[2008] HCA 8
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Attorney General for NSW v X (2000) 49 NSWLR 653
[2000] NSWCCA 199
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
[2006] NSWCA 284
Collector of Customs v Pozzolanic (1993) FCR 280
[1993] FCA 456
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 8
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Attorney General for NSW v X (2000) 49 NSWLR 653[2000] NSWCCA 199
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[2006] NSWCA 284
Collector of Customs v Pozzolanic (1993) FCR 280[1993] FCA 456
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713(2012) 222 A Crim R 106
DL v The Queen (2018) 266 CLR 1[2018] HCA 26
Douglass v The Queen (2012) 86 ALJR 1086[2012] HCA 34
Elomar v R [2014] NSWCCA 303(2014) 300 FLR 323
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
Gilham v R [2012] NSWCCA 131(2012) 224 A Crim R 22
Hopgood v R [2019] NSWCCA 246
Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20
IMM v R (2016) 257 CLR 300[2016] HCA 14
Khorami v RR v Khorami [2021] NSWCCA 228
Llewellyn v R [2011] NSWCCA 66
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638[1990] HCA 20
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
R v BA [2021] NSWCCA 191
R v Bauer (2018) 266 CLR 56
[2018] HCA 40
R v Jovanovic (1997) 42 NSWLR 520
R v JS [2007] NSWCCA 272
(2007) 175 A Crim R 108
R v Lazarus [2017] NSWCCA 279
(2017) 270 A Crim R 378
R v PL (2009) 199 A Crim R 199
[2009] NSWCCA 256
R v PL (No. 2) [2012] NSWCCA 31
R v Speechley [2012] NSWCCA 130
[2011] HCA 24
Winner v R (1995) 79 A Crim R 528
Judgment (24 paragraphs)
[1]
R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108
R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
R v PL (No. 2) [2012] NSWCCA 31
R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
R v XHR [2012] NSWCCA 247
Sheppard v Blakey and Ors [2001] WASCA 309
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Thornton v R [2017] NSWCCA 86
Toohey v R [2020] NSWCCA 166
Wade v R [2018] NSWCCA 85
Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
Winner v R (1995) 79 A Crim R 528; (Court of Criminal Appeal (NSW), 14 July 1995, unrep)
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Appellant)
BK (Respondent)
Representation: Counsel:
Ms B Baker (Appellant)
Mr TD Anderson SC (Respondent)
[2]
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Lisa de Luca & Co (Respondent)
File Number(s): 2019/403316
Publication restriction: ---
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: ---
Citation: ---
Date of Decision: 30 March 2021
Before: His Honour Judge Jeffreys
File Number(s): 2019/403316
[3]
Judgment
JOHNSON J: By Notice of Appeal dated 26 April 2021, the Crown appeals under s.107 Crimes (Appeal and Review) Act 2001 against the acquittal at the Sydney District Court on 30 March 2021 of the Respondent, BK, upon an indictment charging offences under s.78N and s.78K Crimes Act 1900.
The Respondent stood trial by way of a Judge-alone trial before Jeffreys DCJ upon an indictment charging the following offences, all of which were alleged to have been committed between 1 March 1985 and 25 April 1985 at Marrickville against the complainant, WO:
Count 1 - Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being the pupil of BK (s.78N Crimes Act 1900).
Court 2 - In the alternative to Count 1, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).
Count 3 - Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being a pupil of BK (s.78N Crimes Act 1900).
Count 4 - In the alternative to Count 3, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).
Count 5 - Being a teacher, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age, then being a pupil of BK (s.7NK Crimes Act 1900).
Count 6 - In the alternative to Count 5, having homosexual intercourse with WO, a male person aged between 10 and 18 years, namely 12 years of age (s.78K Crimes Act 1900).
[4]
Nature of Crown Appeal Against Acquittal
Section 107 Crimes (Appeal and Review) Act 2001 provides as follows:
"107 Directed jury acquittals or acquittals in trials without juries
(1) This section applies to the acquittal of a person -
(a) by a jury at the direction of the trial Judge, or
(b) by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or
(c) by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party.
(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.
(3) An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.
(4) The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.
(5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against.
(6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 2013) order the detention or return to custody of the accused person in connection with the new trial.
(7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so.
(8) This section does not apply to a person who was acquitted before the commencement of this section."
The present appeal falls within s.107(1)(b) being an appeal from an acquittal at a Judge-alone trial in the District Court.
The right of appeal conferred by s.107(2) is confined to any ground that involves a question of law alone.
In R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108, it was noted (at [74], [81]) that, although the formulation "a question of law alone" is more restrictive than the formulation "a question of law", the use of the word "involves" in s.107 gives the legislation a wider application than if the legislature had restricted the section to grounds of appeal "on a question of law". A "question of law" is also wider than an "error of law": Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCCA 199 at [124].
[5]
Grounds of Appeal and Questions of Law
The Crown relies upon the following grounds of appeal:
Ground 1 - that the trial Judge erred in failing to take into account tendency evidence adduced in the Crown case in determining whether there was a reasonable possibility that the Respondent's evidence was true, and
Ground 2 - in the alternative, that the trial Judge erred in failing to record his findings with respect to that tendency evidence.
The questions of law raised by these grounds of appeal are:
Question 1 - whether a Judge trying criminal proceedings without a jury is required to take into account tendency evidence that has been admitted in the Crown case when determining whether there is a reasonable possibility that the accused's evidence is true, and
Question 2 - whether the duty to give reasons under s.133 Criminal Procedure Act 1986 requires a trial Judge trying criminal proceedings without a jury to record findings with respect to tendency evidence that has been admitted in the Crown case.
Mr Anderson SC, who appears for the Respondent, accepts that the appeal is based upon a question of law alone and that the Crown is entitled to bring the matter before the Court. I am satisfied that the common position of the parties is correct and that the grounds of appeal involve questions of law alone.
As will be seen, the areas of controversy in the appeal relate to the determination of the grounds of appeal and the exercise of the residual discretion if error is demonstrated.
[6]
The Evidence in the Trial
Put shortly, the Crown alleged that the Respondent had committed three offences contrary to s.78N Crimes Act 1900, with alternative counts alleged under s.78K of that Act.
The offences were alleged to have occurred in 1985. At this time, the Respondent was a teacher at St Patrick's Marist Brothers College, Dundas and was the cadet master of the College's cadet corps.
The Complainant's Evidence
The complainant, WO, who was then 12 years old, was a student at the College. He was taught by the Respondent and was also a founding member of the cadet corps at that time.
The offences were alleged to have occurred on an occasion in the lead up to Anzac Day in 1985. The complainant gave evidence that the Respondent picked him up to drive him to training at Lancer's Barracks at Parramatta. The complainant said that the Respondent drove him to a semi-detached house in Marrickville. The Respondent took the complainant into the lounge room of the house and showed the complainant a homosexual pornographic video. The Respondent was sitting on a cushion or beanbag and put the complainant's penis in his mouth and fellated him (Counts 1/2).
The complainant alleged that the Respondent then led him to a bedroom, where there was a rifle with an unusual scope and a lancer sword. The Respondent then led the complainant's mouth to the Respondent's penis and placed his penis into WO's mouth and told him to suck it (Counts 3/4).
The complainant alleged that the Respondent then placed the complainant's penis in his mouth and fellated him (Counts 5/6).
Thereafter, the Respondent and the complainant went to Lancer's Barracks for cadet training.
The Respondent's Evidence
The Respondent gave evidence at the trial. He denied committing the offences. He said that he had never had the complainant in his car. The Respondent said that he did not recall the complainant "at all" (T107).
The Respondent acknowledged that he possessed a sword and a rifle with an unusual scope, in the home of his parents at Marrickville. He said that, after the Anzac Day march, he had taken the complainant, together with 24 other cadets, through his parents' home in Marrickville to show the cadets his collection of rifles and swords.
The Respondent's case was that it was because of this occasion that the complainant was able to describe his parents' home in Marrickville, although the Respondent contended that the complainant was not accurate in his description of the home having beanbags or cushions.
The Tendency Evidence
[7]
The Tendency Notice Relied Upon by the Crown at the Trial
The Crown relied upon a Tendency Notice dated 17 February 2021 served for the purpose of s.97 Evidence Act 1995.
The Tendency Notice was provided to the trial Judge prior to closing addresses (T164). As will be seen, there was some discussion with counsel concerning the Tendency Notice and its use in the trial (T164-166).
The Tendency Notice stated as follows:
"Notice is hereby given that the Prosecution presently intends to adduce evidence of 'tendency' pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind.
1. The person whose 'tendency' is the subject of the evidence sought to be adduced is [BK].
2. The indictment contains 6 counts (3 in the alternative) relating to 1 complainant, [WO], concerning acts of homosexual intercourse of a person above 10 years and under 18 years. The Crown seeks to rely upon evidence, concerning Mr [JW] (contained in paragraph 5), amounting to homosexual intercourse of a person above 10 years and under 18 years, engaged in by the accused on [JW] (set out below) as tendency evidence in proof of the counts on the indictment.
3. The tendency sought to be proved is his tendency;
(a) to have a particular state of mind, namely, a sexual interest in males aged between 12 and 15; and
(b) to act in a particular way, namely, to act upon that sexual interest by:
• sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school
• exploiting a position of authority for his own sexual purposes
• displaying a sexual interest in naked boys
• performing acts of fellatio on boys
• forcing boys to perform acts of fellatio upon him; and
• masturbating himself in front of boys
committing such acts for his own sexual gratification."
[8]
The Role of the Tendency Evidence During the Trial
The trial took place between 23 and 26 March 2021, with verdicts and reasons being delivered on 30 March 2021. Having regard to submissions made at the hearing of the appeal, it is appropriate to refer to parts of the trial where the tendency evidence was referred to in evidence and addresses.
Opening Addresses
In the course of the Crown opening address, reference was made to the tendency evidence by way of a summary of the matters contained in the document which became Exhibit B (T2-3). In a short opening address for the Respondent, trial counsel noted that, in circumstances where it was conceded that tendency evidence would be admitted at the trial, there was no opposition to the Crown relying upon tendency evidence with that material being condensed into an agreed facts document for that purpose (T3).
As noted earlier, when the Statement of Agreed Facts (Exhibit B) was tendered without objection, the trial Judge read the document to the Respondent who agreed that he admitted the facts contained in the document (T6-8).
Evidence of WO
The Crown called WO to give evidence (T21-71). The complainant gave evidence concerning the commission of the alleged offences by the Respondent at the Marrickville house (T30-34). The complainant said that he knew JW through cadets, but that he did not know PK (T44). WO said that he had never had discussions with JW concerning the Respondent (T44). Tendered in the Crown case, was a photograph of the College Cadet Unit in 1985 in which the Respondent, JW and WO all appear (Exhibit D).
In cross-examination, WO said that he had heard rumours that the Respondent was a paedophile and that he had heard that the Respondent had assaulted JW, although he had never heard that from JW himself (T50-52). In cross-examination, it was put to the complainant that he had never been to the house at Marrickville alone with the Respondent and that the sexual acts alleged by the Respondent had not in fact taken place (T70).
In re-examination concerning the rumours he had heard about the Respondent and JW, the complainant said that he had only heard JW's name mentioned in this respect and that he did not hear any details or go seeking any details about it (T70). The complainant said that he had not told anyone about what the Respondent had done to him as he was ashamed of what had happened and did not want people to know (T70-71).
Evidence of the Respondent
[9]
Judgment of the Trial Judge
After the closing addresses on 26 March 2021, his Honour reserved his decision and adjourned the trial to 30 March 2021.
His Honour gave judgment on 30 March 2021. Given the grounds of appeal, it is appropriate to set out parts of the judgment, which occupied some 49 pages.
After recounting the counts in the indictment and noting certain general directions applicable to a criminal trial, his Honour set out the elements of the offences with which the Respondent was charged (pages 1-4). Thereafter, the trial Judge recorded a number of directions which included:
1. assessing the reliability and credibility of the witnesses, including where witnesses had given evidence by CCTV (pages 4-5);
2. the standard of proof (page 5);
3. the approach to be taken to consideration of separate counts and alternative counts (pages 6-7, 15-16); and
4. the drawing of inferences (pages 6-7).
His Honour then said (page 7):
"In this case the Crown seeks to establish the accused's guilt based largely or exclusively on the evidence of the complainant, together with evidence of tendency. This being so, unless I am satisfied beyond reasonable doubt that the complainant was both an honest and accurate witness in the account that he has given, I cannot find the accused guilty."
The trial Judge then addressed the question of delay in complaint (page 7):
"The complainant did not complain about what he claims the accused did to him until he spoke to the police in 2019. The delay in making the complaint about the alleged conduct of the accused does not necessarily indicate that the allegations that the offences were committed is false. There may be good reasons why the complainant may hesitate in making or may refrain from making a complaint about such an assault. I have heard evidence that the complainant did not complain until 2019 because he felt ashamed and did not want to become part of a rumour mill at the school in relation to similar complaints."
His Honour then addressed the tendency issue, apparently reading from the Tendency Notice of 17 February 2021 (see [31] above) and the Statement of Agreed Facts (Exhibit B) for this purpose (pages 7-10):
"Part of the Crown case against the accused is that the accused had a tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 years of age, and to act in a particular way, namely to act upon that sexual interest by sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school by exploiting a position of authority for his own sexual purposes by displaying a sexual interest in naked boys, by performing acts of fellatio on boys, by forcing boys to perform acts of fellatio upon him, by masturbating himself in front of boys and by committing such acts for his own sexual gratification.
The Crown says that the tribunal of fact will be satisfied that the accused had this tendency because of his conduct in relation to [JW] and [PK]. The agreed facts establish that [JW] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. [PK] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. Towards the end of 1985 the accused drove [JW] to a house in Marrickville, showed him two rifles and a samurai sword, a bayonet and an automatic rifle, and then drove to a terrace house in Chippendale, where he showed him some pornographic videos and the two of them engaged in mutual fellatio.
Approximately two weeks later the accused picked [JW] up from school, took him to a different house, showed him pornographic videos and then they engaged in mutual fellatio. One day in 1986 the accused took [JW] to the same house in Chippendale, where they watched pornographic videos. [JW] declined to perform fellatio on the accused, and instead they masturbated each other and then the accused performed fellatio on [JW]. [JW] continued to visit the accused's flat, where the accused would perform fellatio on [JW]. [JW] would rarely perform fellatio on the accused, but would masturbate the accused.
One time during the winter months in 1986 the accused drove [JW] and [PK] to the house in Chippendale, where they watched a pornographic video and then performed acts of fellatio on each other. In approximately August 1987 the accused and [JW] performed mutual acts of fellatio on each other, then [JW] laid on the floor, the accused sat astride [JW], and [JW]' penis entered the accused's anus. The Crown says this conduct reveals the accused had a tendency to have a particular state of mind, namely a sexual interest in males between 12 and 15, and to act in a particular way; namely to act upon that sexual interest makes it more likely that he committed the offences charged in the indictment.
