GB and TE. 258On the pre-trial application Cogswell DCJ had evidentiary statements of tendency witnesses in respect of the period between GB's and TE's attendance at the school relating to the appellant's conduct and his state of mind in displaying a sexual interest in young adolescent males. 259As his Honour observed, the relevant coincidence evidence related to two matters, the allegations of penile-anal intercourse made by GB and TE and additionally the claims made by TE that the appellant had showed him homosexual pornographic videos and magazines. 260His Honour concluded that the coincidence and tendency evidence proposed to be called had significant probative value, noting that an issue would be the likelihood that the appellant as a member of a religious order would engage in sexual activity with a teenage pupil. Accounts, his Honour observed, "given by others of such activities having taken place, if accepted beyond reasonable doubt could well be regarded as evidence of importance or of consequence": at 63. 261The tendency and coincidence evidence, in my assessment, was of a nature and quality to support the trial judge's determination that it possessed significant probative value within the meaning of ss 97 and 98 of the Evidence Act. Additionally, the probative force or strength of the coincidence evidence relating to the sexual assaults alleged by GB and TE was reinforced by the trial judge's finding that there was no real chance of contamination. I note, in this respect, that GB and TE gave evidence on the voir dire. 262In assessing the coincidence and tendency evidence Cogswell DCJ gave detailed consideration to the matters the subject of the evidence proposed to be adduced by the Crown in determining the issues of probative value and prejudicial effect and in the application of the provisions of s 101 of the Evidence Act. 263On the issue of the admissibility of the pornographic materials seized by police, Cogswell DCJ, properly, in my opinion, accepted that such evidence was admissible under s 98 in relation to the count concerning TE based upon TE's allegation that the appellant showed him pornographic materials. No error has, in my opinion, been established with respect to his Honour's determination on the admissibility of the coincidence and tendency evidence. 264In assessing the issue of prejudice for the purpose of ss 97, 98 and 101, his Honour gave consideration to the matters raised on behalf of the appellant, including, in particular the issue of delay and consequential matters. Whilst his Honour did not in express terms refer to the particular impact of delay on recollections, the loss or absence of evidence through the death or other unavailability of witnesses or arising by reason of other circumstances, it is clear that his Honour was conscious of the delay and its relevance. His Honour noted in this respect that the delay was not significant enough to deprive the proposed evidence of its significant probative value: at 87. The potential disadvantageous effect of such matters upon the appellant and the necessity for proper and strong trial directions were plainly given appropriate attention by his Honour in the assessment of the admissibility of the proposed evidence and the significance of that in determining the application. 265In my opinion, I do not consider that Cogswell DCJ erred in the determination of the admissibility of the tendency and coincidence evidence. 266As earlier indicated, this was a case, in my opinion, where the outcome of the separate trial application would be determined by the decision to be made on the coincidence and tendency evidence. On the basis of the orders in favour of the admissibility of such evidence, as discussed above, there was, in my assessment, no error in Cogswell DCJ having refused the separate trial application.

Pre-Trial Hearing: The Second Trial 267On 13 February 2013, and prior to the empanelment of the jury for the second trial, the appellant sought to have, in effect, a redetermination of the previous orders made by his Honour Judge Cogswell. 268The application was made by way of Notice of Motion in which a number of orders were sought, including: (i) A permanent stay order of the proceedings on the single count concerning complainant GB, being Count 1 on the indictment. (ii) Orders excluding material seized by police upon the arrest of the appellant. (iii) An order concerning good character. (iv) An order relating to sexual assault. 269The Notice of Motion was supported by the affidavit of Gregory Walsh, solicitor, sworn on 24 January 2013, a copy of which is in the Appellant's Tender Bundle at Tab 13. 270Grounds 1 and 2 of the present appeal concern the refusal of Garling A-DCJ, in effect, to reconsider the pre-trial orders made by Cogswell DCJ as to: (i) The order refusing the application for separate trials relating to GB and TE; and (ii) The order as to the admissibility of the tendency and coincidence evidence. 271The application for the above orders proceeded under s 130A of the Criminal Procedure Act 1986, the terms of which are set out below. 272His Honour Garling A-DCJ ultimately determined that he was bound by the rulings made by Cogswell DCJ and, applying the provisions of s 130A of the Criminal Procedure Act, he determined that it was not in the interests of justice for the orders made by Cogswell DCJ to be other than binding. His Honour also declined to make an order staying the proceedings on Count 1.

Tendency and Coincidence Evidence 273The bases upon which the admissibility of the tendency/coincidence evidence was challenged before Cogswell DCJ were identified in paragraph [32] of the Appellant's Written Submissions as: "(i) The lack of degree of similarity between the alleged conduct on the various occasions. (ii) The lack of degree of similarity of the circumstances in which the alleged conduct took place. (iii) The degree of concoction and contamination of the proposed tendency/coincidence evidence." 274In the Appellant's Written Submissions criticism was directed to an alleged failure by Cogswell DCJ to consider the evidence of GB and TE "in the context of significant probative value": Paragraphs [304]-[307]. 275The submission was made that neither Cogswell DCJ nor Garling A-DCJ dealt with the issue of "significant" probative value by considering the evidence of GB and TE: at [307]. 276The Crown disputed these contentions. In its written submissions at [27] the Crown observed: "Judge Cogswell considered in detail the evidence supporting the tendency and coincidence notices and considered whether that evidence was capable of establishing the asserted tendencies or coincidences. Having carefully identified and analysed all of the relevant evidence Judge Cogswell determined that the evidence had significant probative value and that probative value substantially outweighed any risk of unfair prejudice." (at [27]) 277The additional evidence relied upon by the appellant before Garling A-DCJ to that which had been placed before Cogswell DCJ included the evidence given at the first trial relating to Count 1 concerning GB. In summary, the affidavit evidence of Mr Walsh included the following matters:

• The matters principally recorded in GB's statements including the years of his school attendances, "the tractor incident", and disclosures by GB years later: affidavit at paragraphs [156]-[176].
• The evidence of GB on the voir dire before Cogswell DCJ: affidavit at paragraphs [177]-[185].
• The evidence of GB at the first trial: affidavit at paragraph [186]. 278Particular matters identified as arising in the first trial in the cross-examination of GB related to the following:
• GB's evidence that the two right wheels of the tractor were stuck in the trench. In the committal proceedings he said it was the two left wheels: at [217].
• GB only recalled the names of the students he thought were with him at the tractor for the first time at the committal - he had earlier told police he could not recall their names: at [209] and [287]-[291].
• The photograph Exhibit 1 revealed that the appellant was not wearing a white shirt as GB had told police: at [230].
• That he recalled the assault took place when it was very hot, about one o'clock in the afternoon, but this was only based on a "feeling" he had: at [233], [304]-[305].
• GB changed his evidence to agree that the assault occurred in 1965 a year he rejected as the relevant year at the committal: [282].
• Medical evidence as to GB's medical problems: at [252] and [256]-[272], including that of Dr John Albert Roberts at [254] (on the issue of "recovered memory"). 279In the appellant's written submissions in this Court at [49] it was observed that GB's "... recollection of the alleged sexual assault by the applicant specifically hinges on the Tractor Incident". (emphasis in original) 280Additional matters relied upon in the Appellant's Written Submissions at [310]-[312] that were said to undermine Cogswell DCJ's finding as to there having been no real chance of GB's evidence being concocted, included:
• The period of approximately 42 years before GB contacted police;
• The contact with police occurred after extraordinary publicity in respect of the appellant and other members of the religious order at the College.
• The considerable anger and hostility of GB to public remarks made by the appellant's legal representative and the former President of the College.
• That GB had displayed considerable "animus" towards the appellant and his legal representative.
• That one of the two witnesses to the tractor incident nominated by the appellant did not give evidence. (The other person GB nominated as a witness to the tractor incident could not be identified by police).
• During the trial GB gave evidence of having had a very difficult time at the College and of having been "flogged". He had enormous hostility to the College and its religious staff and boarders. 281The application before Garling A-DCJ sought: (i) A ruling under s 130A. (ii) The exclusion of the coincidence evidence relating to the items seized upon arrest. (iii) A stay on the count relating to GB (effectively removing GB as a tendency and coincidence witness as to the counts involving TE). 282Section 130A is in the following terms: 130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial. (emphasis added) 283Accordingly, Garling A-DCJ was required to determine whether "it would not be in the interests of justice for that order[s] [made by Cogswell DCJ] to be binding". 284On 13 February 2013, the trial judge, Garling A-DCJ, concluded: "As I see the position, his Honour had before him a significant amount of evidence. His Honour, in a lengthy judgment covering a number of matters, obviously gave careful consideration to the point it is sought to re-argue. When I am looking at section 130A I do not consider it on the basis that one of the parties may not agree with his Honour's ruling or that I, indeed, may have reached a different conclusion. The section of the Act is in place for a purpose and that is that pre-trial orders or orders in another trial made by another judge, the trial Judge, cannot be re-argued except in exceptional circumstances. "It seems to me that his Honour fully considered the decision he reached and that the difference between what he may have been considering then and what perhaps, if he was sitting here today with additional material considering it, it would mean that his Honour would be looking at what often happens in trials, that is, there is significant argument as to a witness's accuracy, reliability and other matters of that nature. They are dealt with at a trial by a jury. I have concluded, having looked at all those matters quite rightly raised, that this is not a matter in which I could rule that it would not be in the interests of justice for the order to be binding. The case, of course, went before a jury. It was heard on the basis of the current indictment and the jury could not reach a conclusion on any of the charges. It seems to me that the trial proceeded in what I would have thought is a normal way and the jury did not reach a conclusion which we see from time to time. I cannot make any other finding than that I am bound by section 130A in relation to the first of these matters." (T 3-4, 13 February 2013)

Submissions 285The appellant submitted on this appeal that Garling A-DCJ fell into error in his Honour's approach to s 130A and, in that respect, relied upon the following four matters: (1) His Honour applied a test of "exceptional circumstances" which was not the appropriate test under s 130A of the Criminal Procedure Act. (2) His Honour failed to properly consider the detailed matters raised in support of the application, especially in the context of GB as to his evidence at the first trial. (3) His Honour failed to properly consider coincidence evidence, especially that relating to GB and TE. (4) His Honour failed to properly consider the coincidence evidence in the materials found in the possession of the appellant upon his arrest on 3 September 2008. 286It was contended for the appellant that his Honour failed to properly give detailed consideration to the "additional body of evidence directly relevant to whether the Crown ought to be permitted to rely upon tendency and coincidence evidence": Appellant's Written Submissions at [317]. 287The written submissions for the appellant set out a detailed analysis of the relevant facts and issues arising with extracts from the trial transcript and references to relevant authorities. I do not mean any disrespect to Mr Walsh in not referring in detail to all of those submissions in this judgment. I have, of course, closely considered all written and oral submissions made on behalf of the appellant and the Crown. 288In relation to the "exceptional circumstances" ground referred to in (1) above, it was submitted on behalf of the appellant that the trial judge applied a much more stringent test than that which the statute specifically required. It was observed that s 130A does not refer to a test of "exceptional circumstances", but rather, the test is expressed in terms of whether "it would not be in the interests of justice for the order to be binding". The words "interests of justice", it was submitted, are words having the widest possible reference and they enliven a discretionary judgment. The words also incorporate, it was contended, as a paramount consideration, that an accused person should have a fair trial: Appellant's Written Submissions at [315]. 289In relation to the issues referred to in (2) and (3) above (at [285]), it was submitted for the appellant that the trial judge was in error in failing to have regard to the evidence of GB and TE in the context of considering the need for the evidence to have "significant probative value" under the Evidence Act. It was additionally submitted that (a) there was a large body of evidence that went to the risk of concoction and contamination, and (b) that the tendency witnesses had animus towards both the appellant and the school: Appellant's Written Submissions at [317]. 290In relation to (4) above (at [285]), in respect of the materials seized on 3 September 2008, it was submitted for the appellant that Garling A-DCJ failed to give proper consideration to the evidence given in the first trial of the appellant and other defence witnesses and place "in proper context his [the appellant's] possession of those materials": Appellant's Written Submissions at [318]. The latter evidence included the appellant's volunteer work with HIV/AIDS sufferers and his explanation for possessing the pornographic materials. It was submitted this evidence gave rise to considerable prejudice to the appellant: Appellant's Written Submissions at [318]. 291In paragraph [22] of Mr Walsh's written submissions in the present appeal , reference was made to the submission made in support of the argument under s 130A. In respect of the items seized by police on 3 September 2008 it was submitted: "... for instance although the Accused had told Detective Sergeant Grassick ... that he had in his possession certain items because of his work with HIV and AIDS patients, of course when he came to oral evidence character was put at issue. It was raised in advance of his case, good character and he explained that over a lifetime and indeed at the time of his arrest in 2008 he had been working many difficult years in helping people who tragically suffer from HIV and AIDS in our community ..." 292Reference was made to the further submission by Mr Walsh that Cogswell DCJ did not have that body of evidence to place in proper context the good works that had been done by the appellant and the "need to have safe sex practices and DNA magazines are distributed ...": at [22]. 293In his oral submissions to this Court on 7 February 2014, Mr Walsh emphasised that Garling A-DCJ had "... the additional bit of evidence in which there was very comprehensive explanation under oath, together with other witnesses that explained the alternative inference that this material was in the possession of the accused as part of his good works in the community. That is different to what Judge Cogswell had." (T 6:29-35) 294In the Crown's submissions it was contended that Garling A-DCJ in fact considered the admissibility of the evidence given at the first trial in his judgment: T 4:9-T 6:7, 13 February 2013. The Crown submitted that his Honour considered the application and the constraints of s 130A of the Act. 295Mr Walsh in his submissions to this Court again emphasised that the accused had given an explanation under oath that he had for over twenty years been working with HIV patients: T 4:5-12. 296Mr Walsh submitted that his Honour ought to have taken into account this new evidence of an alternative explanation for the use of the items seized and that there was a broad test under s 130A which entitled his Honour to have regard to such additional material and an alternative explanation. 297It was contended that there was no reference by Cogswell DCJ or by Garling A-DCJ to the "extraordinary delay" of GB making a complaint, nor the nature of the complaint to Dr Frukacz ("in very general terms") and that GB only came forward after considerable media publicity and the arrest and charging of the appellant. 298The Crown's response was that it was evident Garling A-DCJ considered the evidence, including the additional evidence from the first trial, that was placed before him and the submissions that had been advanced. It was submitted that his Honour found, as was open to him to find, that in the circumstances he was not satisfied that it would not be in the interests of justice for the order to be binding: Crown's Written Submissions at [35]. 299The Crown further submitted that the trial judge considered the application and the constraints of s 130A and determined that, in the circumstances of the case, he was not satisfied that it would not be in the interests of justice for the order to be binding. Judgment was delivered ex tempore and there was no suggestion at the time that there had been a failure to have regard to any evidence: Crown's Written Submissions at [40]-[41]. 300The Crown additionally observed that the trial judge only once used the words "except in exceptional circumstances", and that on all other occasions his Honour correctly referred to the "interests of justice" requirement: Crown's Written Submissions at [22]. 301The appellant's submission before Garling A-DCJ had been that GB was "significantly unreliable". The Crown observed in its submissions to this Court that the "problematic matters were summarised" for his Honour: Crown's Written Submissions at [33]. 302The Crown submitted that, as Garling A-DCJ stated, he had examined the relevant matters all of which had been the subject of recent reference in the submissions for the appellant.