There is no issue that the conduct in relation to [JW] and [PK] occurred. The tribunal of fact then needs to consider whether that conduct enables the inference to be drawn that the accused had the tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15, and to act in a particular way, namely to act upon that sexual interest.
The tribunal of fact would recall the direction about the care that needs to be applied in relation to inferences. The tribunal of fact needs to consider whether there might be alternative explanations for the evidence. The tribunal of fact should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. It should bear in mind the directions when considering this part of the evidence. If the tribunal of fact finds the accused did have a sexual interest in males aged between 12 and 15 and acted upon that sexual interest, then the tribunal of fact can use that in considering whether it is more likely that the accused committed the specific offences with which it is charged. However, it is essential that the tribunal of fact consider in relation to each charge whether the accused had that sexual interest and acted upon that sexual interest on that specific occasion.
Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are subject to the charges. That is the only way the accused's tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 and to act in a particular way, namely to act upon that sexual interest, may be used.
Ultimately the tribunal of fact must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant and what the accused did. It will include the tendency alleged by the Crown, provided that the tribunal of fact is satisfied it has been established.
The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. The tribunal of fact must be careful to avoid allowing any emotional response or prejudice to distract it from a calm and objective assessment of this issue."
[10]
Some General Observations Concerning the Grounds of Appeal
At the hearing of the appeal, both the Crown (T16, 22 October 2021) and Mr Anderson SC (T24), accepted that the grounds of appeal were, in effect, two sides of the same coin.
There is some overlap between the submissions concerning the two grounds. As the submissions addressed the grounds separately, it is appropriate to consider each ground separately, whilst noting that common features will be observed in the submissions of the parties.
In effect:
1. the first ground of appeal asserts that the trial Judge failed to take the tendency evidence into account in assessing the Respondent's evidence, and in determining whether the Court was satisfied beyond reasonable doubt of the guilt of the Respondent on any of the counts;
2. if the first ground failed, the second ground of appeal asserts that the trial Judge failed to give reasons as required by law by failing to record his findings with respect to the tendency evidence.
[11]
Ground 1 - Failure to Take Tendency Evidence into Account in Assessing the Respondent's Evidence
Submissions for the Crown
The Crown submitted that the first ground of appeal involves a question of law, namely whether a Judge trying criminal proceedings without a jury is required to take into account tendency evidence that has been admitted in the Crown case, when determining whether there is a reasonable possibility that an accused person's evidence is true and whether the guilt of the accused person has been established beyond reasonable doubt (T3, 22 October 2021). As the question can be considered separately from the facts with which it is connected, it was submitted that the question constitutes a "question of law alone".
It was submitted that the trial Judge summarised the tendency evidence and stated accurately the principles that applied to consideration of that evidence. However, the trial Judge did not make any findings about the tendency evidence and did not indicate at any point in the judgment that he had, in fact, taken the tendency evidence into account in determining that there was a reasonable possibility that the Respondent's evidence was true. In this way, the trial Judge had failed to take the tendency evidence into account in determining whether the guilt of the Respondent had been proved beyond reasonable doubt.
In these circumstances, it was submitted that this Court should infer that the tendency evidence was not taken into account when finding that there was a reasonable possibility that the Respondent's evidence was true: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [131].
The Crown submitted that the question whether there was a reasonable possibility that the Respondent's evidence was true could not be determined by considering the Respondent's evidence in isolation. Reliance was placed upon The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] in support of a submission that, in a case involving direct evidence, the evidence of any witness (including the Respondent) should not be considered separately in a "hermetically sealed compartment". Rather, the Crown submitted that the evidence of an accused person must be assessed in the context of all the other evidence in the trial including the tendency evidence adduced in the Crown case.
[12]
Ground 2 - The Trial Judge Erred in Failing to Record his Findings with Respect to the Tendency Evidence
The second ground of appeal is expressed as an alternative to the first ground.
As I would uphold the first ground of appeal, it is not strictly necessary to determine the second ground of appeal. However, in the event that my conclusion with respect to the first ground of appeal is wrong, I will proceed to consider the second ground of appeal.
Submissions for the Crown
In support of this ground of appeal, the Crown submitted that a trial Judge's reasons for verdict under s.133(2) must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached: Hopgood v R at [47]. The reasoning process undertaken by the trial Judge should be exposed: Fleming v The Queen at [28].
Whilst it is not necessary for a trial Judge to refer to every piece of evidence led in the proceedings, the Crown submitted that it is essential to expose the reasoning on a point critical to the contest between the parties: Toohey v R [2020] NSWCCA 166 at [204]-[208].
The Crown submitted that s.133(2) is a "legal imperative" and, for this reason, a failure to comply with that provision will constitute a wrong decision on a question of law: Fleming v The Queen at [27].
The Crown submissions in support of the second ground of appeal are similar to those concerning the first ground, although addressed for a different purpose. It was submitted that, as the premise of the admission of tendency evidence is that the evidence is capable of having a significant impact upon the resolution of the issues in the trial, the factual findings of a trial Judge concerning tendency evidence will be critical to the contest between the parties. For this reason, it was submitted that s.133(2) requires that a trial Judge record his or her factual findings in respect of tendency evidence admitted in the Crown case.
The Crown submitted that the tendency evidence contained in Exhibit B was an important part of the Crown case. In the Crown closing address at trial, it was submitted that the tendency evidence demonstrated that the Respondent had a tendency to sexually assault young male cadet students between 12 and 15 years of age, to exploit his position of authority for sexual gratification and to perform acts of fellatio on young boys and to make them perform fellatio upon him for his own sexual gratification (see [46]-[47] above).
[13]
The Residual Discretion
Submissions for the Crown
In the event that the Court found error, the Crown submitted that an order should be made quashing the acquittals and ordering a new trial of the Respondent. With respect to the interests of justice test, the Crown submitted that the offences were very serious and there is a strong public interest in having the guilt or otherwise of the Respondent correctly determined in accordance with the law. There had been no delay in the commencement of the appeal and the Crown did not contribute to the errors alleged.
The Crown informed the Court that the evidence of the complainant had been video recorded from the trial so that it would be available to be played at a retrial. The Crown acknowledged that s.306B Criminal Procedure Act 1986 did not apply to an appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001, so that there would not be an automatic capacity for the video recording of the evidence of the complainant to be played at a future trial.
That said, the Crown noted that the video-recorded evidence of the complainant would be able to be admitted in any retrial with the consent of the Respondent.
The Crown submitted that it would be open to the Court to proceed upon the basis that a new trial would take the form of a Judge-alone trial, given that the Crown would consent to that course (T34, 22 October 2021) and that Senior Counsel for the Respondent had noted that the Respondent would seek a Judge-alone trial if a new trial was ordered by the Court (T31, 22 October 2021).
Submissions for the Respondent
In the event that the Court found error, Senior Counsel for the Respondent submitted that the Court should decline to order a new trial in the circumstances of this case.
It was submitted that the interests of justice test to be applied under s.107 Crimes (Appeal and Review) Act 2001 was analogous to the interests of justice test applied by this Court under s.8(1) Criminal Appeal Act 1912. In that regard, reliance was placed upon the principles summarised in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649].
It was submitted that this was a case relating to events which are now 36 years old and that any new trial of the Respondent would not likely take place until 2023. The further lapse of time, it was submitted, was relevant to the exercise of discretion in this case.
[14]
Conclusion and Orders
For reasons explained in this judgment, I would uphold the first ground of appeal. In the event that the first ground of appeal was rejected, I would uphold the alternative ground contained in the second ground of appeal.
By whichever route is taken, I would uphold the appeal by the Crown under s.107 Crimes (Appeal and Review) Act 2001.
I am satisfied that it is in the interests of justice to order a new trial of the Respondent.
I propose the following orders:
1. Crown appeal allowed;
2. quash the acquittals of the Respondent recorded at the Sydney District Court on 30 March 2021;
3. order a new trial of the Respondent pursuant to s.107(6) Crimes (Appeal and Review) Act 2001;
4. direct that the matter be placed in the Arraignments List at the Sydney District Court.
ROTHMAN J: I have had the advantage of reading in draft the learned and carefully crafted reasons for judgment of Johnson J. I have also had the advantage of reading in draft the detailed, reasoned analysis of Hamill J. As a consequence of their Honour's thorough reasons, I can be relatively brief.
These reasons adopt the description of the evidence, including the recitation of the Agreed Facts in the other reasons published by my learned colleagues. If there be any repetition of that in these reasons it is only for the purposes of emphasis and to the extent necessary to reflect the path to reaching my conclusion.
There are two related grounds of appeal. Each relied on a failure by the sentencing judge in relation to tendency evidence. One alleges a failure to use the tendency evidence in assessing the evidence of the respondent, and the assessment that there was a reasonable possibility it was true; the other, that the reasons of the trial judge were inadequate in that the reasons did not record the findings as to the tendency.
As has been explained in both of the other judgments now published, this was a judge alone trial. Unlike juries, a judge in such circumstances is required to publish reasons for the verdict. Further, unlike jury verdicts, except when directed, there is a right of appeal from an acquittal arising from the judge alone trial.
The right of appeal must be on a ground that involves a question of law. Not every error of law that may be subject to appeal would allow or require the quashing of a verdict. The reasons for judgment of Johnson J refer to the residual discretion and the capacity of the Court, as a matter of discretion, not to quash the verdict.
[15]
The individual offences
In respect of the six individual counts on the indictment, the prosecution relied on the evidence of the complainant. The details of the offences are set out by the presiding Judge at [13] - [22]. Those details are important in light of the tendency case that the prosecution presented at the trial. There were, as Johnson J demonstrates, significant similarities in respect of a number of matters such as the age of the complainants, the circumstances and location of the alleged offending, the timing of the offending, the relationship between the respondent and the three complainants, and the nature of the acts alleged against him. The complainant was cross-examined and maintained his account of each of the sexual assaults committed on him by the respondent.
The Prosecution also relied on other items of evidence confirming aspects of the complainant account. For example, there were photographs proving the complainant was a student at the school and that the respondent was his cadet master at relevant times (Exhibits C, D and E). There was also evidence that the respondent, when arrested on 23 December 2019 (34 years after the alleged offences), denied knowing the complainant (Ex F). An investigating police officer recorded the following conversation, the details of which were agreed:
"[Detective] Hampstead said: 'My name is Sean Hampstead from the Ryde Detectives. Are
you [BK]?'
The accused said: 'Yes.'
Hampstead said: 'I am investigating a historical sexual assault matter that
occurred in 1984 whilst you were teaching at St Patricks Dundas.'
The accused said: 'What?'.
Hampstead said: 'There has been a complaint from one of the students that was in the cadets in 1984 at St Patricks Dundas that you sexually assaulted him.'
The accused said: 'No that's not right. Who is this?'.
Hampstead said: 'He was a student at the school who you taught in the cadets
named [WO].'
The accused said: 'No I don't know him. There must be some mistake.'
Hampstead said: 'He has made an allegation that you have sexually assaulted
him in a house at Marrickville whilst you taught him in the cadets at the school. It's a historical sexual assault, it was back in 1984'.
The accused said: 'No I don't even know him. There must be some mistake'."
The respondent gave evidence denying each of the specific allegations made in the indictment. He denied any indecent or sexual impropriety against the complainant and said he did not have a sexual interest in the complainant at any time. Like the complainant, he was cross-examined but remained steadfast in his denials of the allegations. He tendered evidence concerning his residence at the relevant time (Exhibits 2-4).
[16]
The tendency case
The tendency evidence upon which the prosecution relied came in the form of a statement of agreed facts (Exhibit B) and the respondent confirmed that he admitted those facts on the advice of his counsel. [24] Exhibit B was in the following terms:
"AGREED FACTS PURSUANT TO SECTION 191 EVIDENCE ACT 1995
For the purposes of these criminal proceedings, the abovenamed Accused upon the advice of his lawyer, and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):
JW & PK
1. In 1985, [JW] went to St Patricks School in Dundas, was in year 7 and aged 13 years old. The accused was [JW's] home room teacher, social science teacher, and cadet master.
2. In 1985, [PK] went to St Patricks School in Dundas, was in year 7 aged 13 years old. The accused was PK's English teacher and cadet master.
3. One day, towards the end of 1985, the accused drove [JW] in his red Mitsubishi Scorpion to a house in Marrickville. The accused showed [JW] guns; there were two rifles and a samurai sword, a bayonet and a Ruger Mini (automatic rifle). The accused then drove [JW] to a terrace house in Chippendale and they spent a short time in the loungeroom of that house. The accused invited [JW] upstairs into the bedroom where the accused put on some pornographic videos, firstly of women and men having sex, then men only having sex. The accused asked [JW] to sit on his lap, which he did. The accused undid [JW] shorts and began rubbing his penis. The accused asked [JW] if he would like to try some of the things on the video. The accused instructed [JW] to take off his clothes; the accused took off his own clothes. Upon the request of the accused, both laid on the bed and performed fellatio on each other at the same time. The accused and [JW] wiped themselves with a towel.
4. Approximately two weeks later, the accused asked [JW] if he would like to watch some pornographic videos again. The accused picked up [JW] from the school on the next Saturday as planned and dropped them to a different house. The accused and [JW] watched pornographic videos before performing fellatio on each other. The accused and [JW] wiped themselves with a towel.
5. On one day the following year, the accused invited [JW] to watch pornographic videos and have sex. The next weekend the accused and [JW] went to the same house in Chippendale as before. The accused and [JW] went upstairs to the same bedroom and watched pornographic videos. [JW] declined to perform fellatio on the accused, and instead they masturbated each other. The accused performed fellatio on [JW].
6. [JW] continued to visit the accused at the accused's flat. The accused would perform fellatio on [JW]. [JW] would rarely perform fellatio on the accused but would masturbate the accused. The accused would kiss and cuddle [JW].
7. One time during the winter months of 1986, the accused met [JW] and [PK] at [PK's] house. The accused drove both boys back to the same house at Chippendale. They entered the loungeroom before going upstairs to the bedroom and watching a pornographic video with only men having sex. All three performed acts of fellatio on each other.
8. The last time [JW] saw the accused was on a weekend some time approximately August 1987. The accused and [JW] performed mutual acts of fellatio. [JW] laid on the floor and the accused sat astride [JW], who's penis entered the accused's anus.
CONVICTION
9. On 6 March 2000, the accused entered a Plea of Guilty to one count of Homosexual intercourse with Male of or above the age of 10 years and under the age of 18 years - s. 78K Crimes Act 1900.