Consideration 303Section 130A of the Criminal Procedure Act applies to pre-trial orders made by a judge in proceedings on indictment. A pre-trial order means any order made after the indictment is first presented before the empanelment of a jury for a trial: s 130A(4). 304The following matters are noted: (i) The provisions of s 130A are expressed in expansive terms referring to any order falling within the definition in s 130A(4). (ii) The provisions would, accordingly, apply to separate trial orders, but doubt has been expressed as to whether they apply to evidentiary rulings: per Howie J in R v Ford [2009] NSWCCA 306 at [150] (his Honour however, observed that in the Second Reading Speech introducing the bill that originally amended the Criminal Procedure Act by inserting the provision in the terms then appearing in s 130A, it was intended that it would apply to evidentiary rulings). It was unnecessary to resolve the question in that case. (iii) A redetermination of a pre-trial order is only possible in the limited circumstances stated in s 130A, namely, "... it would not be in the interests of justice for the order to be binding". (iv) An error in a pre-trial order may justify a court concluding that it would not be in the interests of justice for the order to be binding. Not every error of fact or law, however, may justify a judge redetermining the pre-trial order previously made. Much will depend upon the nature and/or effect of such an order. 305I will proceed to deal with each of the four matters raised by the appellant in paragraph [285] above.

(i) The 'Test' of Exceptional Circumstances 306Garling A-DCJ was clearly aware of the precise terms of s 130A which his Honour, in part, extracted into his judgment. He made express reference to the "interests of justice" test contained in the s 130A (Judgment at p 2). 307His Honour noted that the application under s 130A was made upon the basis, inter alia, of the evidence adduced in the first trial (including the evidence from GB) and further noted the submission for the appellant to the effect that the evidence given by GB "was significantly unreliable": Judgment at p 3. 308His Honour made reference to Mr Walsh's affidavit sworn 24 January 2013 and noted the reasons set out in it in support of the submission as to why the court should "revisit" the matters previously decided. 309Garling A-DCJ also took into account the matters that had been considered by Cogswell DCJ. 310Notwithstanding the trial judge's use of the phrase "exceptional circumstances", it is important to note that his Honour did not apply that as the test for determining the application. He employed that phrase in explaining the rationale for the provisions in s 130A. A little later on the same page of the judgment his Honour applied the correct test in saying: "... I have concluded, having looked at all those matters quite rightly raised, that this is not a matter which I could rule that it would not be in the interests of justice for the order to be binding ..." (at p 4) 311I have concluded that there is no merit to the contention that the trial judge applied the wrong test.

(ii) Failure to Consider Detailed Matters and Failure to Consider Coincidence Evidence

(iii) Failure to Properly Consider Coincidence Evidence, Especially that Relating to GB and TE 312The appellant before Garling A-DCJ relied upon evidence given in the first trial, including the evidence in cross-examination of GB and TE as well as the evidence given by the appellant. The evidence in the defence case at trial and relied upon before his Honour dealt with the appellant's volunteer work with HIV/AIDS sufferers and his explanation for the pornography found in his possession. The additional material relied upon before Garling A-DCJ also included the evidence of Dr Roberts which purported to lessen the significant probative value of GB's evidence as well as TE's evidence. 313I accept the Crown's submission that Garling A-DCJ considered the matters relied upon and argued by Mr Walsh as well as the evidence to which those submissions related. His Honour indicated that he had done so and made it clear that, in his opinion, the issue of the reliability of GB was a matter for the jury's determination at trial, which it clearly was. 314Many of the matters raised in the submissions for the appellant were directed at demonstrating, in light of the additional evidence of GB in the first trial, that GB's evidence was unreliable. 315However, in determining the issue of significant probative value for the purpose of s 97(1)(b), it is well-established that a restrictive approach is to be taken to the circumstances in which issues of reliability and credibility may be taken into account in determining the probative value of evidence for the purposes of determining questions of admissibility: R v Shamouil [2006] NSWCA 112; (2006) 66 NSWLR 228 at [60] per Spigelman CJ. 316The Chief Justice in that case observed that there will be circumstances, as envisaged by Simpson J in R v Cook [2004] NSWCCA 52, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue: at [63]. 317An example given by Simpson J in Cook was where the evidence is so preposterous that no jury would accept the evidence. 318That is not this case. The issue of GB's reliability or credibility, as I have indicated, was a matter for determination by the jury and not one for a trial judge to determine. 319As to the submission of a failure by Garling A-DCJ to consider evidence of concoction/contamination caused by animus towards the appellant and the College, I accept, as the Crown submitted, that there was no significant change in the evidence on the voir dire to that given at the first trial. Cogswell DCJ concluded that arguments as to alleged concoction or contamination had not been made out and there was, in my assessment, no basis established for Garling A-DCJ to depart from the ruling that had been made on that question. I do not consider this matter of complaint has any merit.

(iv) Failure to Consider the Materials Found in Possession of the Appellant on Arrest as not being Tendency or Coincidence Evidence 320On the issue of the appellant's possession of pornography, extensive submissions were made by Mr Walsh in his written submissions at [183]-[199]. The proposition contended for on behalf of the appellant was that in determining the admissibility of the evidence as to his possession of such materials under s 98 of the Evidence Act, Garling A-DCJ failed to take into account the evidence as to an innocent or alternative explanation given at the first trial. 321In relation to the submission that Garling A-DCJ did not consider the coincidence evidence relating to the possession of the pornographic items seized on arrest, Garling A-DCJ referred to Cogswell DCJ's consideration of such evidence and to his determination that the evidence was admissible as coincidence evidence. 322His Honour Garling A-DCJ dealt with this matter at pages 4-5 of his judgment of 23 May 2012, making it clear that he had "considered all those matters", his Honour having extracted parts of the judgment of Cogswell DCJ on the probative value of the items seized to the facts in issue in the trial in which TE was the complainant. 323I do not consider that there is any substance to the submission that Garling A-DCJ failed to properly consider the coincidence evidence relating to the possession of the pornographic materials in the items seized upon arrest. 324Essentially the question at issue was whether or not the evidence was admissible as coincidence evidence. The fact that the evidence may have supported an alternative explanation does not make the evidence inadmissible. Recognition of the jury's role in determining such issues should not be put to one side. 325In DSJ v R; NS v R [2012] NSWCCA 9, Bathurst CJ (at [10]) observed that the real possibility of an alternate explanation inconsistent with (in that case) the guilt of the accused will be relevant to forming the view required by s 98 that the evidence has probative value. However, importantly, the Chief Justice stated: "... However, this does not involve either undertaking the fact-finding analysis suggested by Senior Counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury." 326It is commonly the case in determining admissibility of coincidence and tendency evidence that, on the voir dire, the Crown produces statements relating to matters upon which evidence will be sought to be led at trial. In the particular circumstances of this case, Garling A-DCJ was required, inter alia, to consider the evidence given at the first trial, including in particular the appellant's evidence, by way of explanation, of the circumstances in which he said he came into possession of the materials seized by police. Such an "innocent" or alternative explanation, if accepted by a jury, would deprive the evidence of its probative value. 327As earlier indicated, Garling A-DCJ stated that he had, in determining the application made under s 130A, taken into account evidence led in the first trial. Whilst express reference to the actual evidence to which his Honour referred would have been desirable, I consider that, having regard to the particular submissions made to him on this aspect, his Honour's statement as to what he had taken into account was sufficient to indicate the basis of his decision. I consider that no error has been established in this respect. 328Finally, whilst the appellant gave evidence in the first trial as to an alternative explanation for being in possession of the materials seized by police, at the end of the day that was an issue that fell within the province of the jury. The question as to whether the particular matters relied upon by the appellant in support of the alternative explanation were to be accepted required an evaluation by a jury. As noted above, the approach to be taken in determining the admissibility of coincidence and possible alternative explanations for such evidence has been established: DSJ v R; NS v R [2012] NSWCCA 9, Bathurst CJ at [6]-[10] and Whealy JA at [78]-[81]. 329At the end of the day, his Honour was required to determine whether, on the evidence before him, including the evidence in the first trial relied upon by the appellant, there was a proper basis, in the interests of justice, to reconsider the decision of Cogswell DCJ. His Honour's decision not to intervene in this respect was, in my assessment, entirely appropriate. 330Garling A-DCJ was required to consider the pre-trial orders of Cogswell DCJ in light of the evidence before him, including the evidence given at the first trial and which was tendered on the voir dire, in order to form an opinion, as specified in s 130A(1). It is clear that his Honour considered the evidence and the submissions before concluding that in effect, there was no requirement to depart from or do anything other than regard the earlier pre-trial orders as binding. On a review of the matters raised in submissions in this appeal on behalf of the appellant and the Crown, I am of the opinion that there is no basis for forming any other conclusion than that expressed by his Honour. Accordingly, no error has been established in respect of Grounds 1 and 2 and they should be dismissed. 331I will deal separately with the stay application determined by Garling A-DCJ when considering Ground 6.

Ground 6: The learned Trial Judge erred in refusing an application for a permanent stay of the Indictment in respect of GB 332The appellant applied by Notice of Motion dated 21 January 2013 for a permanent stay of proceedings of the sole count concerning GB (Count 1). The application was pursued before Garling A-DCJ on 11 February 2013. There had been no previous determination of an application for a stay of proceedings. 333The applicant relied upon the affidavits of Mr Walsh sworn on 24 January 2013 and 6 February 2013 in support of the Notice of Motion. As the Crown noted, considerable parts of the first affidavit were not admitted and were not pressed. Extensive written submissions were relied upon as well as oral submissions. 334Garling A-DCJ refused the application for a stay of proceedings. 335In oral submissions Mr Walsh observed that Ground 3, the unsafe and unsatisfactory ground, overlapped Ground 6 in some respects: T 14:10-12, 7 February 2014. 336The Crown relied upon its written submissions.