10. The accused was sentenced on 17 April 2000."
[17]
The competing submissions at trial
The submissions of the parties on the tendency issue are set out at length by Johnson J at [46]-[48]. [28] I will not set them out again. In a nutshell:
The Prosecutor submitted that his Honour could be satisfied the respondent had a particular state of mind, being tendency to have a sexual interest in male children between the ages of 12 and 15 by inference, based on the evidence of the prior sexual interest and acting upon that interest with two males who fell into that age bracket in similar circumstances as those alleged by the complainant. [29]
Counsel for the respondent at trial submitted the nature of the actual evidence elicited in cross-examination did not go this far. Counsel submitted the evidence did not go as high as a general tendency to have a sexual interest in male children as described, rather it was confined to the two specific victims of the offences detailed in the agreed facts. [30]
[18]
The relevance of the tendency evidence in the present case
The process of reasoning that applies in a case where the prosecution relies on tendency evidence was described by Simpson J, as her Honour then was, in Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323. Her Honour said at [253]:
"Tendency evidence is evidence tended to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way or had a particular state of mind at a time or in circumstances relevant to the issues in dispute."
At [360] her Honour explained:
"The process of reasoning is:
• On an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way.
• It can, therefore, be concluded or inferred that the person had a tendency to act in that way.
• By reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency."
In IMM v R (2016) 257 CLR 300; [2016] HCA 14 at [104], Gageler J explained the process of reasoning and cited what Simpson J had said in Elomar v R:
"104. The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence.
105. The tendency evidence in question in the present case - the testimony of the complainant about the 'massage incident' - was evidence of that nature. The prosecution sought to adduce it in order to provide a foundation for an inference that the appellant had a sexual interest in the complainant on the basis that the existence of that sexual interest increased the probability that the appellant committed one or more of the sexual offences against the complainant with which he was charged."
[Citations omitted]
[19]
Judge Jeffreys' reasons concerning the tendency evidence
Again, Johnson J has set out the salient parts of the Judgment and I will not set out the relevant parts in full. It will be necessary to refer to them in more detail in the context of addressing the particular grounds of appeal.
In short, the trial Judge provided himself with directions as to how the tendency evidence could be used to support the prosecution case and set out the evidence itself (that is the statement of agreed facts) in detail. He noted that the evidence of the tendency witnesses was not in dispute.
However, as the Director submitted, the trial Judge did not return to the tendency evidence during his analysis of the evidence of the complainant and the respondent, or when articulating his findings as to the credibility of those witnesses. It is that failure that gives rise to both grounds of appeal raised by the Director.
[20]
The grounds of appeal
The grounds of appeal are related or are, as it has been put by others, "two sides of the same coin". [31] However, the focus and import of the grounds are very different. The first ground asserts that the Judge failed to take into account the tendency evidence, while the second ground pleads that his Honour's reasons were deficient. As the Director submitted, if the reasons were inadequate it may lead to a conclusion that the Judge failed to take the tendency evidence into account, or it might mean that his Honour took the evidence into account but failed to explain how.
[21]
Ground 1: the trial judge erred in failing to take into account tendency evidence adduced in the Crown case in determining whether there was reasonable possibility that the accused's evidence was true
Ground 1 asserts that Judge Jeffreys erred in failing to take the tendency evidence into account in determining whether "there was a reasonable possibility that the accused's evidence is true". This ground, unlike the second ground, is somewhat divorced from the "question of law" framed in the notice of appeal, namely "whether his Honour erred in failing to comply with s. 133 Criminal Procedure Act" (that is, the duty to provide adequate reasons in a judge alone trial). Nevertheless, no point was taken in this regard and the ground should be dealt with on its merit. Further, as I have said, the two grounds are related and the failure to provide reasons may give rise to an inference that the evidence was not taken into account.
Another matter that is worthy of preliminary comment is that the framing of the ground is calculated to have the Court focus on one part of his Honour's reasons, albeit that counsel for Director acknowledged that the reasons must be read fairly and as a whole. The ground, by the specificity of its drafting, could be taken to suggest (implicitly) that Judge Jeffreys might have taken account of the tendency evidence in some other way but failed to consider it when reaching the conclusion that the respondent's evidence raised a reasonable doubt because it might possibly be true.
With respect to Johnson J, who has reached the contrary view, I do not accept the submissions under this ground and would reject ground 1.
In the course of his judgment, the trial Judge delivered himself of the directions and warnings required in a case where reliance is placed on tendency evidence. There is no suggestion that that these directions were inadequate or erroneous, unbalanced, or unfair. His Honour directed himself:
He (as tribunal of fact) needed to consider whether that conduct enabled him to draw the inference "that the accused had the tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15" and to "act in a particular way, namely to act upon that sexual interest".
If the tendency was established, he needed to consider whether the existence of that tendency made it more likely that the accused committed the offences charged.
[22]
Ground 2: that the trial judge erred in failing to record his findings with respect to that tendency evidence
There is more merit in the Director's second ground and I have found it difficult to resolve. On the one hand, the fundamental reason the trial Judge found the respondent not guilty is plain from the reasons for judgment. On the other hand, the approach the trial Judge took to the tendency evidence in reaching the ultimate conclusion is unclear and not exposed in the judgment. The question whether, in those circumstances, the reasons were adequate is one upon which minds may differ. I have concluded that Johnson J is correct in his conclusion that the second ground is made out. To explain why, it is necessary to re-state the essence of the Director's complaint and consider the case law on the extent and content of the duty of a Judge sitting alone to provide reasons for their verdicts.
As I have already said at [259], the Director submitted that there were three possibilities in terms of the Judge's approach to the tendency evidence. The precise way this was put in written submissions was as follows:
"44. The trial judge concluded that he was unable to exclude the reasonable possibility that the respondent's evidence was true. As the trial judge's directions relating to tendency evidence illustrate, there are at least three potential pathways to this conclusion that were open to his Honour:
(i) That the trial judge did not draw the inference that the respondent had a tendency to have the alleged state of mind, or to act on that state of mind;
(ii) That the trial judge drew the inference that the respondent had the alleged tendencies, but nonetheless considered that there was a reasonable possibility that the respondent's evidence was true; or
(iii) That the trial judge assessed the respondent's evidence without taking into account the tendency evidence at all."
I have rejected the third possibility - that the Judge failed to take the tendency evidence into account in assessing the respondent's evidence "at all" - in dealing with the Director's first ground of appeal. I accept the Director's submission that there were at least two other "pathways" to a conclusion that it was possible that the respondent's denials were true. The question that arises under this ground is whether the duty of the Judge to provide adequate reasons encompassed a requirement that Judge Jeffreys spell out which of those two pathways he took to reach that ultimate conclusion.
[23]
Appropriate orders
Section 107 of the CARA is set out in full by Johnson J at [3]. The section falls within Division 3 of Part 8 of the CARA. The section does not provide any automatic consequence flowing from the appellant (either the Director or the Attorney General) establishing an error of law in the judgment leading to an acquittal. [41] Rather, sub-ss (5) and (6) provide respectively that this Court "may affirm or quash the acquittal" and "may order a re-trial".
The provision may be contrasted with sub-ss 6(1) and 6(2) of the Criminal Appeal Act 1912 which provide for the determination of appeals against conviction. Where any of the "three limbs" of error are established "the court shall allow the appeal" unless "it considers that no substantial miscarriage of justice has actually occurred." [42] If the appeal is allowed, the Court is to quash the conviction and enter a verdict of acquittal (s 6(2)) unless it orders a re-trial under s 8.
It may be that in most cases where an error of law is established, the power in s 107(5) to "affirm or quash the acquittal" would result in the verdict being quashed. The question would then become whether a re-trial should be ordered under s 107(6). However, in contrast to s 6 of the Criminal Appeal Act, the section does not mandate that the appeal be allowed and the [acquittal] be quashed. It has been said that s 107 represents a "partial abrogation" of a "fundamental principle of our criminal law", that is the principle of double jeopardy and the prohibition on successive prosecutions for the same offence. [43] In the circumstances of the present case, in view of the ground that I would uphold, the question of whether the verdict of not guilty should be quashed is a live one.
The discretion in s 107(6) whether to order a new trial is "unconstrained by specific wording (cf. s 104 of the Crimes (Appeal and Review) Act)": R v BA [2021] NSWCCA 191 at [69] (Adamson J). I agree with Adamson J that the suggestion in R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [150]-[168] that the discretion in s 107 "ought be read with the qualifications in s 104" is contrary to the terms and structure of the statute. Section 104 falls in a different division (Division 1) and is, on its own terms, confined to the issue of "determining under this Division whether it is in the interests of justice" to order a re-trial (my emphasis). Even so, some of the matters referred to in s 104 will also be relevant to the "unconstrained" discretion in s 107.
[24]
Endnotes
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 (Mason CJ); [1990] HCA 33.
Evidence Act 1995 (NSW), s 97(1)(b).
Appeal Book, p 17; Verdict Judgment, p 10.
Appeal Book, p 17; Verdict Judgment, p 10.
Appeal Book, p 20; Verdict Judgment, p 13.
Appeal Transcript, 22 October 2021.
Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; Llewellyn v R [2011] NSWCCA 66.
Reasons for Judgment of Johnson J at [98], [99].
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639 (Brennan and Dawson McHugh JJ); [1990] HCA 20.
Ibid. at CLR 642-643; at [7] (Deane, Gaudron and McHugh JJ).
R v Bauer (2018) 266 CLR 56 at 87-87; [2018] HCA 40 at [58], [59] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Reasons for Judgment of Johnson J at [48].
Reasons for Judgment of Johnson J at [57].
Winner v R (1995) 79 A Crim R 528 at 530-1 (Kirby ACJ); (Court of Criminal Appeal (NSW), 14 July 1995, unrep).
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6, citing with approval Collector of Customs v Pozzolanic (1993) FCR 280 at 287; [1993] FCA 456.
Ibid at [27] (Gleeson CJ, McHugh, Gummow and Kirby and Callinan JJ)
Criminal Procedure Act 1986 (NSW), s 33(3).
Fleming, supra, at [31]-[33].
While irrelevant for this appeal, the provision also applies to appeals from a directed verdict.
Appeal Book, p 17; Verdict Judgment, p 10.
Ibid.
Reasons for Judgment of Hamill J at [275], citing Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [13].
Trial tcpt p 8.
Trial Tcpt, 23 March 2021, pp 106-107
Trial Tcpt, 23 March 2021, p 111.
Trial Tcpt, 23 March 2021, pp 116 -117.
Trial Tcpt, 26 March 2021, pp 165-166; 175-177; 185.
A ground of appeal that asserts error in the formulation or application of a legal proposition which is a distinct and separate step in the reasoning process will satisfy s.107(2): R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [27]. If the question of law can be stated and considered separately from the facts with which it may be connected, there is a "question of law alone": R v XHR [2012] NSWCCA 247 at [23].
In the event that error is established and the Court quashes the acquittal under s.107(5), the Court must consider whether to order a new trial under s.107(6). This requires consideration of whether it is in the interests of justice for a new trial to be ordered: R v PL (No. 2) [2012] NSWCCA 31 at [45]-[48]; R v BA [2021] NSWCCA 191 at [69]-[71].
The Crown relied on tendency evidence in support of the Crown case by reference to a Statement of Agreed Facts under s.191 Evidence Act 1995 signed by the Respondent (Exhibit B). The trial Judge read out the contents of Exhibit B to the Respondent and asked whether he admitted the facts in the document, to which the Respondent replied in the affirmative (T6-8).
That statement related to the conduct of the Respondent with two other boys, JW and PK, each of whom was 13 years old and in Year 7 in 1985. Both JW and PK attended St Patrick's Marist Brothers College, Dundas. Both were taught by the Respondent and both were cadets in 1985 when the Respondent was a cadet master.
The Statement of Agreed Facts stated that, towards the end of 1985, the Respondent had driven JW to a house at Marrickville where he showed JW his collection of rifles and swords. He then drove JW to a house in Chippendale, where he showed JW pornographic videos before performing fellatio on JW and directing JW to perform fellatio upon him. Similar conduct occurred two weeks later.
Approximately one year later, the Respondent invited JW to watch pornographic videos and have sex. In the Chippendale house, JW watched pornographic videos. JW declined to perform fellatio on the Respondent, but agreed to masturbate the Respondent. After they masturbated each other, the Respondent performed fellatio on JW. Thereafter, JW continued to visit the Respondent. On these occasions, the Respondent would perform fellatio on JW.
The Statement of Agreed Facts also indicated that, in the winter of 1986, the Respondent drove JW and PK to the house in Chippendale where they watched a pornographic video and then performed fellatio on each other. The last time that JW saw the Respondent was in 1987 when he and the Respondent performed mutual acts of fellatio. On this occasion, JW also engaged in anal intercourse with the Respondent.
The Respondent did not dispute that he had a sexual interest in JW or PK at the relevant times. However, he maintained that he did not have any sexual interest in the complainant.
In evidence-in-chief, the Respondent denied that the complainant had been in the Marrickville house on any occasion other than Anzac Day 1985 when he was present with other members of the cadet corps (T86). The Respondent denied committing any sexual act with the complainant (T88).
In cross-examination, the Crown asked the Respondent concerning the tendency evidence in Exhibit B (T100-101):
"Q. On this occasion, in exhibit B, when you took [JW] to the house in Marrickville, you showed him two rifles and a samurai sword, a bayonet and a Ruger?
A. Correct.
Q. What I want to suggest to you is that you also showed [WO] some weapons when you took him to the house.
A. I did not.
Q. You showed him one firearm and one sword, a sabre?
A. No, I did not.
Q. I want to suggest to you that [WO] even said something to you about there appearing to be condensation on the hilt of the sword. What do you say about that?
A. Could you rephrase that, could I ask you?
Q. Yes. I'm suggesting to you that [WO] said to you that there was some condensation on the sabre, on the hilt of it. You deny that, right?
A. I deny that, yes.
Q. I want to suggest to you that there was a rifle in the room with an unusual scope in that you kept both eyes open when looking through the scope.
A. Correct.
Q. You had such a rifle?
A. I did."
Later in cross-examination, the Crown asked the Respondent questions by reference to the account of the complainant and also the tendency evidence (T105-108):
"Q. I want to suggest then that you put [WO] in the living area of that house, of a house in Marrickville and you put a pornographic video on the television?
A. I did not.
Q. And it was a homosexual pornographic video?
A. It was not.
Q. I want to suggest to you that this video depicted males performing fellatio upon each other?
A. I did not put a video on of that, any nature.
Q. You say you never showed any pornographic video to [WO]?
A. I did not.
Q. Did you ever tell [WO] that you had access to such videos?
A. I did not.
Q. Did [WO] ever attend a house with you and [JW]?
A. He did not.
Q. Did he ever attend a house with you and [PK]?
A. He did not.
Q. Now, we know from exhibit B that you did in fact have access to such homosexual pornographic videos in 1985, correct?
A. Correct.
Q. What I'm suggesting to you is not only did you show such pornographic videos to [JW] and [PK], as appears in the agreed fact, but you also showed them to [WO]?