Appellant's Submissions 337In the Appellant's Written Submissions it was contended in the hearing of the stay application before Garling A-DCJ that the date on which the tractor incident is said to have occurred (in 1965 or 1966), was of importance to the appellant's contention as to prejudice. 338Count 1 on the indictment averred a time "between 1 September 1965 and 31 December 1967". In this period, both the appellant and the complainant were at the College. 339During the first trial, an amendment was made to Count 1 in relation to the nominated period. The first trial commenced with a time period of 1 January 1966 through to 31 December 1967. 340GB's evidence at the first trial proceeded on the basis that he believed the appellant only joined the school in 1966. 341The day upon which the assault the subject of Count 1 occurred was, according to GB the day the tractor went into the trench. At the time he observed the tractor GB said that the only persons present were the appellant and, he believed, two of his school friends. 342As the Crown noted, GB was cross-examined as to the date of the offence and that that evidence demonstrated his uncertainty as to timing. However, his evidence was guided by his belief that the appellant did not arrive until 1966 and the incident could be dated from the tractor incident. 343As the Crown noted in its written submissions at [110]: "Although the complainant initially dated the incident by his recollection of his age and when the appellant arrived, which placed the offence in 1966 or 1967, he readily accepted that it may have been 1965 if the appellant was at the school and the tractor incident could be dated to that time." 344In the written submissions for the appellant at [596] it was noted that the tractor incident was critical to the Prosecution and Defence case. The appellant had attempted to rely upon a particular photograph to demonstrate the unreliability of GB's evidence and also to prove the appellant's innocence of the charge against him. 345The submission for the appellant continued: [596] "... However what the Crown Prosecutor did was to suggest in cross-examination to the Applicant that the incident in which the tractor went into the ditch or trench was not in any way associated with the photograph shown to him by Mr Walsh on behalf of the Applicant. In other words what the Crown Prosecutor did was to put to the Applicant that there was another incident in which the tractor had been driven into the trench." 346The submission on behalf of the appellant, the then applicant for a stay of proceedings, was that there was, in the circumstances in which the period in Count 1 was altered, overwhelming prejudice to him and that this was manifest because the jury would reason that there were two and not one tractor incidents: "... thus, the witnesses who were either dead or unavailable were even of more critical importance in the defence of the count against the Applicant." (Appellant's Written Submissions at [597]) 347The appellant's case in respect of Count 1 was at least partly based upon the proposition that the photograph in the Echoes magazine showing a tractor, the appellant and others, was one taken in November 1965. 348As the Crown observed in its submissions at [109], the effect of the evidence given by GB in the first trial was an acceptance that the photo may have been taken of the same tractor incident, but not at the same time that he made observations or had dealings with the appellant. The appellant's evidence was that the tractor incident occupied almost the full day. 349In support of the stay application there were five matters or criteria on the basis of which a permanent stay was sought of Count 1. All related to the issue of delay. They were: (i) The delay; (ii) The reasons for the delay; (iii) Whether the accused was responsible for any of the delay; (iv) Prejudice to the accused; and (v) Consideration of public policy, namely, the importance of bringing persons accused of serious crimes to be processed by the Court system. 350As noted in the written submissions for the appellant, his Honour dealt with each of the above points as follows: (i) That the accused was not responsible for any of the delay. (ii) There were a number of areas of prejudice, including publicity about him and other members of the religious order. Additionally, the dispute about the tractor incident and the number of people who were present at the time who were depicted in the photograph were deceased. There were other witnesses who, because of delay, were not able to be ascertained. (iii) The importance of the public policy in bringing persons charged with offences before the court was accepted. 351The written submissions for the appellant reproduced his Honour's reasoning in relation to prejudice in these terms: "Whilst a number of witnesses are deceased, the real issue is whether or not sexual assault took place. There were no witnesses so there is no reference to an eye-witness to the assault. It is not surprising that various witnesses may have died during that period. In addition, the Accused concedes many of the matters surrounding his time or work at the College. Delay is common in historical sexual assault cases and can be cured by directions." (Appellant's Written Submissions at [604]) 352It was submitted on behalf of the appellant that the trial judge erred in rejecting the application for a permanent stay of the proceedings in respect of Count 1. In that respect a number of matters were raised in relation to the issue of "reasons to explain or justify the delay", criteria (ii) in the above list of five criteria. 353The appellant's written submissions at [608]-[618] set out details as to the medical attendances by GB upon medical practitioners from approximately 1999. These included his general practitioner, Dr Jamieson, a Dr McGarrity and a psychologist, Mr Woodside (2007) and Dr Frukacz, Consultant Psychiatrist (2008). Notwithstanding such medical attendances, GB did not disclose any history of alleged sexual assault whilst he was at the College. This included a period when he was being treated for depression. 354The Crown observed that Dr Pullman gave evidence on the voir dire that the failure to report sexual assaults was not at all unusual or unexpected and that the failure to complain is not unexpected in sexual assault offences, referring to the observations of Bell J in R v RWO [2002] NSWCCA 133 at [103]. In RWO delay was a period of thirty-five years up to the date of trial. 355A further matter raised was a question of the motivation of GB in coming forward in 2008. It was submitted that the publicity surrounding the arrest of a former priest in May 2008, and the appellant's arrest in 2008, and the publicised remarks of the lawyers representing the appellant, were relevant in explaining GB's motivation. 356As to unreliability, the evidence on the voir dire, which Cogswell DCJ accepted, was that GB had not discussed either the assaults or the appellant with others whilst at the school or in later years. 357The appellant's written submissions on Ground 6 reproduce in most aspects the submissions dated 11 February 2013 that were relied upon on the stay application. A copy of the latter submissions are at Volume 3 of the Appellant's Tender Bundle, Tab 15. 358In summary, the submissions relied upon delay, more particularly, prejudice arising from the delay before GB reported the alleged sexual assault. The following matters were noted: (i) The absence of an explanation for the failure of GB to make "a timely complaint": Appellant's Written Submissions at [617]. (ii) That GB's "complaint" in 2008 was motivated by a combination of "animus towards the Accused and the College because of the miserable time he had there" and the considerable publicity: at [617]. (iii) The timeframe of the offence. GB at the committal said that he did not think the Count 1 offence occurred in 1965 and said he was unsure whether it occurred in 1966 or 1967. The submissions relating to this matter are discussed in the paragraphs that follow.

Consideration 359Before considering the issue of delay and prejudice, I will first address the claim of prejudice arising from the amendment to the indictment as to the period of the offending alleged in Count 1. 360As to 358 above, the Crown's submissions at [121] observed: "The appellant claimed that the change to the time period specified caused unfair prejudice. The unfair prejudice apparently being that if there was only one tractor incident, it occurred in November 1965 and was therefore outside the charged period. Also, that the evidence marshalled addressed an incident in November 1965 and if there was a possible second tractor incident then the defence was at a disadvantage defending it." 361As earlier noted, on the indictment presented GB averred a time period in respect of Count 1 of "between 1 September 1965 and 31 December 1967." 362During the first trial an amendment was made to the indictment whereby the time period was changed to 1 January 1966 to 31 December 1967. 363The defence case sought to relate the tractor incident to November 1965 and no other time. The defence sought to rely upon a photograph of a tractor accident depicted in a photograph in a College publication "Echoes ...", a copy of which is in Appeal Book volume 1 at p 910, showing a number of people including the appellant. 364It is necessary to refer to the evidence of GB on the above photograph. GB was first taken to it at T 258:45, 21 February 2013. He there said he recalled it being shown to him at the committal. The cross-examination on the photograph continued at T 266-274. GB stated at T 272:25-30 that the photograph was not one taken when he, the two other students and the appellant were standing together before the alleged sexual assault incident. He then added at T 272:44-46: "... this photograph has been taken after or before the incident that I'm talking about, Mr Walsh. This photograph has nothing to do with when I was there and [P] and [I] were there." 365This evidence, if accepted by the jury, would provide an answer to the defence case that the photograph depicted those present at the tractor incident at the time GB said the appellant sent him away to the art room. The photograph had depicted the appellant differently dressed from the clothing GB said the appellant had been wearing at the time of the tractor incident. 366The appellant's submissions on the stay application had sought to establish actual prejudice to the appellant because the Crown Prosecutor had led GB into saying there had been two tractor incidents as a means of explaining the otherwise inconsistent facts reflected by the photograph. 367However, as the evidence of GB referred to above indicates, GB did not say or attempt to explain away the photograph by introducing the fact of two tractor incidents. He instead said that the photograph must have been taken at a different time of day - morning or afternoon and not at the time of the tractor accident. 368The basis claimed in the submissions for the appellant of added or actual prejudice arising from delay due to the introduction by GB of not one but two tractor incidents has not been established. He did not, as I have said, give evidence suggesting more than one tractor accident. 369In relation to the decision of Garling A-DCJ on the stay application, his Honour considered the particular issues raised before him relevant to delay and the issues of prejudice. One such issue concerned the unavailability of a large number of witnesses through death. Some of these included persons in the photograph of the tractor relied upon in the defence case and those who, it was contended, could have demonstrated that GB's account was wrong and unreliable . 370In R v RWO [2002] NSWCCA 133, a case involving a delay of 35 years up to the trial, Bell J observed at [65]: "The delay in this case has been very great indeed. However, commensurate delays, even greater delays, have not of themselves been held to be a sufficient basis for a court refusing to exercise jurisdiction." 371Garling A-DCJ referred to RWO in his Honour's judgment. 372In R v McCarthy (Court of Criminal Appeal, 12 August 1994, unreported) Gleeson CJ observed: "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported CCA, 11 June 1992) and R v Goldberg (unreported CCA, 23 February 1993)." 373It was submitted for the appellant that Garling A-DCJ erred in proceeding on the basis that prejudice could be met by appropriate directions. However, it was open to the trial judge to evaluate the extent to which prejudice could be addressed by directions. As the Crown observed, he was in a position to know what evidence would be led having the evidence available from the first trial was available to him 374The principles were stated by Bell J in RWO as follows: [62] The principles upon which a court will permanently stay proceedings on indictment are well settled. They are enunciated in Barton v the Queen (1980) 147 CLR 75 at 111; Jago v the District Court of New South Wales (1989) 168 CLR 23; Glennon v the Queen (1992) 173 CLR 592; and Walton v Gardiner (1993) 177 CLR 379. [63] It is a power to be exercised only in exceptional cases; Jago per Mason CJ at 31. In Jago Gaudron J explained why that is so at 76: "The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at p 399, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals'. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson, 'sparingly, and with the utmost caution'." [64] It will be appropriate to permanently stay proceedings on indictment in a case where, as the result of delay, the continuation of the proceedings would necessarily result in a trial which was unfair. As Mason CJ observed in Jago at 33: "In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness. ... The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR, at pp 102, 106; Sang [1980] AC at p 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. ... To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR, at p 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson [1987] v R, at p 973." 375I do not consider that the appellant has established a fundamental defect which went to the root of the trial of such a nature that directions from the trial judge could not properly or adequately address any unfairness arising from the delay. 376I have concluded that no error has been established in the decision of Garling A-DCJ in refusing to make an order staying the proceedings on Count 1. His Honour was clearly mindful of the relevant principles to be applied. It is also apparent that his Honour was aware of the factual matters that could potentially give rise to prejudice and the need for strong jury directions to address those matters. In carrying out the balancing test required I do not consider that his Honour was bound to conclude that a trial on that count would necessarily be unfair. In my assessment, error has not been established. Ground 6 accordingly should be dismissed.

Ground 4: His Honour erred by permitting the Crown Prosecutor to cross-examine the Matron Clarke as to "masking" symptomatology relating to TE 377Ground 4 is devoid of merit on two bases. Firstly, the question asked by the Crown Prosecutor did not elicit any answer as to "masking" symptomatology. Secondly, Mr Walsh on the hearing of the appeal stated that he did not press this ground: T 20:9, 7 February 2014. However, just prior to that statement Mr Walsh also stated that he relied on his written submissions in relation to this ground. In the circumstances, it is best to deal briefly with the matter raised by Ground 4. 378Ground 4 was addressed in paragraphs [548] to [567] of the Appellant's Written Submissions. 379The appellant's submissions asserted that the objection to the Crown's questioning of Matron Daymond on the subject of "masking symptomatology" amounted to expert evidence but the witness had not been qualified as to any relevant expertise that she had. Further, no notice had been given of the evidence sought to be elicited from her on that topic. 380During the second trial Matron Daymond, a registered nurse, was asked by the Crown Prosecutor as to the issue of "masking" symptoms. The question was: "Now as part of your training did you learn that young men or adolescents can sometimes mask what is happening to them by complaining about stomach pains." (T 671:46-48, 27 February 2013) 381As the Crown's submissions noted, there was an objection to the question based on the absence of notice and the failure to qualify the witness as having relevant expertise. 382Paragraphs [73]-[75] of the Crown's submissions sets out questions and answers that were asked: "She was then asked, without objection [T 27/2/13 697.45- 698.36]: Q. In the course of your training, did you learn that young male adolescents can complain about stomach problems but in fact be referring to something else? A. Would you repeat the question please? Q. In the course of your training, did you learn that young persons, young adolescents, young male adolescents can complain about stomach problems and be referring to something else? A. I think, no. Q. You never learnt that? A. Beg your pardon. Q. You never learnt that? A. I have always during my nursing career, treated the symptoms as they were presented. I do not presume to diagnosis. Q. If you have repeated complaints of tummy aches in a young lad, would it cause you to consider the possibility that something else other than a stomach upset was going on? A. I would refer the young person or any other person who complained of frequent tummy pains to a GP and I would rely on his or her diagnosis. None of her answers were responsive to the question. In cross-examination Matron Clark was asked [T 27/2/13 704.5]: Q. You were asked a number of questions about whether you would deduce from symptomatology of bleeding from the anus what in your mind would trigger a thought or belief or a suspicion of sexual assault. Remember those questions asked of you? A. Yeah I do. Q. You said no? A. I-- Q. That was your evidence? A. Yes yes. Q. Was it your practise that if anything serious occurred so far as the presenting symptoms of a student you'd refer him on to Dr Wilson? A. That is correct." 383The Crown noted that there was no cross-examination regarding stomach aches masking something else. There was no questioning of Matron Clarke to suggest that she lacked expertise to comment on the Crown Prosecutor's question. 384At the conclusion of the evidence the Crown observed, there was no confirmation that stomach aches could mask another complaint. 385In these circumstances, the Crown correctly submitted at [78]-[79]: "This material did not form part of either the Crown or the Defence address. Nothing was said in summing up nor was any request made that anything be said. The appellant contends that the admission of the evidence was of significant prejudice: AWS [567]. There was in fact no evidence. There was limited questioning from the Crown Prosecutor that found no acceptance with the witness." 386Accordingly, there was in fact no opinion expressed on the matter of masking symptoms. 387I do not consider, as stated above, that there is any merit to Ground 4. The ground accordingly should be dismissed.

Ground 5: That a miscarriage of justice occurred as a result of the Crown Prosecutor being permitted to cross-examine the appellant contrary to Palmer v R (1998) 193 CLR 1

Appellant's Submissions 388This ground was argued upon the basis that it is impermissible for an accused to be asked questions by the Crown about whether a complainant has any motive to lie or as to whether any witness is lying, whose evidence is opposed to the accused: Appellant's Written Submissions at [576]. A number of authorities were cited in support of this proposition commencing with the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1 (per Brennan CJ, Gaudron and Gummow JJ at 8: Appellant's Written Submissions at [577]-[583]. 389It was submitted for the appellant that the cross-examination was most unfair to the appellant: at [586]. It was submitted that the effect of the cross-examination was to reverse the onus of proof and that the line of questioning pursued implied that unless the appellant satisfied the jury that the Crown witnesses were liars, they should accept the complainant's evidence and convict: Appellant's Written Submissions at [586]. 390Further, it was submitted that the extensive nature of the cross-examination was such that any direction by the trial judge could not have overcome the unfair prejudice to the appellant, such that a miscarriage of justice had occurred in these circumstances: Appellant's Written Submissions at [586]-[587]. 391In the "Supplementary Note on behalf of the Appellant - JG" dated 12 February 2014, the issue of impermissible cross-examination was addressed, initially in terms as to the possible application of Rule 4 of the Criminal Appeal Rules. 392Attention was drawn to an issue raised by Mr Walsh with the trial judge about the line of cross-examination by the Crown Prosecutor in putting to the appellant in respect of the evidence of GB and TE, and tendency witnesses, questions such as "Do you say he is lying?" or "Is that a lie?": T 1470-1472, 15 March 2013. 393Mr Walsh referred the trial judge to Palmer v The Queen and other authorities. He stated his concern as to how the Crown proposed to address the jury on such evidence and that if the Crown Prosecutor did refer to that evidence it would occasion prejudice to the appellant: T 1471:10-20. 394The trial judge asked Mr Walsh what he wanted him to do: T 1471:30-32. 395Mr Walsh replied that he requested the trial judge to ask the Crown Prosecutor as to what he proposed to do about the matter and further in light of the authorities to which he had drawn attention to redress the problem that's arisen - that it was not up to the appellant to explain "why any particular complainant may have a motive to tell an untruth": T 1471:35-40. 396Discussion then occurred on the subject of directions (T 1474:45 to T 1475:1-5). 397The trial judge made the observation that the appellant had expressed his "view" that "they were lying": T 1474:5-7 and further that he "had a very firm view about this": T 1474:10-12. 398In the Crown's Supplementary Submissions it was noted that the appellant had not sought a discharge of the jury and that there was no suggestion that the evidence could not be covered by suitable direction: at [17]. 399The Crown further submitted that there was no suggestion that the trial judge did not comply with the request for a direction and that he gave a perfectly adequate direction to the jury: at [18].

Crown's Submissions 400The Crown accepted that as a general principle, a witness should not be asked whether or not a witness is not telling the truth or is lying: Gonzales v R [2007] [NSWCCA 321; (2007) 178 A Crim R 232: Crown's Written Submissions at [83]. 401The Crown submissions referred to the observations in R v Foley (1998) 105 A Crim R 1 at 8.3 to the effect that impermissible cross-examination of the kind referred to in Gonzales v R was unfair because it forced the honest witness into a recrimination and sought to rely upon the natural reluctance of a person to defame another. In Foley it was stated to be a form of "... bullying, using unfair means to persuade a person to retract his or her evidence ...". 402The Crown noted in its submissions that in the first trial on 18 June 2012, Cogswell DCJ raised the line of questioning with the defence at T 1604:14-T 1606:16 as follows: "HIS HONOUR: Now, the other thing I was just going to raise is the number of times Mr Hughes put to the accused as a witness that other witnesses were lying and you didn't take objection. I'm not saying you should or shouldn't have. That is an area which, by the looks of it, is dealt with by section 41 of the Evidence Act. But I'm assuming that was a considered decision because of - I don't know - but a forensic advantage that you expected-- WALSH: Your Honour, I think I have to concede that the situation was that Brother Gaven was capable probably of answering the question. HIS HONOUR: That's-- WALSH: What weight one puts to the answer or to the evidence is another thing. HIS HONOUR: Yes. WALSH: But it did come across my mind-- HIS HONOUR: Yes. WALSH: --and I thought it wasn't put in specific terms, it was, rather, in the general about other third parties lying, so-- HIS HONOUR: No. It was put that so and so - X and Y and Z were lying and then that they're all lying. WALSH: Tendency witnesses. HIS HONOUR: And I'm not being critical of you and, indeed, I haven't heard Mr Hughes on whether he says that they were admissible questions or not. But I just wanted to check. Thank you. Good. WALSH: Yes. I think, technically, your Honour, they were inadmissible, but I must concede I took a forensic view because of the way they were being put and I just thought- HIS HONOUR: I can understand that. WALSH: Well-- HIS HONOUR: I can understand. Yes. WALSH: Yes. HIS HONOUR: Just checking. WALSH: No, no, I appreciate that, your Honour." (Crown's Written Submissions at [86]) 403The Crown submitted that the final address for the appellant squarely suggested that witnesses were lying or were other than witnesses of truth: Crown's Written Submissions at [87]. Additionally, the Crown observed that the conduct of the first trial was largely reproduced during the second trial and assisted to define the parameters of the dispute. 404The Crown submitted that it was significant that at the commencement of the second trial the defence commenced its opening to the jury with an assertion that the allegations by GB, TE and any of the persons outlined by the Crown Prosecutor as giving tendency or coincidence evidence were "untrue": T 193:31, 20 February 2013. 405The Crown noted that the defence opening concluded with the statement that the appellant had been "falsely accused" in this case: T 202:20, 20 February 2013 - Crown's Written Submissions at [89]. 406In paragraph [90] of the Crown's Written Submissions it was stated: "The appellant either volunteered that a witness was lying or was asked to confirm that he was alleging a witness was lying on a number of occasions. They include: T 1226.7: A. asked if GB was lying; A said "absolute lies"'; T 1242.41 A said GB's evidence was "false, it's untrue"; T 1253.18 A said SR told "lies" and was "absolutely false"; T 1253.19 A was asked if HM was lying, A said yes; T 1253.22 A was asked if SR was lying, A said "absolutely"; T 1253.45 A said SR gave evidence, "but it's false"; T 1253.50 A said SR's other evidence was "totally false"; T 1254.29 A said HM's allegation was "absolutely false"; T 1254.33 A said another part of SR's evidence was "totally untrue"; T 1255.38 A said RB's evidence was "a lie"; T 1255.40 A was asked if RB was a liar, A said "absolutely liar"; T 1255.43 A was asked if MK was a liar, A said yes; T 1255.47 A said about MK's evidence "still makes it a lie"; T 1258.28 A said that the witnesses who said he sexually molested them were "totally false" and the accusations were "totally untrue"; T 1259.8 A said PW's evidence was "also a lie"; T 1259.9 A was asked if RB was lying and A agreed; T 1259.12 A was asked if PW was lying and A agreed; T 1259.34 A said MH's evidence was false; T 1259.38 A was asked of MH was a liar and he said yes; T 1260.15 A said the evidence he inappropriately touched someone was "totally false"; T 1260.17 A was asked if SW was a liar and he agreed; T 1260.20 A was asked if MH was a liar and he agreed; T 1260.23 A was asked if PW was a liar and A agreed; T 1266.25 A was asked if TE was lying and A said "like he lied about everything else"; T 1260.33 A said was TE said about McDonalds was "untrue"; T 1271.12 A said that part of TE's evidence was "totally false"; T 1271.42 A said that part of TE's evidence was "totally false"; T 1271.45 A said that part of TE's evidence was "absolutely false"; T 1272.10-29 A said TE was a "pathological liar", the others were liars, that GB was also a "pathological liar", and agreed that those that didn't agree with him were "pathological liars" as he had been "falsely accused" T 1278.10 A said that part of TE's evidence was "totally untrue"; T 1278.45 A said that part of TE's evidence was "totally, totally false"; T 1279.9 A said that part of TE's evidence was "untrue"; T 1280.7 A said that part of TE's evidence was "totally false"; T 1283.41 A was asked if Dr Lyons was lying and A said he was; T 1286.23 A said what Dr Lyons said was "untrue"; T 1286.30 A said the allegation re MA was "untrue"; T 1286.49 A said MA's allegation was "untrue"; T 1287.44 A said MA's allegation was "totally untrue"; T 1287.46 A was asked if MA was a liar and A said he was "a liar"; T 1287.49 A was asked if MA was a "pathological liar" and A said he didn't know "whether he's pathological but he's lying"; T 1288.43 A said evidence re his conduct to MA was "untrue"; T 1297.30 A said TE's evidence he had pornography was "totally untrue"; T 1309.4 A said TE had "made absolute false and horrendous accusations"; T 1316.3 A said these types of students had made "false allegations"; T 1316.11 A was asked if liars would come forward as a result of publicity; T 1318.24 A said those who complained made "false accusations"; T 1319.16 A was asked Q. Is this the case, correct me if I'm wrong, your case, every single person in this trial who alleges sexual misconduct on your part perpetrated by you on them is a liar? A. Yes. Q. That extends from [G B] in the period 65/67 through [H M] in a room on the priests' corridor in 86. It continues with [S R] in 1987. It continues to [PW] who said that you put your hand down his pyjama shorts. It continues through all the allegations of sexual misconduct described by [TE], including anal penetration and it includes, it culminates in [M A], who said that he got into your bed and there was a mutual holding of penises. All of those witnesses are lying, is that your case? A. Yes. Q. And additionally, every single witness in the prosecution case in this trial who says they witnessed you acting in a predatory and inappropriate way with young students at the school, they're also lying, according to you? A. The incidents didn't occur so, therefore, they could not have witnessed it. T 1319.40 A was asked if RB was lying and he said yes; T 1319.46 A was asked if SW, MH and PW were lying [he did not respond]; T 1320.3 A was asked if Dr Lyon and Dr Ioannou were lying and he said yes; T 1320.11 A was asked if part of Dr Lyons evidence was a lie and A said "definitely a lie"; T 1320.13 A was asked if TE's mother was wrong in her evidence about a complaint." 407The Crown noted that it was only at this point that an objection to the above "line of questioning" was made and the Crown Prosecutor upon the objection stated that he did not "extend it to there". The Crown submitted that clearly the objection had only been made upon the basis that the appellant could not have had direct knowledge of the subject of the question and could not comment: Crown's Written Submissions at [91]. 408The Crown observed that immediately after the objection a further question on the above line was put at T 1320:23 without objection. 409The Crown's submission was: "There was no objection to any of the questioning about a witness or witnesses lying. As the appellant ably demonstrated in his evidence, it was his case that almost all the witnesses called were lying, and that a number were pathological liars. Given the number of witnesses who gave accounts of a number of individual incidents occurring at different times involving the appellant it was not feasible to mount a case that they were mistaken or that their accounts were somehow confused." (Crown's Written Submissions at [93]) 410The Crown further submitted that it was clearly a case where the central "planks" of the defence case was that the witnesses were lying. That this was so it was said was supported by the defence final address "resolutely suggesting that each complainant lied and did not give truthful evidence": Crown's Written Submissions at [94]. 411The Crown further submitted that the appellant was not questioned as to: "...what motive each or any witness had to lie. The appellant was not questioned as to any reasons why a witness was lying, he was merely asked to confirm that he was in fact suggesting that a witness or witnesses were lying about all or part of the evidence. The questioning did not enter into any questioning about motive or absence of motive such as was criticised as being impermissible in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; particularly at [7] and [8]." (Crown's Written Submissions at [95]) 412The Crown further submitted that the Crown Prosecutor did not suggest an absence of a motive to lie or raise for consideration the motive that any of the witnesses would have had to lie, nor did the questioning reverse the onus upon the appellant. The submission was that he merely articulated what the appellant's case was. It was a matter of significance, the Crown observed, that it was the appellant himself who suggested on many occasions that evidence was a lie or false: Crown's Written Submissions at [96]. 413In relation to Ground 5, a question was raised from the Bench as to whether it had been put by Mr Walsh to tendency witnesses that they were lying. Mr Walsh put to some, but not all of the tendency witnesses, that the particular "event" they said occurred did not happen (eg, the witness Mr Walsh, RB and SR), with other witnesses no such proposition was put. 414A number of tendency witnesses were asked whether the boys referred to the appellant by nicknames such as "gay van" and "poof truck". It was put to one witness, Mr Walsh, that because of his attitude towards the offender, combined with rumours about his sexual ideation, he had come to the view that the appellant was doing "something wrong" and he was not. Mr Walsh rejected the proposition: T 775:1-5, 28 February 2013. 415The Crown noted in its supplementary submissions that while some witnesses regarded the nicknames as being directed to the perceived sexuality of the appellant, others placed a more naïve interpretation on the names: at [11].