A. I did not.
Q. I want to suggest to you that during 1985 you had a sexual interest in [JW]?
A. In [JW]?
Q. [JW].
A. I did.
Q. He was about 13 years old at the time?
A. Correct.
Q. You were his cadet master?
A. Correct.
Q. That sexual interest continued throughout 86 and I think up until at least August 87?
A. Correct.
Q. You also had a sexual interest in [PK], at least in 1986?
A. I did.
Q. He was about 14 years of age at the time?
A. I believe so.
Q. And you were his cadet master?
A. Yes, I was.
Q. I'm putting to you that you acted on that sexual interest with [JW]?
A. With [JW], yes, I did.
Q. And you did so on a number of occasions?
A. I did.
Q. On those occasions up until the last occasion in 87, that involved mutual fellatio?
A. It did.
Q. With [PK] you also performed fellatio upon him and he upon you?
A. He did.
Q. You say you had no such sexual interest in [WO], however?
A. I did not.
Q. In the very same year?
A. Correct.
Q. Why was that?
A. I had no interest in [WO] at all.
Q. Was it something about his appearance or something else?
A. I don't recall him at all, but certainly no involvement, no, nothing stood out.
Q. I'm going to take you back then to the incident in the living room.
PULLINGER: The incident in the living room?
CROWN PROSECUTOR: Which is the basis of count 1 on the indictment.
Q. I want to suggest that you sat on a beanbag or a cushion on the floor. You deny that, correct?
A. I deny that. No.
Q. I want to suggest to you [WO] sat on the couch?
A. No, he didn't.
Q. And I want to suggest to you the video that you showed him was of a birthday party where naked men were lined up to perform fellatio on the birthday boy?
A. I did not.
Q. I want to suggest you said to [WO] something like, 'He's a lucky boy', meaning the birthday boy?
A. I did not.
Q. You then called [WO] over to you where you were sitting and you pulled his pants and underpants down?
A. I did not.
Q. You then put his penis in your hand and you put his penis into your mouth?
A. I did not.
Q. You also placed his hand behind his head?
A. I did not.
Q. Or your head, sorry.
A. Yeah. I did not.
Q. The pornographic videos that you showed to [JW] and [PK] involved homosexual activities, correct?
A. Correct.
Q. That include fellatio?
A. Correct."
A little later, the Crown returned in cross-examination to aspects of the tendency evidence (T111-112):
"Q. I'll just go back to exhibit B again, which is the agreed fact. In paragraph 3 you took [JW] to a house in Marrickville and you showed him, amongst other things, he saw guns and a sword, right?
A. Correct.
Q. Further down that paragraph you took him to a terrace house in Chippendale?
A. That's correct.
Q. And you showed him pornographic videos and there was the mutual fellatio?
A. That's correct.
Q. Paragraph 4 you took [JW] to what's described as 'a different house'?
A. That's correct.
Q. And you showed him pornographic videos?
A. Correct.
Q. And mutual fellatio took place?
A. That's correct.
Q. At paragraph 6 it refers to at your unit.
HIS HONOUR: Described as a flat.
CROWN PROSECUTOR: A flat, sorry.
Q. And there again fellatio, you performed fellatio on [JW] but he rarely performed it on you?
A. That's correct.
Q. You also took [JW] and [PK] together to the same Chippendale house and that's at paragraph 7?
A. That's also correct.
Q. And showed them pornographic videos and mutual fellatio took place?
A. That's correct.
Q. Now the unit that's described as 'your unit' and do you say that's your unit at Parramatta?
A. That's correct."
The Respondent was asked in cross-examination concerning the use of premises at Chippendale for sexual activity with JW. The Respondent stated that he borrowed the key to the Chippendale premises from an acquaintance, Robert Dunn (T113-114). The Respondent was asked in cross-examination (T114):
"Q. But Mr Dunn is someone who you knew was involved in having sex with young boys?
A. Correct.
Q. Is that why you asked to borrow a key to his house so that you could have sex with young boys in that house and he wouldn't be upset if he found out?
A. Specifically yes."
Towards the end of the cross-examination, the Crown asked the Respondent (T116-117):
"Q. [BK], you accept that during 1985 you had a sexual interest in [JW] and [PK] who were about 13 at the time, correct?
A. I do.
Q. Do you find them to be sexually attractive?
A. I did.
Q. And I'm suggesting to you, you also found [WO] to be sexually attractive?
A. I did not.
Q. You accept you were the cadet master for both [JW] and [PK]?
A. I do.
Q. And you accept you're the cadet master for [WO]?
A. I do.
Q. I want to suggest to you that you used that position of authority over [JW] and [PK] for your own sexual gratification?
HIS HONOUR: Well hang on. Hang on. Hang on.
CROWN PROSECUTOR: I can break it down into portions if that was a compendious question. I think it was.
HIS HONOUR: He is not charged with authority. He's charged with teacher pupil.
CROWN PROSECUTOR: That's right.
HIS HONOUR: Yes.
CROWN PROSECUTOR: But what I'm suggesting to the witness is he's taken advantage of that position of authority.
HIS HONOUR: It's a matter, okay, but you need to establish.
CROWN PROSECUTOR: Yes, yes, I'll do that.
Q. So you accept that you were in charge of these young boys when they were at the cadets?
A. I do.
Q. And you accept that they, and we're talking about [JW] and [PK] at the moment, if you asked them to do something, they would do it?
A. Correct.
Q. You used that position and that knowledge for your own sexual gratification?
A. I did.
Q. What I'm suggesting to you is you used that same position of authority over [WO] in order to get him to do the things that he did to you and you did to him?
A. I did not.
Q. Of a sexual nature, which is mutual fellatio?
A. I did not.
Q. During 85 you accept you were attracted to those two boys who were between about 13 and 14, 15 years old?
A. I did.
Q. And I'm suggesting to you [WO] who was 12 at the time, you also had a sexual interest in him?
A. I did not.
Q. And you acted on that by performing fellatio upon him and forcing him to perform fellatio upon you?
A. I did not."
Discussion Prior to Closing Addresses
Following the close of the defence case and before closing addresses, discussion took place concerning directions which arose in the circumstances of the trial. In the course of this discussion on the afternoon of 24 March 2021, it was indicated that the trial Judge was to be provided with the Tendency Notice (T152-153, 162-163).
The trial was adjourned to 26 March 2021 for the purpose of closing addresses. At the commencement of proceedings on that day, the following discussion took place with respect to the Tendency Notice which had been provided to the trial Judge (T164-166):
"HIS HONOUR: You've sent me that tendency notice, Mr Crown. I haven't had the opportunity to have a look at it, I'll just have a look at it now. I may be wrong, Mr Crown, but I thought when you cross-examined the accused you put it to him that he had a sexual interest in [JW], and what was [PK's] first name?
CROWN PROSECUTOR: [PK].
HIS HONOUR: Rather than males between the age of 12 and 15.
CROWN PROSECUTOR: The Crown will be asking the tribunal of fact to infer that that is an interest, sexual interest, in young boys between those ages.
HIS HONOUR: What's your position in that respect, Mr Pullinger?
PULLINGER: Well, the facts are those in the agreed fact document. The Crown's entitled to rely on them.
HIS HONOUR: What the Crown says is that as a result of what's in the agreed facts document that the Crown can rely on a tendency to have a particular state of mind, being a sexual interest in males aged between 12 and 15.
PULLINGER: That doesn't accord with the agreed facts document, nor does it accord with the evidence that was in fact given during that course of cross-examination. Because my recollection is that the cross-examination--
HIS HONOUR: The cross-examination was very specific.
PULLINGER: It was very specific and it related to--
HIS HONOUR: I made a note of it at the time.
PULLINGER: It related specifically to [JW] and [PK]--
HIS HONOUR: [PK].
PULLINGER: And the accused accepted that at the time he had that interest in those boys. It was not ever put to him in a general sense that at that time he had an interest in boys generally between the age of 12 and 15. And specifically he denied having a sexual interest in the complainant in this trial.
HIS HONOUR: I understand all that. How do you say it's affected by the agreed facts document? That's what I don't quite understand.
PULLINGER: I don't have my copy, that's exhibit B.
HIS HONOUR: Have a look at exhibit B, show counsel exhibit B, please.
PULLINGER: The agreed fact document, on my quick reading of it, describes actual activities for the most part involving the accused and [JW]. And [PK] gets a mention in para 7.
HIS HONOUR: How does the agreed facts document assist in this respect?
PULLINGER: In my submission it doesn't assist the Crown to say that he had an interest generally in boys of that age, because the agreed fact document doesn't go that far.
HIS HONOUR: Let's explore that. If tendency evidence is admitted in relation to sexual activity between the accused and two individuals. And those individuals are between the ages set and they are male, isn't it open to the Crown to go to the tribunal of fact on the basis that this evidence tends to indicate he's got an interest in these particular males. If you're satisfied of that fact, then you may conclude that he has an interest in males of that age.
PULLINGER: I can understand that being the Crown's submissions, but how it's then caught with the specific evidence that was elicited during cross-examination of the accused, when he concedes sexual interest in those two individuals, but denies it in relation to--
HIS HONOUR: I understand that. What the Crown is saying is that the Crown can rely on the agreed facts in relation to having a particular state of mind, a sexual interest in males aged between 12 and 15. How old was [JW], he was 13, wasn't he?
PULLINGER: Both he and [PK] are 13, that's paras 1 and 2 of exhibit B.
HIS HONOUR: Right. And the complainant here was 12, is that right?
PULLINGER: Yes.
HIS HONOUR: So what's the problem?
PULLINGER: I don't have a problem with it, your Honour. It's there, it's a matter that your Honour's entitled to have regard to.
HIS HONOUR: All right. So you don't have a difficulty with the Crown going to the tribunal of fact on a tendency, to go to the tribunal of fact, in relation to having a sexual interest in males aged between 12 and 15, and relying on the evidence in that regard in relation to [JW's] activity and [PK's] activity?
PULLINGER: No, your Honour. There also has to be, of course, borne in mind the actual evidence that was given by the accused when he was cross-examined.
HIS HONOUR: That's a different issue. So are we ready for addresses now or not?"
Closing Addresses
The Crown then made a closing address (T167-177). During the course of the Crown closing address, the following submissions were made concerning the use of tendency evidence arising from the conduct of the Respondent towards JW and PK (T175-176):
"Now, during 1985, the accused had a sexual interest in [JW], who was 13 years of age at the time, and I think the fact reads on that up until 1986 he had a sexual interest in both [JW] and [PK]. At that stage [PK] would have been 14, I suppose. The Crown submits the accused had a sexual interest in boys between the ages of 12 and 15. We know the accused was the cadet master of both [JW] and [PK]. The accused admits he acted on his sexual interest in those boys, and he acted on his sexual interest in those two boys by fellating him and having them fellate him. What I'm submitting is that the accused had a sexual interest in boys between 12 and 15 years of age, and he had that sexual interest in 1985. In the Crown's submission he admits to much.
The Crown's submission is that he has a tendency to act on that sexual interest in a number of ways. First, by sexually assaulting young male cadet students. He did that to [JW], to [PK] and to [WO]. And he admits he did it to [JW] and [PK]. Second, by exploiting his position of authority over those young boys for his own sexual gratification. He did that with [JW], [PK] and [WO], and he admits using that position of authority over [JW] and [PK] in that way. He gave evidence that he admitted that. Third, he performed acts of fellatio on young boys. Again, he did that to [JW], [PK], and he also did it to [WO], and he admits doing it to [JW] and [PK]. And fourth, by forcing boys to perform fellatio upon him, again, he did that with [JW], [PK], and [WO], and he admits doing it to [JW] and [PK]. And then fifthly, he did these things for his own sexual gratification.
The Crown submits that the tribunal of fact would have no doubt that the accused had those tendencies in 1985, and the Crown submits that makes it much more likely that he committed the offences on [WO]. A tribunal of fact might be wondering why, if the accused was going to have sex with [WO], why he wouldn't just take him to his own flat. I think he said he was living in Parramatta at the time. I asked the accused why he didn't just take [JW] to his own Parramatta apartment, the flat, and the accused replied, 'I have no idea.' So we get no assistance from the accused as to why he didn't take these other boys to his own flat, simply, 'I have no idea.' But from the agreed fact, which is exhibit B, it's clear the accused had access to a number of houses where he could take young boys to have sex with them. The accused said at least one of the owners of one of those houses was also involved in having sex with young boys. He specifically said that Robert Dunn, the owner of one of the houses, was a man involved in having sex with young boys, and in fact that's the very reason the accused asked to borrow Mr Dunn's key, so he could have sex with young boys at his house, and Mr Dunn would not be upset if he found out about it. The point of this submission is that the accused was taking boys to houses other than his own house, in order to have sex with them, and that's what he did with [WO]."
Soon after, the Crown addressed a further aspect relating to the tendency evidence concerning JW and PK (T176-177):
"I will move on to one further topic, I'm nearly finished. There's absolutely no evidence of concoction or contamination in relation to the evidence of [WO]. He knew [JW] through the cadets, but they were in different years at school. They didn't associate together. [WO] and [JW] never had any discussions about the accused. It wasn't even suggested to [WO] that he discussed the matter with [JW]. And then, of course, [JW] [sic] doesn't even know [PK], he doesn't even know who he is. The evidence of what [WO] knew about the accused being a paedophile is that he heard rumours through the school that the accused was a paedophile. He heard that [JW] had been assaulted by the accused, and [JW's] name had been associated with the accused. That was it. There was nothing more. He hadn't heard any details, and hadn't gone seeking details. He just heard [JW's] name mentioned. No details about being taken to various houses, no details about being shown homosexual pornographic videos, no details of fellatio having taken place with [JW] and [PK]. Absolutely nothing. And of course, when [WO] heard the rumours, he was asked if he told anybody about what had happened to him, and he said he didn't because he was ashamed, and he 'didn't want people to know'. That's hardly surprising, in the Crown's submission, that a 12 year old boy didn't want his mates at school to know that the cadet master had sucked his penis and forced him to suck the cadet master's penis.
The Crown's submission is this: if what [WO] says happened is not true, isn't it remarkable that he correctly, I use the word guessed, that the accused had homosexual pornographic videos? We know the accused had access to those from exhibit B. The accused, I asked and he certainly didn't tell [WO] that he had access to such videos. Also, isn't it remarkable that the accused had shown these videos to other young boys? And isn't it remarkable that [WO] guessed that fellatio was the sexual act that the accused liked to engage in with young boys? And isn't it remarkable, most of all, that [WO] made these allegations against someone who had the tendencies that I've referred to earlier in this address, and had those tendencies in this very same year, 1985?
Just before I sit down, a couple of points. The accused didn't know where he got the homosexual pornographic videos that he showed to [JW] and [PK] in the house in Chippendale. He didn't know whether they were really there, or whether he brought them with him. It seems the accused was going from house to house, bringing young boys with him, young boys who were cadets of his, showing the boys homosexual pornographic videos and then engaging in mutual fellatio. Sometimes it would seem the accused brought the videos with them. Sometimes they were already at the various houses. But what it does seem like is that there were so many houses that the accused was going to and doing this, he can't even remember which ones had the videos already there, and which ones he was bringing the videos to.
During 1985 the accused admits he found [JW] and [PK], who were then about 13 years old, to be sexually attractive. Put simply, in the Crown's submission, in 1985 the accused was sexually attracted to young boys around that age. He also had a position of authority over young boys at that time, and he admitted using that position of power over them, knowing they would do what he did, and he did that for his own sexual gratification. Yet he gave evidence he wasn't sexually interested in [WO], who falls within that category of the age and the time. He said he didn't use his position of authority over [WO] for the same reason. The Crown's submission is that's just beyond belief.
When one looks at the similarities or the common features between what the accused did to [JW] and [PK], and admits doing to [JW] and [PK], it demonstrates very strong tendencies on behalf of the accused, and those tendencies I have mentioned a few moments ago. With those tendencies and the very detailed description [WO] gave, and in the Crown's submission he was not shaken on any significant point in cross-examination, the Crown submits your Honour would have no reasonable doubt that the accused committed the acts as alleged by [WO]. The Crown's submission, I invite your Honour to return guilty verdicts on counts 1, 3 and 5."
The closing address on behalf of the Respondent at trial focused upon the evidence of the complainant and the Respondent (T179-185). Trial counsel for the Respondent touched briefly and generally on the tendency evidence (T185):
"The accused has the prejudicial law, but not unfairly prejudicial, tendency notice material. That doesn't assist him at all. That can only help the prosecution in my submission to a limited extent. If it can't be used as a make piece or substitute for the evidence in a trial."
No submissions were addressed, by trial counsel for the Respondent, to the tendency evidence of JW and PK or in response to the detailed Crown submissions which had touched upon these issues.
It is against this background, arising from this relatively short Judge-alone trial, that his Honour moved to give reasons for returning verdicts for the purpose of s.133 Criminal Procedure Act 1986.
His Honour then said (page 10):
"Apart from evidence of tendency relied upon by the Crown, the only evidence implicating the accused in any of the offences comes from the complainant. There is no evidence independent of the complainant in any material way that tends to indicate the accused in any of the offences."
Earlier in the judgment, his Honour said (page 5):
"It is notorious that offences such as the ones that I am considering are usually committed in private and so it is commonly the case that the Crown is forced to rely on the evidence of a single witness, but the standard of proof, proof beyond reasonable doubt, is not watered down because the offences such as these usually occur in circumstances where no-one is present to corroborate the complainant's version."
His Honour directed himself concerning delay in WO's complaint (including the impact of delay on the credibility of the complainant and the relevance of forensic disadvantage to the Respondent) (pages 7, 11-15).
Before embarking upon consideration of the evidence of the complainant, the trial Judge said (page 14):
"It falls to the Crown to establish beyond a reasonable doubt that the evidence of the complainant is both honest and reliable. If the tribunal of fact has a reasonable doubt about either of these two matters, then the tribunal of fact must find the accused not guilty. The fact that the complainant's evidence may not have been demonstratively dishonest or unreliable in some respect does not enhance his credibility. The delay may mean that it is not possible to demonstrate. The delay is what renders that his evidence may be unreliable and lacking in credibility, that is the starting point for the tribunal of fact."
The trial Judge gave himself a direction in accordance with R v Jovanovic (1997) 42 NSWLR 520 (page 16):
"I need to give myself a Jovanovic direction, which is to the effect it would be natural for the tribunal of fact to ask itself why the complainant, [WO], would make up such serious allegations against the accused. The tribunal of fact is given the following direction about that question. As the tribunal of fact has been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns upon the evidence of [WO], the tribunal of fact must be satisfied beyond reasonable doubt that [WO] has told the truth.
It is the tribunal of fact's duty to decide whether it accepts the evidence of a witness in whole or in part, [WO] is no exception to that. It would be wrong to conclude that [WO] is telling the truth because there is no apparent reason in the tribunal of fact's view for [WO] to lie. People lie for all sorts of reasons, sometimes it is apparent, sometimes it is not. Sometimes the reason is discovered, sometimes it is not. The tribunal of fact cannot be satisfied that [WO] is telling the truth merely because there is no apparent reason for [WO] to have made up these allegations. There might be a reason for [WO] to be untruthful that nobody knows about."
The trial Judge then referred to the evidence of the Respondent in which he denied committing the alleged offences against the complainant (pages 17-18). Immediately thereafter, his Honour said (pages 18-19):
"If having considered the evidence of the accused and submissions of both counsel in relation to it and the tribunal of fact accepts it, then of course the tribunal of fact must acquit the accused and bring in verdicts of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to the essential matters which it must prove. If after having given consideration to the evidence of the accused and any evidence which the Crown asks the tribunal of fact to take into consideration, the tribunal of fact does not positively accept the evidence of the accused in support of the accused's case but that evidence leaves the tribunal of fact nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then the tribunal of fact in law is bound to bring in a verdict of not guilty.
As I previously emphasised, it remains the position that the Crown must establish beyond reasonable doubt the charges which it brings against the accused, and it is never for the accused to prove that he is not guilty. The fact that the accused has given and called evidence before the tribunal of fact does not alter the burden of proof. There is no obligation on the accused to persuade the tribunal of fact to accept that evidence.
The Crown must satisfy the tribunal of fact beyond reasonable doubt that it should reject it as a reasonably possible version of the facts. If that evidence leaves the tribunal of fact with a reasonable doubt as to whether the Crown had made out its case in respect of any element of the offence or any essential fact that it must prove, then the tribunal of fact is bound in law to bring in a verdict of not guilty. In other words the tribunal of fact does not have to believe that the accused and his witnesses are telling the truth before the accused is entitled to be acquitted.
If at the end of the tribunal of fact's deliberations it finds that there is a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade the tribunal of fact of the accused's guilt beyond reasonable doubt. If the tribunal of fact rejects the evidence of the accused, then the tribunal of fact still needs to be satisfied beyond reasonable doubt by the evidence in the Crown case."
His Honour then summarised the evidence of the complainant (pages 19-27). His Honour then recited the contents of the Statement of Agreed Facts document (Exhibit B) concerning the Respondent's admitted conduct with respect to JW and PK (pages 27-29).
The trial Judge concluded the summary of the Crown case with a reference to evidence concerning the arrest of the Respondent on 23 December 2019 and a conversation which took place with police in that respect (page 29):
"It was an agreed fact that the accused was arrested on 23 December 2019 by Detective Sergeant Hampstead, in the company of Detective Brogan. Detective Sergeant Hampstead said to the accused, 'There's been a complaint from one of the students that was in the cadets in 1984 at St Patrick's, Dundas, that you sexually assaulted him.' The accused said, 'No, that's right. Who is this?' Hampstead said, 'He was a student at the school who you taught in the cadets, named [WO].' The accused said, 'No, I don't know him. There must be some mistake.' Hampstead said, 'He's made an allegation that you sexually assaulted him in a house at Marrickville whilst you taught him at the cadets at the school. It's an historical sexual assault, it was back in 1984.' The accused said, 'No, I don't even know him, there must be some mistake.' That was the Crown case."
His Honour then summarised the evidence of the Respondent in the defence case (pages 29-40). The trial Judge then summarised the evidence of Owen McInnes, a friend of the Respondent, who shared his interest in military paraphernalia, with the evidence of Mr McInnes relating to certain items of that type in the Respondent's house (pages 40-44).
His Honour then referred to the Crown closing address (pages 44-47). In the course of that summary, the trial Judge said (pages 46-47):
"The Crown relied heavily in the Crown's submissions on the tendency evidence and I have given a direction in relation to tendency. The Crown submitted that there is a great deal of similarity between what happened between the accused and [JW] and the accused and [PK], and what the complainant says happened to him, and that it is highly significant. What the Crown said:
'If what [WO] says happened is not true, isn't it remarkable that he correctly guessed that the accused had homosexual pornographic videos. Isn't it remarkable the accused had shown videos to other boys. Isn't it remarkable that [WO] guessed that fellatio was the sexual act the accused liked to engage in with young boys. Isn't it remarkable most of all that [WO] made these allegations against someone who had the tendencies that that accused had and had those tendencies in the very same year, 1985.'
The Crown said when one looks at the similarities or the common features between what the accused did to [JW] and [PK], and admits doing to [JW] and [PK], it demonstrates very strong tendencies on behalf of the accused and those tendencies are remarkable. The Crown submits that there would be a verdict of guilty in relation to the principal counts in the indictment."
The trial Judge then summarised the defence closing address (pages 47-48). No reference was made to any submission made by trial defence counsel concerning the tendency evidence.
Immediately after the summary of the defence closing address, his Honour expressed his conclusion in the following terms (page 48):
"So far as the complainant is concerned there is nothing in his evidence that in my view would led [sic] me to think that he is lying, that he is untruthful or that he is unreliable. That, of course, is not the right test for me to apply, I have to be satisfied beyond reasonable doubt that the accused is guilty. To put the matter another way, if there is a reasonable possibility that the accused's evidence is true, it is my duty to find him not guilty. In my view I cannot exclude the reasonable possibility that the accused's evidence is true and accordingly I am not satisfied beyond reasonable doubt and I propose to acquit the accused."
His Honour then returned verdicts of not guilty on each of the six counts contained in the indictment.
It was submitted that the tendency evidence was important evidence in the Crown case in this trial, and was required to be taken into account by the trial Judge in determining whether there was a reasonable possibility that the Respondent's evidence was true, as part of the process of determining whether the guilt of the Respondent had been established beyond reasonable doubt.
The Crown noted that, to be admitted, the tendency evidence had to have "significant probative value" and the evidence was required to substantially outweigh any danger of unfair prejudice: ss.97 and 101 Evidence Act 1995. At trial, the Respondent did not contend that the evidence did not satisfy either of these thresholds.
The Crown submitted that the tendency evidence in the present case was capable of demonstrating that, at the time of the alleged offences:
1. the Respondent had a sexual interests in boys of the complainant's age, who were under the Respondent's authority as a teacher and cadet master; and
2. the Respondent was prepared to act on that interest, including by using his position of authority to gratify his sexual interest, in particular, through a process of showing the boys pornography before then engaging in acts of fellatio.
The Crown noted that the Respondent did not dispute that he had a sexual interest in JW and PK, although he denied that he had a sexual interest in the complainant at the time. In circumstances where the occurrence of the alleged offences was in issue, it was submitted that the tendency evidence was highly relevant to an assessment of the Respondent's assertion that his association with the complainant was an innocent one: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [28], [40] and [162].
The Crown submitted that the Respondent's admitted sexual interest in two boys under his authority, and his preparedness to act on that interest at the time of the alleged offences, was an important matter that needed to be taken into account by the trial Judge in assessing the Respondent's evidence that he did not commit the alleged offences against the complainant.
In making this submission, the Crown did not contend that the trial Judge was required to find the Respondent guilty of the alleged offences. Rather, the Crown's contention was that the trial Judge was obliged to take the evidence into account in assessing whether there was a reasonable possibility that the Respondent's evidence was true, as part of determining whether the guilt of the Respondent had been proved beyond reasonable doubt. As his Honour did not take the tendency evidence into account on this question, the Crown submitted that error is established as asserted in the first ground of appeal.
Submissions for the Respondent
Whilst accepting that the appeal is based on a question of law alone, Mr Anderson SC submitted that neither ground of appeal had been made out.
It was submitted for the Respondent that the trial Judge was alive to the significance of the tendency evidence in the trial with reference being made to it in the judgment of the District Court.
In considering this ground of appeal, it was submitted that the Court should read the reasons of the trial Judge fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47]. It was submitted that a judgment may comply with the obligation to give reasons where it appears "expressly or by implication" that relevant principles were taken into account by the trial Judge: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]. In many cases, the question whether there has been compliance with the duty to give reasons will raise questions of degree: AK v Western Australia at [84]. Reliance was placed upon Sheppard v Blakey and Ors [2001] WASCA 309 at [25] where it was said that the failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered.
Senior Counsel for the Respondent noted that, whilst it is certainly the case that in reaching his ultimate conclusion, the trial Judge did not specifically address the role of the tendency evidence in Exhibit B and what role it played in his Honour's assessment of the complainant's evidence, it was submitted that, given the extensive and repeated references to the evidence within the judgment, the inference should be drawn that the trial Judge must have taken that evidence into account.
Insofar as the tendency evidence had been led by the Crown in order to bolster the credibility of the complainant, it was submitted that the trial Judge made clear that he accepted the complainant was credible in the critical paragraph concluding the judgment (see [68] above). In this way, it was submitted that the inference should be drawn that the trial Judge had regard to the tendency evidence in not making an adverse finding concerning the credibility of the complainant.
It was submitted that it would create a counsel of perfection to conclude that the absence of a specific reference to the tendency evidence, when reaching the ultimate conclusion, meant that the trial Judge failed to take the evidence into account. It was submitted for the Respondent that it was implicit from the totality of the judgment that the tendency evidence was considered. Ultimately the Crown case failed, not because the complainant was not credible, but because his Honour held that there was a "reasonable possibility that the accused's evidence is true".
Whilst accepting the Crown's reliance upon the principles in The Queen v Hillier (see [76] above), it was submitted that the trial Judge had assessed the evidence of the Respondent together with the other evidence including the tendency evidence.
In circumstances where the judgment is replete with references to the tendency evidence, it was submitted that it is implicit that the trial Judge's ultimate conclusion had regard to the tendency evidence in reaching the verdicts of acquittal. It was submitted that it was implausible that his Honour would refer to the tendency evidence in detail and then proceed to disregard it in reaching verdicts.
As the Respondent did not give an alternative version of events, but simply denied that the offences occurred, it was submitted that there was little more that needed to be said in terms of reasons as to the use which the trial Judge made of the tendency evidence in reaching verdicts.
The Respondent submitted that the first ground of appeal should be rejected.
Decision on First Ground of Appeal
The first ground of appeal contends that the trial Judge erred in failing to take into account the tendency evidence adduced in the Crown case in determining whether there was a reasonable possibility that the evidence of the Respondent was true, as part of the process of deciding whether the Crown had proved the guilt of the Respondent beyond reasonable doubt.
It is undoubtedly the case that the trial Judge referred to directions of law applicable to tendency evidence with a summary being provided, as well, of the tendency evidence itself. The fundamental difficulty is that the trial Judge did not indicate what use, if any, was made of the tendency evidence in reaching the conclusion that the Respondent should be acquitted on all counts.
In considering the first ground of appeal, it is necessary to consider the issues in this trial more broadly.
The Respondent was standing trial for charges which alleged serious sexual offences said to have been committed by him in 1985 at the time when he was a school teacher and cadet master at a College. Putting aside for a moment, the tendency evidence, the Crown case was dependent upon the evidence of the complainant who was to give evidence of events said to have occurred many years prior to the trial.
Trials for what have been described as historical child sexual abuse offences have become more common in recent decades, and even more so as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse which issued its final report in 2017. The law with respect to tendency evidence has been amended as a result of the work of that Royal Commission: BRC v R [2020] NSWCCA 176 at [87]-[89]; ss.94(5), 97A Evidence Act 1995; s.161A Criminal Procedure Act 1986.