Consideration 416Before addressing the impermissibility of the line of questioning the subject of Ground 5 and any effect it may have had, it is necessary to make the following observations: (i) Although Ground 5 contends, in effect, that the Crown Prosector was "permitted" to cross-examine the accused contrary to Palmer v R, as the Crown observed the questioning proceeded without any objections being taken to the line of questioning. (ii) The line of questioning pursued by the Crown Prosecutor did not, as the Crown properly submitted, contravene the principle with which the High Court was specifically concerned in Palmer v R. This aspect is further discussed below. (iii) Ground 5 must be considered in the context of the trial. This includes the defence case as actively pursued by the appellant. This essentially was expressed to be that the prosecution of him was built upon a series of lies by the complainants GB and TE and by the tendency and coincidence witnesses. 417Each of the matters referred to in the preceding paragraph are, in my opinion, of importance in assessing whether a miscarriage of justice arose as the result of the impugned line of cross-examination by the Crown Prosector in the cross-examination of the appellant. 418In the determination of the merits of Ground 5 it is important to recall certain of the well-established principles that apply to a witness, including in particular an accused person, invited in cross-examination to express an opinion as to whether another witness was lying: (i) Cross-examination of a witness which involves putting to the witness a question as to whether another person is lying or has invented something is impermissible: R v Praturlon (CCA, 29 November 1985, unreported). (ii) A question of that kind is impermissible as it seeks to have the witness express an opinion as to whether other witnesses are telling the truth, that is, to impugn their truthfulness: Gonzales v R [2007] NSWCCA 321 at [147]. (iii) It is permissible to ask a witness whether what another witness has said is true. The witness may be asked if he/she knows of any reason why the other witness should be hostile to him/her or should tell a false story about him/her: R v Leak (1969) SASR 172. (iv) If the witness says that what the other witness has said is not true, he/she should not be asked to enter into the witness's mind and say whether he/she thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him/her for opinion evidence: R v Leak, supra, at 173-4 per Bray CJ, Hogarth and Walters JJ. (v) If a witness is asked to express an opinion as to whether other witnesses are telling the truth and that the party affected (eg, an accused person) suffers prejudice as a result of such impermissible questioning, then a miscarriage of justice may be found to have occurred. 419I return to the question as to the basis upon which the defence case was conducted at the second trial. 420Mr Walsh, appearing for the appellant, opened the defence case commencing at T 193. 421In relation to the complainant GB, Mr Walsh told the jury: "So [GB] comes forward nearly 41, 42, 43 years later, in the circumstances of considerable publicity. One of the things you will need to consider about [GB] is this; He hated that school. He was a day boy. He didn't like it. Who could blame him I suppose. He felt different to the boarders. The boarders were regarded better as far as he [was] concerned. He hated the order, he hated the school, he hated the institution and so on. You will have to consider carefully how someone could not complain, would not complain, would not talk about [it] in any way to doctors that he was seeing, anyone about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (T 197, 20 February 2013) 422In relation to the complainant TE, Mr Walsh stated: "The evidence that you will hear is that [TE] was referred to her [a psychologist], referred to her because he had certain problems and the problems were he was a pyromaniac. He was lighting fires at the school and [the appellant] came across him, caught him and referred the matter to Brother Dwyer the [principal]. This is all twisted by [TE] into the allegation that [the appellant] had it in for me because he was sexually assaulting me and he was falsely accusing me, falsely accusing me of being a pyromaniac." (T 199, 20 February 2013) 423Towards the end of the opening Mr Walsh stated that the appellant had been: "... falsely accused in this case ..." (T 202:20) 424In his closing address, Mr Walsh questioned the motivation of GB saying that he had come forward in "... very suspicious circumstances, after nearly half a century, 41, 42 years ...": T 1528:7-10, 18 March 2013. 425Mr Walsh in his closing address to the jury stated that: "... The reasons [GB] came forward I suggest to you do not pass muster. He clearly was motivated because he was angry in [his?] perception of the defence of this religious man. He hated the college. He hated the college. He hated the brothers. He hated the priests. He had a harm [sic] time there, he didn't like it. When you go to his evidence, I suggest to you there are so many inconsistencies in the way his evidence unfolded in the context of this tractor incident ...". (T 1528:10-14) 426A little later Mr Walsh put to the jury: "... They're the sort of details, and level of detail that indicate to you that this fellow is not telling you the truth. He's come forward in very suspicious circumstances ladies and gentlemen." (T 1528:21-24) 427In relation to the complainant TE, Mr Walsh put to the jury that, if in relation to the McDonalds incident: "... you come to the view that you can't accept him as a witness of truth in respect of that allegation, how can you accept him on any other allegation ..." (T 1531:8-15) 428Finally, Mr Walsh addressed the jury on the features of the appellant's room as distinct from that of Brother Elrott and stated that TE had "got it dead wrong": T 1540:33. A little later, Mr Walsh stated: "... He's made false allegations against [the appellant]. Once again [TE] has lied to you and he's got it demonstrably wrong. He never went to [the appellant's] room." (T 1540:35-40) 429As the references to the evidence set out in paragraph [406] indicates, on a number of occasions the appellant volunteered, without being asked, that the particular evidence of a witness constituted lies and that a number of questions put to the appellant in cross-examination were in effect seeking confirmation from the appellant that he was alleging that a particular witness was lying.

Decision 430The general principle is, as earlier stated that a witness should not be asked whether another witness is not telling the truth or is lying: Gonzales v R, supra. 431In the present case I do not consider that it can be said that the objective of the line of cross-examination by the Crown Prosecutor was to obtain an opinion as to whether the complainants and the other Crown witnesses were liars in the sense discussed in R v Foley, supra, at 8.3. 432In the context of the trial and the way in which the defence was conducted, the object of the cross-examination in asking the question "Is [X] lying?" was principally directed to confirming what was in effect the express basis or premise for the defence which was that all the Crown witnesses were telling lies. 433The line of cross-examination pursued by the Crown Prosecutor to which this ground relates was not seeking from the appellant an explanation as to whether or not he could identify a motive in a particular witness to lie as discussed in Palmer v R, supra. 434If the cross-examination by the Crown Prosecutor, in contravention of the general principle stated in R v Gonzales, occasions prejudice then a finding that a miscarriage of justice occurred may well be open depending upon the particular facts of a case. However, whether prejudice arises is a matter to be determined in light of the defence case and the way in which it is conducted. 435This, in my opinion, is not a case in which the impermissible line of questioning could be said to have created unfairness, as for example, by either oppressing a witness by confronting him/her by the evidence given by other witnesses in the way discussed by this Court in R v Praturlon, supra, referred to in Gonzales v R at [146], or by reversing the onus. 436In circumstances in which the appellant's case was built upon the proposition that the complainants and the other Crown witnesses were lying, there is an inherent difficulty in accepting that the line of cross-examination by the Crown Prosecutor produced any identifiable unfairness to the appellant. 437The Crown, in my opinion, was correct in saying that this was a case where the central plank of the defence case was that the witnesses were lying. The cross-examination was in reality merely articulating what the appellant's case was. The appellant on a number of occasions emphasised the point by volunteering, without being asked, that the particular witnesses had lied. 438In these circumstances and having regard to the fact that the line of cross-examination pursued by the Crown Prosector did not seek to have the appellant identify a motive for any suggested lies, I do not accept the submission for the appellant that there was, in effect, a reversal of the onus of proof. 439In all the circumstances, accepting that the line of cross-examination pursued by the Crown Prosecutor was impermissible in accordance with the general principle stated in Gonzales v R, I do not, however, consider in the circumstances of the case and for the reasons discussed above that any miscarriage of justice could or did arise.

Ground 3: The conviction of the appellant was unsafe and unsatisfactory

The Test 440The written submissions for the Crown set out the relevant principles and the test in determining whether jury verdicts are unreasonable or cannot be supported having regard to the evidence: at [42]-[34]. 441The written submissions for the appellant also addressed the same: Appellant's Written Submissions at [319]-[320]. 442In determining this ground in terms of s 6(1) of the Criminal Appeal Act 1912, the issue is whether the verdicts are unreasonable or cannot be supported having regard to the evidence: Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 at [31]-[34]. 443The test was stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. The test was restated in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. 444This Court is required to make an independent assessment of the evidence, both as to its sufficiency and quantity: Raumakita, supra, at [31]. As observed in that case, this involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty. The central question is whether the Court is satisfied that the appellant is guilty of the offence charged: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at 575, [11]-[14], 576-7, [20]-[22]. 445In Raumakita, supra, it was also stated at [32]: "In exercising that function, the evidence ought not be considered piecemeal: R v Hillier R v Keenan .... The Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events ..." 446In M v The Queen it was observed at 494-5 that: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

The Appellant's Case 447The submissions on behalf of the appellant on Ground 3 focussed upon the claimed inconsistencies or weaknesses in the evidence of the complainants GB and TE: T 15-22. 448The appellant's written submissions in relation to Ground 3 were set out in paragraphs [319] to [547] of the appellant's written submissions. 449Within those paragraphs specific submissions were made concerning the evidence of GB in the second trial at [322]-[348] and as to the complainant TE at [349]-[386]. 450The remaining paragraphs, [387]-[453] related to the following witnesses: (i) Sister Mary Comer: paragraphs [387]-[393]. (ii) ME (TE's mother): paragraphs [395]-[399]. (iii) GE (TE's father): paragraphs [400]-[408]. (iv) Judith Gill: paragraphs [409]. (v) Marie Daymond: paragraphs [410]-[418]. (vi) Sister Beverley Clarke: paragraphs [419]-[423]. (vii) Sister Mary Comer: paragraphs [424]-[429]. (viii) Brendan Tanner: paragraphs [430]-[432]. (ix) Detective Sergeant Faulkner: paragraphs [433]-[435]. (x) Detective Inspector Grassick: paragraphs [436]-[441]. (xi) Dr Ross Wilson: paragraphs [442]-[453]. 451The evidence said to support Ground 3 was referred to in the Appellant's Written Submissions at [321]-[453]. Ground 3 was addressed in paragraph [454] of the Appellant's Written Submissions as follows: "It is submitted that in this case the evidence of [GB] and [TE] is so lacking credibility for the reasons which have been advanced, this Court should, with the greatest of respect, entertain a reasonable doubt which a reasonable jury ought to experience. It is submitted that the evidence contained such discrepancies, inadequacies and is tainted and lacks probative force that it would lead this Court, with the greatest of respect, even making full allowance for the advantages enjoyed by the jury, that there is a significant possibility that an innocent person has been convicted." (Appellant's Written Submissions at [454]) 452This ground of appeal was argued upon the basis that there were "features" of the evidence of the complainants, GB and TE, that established that the convictions on the counts concerning each was unsafe and unsatisfactory: Appellant's Written Submissions at [321]. 453In essence, the attack on the veracity of the complainants TE and GB is said to have been established by evidence of alleged inaccuracies in their evidence. As discussed below, the distinction between reliability and veracity is an important one. However, with respect, it was not a distinction that was, in my opinion, maintained in the submissions made for the appellant in the challenge made to the evidence of GB and TE. Many of the asserted "inaccuracies" related to matters of detail relevant to issues of credibility (that is, reliability) rather than veracity per se. 454The effect of the submissions was essentially directed to the asserted untruthfulness/unreliability of each complainant by reason of claimed "discrepancies" and "inadequacies" and generally by a lack of probative force in the evidence of GB and TE. Accordingly, in the paragraphs that follow, an examination is made of the evidence, particularly that concerning GB and his account of the events relevant to Count 1 and the issues concerning it raised at trial. I will similarly examine below TE's accounts of the offences charged in the indictment.

Factual Matters: The Counts in the Indictment 455The paragraphs that follow set out in summary form the background facts and matters established in evidence adduced at the second trial in relation to the individual counts in the indictment.