This was an unusual trial in that the tendency evidence was not disputed and was before the trial Judge in the form of a Statement of Agreed Facts under s.191 Evidence Act 1995. That body of unchallenged evidence stood to be considered in the context of a trial for charges arising from events in 1985, where the Crown case was otherwise dependent entirely upon the evidence of the complainant.
In these circumstances, the tendency evidence was of great importance in the trial and it was necessary for the trial Judge to have proper regard to that evidence in the process of reaching verdicts at the Judge-alone trial. As is apparent from the extracts of the evidence and the Crown closing address referred to earlier (at [35]-[49]), there was an interweaving of persons and events in 1985, involving the Respondent's sexual acts with JW and PK and the sexual acts alleged by WO to have taken place in a similar setting and in the same period.
Clearly, more was required than a bare recital of the tendency evidence itself combined with general directions concerning the use of tendency evidence. The Crown had addressed the trial Judge concerning the importance of the tendency evidence and its role in the trial and, if the trial Judge was to have regard to that evidence properly in reaching verdicts, it was necessary for that evidence to be considered, with an assessment of its role in the trial, which, in this case, was critical and central to the determination of the guilt of the Respondent.
It is correct that this Court must read fairly the entire judgment of the trial Judge in considering this ground of appeal. It is also correct that a trial Judge is not required to address every issue in the trial and to make findings concerning that evidence in the process of reaching verdicts. However, the tendency evidence in this case was of such importance that it was essential that the trial Judge do far more than merely recite the existence of the evidence in the trial. If his Honour was to take it into account, as opposed to merely acknowledge its existence, it was essential that there be some examination or analysis of the role of the tendency evidence in reaching verdicts.
An important part of the obligation to give reasons under s.133 Criminal Procedure Act 1986 at a Judge-alone trial is to allow the community, the parties and this Court to understand the basis upon which the verdicts were reached. This is of particular importance in maintaining the confidence of the community in the system of Judge-alone trials, which operates in circumstances where members of the community are not involved directly by way of jury service.
In Hughes v The Queen, Kiefel CJ, Bell, Keane and Edelman JJ said at [40] (footnote omitted):
"In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed together with other evidence makes significantly more likely any facts making up the elements of the offence charged."
In Khorami v R; R v Khorami [2021] NSWCCA 228, this Court considered the role of tendency evidence in a trial where it was accepted by the defence that the evidence could be used for tendency purposes. The Court said at [202]-[203]:
"202 It is necessary to keep in mind the way in which tendency evidence can be used to assist fact finding in a criminal trial. Evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject to the charge or charges: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124]; Taylor v R [2020] NSWCCA 355 at [92]-[94]. In Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303, the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) said at [359]-[360]:
'359 As Simpson J has said on previous occasions (for example, Gardiner at [124]), proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.
360 The process of reasoning is:
• on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
• it can therefore be concluded or inferred that the person had a tendency to act in that way;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.
Alternatively:
on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
• it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.
Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.'
203 In this case, the tendency evidence had substantial work to do, given the close proximity of other criminal acts carried out by the Applicant which permitted inferences to be drawn concerning his conduct and state of mind at the time of the counts where the verdicts are challenged on appeal."
It is relevant, as well, to keep in mind the nature of the tendency evidence itself in this trial. This was not a trial where the tendency evidence was based upon sexual activity with teenage boys in an entirely different context to that relevant to the trial, such as the family of a next door neighbour as opposed to boys who were students or cadets at the school where the accused person was employed.
Here, the tendency evidence involved admitted acts by the Respondent in 1985 in which he engaged in sexual activity with two boys at the same school as the complainant, and where there were significant similarities between the acts described in the tendency evidence committed against JW and PK. It was not suggested at the trial that the complainant in this trial had, in some way, spoken to JW or PK so as to acquire knowledge of what those persons said that the Respondent did to them (see [36]-[37], [47] above). Accordingly, the tendency evidence was powerful and had substantial work to do in the context of this trial.
The Crown's Tendency Notice asserted that the Respondent had a tendency to have a particular state of mind, being a sexual interest in males aged between 12 and 15 years, with the tendency being demonstrated by the admitted acts of the Respondent towards JW and PK (see [31] above). The trial Judge accepted, prior to closing addresses, that the tendency evidence could be used in this way (see [45] above).
In cross-examination at the trial, the Respondent admitted that he had a sexual interest in JW and PK in 1985 and 1986, but he denied that he had a sexual interest in the complainant (T106-107 at [40] above). It is clear that the issue in the trial involved undisputed evidence that the Respondent displayed a tendency to have sexual interest in boys aged 12 to 15 years in 1985 which he acted on with respect to JW and PK, but with him denying that he had such a sexual interest in the complainant.
I do not consider that there was any requirement on the part of the Crown to put some other proposition to the Respondent in cross-examination for the purpose of giving full effect to the tendency evidence in the Crown closing address. The issue had been raised in the Tendency Notice and in cross-examination of the Respondent, and was available to be relied upon by the Crown in the manner utilised in the Crown closing address.
There were, in truth, some striking similarities between what was alleged by JW and PK in the undisputed tendency evidence and in the contested account given by the complainant with respect to the alleged offences committed against him by the Respondent.
All of this emphasises the necessity for the trial Judge, if the tendency evidence was in truth taken into account, to say something in the judgment concerning the approach taken by his Honour to these critical and central considerations in this trial. That did not happen.
Although this Court should be cautious before concluding that a trial Judge failed to take into account a category of evidence in reaching a verdict, I am satisfied that this is the appropriate conclusion in this case. Reading fully and fairly the entirety of his Honour's judgment does not assist the Respondent. There is an absence of any assessment or analysis of the tendency evidence when that was, in truth, an indispensable requirement for a verdict and judgment according to law in this trial.
The complainant, the community and this Court are left with no realistic indication that the trial Judge had proper regard to this critical evidence before reaching a verdict, which was expressed in a few lines at the conclusion of the judgment (see [68] above).
I would uphold the first ground of appeal.
The Crown had submitted further at trial (see [46]-[47] above):
1. that the trial Judge would have no doubt that the Respondent had these tendencies and that this made it much more likely that the Respondent had committed the offences alleged against the complainant;
2. that there was no evidence of concoction or contamination between the tendency witnesses and the complainant;
3. that, when the tendency evidence was taken into account, his Honour would reject the Respondent's evidence that he was not sexually interested in the complainant and would reject the Respondent's evidence that he did not use his position of authority for his own sexual gratification.
The Crown noted that the trial Judge observed that the Respondent's conduct, as described in Exhibit B, was not in dispute. The Crown noted the further directions which the trial Judge gave himself (page 9 of his Honour's reasons at [56] above). Whilst observing that the tendency evidence "is not enough by itself", the trial Judge did not thereafter explain what use, if any, had been made of the tendency evidence in reaching verdicts at the trial.
The trial Judge concluded that he was unable to exclude the reasonable possibility that the Respondent's evidence was true. However, as the trial Judge's directions relating to tendency evidence illustrate, the Crown submitted that there are at least three potential pathways to this conclusion that were open to his Honour:
1. that the trial Judge did not draw the inference that the Respondent had a tendency to have the alleged state of mind or to act on that state of mind;
2. that the trial Judge drew the inference that the Respondent had the alleged tendencies, but nonetheless considered that there was a reasonable possibility that the Respondent's evidence was true; or
3. that the trial Judge assessed the Respondent's evidence without taking into account the tendency evidence at all.
The Crown submitted that it is not possible to determine from the trial Judge's reasons which of these pathways the trial Judge followed. The reasons simply record the trial Judge's bare conclusion that he was unable to exclude the reasonable possibility that the Respondent's evidence was true. The trial Judge did not state any findings that were taken into account in reaching this conclusion.
The Crown made clear that, as with the first ground of appeal, it was not contended that the trial Judge was obliged to find the Respondent guilty of each offence. Rather, the Crown's contention was that s.133(2) required the trial Judge to record his findings as to his use (or non-use) of the tendency evidence that had been admitted in the Crown case.
The Crown noted that the first ground of appeal was based upon the submission that the trial Judge followed pathway (c) in [124] above and thus fell into error. If, however, the Court rejected the first ground of appeal, the Crown submitted that the absence of reasons left this Court in a position where it is unable to determine whether the trial Judge erred in his consideration of the tendency evidence, so that there had been a failure to comply with s.133(2) with this failure constituting legal error: Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [14].
In these circumstances, the Crown submitted that the second ground of appeal should be upheld.
Submissions for the Respondent
Senior Counsel for the Respondent submitted that the question whether there has been a departure by the trial Judge from the requirement to provide reasons for judgment, including both principles of law and findings of fact, will depend, at least in part, upon the nature of the jurisdiction and the issues in the case at hand: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56].
In this case, it was acknowledged that the tendency evidence was of crucial significance to the Crown case and that, in the operative paragraph of his Honour's reasons (see [68] above), the tendency evidence was not addressed.
It was submitted, however, that the failure to address the evidence is not necessarily fatal to the validity of the judgment: DL v The Queen at [33].
It was submitted that the trial Judge had referred extensively and repeatedly to the tendency evidence so that it cannot be said that his Honour's judgment did not address the issue in the judgment. Once again, it was submitted that the Court should read the reasons of the trial Judge fairly and as a whole: Hopgood v R at [47].
It was accepted that, whilst it would have been ideal for his Honour to have expressly made a finding with respect to the tendency evidence in the judgment, the absence of that statement is not an error in circumstances where the balance of the judgment made his Honour's reasoning clear.
It was submitted that the second ground of appeal should be rejected.
Decision Concerning Second Ground of Appeal
If, contrary to the conclusion I have reached concerning the first ground of appeal, it is accepted that the trial Judge took into account the tendency evidence in reaching the verdicts, a question then arises as to whether error of law is demonstrated under the second ground of appeal, which contends that his Honour failed to record his findings with respect to the tendency evidence.
The obligations of a trial Judge to give reasons for reaching a verdict at a Judge-alone trial under s.133 Criminal Procedure Act 1986 have been identified clearly in a number of decisions. Section 133(2) constitutes a legal imperative and failure to comply with that provision will constitute a wrong decision on a question of law: Fleming v The Queen at [27].
Section 133(2) is not satisfied merely by a bare statement of the principles of law that the Judge has applied, and a recital of the findings of fact that the Judge has made. There must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached: Fleming v The Queen at [28]; R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [149]; Wade v R [2018] NSWCCA 85 at [103]. Whilst it is not necessary for a trial Judge to refer to every piece of evidence led in the proceedings, it is essential to expose the reasoning on a point critical to the contest between the parties: Toohey v R at [204]-[208].
A purpose of the requirement to give reasons is to enable the accused person to understand why there has been a conviction, or the prosecution to understand why there has been an acquittal and to enable "close appellate scrutiny of the trial judge": AK v Western Australia at [108]; Toohey v R at [203]. Provisions such as s.133 replace the peculiar discipline of a jury trial with the safeguard of the discipline of giving reasons which is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts: AK v Western Australia at [208].
The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality to the judicial function of a public explanation of reasons for final decisions has long been recognised: Wainohu v State of New South Wales at [54]-[58]. In Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106, reference was made to the rationale underlying the judicial function and the duty to give reasons (at [59]-[65]):
"59 It is helpful to mention the rationale underlying the judicial function and the duty to give reasons.
60 In a paper entitled 'The Role of a Judge in a Representative Democracy' (2008) 9 The Judicial Review 19, the Hon AM Gleeson AC identified constraints upon judicial authority by reference to precedent, the adversarial process and the duty to give reasons. With respect to precedent, his Honour said at 26:
'A court that does not respect precedent undermines its own authority, for it will produce nothing by which its successors will regard themselves as bound. Judicial disregard for precedent is self-destructive.'
61 His Honour touched upon the significance of giving reasons at 31:
'The best evidence of what judges consider their role to be is the way in which they seek to justify their decisions. Reasons for judicial decisions are directed at an audience which includes other judges, the legal profession, the parties to litigation, and the public. The kinds of argument advanced in support of such reasons reflect the judicial perception of the judicial function, and the judicial understanding of the public perception of that function.'
62 The Hon AM Gleeson AC returned to the function of reasons in a later paper, entitled 'The Judicial Method: Essentials and Inessentials' (2010) 9 The Judicial Review 377 at 384:
'The third essential is giving reasons for a decision. Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reason for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes.'
63 The former Chief Justice touched upon another important principle at 387:
'It is a corollary of the rule of law that, in the administration of civil or criminal justice, the outcome of a case should depend as little as reasonably possible upon the random factor of the identity of the judicial decision maker.'
64 Apart from the traditional reasons underpinning the requirement for reasons to be given for judicial decisions, Meagher JA identified in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 a further benefit from the requirement:
'The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability.'
65 In a similar vein, it has been observed that, as a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions: AK v Western Australia [2008] HCA 8; 232 CLR 438 at 470 [89]; Wainohu v State of New South Wales at 214-215 [56]."
It is to be observed, as well, that the trial Judge did not deliver an ex tempore judgment immediately after the conclusion of the trial. His Honour reserved for a number of days to consider his verdicts and delivered judgment following that consideration. Accordingly, the allowance made by this Court, when considering an appeal from an ex tempore judgment, has no application to this appeal: R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at [34]-[35].
When considering the first ground of appeal, the central significance of the tendency evidence in this trial was emphasised. For the trial Judge to discharge the duty to give reasons under s.133(2) Criminal Procedure Act 1986 in this trial, it was necessary that his Honour explain how the tendency evidence was used (upon the assumption that it was used) in reaching a verdict at the trial. The duty to give reasons could not be discharged in this case by the bare recital of the tendency evidence itself combined with other directions.
In truth, there is a large gap in the reasoning of the trial Judge which cannot be filled by a benevolent construction of the reasons or by attempting to draw inferences as to what his Honour took into account.
The conclusion of the trial Judge appears, in reality, to be a conclusion reached by reference only to the evidence of the complainant and the evidence of the Respondent. It is the type of reasoning which a Court may utilise in the type of "word against word" case that is more common in historical sexual offence prosecutions.
However, this trial was far removed from that class of case. Here, there was undisputed evidence disclosing conduct on the part of the Respondent directed to other boys of a similar age to the complainant, which occurred at about the same time when those boys and the complainant were students and cadets at the same College at which the Respondent then worked. This body of evidence demanded consideration and assessment for the trial Judge to discharge his duty in giving reasons, as required by law, for verdicts reached at the trial.
If I am wrong in my conclusion with respect to the first ground of appeal, I am well satisfied that the second ground of appeal has been made good. The tendency evidence was not a peripheral aspect of the trial. In DL v The Queen, Kiefel CJ, Keane and Edleman JJ said at [33] (footnotes omitted):
"Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake 'a minute explanation of every step in the reasoning process that leads to the judge's conclusion'. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial."
By reference to the types of evidence referred to by the plurality in DL v The Queen, it is clear that the tendency evidence in the present trial was a most important body of evidence, which required assessment as a necessary step to the final conclusion in the trial, so that a failure to undertake such a reasoning process is indicative of error of law.