(a) Complainant GB - Count 1 456GB was born in 1952 and attended the College when he was in First, Second and Third Forms in the years from 1965 to 1967. He commenced as a student at the College in late 1965. 457In evidence he stated that his family resided on the outskirts of Bathurst. They were not well off and his parents did not pay fees for him to attend the College. 458GB's evidence was that he believed the appellant came to the school in 1966. He said that the only times that GB had any contact with him was when the appellant was supervising "work detail". At times when there were not enough teachers to look after the students in classes the students were sometimes sent to undertake digging for a new swimming pool as a means of keeping them occupied: Crown Summary of Trial at p 17. 459GB gave evidence about an incident (the "tractor incident") that occurred on one particular occasion when he and two other students were returning after they had been smoking in a machinery shed. They came across a tractor that had slipped into a trench that had been dug from the pool to the pump shed. On GB's evidence the appellant was, on the occasion in question, standing beside the tractor and drinking from a tall glass of cordial. 460GB said that he was "trying to be a bit clever" and he bent over, looked underneath the tractor and said words to the effect of "done a good job there" to the appellant. The appellant poured the liquid he had been drinking over GB's head. GB then sent the other two students away and instructed GB to go to the art class and wait for him there. 461When the appellant arrived GB said he was carrying a white towel. The appellant used the towel to attempt to remove the cordial from the back of GB's neck and head. The appellant then told GB to remove his trousers, and eventually, his underpants. 462The Crown's Summary of Trial as to the evidence in chief of GB is in the following terms: "He went to the art room and waited for the appellant. He thought that the incident occurred in the early afternoon and he had a feeling that it was close to a school holiday period (T p239). When the appellant arrived he was carrying a white towel. The appellant used keys to open the door to the room and told him to go in. The appellant used the towel to attempt to remove the cordial from the back of his neck and his head. The appellant then told him to remove his trousers. He did so and the appellant said, 'And the rest', referring to his underpants (T p240). He removed his underpants and the next thing he was aware of was the appellant grabbing him around the bottom of the jaw in a choker-type hold. The appellant was standing behind him (T p241). He felt something entering him from behind. He came to realise that the appellant had forced himself into his backside. He screamed in pain. GB was asked to describe what actually happened. He answered, 'He was using his left hand to hold me in position. He was using his right hand to guide himself. He was lifting me off the floor with - while he was thrusting to try and enter me further I suppose is the best way to describe it' (T p242). At that point in time he was not aware of what the appellant was using to enter him. It was only after the appellant used a towel to clean blood and slime from around his backside area and to clean his own penis that he realised what had entered him. He was not able to say whether the appellant had ejaculated in his anus. He described the pain as 'A pain like I'd never felt before'. It was intense. The pain continued for several days and he also suffered bleeding for several days (T p243). Before the appellant left the room he told him to stop blubbering. He was crying. The appellant warned him that if he told anybody about what had happened he would deny it. The appellant also warned him of how cruel children could be towards somebody who made those sorts of complaints. The appellant said to him, 'Who are they going to believe, you or me?' (T p244)." (Crown's Summary of Trial at pp 17-18)

(b) Delay in Complaint (GB) 463GB's evidence was that he gave an account of what happened to him in the alleged assault by the appellant to Robert Woodside, Psychologist, in or around about 2007 or 2008. GB's evidence as to the issue of delay and the circumstances concerning the same will be discussed in relation to Ground 3: see paragraph [575]. 464GB gave evidence of the circumstances in which he came to make his first statement to police. He said in evidence that he had seen two lawyers who were representing the appellant saying that the investigation was "a witch hunt", a "media beat up". He contacted the DPP's office and in due course police interviewed him and took a statement.

(c) Complainant TE - 6 Counts 465TE was born in 1973. He commenced at the College in 1988 when he was in Year 8. He had a limited number of friends at school and was not greatly interested in sports. 466In 1988 his evidence was that he saw the appellant at least two or three times a day. At that time the appellant was second in charge of the College. Brother Dwyer was head of the College. 467The evidence in chief of the complainant TE in relation to the counts on the indictment are summarised below. The following is an outline of TE's evidence in chief. 468TE said in evidence that when he was in his first year at the school he thought that the appellant was a nice man and that he treated him very well. 469On occasions, he said the appellant would show TE graphic images and asked him whether nor not they turned him on. The appellant also showed TE the outline of his erect penis and asked him if he was turned on. The appellant told him that that was what boys did. 470The complainant TE gave evidence of eight offences that occurred on six separate days. The appellant was found guilty of five offences (Counts 4, 5, 7 10 and 12, not guilty on one count (Count 9) and the jury were discharged in relation to two counts (Counts 2 and 3). There was additional sexual contact evidence led as context evidence.

(i) Counts 2 and 3 - TE (No Verdicts) 471As indicated above, the jury were unable to reach verdicts on Counts 2 and 3. 472The first physical contact TE could remember occurred when the appellant took him to McDonalds at Bathurst. During that time he alleged that the appellant put his hand on his leg and moved it down towards his groin. This alleged incident constituted the basis for Count 2. 473A further incident was alleged to have occurred the following day. TE's evidence was that he was washing the appellant's car. The appellant asked him to remove his shirt and he put his arm around him and pinched and played with his nipple. His evidence was that the touching of the nipple did not feel like a "nipple twist" that the boys sometimes gave each other. 474In the appellant's submissions it was said that Count 2 represented a critical incident in the Crown's case against the appellant. TE had alleged that in February/early March the appellant had driven him to McDonalds. He stated that he told police that the appellant's car was blue or metallic blue contrary to the suggestion in cross-examination that the appellant drove a beige coloured Honda vehicle. 475It was established that as at February or early March 1989 McDonalds at Bathurst had not been built. 476It was the appellant's case that he had never driven TE to McDonalds at Bathurst, or any other McDonalds establishment. 477The alleged incident the subject of Count 3 was said to have occurred on a Saturday morning after the McDonalds incident, right in front of the College. It was put to him that Cahill Oval in or near that area would have been in operation from as early as 9.00am for the playing of sport. TE disagreed. 478TE's evidence was that the area in question was out of bounds on Saturdays. Reliance was placed on other evidence to the contrary and that the area in question was a "hive of activity": Appellant's Written Submissions at [362]. 479In the Crown submissions it was put that a question from the jury indicated that they held some concern as to the timing of Count 2. The Crown observed that a concern in respect of the timing of Count 2 would flow on to concern regarding the timing of Count 3. The inability to reach verdicts on these counts, the Crown contended, was explicable: Crown's Written Submissions at [52]. Further, there was an issue as to whether the conduct in Count 3 would amount to an act of indecency. 480The Crown submission was that whatever the reason for the failure to reach a verdict, the failure to agree, of itself, did not indicate an adverse view had been formed of the credibility of the complainant.

(ii) Counts 4, 5, 7, 10 and 12 - TE (Guilty Verdicts)

Count 4 481TE gave evidence that the appellant masturbated in his presence and instructed him to watch. Evidence was also given that the appellant would instruct TE to watch pornographic videos and then ask him if he was aroused. There was also evidence that TE was often asked to engage in fellatio with the appellant and touch the appellant's penis. 482The evidence of TE in relation to Count 4 was set out in the Crown's Summary of Trial as follows: "... TE gave evidence about an incident that occurred 'at the beginning of the paedophile acts'. The appellant displayed the outline of his erect penis within his shorts. The appellant then said, 'Do you mind if I wank?'. He replied, 'I don't want to see anything'. The appellant then said, 'How am I supposed to do it if you can't see me?'. There were sheets over the back of the appellant's chair and the appellant put a white sheet over himself, dropped his shorts to below his knees, moulded the sheet over top of his penis and used his hand to masturbate himself (T p337). The appellant told him to watch. He tried to look away a few times and the appellant said, 'Look at me'. The appellant continued masturbating until he ejaculated. The appellant cleaned himself, pulled up his pants and told him that he had better get to where he was meant to be (T p338). On other occasions the appellant asked him to his room. In the hotter months the appellant would give him a cold drink and comment as to the heat. The appellant would remove his own shirt and ask him if he wanted to remove his shirt. The appellant would then play a pornographic video (T p338). The appellant would tell him to watch the video and ask him if he was aroused. Clothes were removed and the appellant would try to force his (the appellant's) penis into his (TE's) throat. The appellant quite often sucked his (TE's) penis and the appellant asked him to suck his (the appellant's) penis. He didn't like to do so and so he often masturbated the appellant to the point of ejaculation. He did so at the appellant's request (T p339). Over time the appellant's actions towards him became more aggressive (T p339). The appellant asked him not to tell anybody what was going on. He looked up to the appellant. The appellant told him that he was like a little brother and that made him feel very important. He continued to visit the appellant's room (T p340)." (Crown's Summary of Trial at pp 23-24)

Count 5 483In respect of Count 5, the relevant acts were alleged to have occurred after TE had been on detention and raked grass off the oval. TE gave evidence that after he returned the rakes to the shed, he saw the appellant. The appellant then put industrial lubricant on his hands, masturbated, and then placed his fingers in TE's anus (Count 5 and in the alternative Count 6.)

Count 7 484The events giving rise to Count 7, namely, forced penile-anal intercourse, were alleged to have occurred immediately after the events giving rise to Count 5. "The appellant then pushed him over the lathe, pulled down his (TE's) pants and inserted his penis into his (TE's) anus (count 7 and in the alternative count 8) (T p 360)." (Crown's Summary of Trial at p 26)

Count 10 485This count alleged the appellant forced his penis into TE's throat. The Crown's Summary of Trial records TE's evidence in relation to Count 10 (and in the alternative Count 11) as follows: "... TE gave evidence about an incident that occurred during the winter months on either a Saturday or Sunday. He felt that the incident occurred on a Sunday after church. He was in the TV room. The appellant was 'on the prowl' and upon seeing him in the TV room gestured to him. The appellant took him to the study hall which at that time was considered to be an out of bounds area. No one else was there. The appellant opened the door for him to go into the room. The appellant then forced his penis into his throat ...(T p343)." (Crown's Summary of Trial at p 24)

Count 12 486The events giving rise to Count 12, namely, forced penile-anal intercourse, were alleged to have occurred immediately after the events giving rise to Count 10. "The appellant then pushed him to the ground, pulled his pants down to his knees and had forced penile-anal intercourse with him (Count 12 and in the alternative count 13) (T p 343)." (Crown's Written Submissions at p 24)

Matters Concerning Complainant TE: Appellant's Submissions 487In the written submissions for the appellant at [349] it was submitted that the background of TE was important as he, before his enrolment at the College, had behavioural problems. He had difficulties with poor hand and eye co-ordination and difficulty in relating to other students at his previous school. He liked rural life and it was said that he was ill-suited to life at a boarding college. 488In the appellant's case it was suggested that TE was not without problems during his schooling years, that he was over-represented in the infirmary and was suspected of lighting fires. He was asked to leave the school towards the end of 1989.

TE Had Been a Regular Visitor to the Infirmary 489In the written submissions for the appellant it was stated that in 1988 TE attended the infirmary 125 times and in 1989 he attended 120 times. There were two matrons of the College still there who gave evidence. 490TE maintained that the infirmary was a refuge for him from the appellant. He said that he made a complaint to the Matron that he was bleeding from his anus. 491Matron Clarke and Matron Daymond in their evidence did not accept his account in this latter respect. 492In his written supplementary submissions dated 12 February 2014, Mr Walsh in relation to Ground 3 raised issues concerning TE's evidence of having been sexually penetrated by the appellant. 493Both points relate to Dr Wilson as follows: (i) Dr Wilson was a well-known medical practitioner who, at the time of the offences, attended the College once and sometimes twice a week and he attended on TE for various health reasons. There were entries in the infirmary records relating to a number of such attendances. (ii) According to Inspector Grassick, police had spoken to Dr Wilson about whether he had received any history of bleeding from the anus by TE. (iii) Dr Wilson was called in the defence case. He gave evidence that no police officer had spoken to him until Inspector Grassick phoned him a week before he gave evidence. In Mr Walsh's submissions it was stated that Inspector Grassick was under cross-examination at the time of that call and Dr Wilson's evidence was that the name TE was not raised by Inspector Grassick. 494Mr Walsh submitted this was very relevant evidence and was "powerful evidence" affecting the credibility and reliability of TE. Had TE indicated that he had experienced bleeding from the anus, or any type of sexual abuse, it would have been investigated. 495In the Crown's Submissions in Reply dated 13 February 2014 the following matters were raised in response: "1. TE's evidence in chief was that he spoke with a matron and indicated with gestures that his anus was sore: T 387-389. 2. TE was cross-examined on this incident. He indicated he was brief and did not give too much detail. He indicated, with some apparent hesitation, that he told Matron Daymond [later changed to Matron Clark] that he had been sexually assaulted by the appellant: T 528-530. 3. TE did not give evidence that he spoke with Dr Wilson about sexual assault or that he was treated over the injury. TE was asked no questions about Dr Wilson. 4. Det Grassick was cross-examined about the content of part of TE's police statement: see AWS [7], T 1081.32. The most this evidence established was that TE had indicated in his statement that he was examined by "a doctor". It was never stated that it was Dr Wilson. 5. It is apparent that the infirmary notes were available and that the notes did not support an entry relating to bleeding from the anus. That a statement was not obtained from Dr Wilson by Det Grassick is not of particular concern. Certainly, such absence was apparently not raised in the first trial and only became an issue belatedly in the re-trial. 6. Dr Wilson gave evidence. He was taken to TE's medical records from the school. Although initially claiming that he recalled TE as attention seeking and narcissistic and noted for over attendance in the infirmary, he recounted many legitimate complaints supported by medical observation or testing. 7. In December 1988 the infirmary notes reflected TE attended with diarrhoea, with observable blood and mucus [this is not within the charge period and it is not suggested it relates to any charged incident]. Dr Wilson, although noting the existence of blood on an occasion, indicated that TE never complained of bleeding from his anus in 1988 or 1989: T 1450.25. 8. Dr Wilson, when asked if TE complained about the appellant to him in 1988 or 1989, responded "no, not to my knowledge": T 1450.29. 9. In view of the absence of evidence from TE that he saw and was examined by Dr Wilson, and no questioning of him as to the content of his statement, and in the context of all of the evidence at trial this issue should not cause the Court concern."

Location of the Appellant's Room 496In the appellant's written submissions the following matters were noted: 497According to TE he went to the appellant's room three times a week. He alleged that he was shown pornography and looked at the pornographic videos. TE was taken to a colour plan of the College. It was submitted that he got the appellant's room wrong: Appellant's Written Submissions at [366]. 498The appellant's submissions relied upon a number of other aspects of TE's evidence said to demonstrate error or inconsistencies.

Delay in Complaint by TE 499TE's evidence was that he first complained to his mother during a telephone call that he made from a pay phone at the College. He said that members of his household would not swear or refer to genitalia and "in very broad circumstances" he told her that, "they were putting things in his bottom". He could not say when it was, in relation to any particular incident, that he told his mother. He said it was during 1989 and it was during winter. 500TE also gave evidence of having complained to one of the matrons at the school infirmary. He believed he spoke to Sister Daymond. 501TE gave evidence that he complained to a nun, Sister Mary Comer in June or July 1989. 502After he left school he told his father graphic details of what had happened whilst he was at school. He felt that the conversation occurred in 1996 because it was not long after his father had bought another property. 503TE gave evidence that he told Judith Gill in 2003 that he had been assaulted at the College. He did not go into much detail as he said it was not something that he said he found easy to talk about: T 349.

Complaints by TE to Parents 504TE gave evidence, as noted above, that he told his mother in 1989 of misconduct whilst at school. 505TE gave evidence that he complained of having been abused at the school in 1990/1991 and 1995 to his father and a friend in 2003. 506TE's mother, ME, gave evidence of an occasion in 1989 when, during a telephone call, her son made allegations about misconduct at the school towards himself. She was unable to say when in 1989 that occurred. She could not remember the exact words that he used. He said that things were happening that he wasn't used to and did not like it. He was upset. She did not know what was going on at the time. She thought it was kids being silly and she told him to "bop" the kids. He said to her "Mum, I can't bop the teachers". 507ME gave evidence that TE attended the school in 1988 and 1989. He was not there in 1990. 508TE's father, GE, gave evidence. In 1989 he had been contacted by TE and notified of some trouble that he was getting into. ME then contacted the school. There was some discussion about missing tools and sockets and it was suggested that TE had taken them. 509On another occasion, Brother Dwyer had rung him about the lighting of fires. Brother Dwyer told him that TE had been lighting fires. He was told to take TE to Bathurst Police Station. He did so and TE was interviewed by police. Police did not take any action against TE in relation to the allegation. TE did not return to the school to sit for exams. 510GE gave evidence that in about 1990, 1991 TE told him that he had been abused at school. The conversation took place face to face on the farm. They were ploughing and he thought it was when they had lunch that TE told him. He did not question TE further about it. 511In 1995 GE said that he had a further conversation with TE. TE was moving house. TE told him that he had been abused. He said that he had been penetrated and was bleeding from the anus. He then rang sister Mary Comer and told her that TE had been abused at the school. 512In 2008 he spoke to TE and there was some discussion about what had happened to him at the school. TE again told him that he had been penetrated. 513In cross-examination he agreed that in 1990 or 1991 when TE told him that he had been abused, there was no mention of the appellant. He agreed that it was after the arrest of the appellant that TE told him that he had been penetrated.

Evidence of Ms Gill 514Ms Gill gave evidence that in December 2003 TE told her that he had been sexually abused at the College in Bathurst. He said that he had been penetrated by someone. He did not go into any more detail. He did not tell her that it was by a staff member.

Marie Daymond 515Ms Daymond was a registered nurse who had worked at the College infirmary. She recalled TE as a frequent visitor to the infirmary. 516Her evidence was that no student had ever made a complaint of sexual assault to her. She had never examined any student with an injury with or suggestive of sexual abuse. 517Ms Daymond could not recall TE complaining of suffering from a sore anus and she denied making statements as had been stated in evidence by TE.

Matron Clarke 518Ms Clarke, a registered nurse who worked at the college infirmary between 1975 up until 2008 said she had not heard any disclosures from students regarding any inappropriate sexual abuse by College staff. She had never been told of symptoms suggestive of sexual abuse having occurred.

Mary Comer 519Ms Comer was a religious sister and registered psychologist. She saw TE on a number of occasions in 1989 as counsellor. 520She referred TE to a specialist adolescent service for further assessment. She met with his mother following that appointment. To her recollection that was the last time she spoke to either of his parents. 521She denied suggestions that TE had complained to her that he had been penetrated.

Evidence of Other Crown Witnesses 522The Crown observed that supportive material was available to demonstrate the appellant's sexual interest in, and participation in, sexual activities with boys aged 12 to 15 years. The Crown relied upon tendency evidence and also coincidence evidence: Crown's Written Submissions at [63]. 523The Crown additionally submitted: "A number of former students gave evidence of sexual incidents that the appellant perpetrated upon them or observations made of sexual conduct perpetrated by the appellant upon other students. An acquaintance also gave evidence of mutual penis holding. These all involved inappropriate touching of the boys, and on one occasion the appellant was observed to have an erection after such touching. Pornographic material was located in the appellant's possession in 2008 which available to the jury in assessing TE's evidence that he was shown pornographic material by the appellant. The jury had the benefit of seeing the witnesses, both the complainants and the appellant and of assessing their evidence. This is a considerable advantage denied to an appellate court: R v Markuleski (2001) 52 NSWLR 82 per Spigelman CJ at [70] per Wood CJ at CL at [231]." (Crown's Written Submissions at [64]-[65])

The Appellant 524The appellant gave evidence. He was born in 1941 and joined the Vincentian religious order in 1959. 525In about mid-October 1965 he was sent to St Stanislaus College. At that time he was not a member of staff. He was sent there to enable him to attend Bathurst Technical College. 526He gave evidence in relation to the tractor incident. He said that he and a Mr Scheppingen were laying pipes in a trench that had been excavated by contractors, the trench being a drainage trench associated with the construction of a swimming pool. He said that when they were backfilling the trench the wheels of Mr Scheppingen's tractor slipped into the trench. 527He then gave evidence about the incident which he said occurred around mid-to-late morning and that he and Mr Scheppingen worked all day to extract the tractor that had slipped into the trench from it. 528He denied pouring cordial over GB's head. He did not recall GB at the school and said he had nothing to do with GB at all. 529His evidence was that at the time of the tractor incident he did not know where the art room was situated and he did not have a key to the art room. He denied directing GB to go to that room and he did not go there and open it with a key. He denied that he had anally penetrated GB. 530In the years 1986 and 1987 he said his room was not on the priests' corridor and that in 1988 and 1989 his room was in the Slattery Wing above the entrance to the College. He said in 1988 and 1989 he never locked the door to his room. 531He was shown a diagram that had been drawn by TE (Exhibit 6) and he gave evidence that the layout of his room was not as depicted in the diagram. 532He gave evidence that he was aware of TE in 1988. 533He said he did not have a television and video in his room and that there was no television or video on a moveable stand during his time at the College. 534The appellant also gave evidence concerning the locking mechanism of Brother Elrott's shed door and he did not have a key to that door. There were only two persons who had a key, including Brother Elrott. 535His evidence was that any contact he had with TE in 1988 would have been minimal. 536He denied taking TE to McDonalds as alleged and denied that he asked TE to wash his car in the front of the school. 537He stated in evidence that he did not invite TE to his room. He said he was diligent in interviewing students in his office and never interviewed any student in his room. 538He denied having pornographic material in his room at the College at any time. His evidence was that the room was regularly cleaned by a cleaning lady and his room was attended to by a laundry lady. 539He denied ever showing TE a pornographic video and did not discuss sex with him, nor perform the activities TE alleged. His evidence was he did not develop a friendship with TE or with any other student and that TE never came to his room. 540He denied that he saw any student raking grass on the College oval and that the ovals were maintained by maintenance staff. This was relevant to Count 5 concerning TE. 541He had no recollection of coming across TE in circumstances where they ended up approaching Brother Elrott's shed. He said he did not have a key to that shed and the door to the shed was not able to be deadlocked. He denied ever being in the shed with TE and denied the sexual assault alleged by TE. 542He denied taking TE to a study hall on a Sunday morning and committing the sexual assault detailed in TE's evidence. 543His evidence was he had no recollection of a particular event occurring as described by a Crown witness, MK, and denied the incident described by RB. He stated that the area where the incidents were alleged to have occurred was one of the busiest areas of the College. 544He denied touching the witness "B" in the Year 8 dormitory as alleged by SW. 545In relation to HM's evidence that he came to his room on the priests' corridor in 1986, he said at no time during his second stay at the College did he have a room on the priests' corridor. He denied touching HM as had been alleged. 546In the beginning of 1991 he moved to South Australia where he joined the Adelaide Diocese and Aids Council (ADAC). He commenced there as a volunteer with that organisation and was later employed as a pastoral care worker and education officer. 547In relation to the alleged incident at Cape Jervis in 1995, the appellant said he remembered MA but denied any physical contact with him. 548In relation to the DVD "Gay Man's Guide to Safe Sex" which was seized by police, the appellant said he acquired it during the course of his training and self-education in relation to HIV/AIDS. 549At the time of his arrest he said he was working full-time for Vincare. When he returned to Sydney in 1998 he was employed by, and then did volunteer work, for organisations that helped HIV/AIDS sufferers. 550He had obtained the condoms found in his room from the AIDS Council of NSW and from Stanford House so that he could distribute them to his clients. He said he had picked up the magazines that were found in his room from various locations including Stanford House and the AIDS Council of NSW. He did that because he felt that it was important for him to keep up to date with what was happening in the HIV community. 551His evidence was that he had acquired the VHS tapes and the DVDs that were seized from his room over many years. He could not recall how, or who, he got them from but some backdated to the earliest times of his ministry in Adelaide. He said that at the time he was regarded with suspicion by members of the gay community and persons would give him those recordings to try to shock him. He said he had not ever looked at the recordings. In cross-examination he agreed that at a previous trial he had given evidence that the DVDs and VHS tapes had been in his possession since his time in Adelaide. It was put to him that his evidence had changed since the first trial because he knew that the DVDs had not been manufactured in the 1990s.

The Challenge to GB's Evidence 552The challenge made to GB's evidence at trial did not directly suggest that his evidence had been contaminated through discussions with any particular person or persons nor by GB having read any internet or other media publicity. 553As the Crown observed, the nature of the attack upon his credibility effectively went to the issue of his reliability. He was cross-examined on a number of matters that may be regarded as peripheral to the alleged sexual assault that occurred the subject of Count 1. Such matters included details concerning the "tractor incident" and associated matters such as the clothing worn by the appellant. 554The contention on behalf of the appellant at trial was that the evidence of GB was unreliable as he was uncertain as to the year in which the alleged incident occurred, that he was uncertain as to precisely which friends he had been with on the day in question, he was uncertain as to which wheels of the tractor were involved in the incident and that he had what he referred only to a "feeling" as to the time of day upon which it occurred, and finally, that his recollection as to the clothing that the appellant was wearing on the day in question was inconsistent with clothing shown to be worn by the appellant in a photograph taken with him standing next to the tractor when in the drainage trench. There was, I note, an important issue at trial as to the particular occasion or date on which the photo was taken. 555I have earlier set out in summary the evidence of GB as to the events he alleged in respect of the tractor incident and the events concerning Count 1. 556The alleged inconsistencies in GB's evidence, as I have noted, concentrated largely upon the reliability of his evidence. The distinction in sexual assault cases between a witness' credibility on certain issues and his or her veracity is an important one. In Reed v R [2006] NSWCCA 314, Spigelman CJ observed at [62]-[65]: "The only significance that I can see of the new information, is for the purpose of cross-examination of LK on credit because she had suggested that MH was not present on the occasion. In a word against word case, such as this, any information capable of being deployed in cross-examination on credit is potentially of significance. Nevertheless, questions of fact and degree are involved in order to determine the statutory question: Has there been a miscarriage of justice? That question must be understood in the sense suggested by Simpson J In Grey: Was the material of "sufficient relevance"? In my opinion, in the circumstances the new material was not of sufficient relevance. Even in a word against word case, it is not the case that anything capable of impinging upon the credibility of the sole Crown witness must be permitted to be investigated in full. Credibility issues involve questions of reliability and of veracity. It is sometimes important to distinguish between them. Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. 'Remembering Trauma' Harvard University Press, Cambridge, Massa., 2003 esp at pp 48-62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness. With regard to issues of veracity, surrounding detail can be of greater significance. In the present case, the credibility of TF, whose statement raised a possible inconsistency with LK's version, was so low, and MH's stated inability to recall detail was such, that the suggestion that further inquiry could lead anywhere was entirely speculative."

(i): The Year of the Incident 557In evidence at the committal hearing GB said he could not remember the year in which it occurred. 558In his first statement to police dated 23 September 2008, he stated that he went to the College from 1964 to 1966. During the committal hearing he amended the dates from 1965 to 1967. When cross-examined at the committal, he said that the incident did not occur during his first year at the College. 559In a document that he prepared dated 4 September 2012, GB stated that he believed that he would have been twelve or thirteen years of age at the time of the incident. He agreed that he turned twelve in 1964 and thirteen in 1965. He could not remember whether it occurred in 1966 or 1967. He said that the only thing he could say was that it happened in the year that the tractor went into the trench. 560The Crown submission was that his evidence as to the year of the incident in no fashion undermined his evidence: Crown's Written Submissions at [45].