In the event that the first ground of appeal did not succeed, I would uphold the alternative ground contained in the second ground of appeal.
Senior Counsel for the Respondent conceded that there is a strong Crown case in this matter (T30, 22 October 2021). He acknowledged that there is a public interest in the due prosecution and conviction for crimes alleged to have been committed. However, it was submitted that in the particular circumstances of this case, a new trial should not be ordered. It was noted that, by late 2022 or early 2023, the complainant would be 51 years old and the Respondent would be 66 years of age.
Reliance was placed by the Respondent upon the affidavit of Lisa de Luca affirmed 18 October 2021 with respect to the exercise of the residual discretion. That affidavit revealed that the Respondent suffers from Marie-Charcot Tooth Syndrome, a progressive neurological disease akin to multiple sclerosis. The Respondent has been under treatment for that condition for some years, although the most recent medical evidence which accompanied the affidavit of Ms de Luca dated from February 2020.
It was submitted for the Respondent that the Court should dismiss the appeal.
Decision Concerning Exercise of Residual Discretion
The principles to be applied by the Court with respect to the exercise of discretion under s.107(5) Crimes (Appeal and Review) Act 2001 were summarised by Bellew J (Hoeben CJ at CL and Davies J agreeing) in R v Lazarus at [153]-[168]. As Bellew J stated in R v Lazarus at [157], a balancing exercise is required which involves assessing each individual factor and ascribing the appropriate weight to it, with the balancing exercise varying according to the circumstances of the particular case.
The passage of time since 1985 is relevant to the balancing exercise to be undertaken by the Court. However, a trial took place in March 2021 at which evidence was given by the complainant and the Respondent, all of which is available for the purpose of a new trial. Although any further period of time that would pass before any new trial is not desirable, I do not consider this delay constitutes a significant factor weighing against the ordering of a new trial.
The health of the Respondent is also a relevant consideration. It does not appear from the transcript of the trial in March 2021 that the Respondent's health presented any difficulty to him giving evidence or otherwise in the conduct of the trial. The medical evidence referred to in the affidavit of Ms de Luca is relevant. However, there is no evidence of any deterioration in the condition in more recent times, although it may be taken that the progressive condition will have an ongoing adverse effect on the Respondent's health over time.
As was conceded appropriately by Senior Counsel for the Respondent, the Crown has a strong case. Apart from the evidence of the complainant, there is the undisputed tendency evidence which has been explained in detail earlier in this judgment. The public interest in the prosecution of serious offences, and the determination of the guilt or otherwise of an accused person by a Court after a trial conducted according to law, is an important factor in the balancing exercise in this case.
This aspect is emphasised further by the clear deficiency in the trial conducted earlier this year which has given rise to error as found in this judgment. There is a community expectation that a trial for offences of this type will be heard and determined according to law, and on the merits of the case itself, and I regret to say that this has not occurred in the present case.
It is the case that the video recording of the evidence of the complainant cannot be used automatically at any new trial. If it be the case that the Respondent does not consent to the tender of the video recording of the complainant's evidence at a new trial, then a question will arise as to whether the complainant would give evidence once again at a trial. At present, it is speculative to consider whether this issue will arise. Even if it does arise, it seems to me that this is a matter for the Director of Public Prosecutions to consider, in the exercise of prosecutorial discretion, as to whether a new trial is sought. At the present time, this aspect does not operate in any material way in the balancing exercise.
Insofar as delay is relevant to the balancing exercise, the further delay before a new trial is not likely to give rise to further difficulties itself. The expectation would be that the new trial would be conducted along similar lines to the trial which proceeded in March 2021, at least by the parties.
I am satisfied that the interests of justice point firmly in favour of an order for a new trial in this case. Although it may be the case that any new trial will be a Judge-alone trial, the order of the Court should be confined to an order for a new trial.
However, as a matter of law, not discretion, some grounds of appeal will not permit the quashing of the verdict. In order for the Crown appeal to succeed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), the ground of appeal involving a question of law alone must involve an error that has caused the verdict to miscarry or was material to the verdict.
In the content of administrative law, the High Court has said:
"A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made." [1]
It is necessary first to deal with the provisions relating to tendency evidence. Given that the required notice was provided by the Crown, the evidence of tendency was admitted because it was seen to have "significant probative value" either alone or with other evidence. [2] Its use was to prove that, in this case, the respondent had a tendency to act in a particular way. If it did not possess significant probative value, it would have been impermissible for the judge to have admitted it.
As explained by Johnson J, in this case the tendency notice informed the accused and the District Court that the Crown relied on prior instances in which the respondent had homosexual intercourse with two victims aged between 10 and 18 years to prove that the respondent had a tendency:
1. To have a sexual interest in males aged between 12 and 15;
2. To engage in the following conduct for his sexual gratification;
1. Sexually assault male students;
2. Exploit a position of authority;
3. Display an interest in naked boys;
4. Perform acts of fellatio on boys;
5. Force boys to perform acts of fellatio on him; and
6. Masturbate in front of boys.
The trial occurred over four days - it was not a long trial. The verdict with reasons was delivered seven days after the conclusion of the trial. The tendency evidence was adduced in a statement of Agreed Facts.
The major evidentiary contest was whether the respondent committed the offences against the complainant. The tendency evidence was an important aspect of the Crown case and, as summarised by Johnson J, formed part of the Crown opening and the Crown address. Those passages are recited at length in the reasons of Johnson J.
The respondent's counsel in addresses described the tendency evidence as prejudicial, although not unfairly so. Counsel submitted that guilt must be established on the evidence of the events with which the respondent was charged. Counsel addressed at length how the Court should consider the evidence of the complainant and of the respondent, each of whom gave evidence to the relevantly opposite effect of the other.
As recited by Johnson J in his reasons for judgment, the trial judge gave himself a "Tendency Direction", part of which was to the following effect:
"Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are subject to the charges. That is the only way the accused's tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 and to act in a particular way, namely to act upon that sexual interest, may be used.
Ultimately the tribunal of fact must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant and what the accused did. It will include the tendency alleged by the Crown, provided that the tribunal of fact is satisfied it has been established." [3]
His Honour then refers to the evidence of the tendency provoking distaste and the necessity for him to be "careful to avoid any emotional response or prejudice distracting him from a calm and objective assessment." [4] Reference is then made to the evidence implicating him in this offence being confined to the evidence of the complainant and the absence of any independent evidence.
The judgment to verdict then proceeds to give warnings to which his Honour was required to pay heed and which his Honour was required to express, relating to delays and the prejudice that such delay may have caused the respondent. As his Honour expressed, [5] such delay may adversely affect memory or, as mentioned during the appeal proceedings, [6] cause persons to merge events. That which is honestly thought to have occurred in one place and time may, in truth, have occurred elsewhere or at another time. It is not to the point that a complainant has not had put to him or her in cross-examination that the offence was perpetrated by another person or at another time or at another place, because an innocent accused would be wholly unable to provide such instructions and the rule in Browne v Dunn [7] does not apply to a criminal accused in those circumstances at least.
Given that the respondent's evidence was that he was not involved in any misconduct with the complainant, how could counsel for the accused at trial ever, within his duty, put any circumstances of another person being so involved or suggesting it. Counsel could not possibly obtain instructions of that kind from his client and, if it were suggested, it would embrace acceptance that an assault occurred when, in the respondent's knowledge of his case, it had not.
As stated in each of the reasons in this judgment, the tendency evidence was agreed. The assaults on JW and PK by the respondent were accepted by the respondent, both by the inclusion of these facts in the Agreed Facts and also when answering questions in evidence. In his reasons, [8] Johnson J suggests that the circumstance that the tendency evidence was undisputed is a factor, together with reliance otherwise only on the evidence of the complainant, that makes the tendency evidence "of great importance".
Many sexual assault cases depend solely on the evidence of the complainant. In such a case, tendency evidence, if there be any, is the only other material that renders the complainant's allegation against an accused a likely occurrence. In other cases, there may be complaint evidence or independent material as to presence and opportunity, or scientific evidence. Then, in many cases, the accused does not give evidence.
Nevertheless, the circumstance that the prior assaults on JW and PK and the sexual interest in them were agreed by the respondent does not render the tendency evidence more important. The judicial process operates on the basis that past events, once determined in a particular trial at the requisite standard of proof, are then treated as certain in that trial, even when that standard requires only that the probability of it occurring is greater than it not occurring. In Malec v JC Hutton, the High Court said:
"…The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred." [9]
To the same effect were the comments of the plurality, when they said:
"A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred." [10]
Further, where an accused fails to agree or to accept earlier assaults or a sexual attraction to victims thereof, if the Court were, in the trial in which the tendency is sought to be proved, to find, to the requisite standard, that the earlier assaults and/or the particular sexual attraction occurred and/or existed, the accused's dispute on those issues in the latter trial becomes an extremely important aspect of the accused's credibility. In that sense, at least, disputed tendency evidence may be more important than an agreed tendency because of its effect on the credit of the accused. In the circumstances of this trial and the tendency evidence, not only did the respondent not dispute the earlier assaults, which he could have done if he so chose, but he had pleaded guilty in the proceedings for the earlier assaults.
In this case, the similarity in the features of offending in the cases of PK and JW are sufficient to connect that tendency evidence with the offences allegedly committed against the complainant. This then gives the tendency evidence, being conduct in relation to other victims, "significant probative value" and permits its admission into evidence in this case to support the likelihood of the allegation being true. [11]
As Johnson J has pointed out, given that otherwise the evidence against the respondent was confined to the testimony of the complainant, this renders the tendency evidence important. It is the only other evidence that makes the allegations likely.
Before further analysing the learned trial judge's reasons, I need to comment on a matter relating to the conduct at trial of the respondent's then counsel. It is said that counsel for the respondent at trial focused on the evidence of the complainant and respondent as to the allegations in the charges and only briefly touched on the tendency evidence. [12]
It would be surprising if it were otherwise. The exchange with the respondent's counsel on the ability of the Crown to rely on the general tendency has been recited by Johnson J. The Crown, on the respondent's concession, were entitled to rely on the evidence of assaults on JW and PK to submit that a general tendency existed.
The existence of the general tendency was, more or less, conceded. The submission of the respondent was that the tendency is of limited assistance to the Crown but the submission was carefully crafted to avoid a formal concession. In all the circumstances of this case, the existence of the tendency is almost irrefragable.
On my analysis of the verdict judgment, the learned trial judge treated the existence of the tendency as proved. The tendency to have a sexual interest in males aged between 12 and 15 does not prove, but renders more likely, that the respondent had an interest in the complainant.
The evidence proves a tendency, it does not prove that the respondent had a sexual interest in every male between 12 and 15. Nor does it prove that the respondent had a sexual interest in every cadet of that age; nor that the respondent acted on such an interest, if he had one in relation to a particular boy. In particular, the tendency, while rendering more likely the respondent's sexual interest in the complainant, does not prove that sexual interest, nor the alleged assaults.
As noted by Johnson J, [13] the trial judge said:
"Apart from evidence of tendency relied upon by the Crown, the only evidence implicating the accused… comes from the complainant."
My reading of that passage is that the trial judge was there saying that there were two types of evidence "implicating the accused": the evidence of tendency relied on by the Crown; and, the evidence of the complainant. His Honour then dealt with the evidence of the respondent, clearly following the directions he had given himself as to how to determine guilt on the particular charge, bearing in mind the tendency.
It is, in my view, inconceivable that this experienced judge, having dealt at length with the tendency and how it could be used, and summarising it at length, then ignored it. Rather, in my reading of the entire judgment, his Honour has set out the directions and then followed them, accepting the directions he gave. That reading of the judgment is consistent with the transcript discussion and the comments of his Honour, although care must be taken in relying on discussions in transcript.
In other words, on my reading of the judgment, his Honour, having acknowledged that the tendency evidence relied upon by the Crown "implicated the accused", then embarked upon determining whether there was a reasonable possibility that the respondent was telling the truth, notwithstanding the existence of the tendency and that there was nothing in the evidence of the complainant that led the judge to think the complainant was lying, untruthful or unreliable. His Honour found there was such a possibility and entered a verdict of not guilty.
There can be no challenge to that conclusion in circumstances where the factfinder is not satisfied, beyond reasonable doubt, of the allegations of the complainant. Where the factfinder has concluded that there is a reasonable possibility that the respondent's denials of the allegations are true, the judge has not been satisfied of the respondent's guilt to the requisite standard.
There are two grounds of appeal. They are related and, to some extent at least, intertwined. The first is that no consideration of the tendency evidence was given in forming the conclusion that there was a reasonable possibility that the respondent was being truthful. Plainly, the trial judge, on my analysis, considered the tendency evidence in determining guilt, including the reasonable possibility of the respondent's version.
The existence of the tendency does not require a verdict of guilty. The approach of the trial judge and the directions he gave himself were correct.
Having accepted the tendency as evidence implicating the respondent, the trial judge evaluated the evidence of the complainant and the respondent and reached his conclusion. As earlier stated, he followed his own directions fully and there is no complaint about the approach in his directions. The first ground of appeal, in my view, fails.
The second ground of appeal complains that the trial judge did not record his findings with respect to the tendency evidence. This ground of appeal, in effect and wording, relies on the provisions of s 133 of the Criminal Procedure Act 1986 (NSW). The provision is in the following terms:
"133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The requirement in s 133(2) of the Criminal Procedure Act is for a judge to include the principles of law and the findings of fact. This requires the judge to explain the reasoning process he has adopted and how the facts fit the applicable legal principles.
While it does not require the express lengthy repetition of trite principles, such as the necessity to prove guilt beyond reasonable doubt or that the Crown shoulders the burden, it does require the trial judge to record expressly or by necessary implication that which is taken into account and the manner it is treated. [14] The recording of such matters is a legal imperative. [15]
When dealing with the reasons for the verdict one must be mindful of the oft-repeated constraint that the Court should not be concerned with "looseness of language" nor "unhappy phrasing". Nor should the reasons be "construed minutely and finely with an eye keenly attuned to the perceptions of error." [16]
While the foregoing comments were made in the context of judicial review, the principle has been applied in relation to appeals to much the same effect. The Crown submits that there were three paths by which his Honour could have reached the conclusion as to the reasonable possibility that the respondent was truthful and accurate. Before referring to those paths, it is necessary to deal a little more fully with the reasons in Fleming. [17]
In Fleming, the High Court made clear that the failure to comply with the legal imperative in s 133(2) of the Criminal Procedure Act, as a consequence of its status as a legal imperative, would be an error of law. Further again, given the requirement to include in the judgment the principles of law and findings of fact, two requirements arise: first, any warning must not only be recorded but must be taken into account; [18] and, secondly, because the findings of fact must be recorded, the judge is required not only to state the warning and to state that the warning has been heeded, but, also, to disclose the reasons why, if it were the situation, the warning has or has not been given effect. [19]
However, in Fleming, the High Court was dealing with a judgment of this Court, on appeal from a judge-alone trial, resulting in a conviction, and the appeal to this Court was governed by ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). This appeal is governed by the provision of s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), which, relevantly, allows the Attorney General or Director of Public Prosecutions to appeal against an acquittal in a judge-alone trial, but confines the appeal to any "ground that involves a question of law alone". [20] Thus, the comments of the High Court on the operation of s 6 of the Criminal Appeal Act do not apply in this appeal. Section 6 is confined to appeals from convictions on indictment.