(ii) The Identity of the Two Students at the Site of the Tractor 561Prior to the committal hearing on 8 December 2009, GB recalled the students were IS and PM. He said he recalled their names as a lot of little things had come back to him from time to time and those were two students who he said he regularly smoked with. 562Beyond the delay in recalling the names of the students, no other submission as to its possible significance was relied upon.

(iii) Clothing Worn by the Appellant 563In a typed statement which GB prepared dated 4 May 2012, he stated he believed that at the time of the incident the appellant was wearing a white T-shirt and shorts. He agreed that in his first police statement (23 September 2008) he did not refer to what the appellant was wearing. 564In the photograph shown by Mr Walsh to GB in the trial, the appellant was wearing different clothing. The Crown submission was that the fact that the appellant was wearing other clothes when photographed at a time other than when GB was present, accounted for little: Crown's Written Submissions at [46]. The Crown noted that GB's evidence was that when he observed the appellant there was no one else there other than GB's two school friends. The photograph shown to him, however, showed others present. Exactly as to when the photograph was taken, relative to the incident, was unknown.

(iv) The Tractor Wheels 565GB had stated that the right side tractor wheels were stuck in the trench. At the committal this changed to the left wheels. He attributed the change to clarifying the difference between facing the tractor and from the perspective of a driver of the vehicle.

(v) The Time of Day of the Incident 566GB's evidence was that he recalled it was hot. He felt that the incident had occurred in the early afternoon after lunch because of the extreme heat of day. He felt it was perhaps one o'clock for that reason - as in or towards the middle of the day. The fact that he "felt" that it was in the early afternoon, by reason of the heat, did not establish any inconsistency of significance.

(vi) Alleged Impossibility of Timing of the Allegation 567In the appellant's written submissions, reference was made to the fact that GB was taken to the photographs at page 8 of the publication "Echoes" which in November 1965 showed the construction site inundated with 12-15 ft of water. GB did not recall the drainage trench having been constructed. Reference to the scene depicted in the publication as at November 1965 is not a matter of any particular significance on the issue of the reliability of GB's recollections.

The Evidence of Other Witnesses Concerning Count 1 568PM in evidence stated that he attended the College from 1964 until 1967. He remembered the appellant and he remembered the pool being built. He said he vaguely remembered an incident involving a tractor rolling over. He knew that GB was in his year. From time to time he smoked at school. He went smoking with a lot of different people. He did not think that GB smoked. 569Police, as noted above, were unable to locate the other person identified by GB, namely IS. 570A record of interview was conducted with Mr T Collins (Exhibit R). Mr Collins commenced teaching at the College in 1964 and his role was to look after the art department. The art room had one door; the door was always locked except when classes were being held. 571He and the other art teacher, Father Quinn, were the only people with keys to the art room. He did not loan his key to anyone. He could not say if Father Quinn loaned his key to anyone.

Submissions Made at Trial 572In his final address to the jury in the second trial (at T 1521-T 1528), Mr Walsh raised the following issues concerning the evidence of GB: (i) His motivation in coming forward after forty two years and reporting the alleged sexual assault. (ii) That GB hated the College and its staff and had told Dr Frukacz that he had had a miserable time at the College. GB had not reported having been sexually assaulted to Dr Frukacz. (iii) The fact of delay went not only to both the credibility and reliability of GB, but also raised considerable difficulty in the appellant defending himself. (iv) The variation in GB's evidence as to the year in which the incident is said to have occurred. (v) The period in which relevant construction had been carried out on the swimming pool, in particular, that as at November 1965 when it is said the incident occurred, there was no pump house in 1965, 1966 or 1967. For an inexplicable reason GB had referred to a pump house when in those years it did not exist. (vi) GB's account to police that two right-hand wheels of the tractor went into the trench when the photographs revealed it was the two left-hand wheels. (vii) That the delay in GB's recollection of the names of the two students he said he was with served to demonstrate his unreliability. (viii) In relation to the clothing worn by the appellant at the time, there was no reference by GB in his first two police statements as to the clothing. In his third statement he referred to the appellant having worn shorts and a white T-shirt. There was no explanation as to why he had only referred to the clothing in his last statement. (ix) GB was wrong in describing the windows in the art room. (x) That GB, coming forward forty two years after the event was clearly motivated because he was angry when he heard the appellant's lawyer speak out suggesting that the allegations were a "beat-up" and so on. Additionally, GB hated the College and the brothers and the priests. (xi) It was suggested in the final address by Mr Walsh that there were many inconsistencies in the way GB's evidence unfolded in the context of the tractor incident. 573As I have also noted above, Mr Walsh relied upon issues associated with GB's alleged motivation, it being argued for the appellant at the pre-trial hearings that GB had "animus" against the College and its staff. 574In his opening address to the jury, Mr Walsh emphasised that GB had come forward over forty years after the alleged events "in the circumstances of considerable publicity": T 197:28-30. He said that the jury would hear that GB felt different to the boarders, that he hated the Order, and hated the school and the institution: T 197:30-35. He put to the jury: "... you will have to consider carefully how someone could not complain, would not complain, would not talk about [sic] in any way to doctors that he was seeing, anyone about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (T 197:32-40) 575GB's evidence was that he told Robert Woodside, a psychologist, about the alleged events in or about 2007 or 2008. He said he had also told a psychiatrist he was seeing, Dr Frukacz. That was around 2008. He said he did not tell anyone before then because it was "not the sort of thing that you sort of discuss". 576GB gave evidence, as noted above, that he came to make his statement to police in circumstances where he had seen two lawyers who were representing the appellant saying that the investigation was a "witch hunt" a "media beat-up". He soon after gave his statement to police.

Conclusions on GB's Evidence 577There was no evidence before the jury that GB's evidence was contaminated in any way and there was no evidence of collusion. The principal basis upon which his evidence was challenged was his reliability. The attack on his veracity was largely based upon what was referred to as his "animus", having hated the College and its staff and the long delay before disclosing the alleged sexual assaults. 578An examination of GB's evidence does not, in my assessment, establish that he was discredited as a witness. The matters relied upon in the appeal in relation to GB were not, in my opinion, sufficiently cogent as to destroy his credibility. 579The issues concerning GB's credibility centred upon the accuracy of his recollection many years after the alleged events on matters that were essentially peripheral in nature. The reliability or otherwise of his recollection and evidence on such matters required the jurors to assess the significance of his recollection upon them and the extent to which they found his account of the events concerning the offences alleged and his evidence on the peripheral matters to be persuasive and reliable.

The Challenge to TE's Evidence 580The submissions for the appellant referred to the following matters as adversely affecting TE's reliability: (i) That he was "a very troubled student" at the College who was involved in lighting fires (a matter disputed by TE). (ii) That his allegations concerning the McDonalds restaurant events were shown to have been factually incorrect. (iii) The inherent unlikelihood of the alleged incident the next day when TE claimed he was washing the appellant's car in view from every window of the front of the building. (iv) The inherent unlikelihood of the alleged incident in mid-1989 after raking grass on the oval, when that was not the time of year the grass was cut. (v) The shed was Brother Elrott's shed and the appellant either did not have or would not have any key to open the shed. TE was challenged as to his evidence of the type of locks on the shed doors. (vi) The inherent unlikelihood of the appellant using machinery lubrication to sexually assault TE. (vii) The inherent unlikelihood of the appellant having sexually assaulted TE in the study hall when other students would have been in the area. (viii) As to TE's evidence of having reported the sexual assaults, Sister Comer in her statement made no mention of any report or allegation. It could not be suggested she lied about that aspect. (ix) TE visited the infirmary approximately 127 times in 1988 and 125 times in 1989. (x) Whilst TE's evidence was that he went to the appellant's room on many occasions and was shown pornography and pornographic videos, he was wrong when identifying the appellant's room on a colour plan. (xi) That TE took a good deal of time in drawing a sketch of the appellant's room and its contents. He misdescribed the number/location of the windows. Although he said he was shown videos he did not mark a television/video on the sketch plan. TE had said that there was a television on wheels for general use. It was kept in the hallway. There was a large fireplace in the room omitted from the sketch plan. (xii) TE said that movie nights were on Fridays. It was put to him that he was wrong and they occurred on Saturdays. (xiii) The issues concerning Dr Wilson's evidence raised in the appellant's supplementary submissions.

Conclusions on TE's Evidence 581There was no evidence before the jury that TE's evidence was contaminated. Nor was there evidence of collusion. There was in the appellant's case a suggestion that TE was motivated by his dislike of the school and staff, including the appellant. However, the principal challenge to TE's evidence was upon the basis of his unreliability as a witness having regard to the matters set out above. 582TE gave evidence of a report by him to his mother whilst still at school. There is a lack of specificity in the report but his evidence, if accepted, was capable of providing some evidence of him having reported, at the least, interference with him by someone. 583TE's evidence of having disclosed the occurrence of sexual assaults upon him to his father, was also a matter for the jury to take into account having heard and seen TE and his father give evidence. 584The late reporting of sexual assaults to medical practitioners and the psychologist, and the evidence concerning the same, as discussed above, is a familiar issue in child sexual assault cases and it is one matter that requires assessment by a jury in light of all the evidence. 585On my review of the evidence of TE and the issues raised in respect to his evidence in the appellant's submissions I do not consider that a conclusion can be reached that TE was a discredited witness. As in the case of the complainant GB, many issues raised in cross-examination of TE related to peripheral facts suggesting possible inconsistency and unreliability. However, I do not consider that on appeal it can be said that it was not open to the jury to have accepted TE as a credible witness and accept his accounts in respect of the sexual assaults the subject of the counts on which they returned guilty verdicts.

Conclusions on Ground 3 586In the result, having considered the totality of the evidence, I consider that the appellant has not established that the evidence of GB and TE lacked credibility as he contended, with the result that the jury ought to have experienced a doubt as to his guilt of the offences of which he was convicted. 587In these proceedings in which the credibility of GB and TE and the appellant was critical, the jury's advantage of hearing and seeing them give evidence was of fundamental importance in assessing the veracity of each. That, of course, was central to the jury's consideration of the evidence of GB and TE in relation to the sexual assaults each claimed occurred. 588There were a number of matters relevant to the probative strength of the coincidence evidence of GB and TE. These included: (i) the fact that they had each attended the school many years apart; (ii) that they had not communicated with one another about the appellant; and (iii) that each alleged assault by the appellant involving anal/penile penetration in circumstances involving similarities. It was clearly open to the jury to determine the coincidence evidence of each complainant as having significant probative value. 589I do not consider in relation to Ground 3 that the guilty verdicts reached by the jury on Counts 1, 4, 5, 7, 10 and 12 were unreasonable or were not supported to the requisite standard by the evidence. I am satisfied that the evidence established, to the requisite standard, the appellant's guilt of the offences in respect of which he was convicted. I accordingly have concluded that Ground 3 is without merit and should be dismissed.

Conclusion 590On the basis of the analysis and conclusions set out above, the appellant has not established any of the grounds of appeal relied upon. 591I accordingly propose that the appeal be dismissed. 592SCHMIDT J: The appellant advanced six grounds of appeal, although the 'nub of the appeal' was explained by Mr Walsh at the hearing of the appeal to relate to grounds 1 and 2, the alleged errors under s 130A of the Criminal Procedure Act 1986 (NSW). These grounds were pressed on the basis of Garling ADCJ's alleged failure to properly consider the evidence received at the first trial. 593I agree with Simpson and Hall JJ that the appeal must be dismissed, the appellant not having established any of the grounds pressed, for the reasons given by Simpson J. I wish to add only brief comments in relation to ground 3, that the conviction was unsafe and unsatisfactory and ground 5, that there was a miscarriage of justice as the result of the appellant's cross-examination. 594As to ground 5, it may not be overlooked that there was in reality no objection to the Crown's approach to the cross examination of the appellant, either at the first or the second trials. That reflected forensic decisions, as Mr Walsh explained at the hearing of the appeal, given the appellant's case, with both complainants being cross examined on the basis that they were untruthful and unreliable witnesses and with every witness, that there was a powerful body of ill will towards the appellant. The Crown met that case in the appellant's cross-examination, as has been explained, without objection. 595In the result in my view in the particular circumstances of this case, the appellant is not only bound by the forensic decisions made at the trial, no miscarriage of justice has been established and even though leave under Rule 4 should be given in relation to ground 5, the appeal must be dismissed. 596The case pressed for the appellant at the hearing was that both complainants' evidence, in which there were so many inconsistencies and which was indicative of unreliability, established ground 3. 597I do not need to add to Simpson J's explanation of the evidence and the problems with the case advanced. Having myself considered the evidence I have also not been left with the doubt which the appellant contended the evidence raised as to his guilt of the counts of which he was convicted.

Amendments 05 August 2014 - Former paras [86] to [94] inclusive deleted; replaced by paras [86] and [87]. Amended paragraphs: [86]-[94] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2014