I return to the Crown submission on the possible paths his Honour could have adopted in reaching his conclusion. The first path submitted by the Crown in this appeal was that his Honour did not find the tendency proved. I have earlier explained that I do not accept this as a reading of the whole of his Honour's judgment.
The second path is that his Honour found that the respondent did not act on those tendencies. His Honour could have found that he was not satisfied that the respondent did act on those tendencies, or not be persuaded that the tendencies overcame the reasonable doubt raised by the respondent's testimony. They are two ways of describing the same effect.
The third path suggested by the Crown, namely that the assessment of the reasonable possibility that the respondent was truthful and accurate without considering the tendency, is, for the reasons earlier given, rejected.
Thus, it is the second path that has not yet been the subject of discussion. The trial judge directed himself in the following relevant terms:
"Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes more likely the accused conducted himself in the way the Crown alleges on the occasions that are subject to the charges. That is the only way the accused's tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 and to act in a particular way, namely to act upon that sexual interest, may be used.
Ultimately the tribunal of fact must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant and what the accused did. It will include the tendency alleged by the Crown, provided that the tribunal of fact is satisfied that it has been established." [21]
The first paragraph in the foregoing extract, particularly the reference to "the accused's tendency" in the last sentence of that paragraph, reinforces that his Honour was of the view that the Crown had established the tendency, although the second paragraph reverts to a general statement of the law.
However, it is that direction that his Honour then proceeded to follow. He summarised the tendency evidence at length, stated that the tendency evidence, together with the complainant's testimony, was the evidence implicating the respondent and then, following the direction just recited, based his conclusion "upon the evidence relevant to each of the charges… [including] the tendency alleged by the Crown." [22]
As explained by Hamill J, [23] the circumstance that the trial judge did not form the view that the complainant was lying or unreliable is not inconsistent with the inability to be satisfied of the truth of the allegations beyond reasonable doubt. In the trial judge's opinion, each of the complainant and respondent were truthful and reliable. In those circumstances, where the notice could not allege that the respondent had a sexual interest in all males of that age, the question arises as to how it would be used.
The tendency makes the alleged conduct of the respondent more likely, but it does not foreclose the reasonable possibility that the respondent's denials were true and accurate. Whether his Honour was satisfied of that is a matter for his Honour to evaluate on the basis of the evidence that his Honour saw and heard.
In my view, reading the reasons for verdict as a whole, the path his Honour undertook was to fashion his reasons in a manner that precisely followed the directions he recorded. In those circumstances, the reasons disclose his Honour's path, record all the findings of fact and principles of law and state how those principles applied to the facts found and gave rise to the verdict. In other words, if one looks at the judgment as a whole, one is not left without an understanding of how his Honour arrived at his result. I understand why some may have a different view and it would have been preferable for his Honour to have expressed the foregoing more clearly, but I would also reject ground 2 of the appeal.
Given the other judgments on this appeal, it is appropriate, notwithstanding the view I have formed on the grounds of appeal, to express a view on the residual discretion. It is sufficient to state that, were it necessary to come to such an exercise, I would not order a retrial; nor quash the acquittal. I would do so for the reasons given by Hamill J for that course.
I agree with the orders proposed by Hamill J.
HAMILL J: I have had the benefit of reading the judgment in draft circulated by Johnson J. I am grateful to his Honour for his careful analysis of the evidence and issues that arise in this appeal by the Director of Public Prosecutions under s 107 of the Crimes (Appeal and Review) Act 2001 ("CARA"). This analysis relieves me of the need to revisit those matters in any detail. I agree with a great deal of what the presiding Judge has written but I am unable to agree with his Honour's proposed disposition of the appeal which would involve quashing the respondent's acquittal and putting him to trial for a second time more than 35 years after the events giving rise to the allegations. While I agree there are deficiencies in the reasons provided by the primary Judge, it is ultimately clear that the evidence given by the respondent created a reasonable doubt in the judge's mind, even though he found the complainant to be a creditworthy witness.
I have concluded, notwithstanding the error identified by Johnson J, that the acquittal should be affirmed pursuant to s 107(5) of CARA. These are my reasons for that conclusion.
The case at trial
Johnson J has set out in detail and with clarity the case that each party presented at the trial. I refer the reader to his Honour's judgment. Other than where it is necessary to expose my reasoning and conclusions, I will not repeat the details of the individual allegations, the evidence given by the complainant himself, or the circumstantial tendency case presented in support of the prosecution case.
While the case was a typical one of word against word, in terms of the precise allegations, the prosecution was also able to rely on evidence said to support a tendency in the respondent to commit such offences, to have a sexual interest in children of the complainant's age and to abuse his position as a teacher and cadet master at the school.
While it was not in evidence, the Judge received the tendency notice that the Prosecutor filed in advance of the trial in accordance with s 97 of the Evidence Act 1995. The final form of the tendency notice was provided to the Judge before the closing addresses and there was a discussion of its terms. The notice, produced in the appeal as an annexure to an affidavit read by the respondent, framed the tendency "sought to be proved" in the following way:
"(a) to have a particular state of mind, namely, a sexual interest in males aged between 12 and 15; and
(b) to act in a particular way, namely, to act upon that sexual interest by:
• sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school
• exploiting a position of authority for his own sexual purposes
• displaying a sexual interest in naked boys
• performing acts of fellatio on boys
• forcing boys to perform acts of fellatio upon him; and
• masturbating himself in front of boys
• committing such acts for his own sexual gratification."
In evidence, the respondent admitted that he had sexually assaulted the two other boys, that he had a sexual interest in those boys, that he owned homosexual pornographic videos and showed them to the other two victims. However, he denied having a sexual interest in the complainant, watching pornographic videos with him or sexually assaulting him.
The respondent was not asked whether he had the kind of general and particular tendencies and state of mind alleged in the tendency notice. The Prosecutor did not put to him that he had such tendencies. In particular, it was not put to the respondent that he had a generalised "sexual interest in males aged between 12 and 15" and a tendency to act upon that sexual interest.
The relevant evidence is extracted by Johnson J at [40]-[43], but it is appropriate to set it out again:
"Q. Now, we know from exhibit B that you did in fact have access to such
homosexual pornographic videos in 1985, correct?
A. Correct.
Q. What I'm suggesting to you is not only did you show such pornographic
videos to [JW] and [PK], as appears in the agreed fact, but you also
showed them to [WO]?
A. I did not.
Q. I want to suggest to you that during 1985 you had a sexual interest in [JW]?
A. In [JW]?
Q. [JW].
A. I did.
Q. He was about 13 years old at the time?
A. Correct.
Q. You were his cadet master?
A. Correct.
Q. That sexual interest continued throughout 86 and I think up until at least
August 87?
Correct.
Q. You also had a sexual interest in [PK], at least in 1986?
A. I did.
Q. He was about 14 years of age at the time?
A. I believe so.
Q. And you were his cadet master?
A. Yes, I was.
Q. I'm putting to you that you acted on that sexual interest with [JW]?
A. With [JW], yes, I did.
Q. And you did so on a number of occasions?
A. I did.
Q. On those occasions up until the last occasion in 87, that involved mutual
fellatio?
A. It did.
Q. With [PK] you also performed fellatio upon him and he upon you?
A. He did.
Q. You say you had no such sexual interest in [WO], however?
A. I did not.
Q. In the very same year?
A. Correct.
Q. Why was that?
A. I had no interest in [WO] at all.
Q. Was it something about his appearance or something else?
A. I don't recall him at all, but certainly no involvement, no, nothing stood out." [25]
The respondent again denied having a sexual interest in the complainant later in the cross-examination:
"Q. I would suggest you recognised [WO] from that photograph because in 1985 when he was 12 years old you had a sexual interest in him?
A. No I did not.
Q. And that's something that would have made, would have been instantly recognisable to you?
A. No it did not" [26]
The cross-examination of the respondent concluded as follows:
"Q. [BK], you accept that during 1985 you had a sexual interest in [JW] and [PK] who were about 13 at the time, correct?
A. I do.
Q. Do you find them to be sexually attractive?
A. I did.
Q. And I'm suggesting to you, you also found [WO] to be sexually attractive?
A. I did not.
Q. You accept you were the cadet master for both [JW] and [PK]?
A. I do.
Q. And you accept you're the cadet master for [WO]?
A. I do.
Q. I want to suggest to you that you used that position of authority over [JW] and [PK] for your own sexual gratification?
HIS HONOUR: Well hang on. Hang on. Hang on.
CROWN PROSECUTOR: I can break it down into portions if that was a compendious question. I think it was.
HIS HONOUR: He is not charged with authority. He's charged with teacher pupil.
CROWN PROSECUTOR: That's right.
HIS HONOUR: Yes.
CROWN PROSECUTOR: But what I'm suggesting to the witness is he's taken advantage of that position of authority.
HIS HONOUR: It's a matter, okay, but you need to establish.
CROWN PROSECUTOR: Yes, yes, I'll do that.
Q. So you accept that you were in charge of these young boys when they were at the cadets?
A. I do.
Q. And you accept that they, and we're talking about [JW] and [PK] at the moment, if you asked them to do something, they would do it?
A. Correct.
Q. You used that position and that knowledge for your own sexual gratification?
A. I did.
Q. What I'm suggesting to you is you used that same position of authority over [WO] in order to get him to do the things that he did to you and you did to him?
A. I did not.
Q. Of a sexual nature, which is mutual fellatio?
A. I did not.
Q. During 85 you accept you were attracted to those two boys who were between about 13 and 14, 15 years old?
A. I did.
Q. And I'm suggesting to you [WO] who was 12 at the time, you also had a sexual interest in him?
A. I did not.
Q. And you acted on that by performing fellatio upon him and forcing him to perform fellatio upon you?
A. I did not." [27]
In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 the majority of the High Court discussed the two matters relevant to an assessment of the probative value of tendency evidence:
"39. Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue
42. The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
In the present case, the prosecution sought to prove the respondent had the tendencies set out in the tendency notice by establishing that he had abused two other teenage boys in a similar way, and in similar circumstances, at around the same time of his life. The accused admitted, and had pleaded guilty many years earlier, that he had conducted himself as alleged with those two other boys. Not only did the evidence establish the fact of two earlier victims of a similar age, there was a "underlying unity" or "pattern of conduct" common to the two admitted incidents (or series of offences) and the charged offences.
Having established the underlying facts, that is the abuse of the two other children, the prosecution invited the Judge to infer that the respondent had a tendency to act on his sexual interest in male children of this age and, thus, was more likely to have committed the charged offences against WO.
There can be little doubt that the tendency evidence had the capacity to, and did, make the prosecution case stronger. The Director is correct to submit that the tendency evidence was very important and that the trial Judge was required to explain how he had taken the evidence into account and whether he had drawn the inference that the accused had relevant tendencies that went beyond the two school boys he admitted to having sexually assaulted.
The evidence available to establish the charges "will include the tendency alleged by the Crown, provided that the tribunal of fact is satisfied it has been established".
Judge Jeffreys set out the detail of the evidence contained in the statement of facts:
"The agreed facts establish that [JW] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. [PK] in 1985 was in year 7 and was aged 13. The accused was his teacher and cadet master. Towards the end of 1985 the accused drove [JW] to a house in Marrickville, showed him two rifles and a samurai sword, a bayonet and an automatic rifle, and then drove to a terrace house in Chippendale, where he showed him some pornographic videos and the two of them engaged in mutual fellatio.
Approximately two weeks later the accused picked [JW] up from school, took him to a different house, showed him pornographic videos and then they engaged in mutual fellatio. One day in 1986 the accused took [JW] to the same house in Chippendale, where they watched pornographic videos. [JW] declined to perform fellatio on the accused, and instead they masturbated each other and then the accused performed fellatio on [JW]. [JW] continued to visit the accused's flat, where the accused would perform fellatio on [JW]. [JW] would rarely perform fellatio on the accused, but would masturbate the accused.
One time during the winter months in 1986 the accused drove [JW] and [PK] to the house in Chippendale, where they watched a pornographic video and then performed acts of fellatio on each other. In approximately August 1987 the accused and [JW] performed mutual acts of fellatio on each other, then [JW] laid on the floor, the accused sat astride [JW], and [JW]' penis entered the accused's anus."
His Honour observed that there was no issue that the conduct relating to JW and PK occurred and explained the tendency case as it was put by the Prosecutor and in the tendency notice:
"Part of the Crown case against the accused is that the accused had a tendency to have a particular state of mind, namely a sexual interest in males aged between 12 and 15 years of age, and to act in a particular way, namely to act upon that sexual interest by sexually assaulting male students who were under his care during the course of his employment as a school teacher and military cadet supervisor at the school by exploiting a position of authority for his own sexual purposes by displaying a sexual interest in naked boys, by performing acts of fellatio on boys, by forcing boys to perform acts of fellatio upon him, by masturbating himself in front of boys and by committing such acts for his own sexual gratification."
His Honour also emphasised the care that needed to be taken in drawing the inference the prosecution asked him to draw (that the respondent had the tendencies alleged), directed himself in an orthodox way as to the use of circumstantial evidence and the drawing of inferences, and warned himself against reasoning in an emotive or prejudiced way.
The trial Judge set out the submissions of the Prosecutor at some length including the submission concerning the similarities and common features between the allegations of JW and PK and the allegations of the complainant.
His Honour concluded by making the critical findings about the evidence of the complainant and the reasonable doubt raised in his mind by the evidence of the respondent:
"So far as the complainant is concerned there is nothing in his evidence that in my view would led me to think that he is lying, that he is untruthful or that he is unreliable. That, of course, is not the right test for me to apply, I have to be satisfied beyond reasonable doubt that the accused is guilty. To put the matter another way, if there is a reasonable possibility that the accused's evidence is true, it is my duty to find him not guilty. In my view I cannot exclude the reasonable possibility that the accused's evidence is true and accordingly I am not satisfied beyond reasonable doubt and I propose to acquit the accused."
In written submissions on the second ground, the Director submitted that there were three possible explanations for these crucial findings and, specifically, that there was a "reasonable possibility that the accused evidence was true". To paraphrase, those possibilities were:
1. His Honour was not satisfied, or did not draw the inference, that the respondent had the tendencies alleged.
2. His Honour found the respondent had those tendencies, but was not satisfied to the requisite standard, that he acted upon them (that is, "there was a reasonable possibility that the respondent's evidence" (denying that he had a sexual interest in the complainant was true")).
3. The trial Judge "assessed the respondent's evidence without taking into account the tendency evidence at all".
To succeed on the first ground of appeal, the Director must establish that the third possibility is the correct one. I do not accept that it is.
It is inconceivable that Judge Jeffreys simply disregarded, or failed to consider "at all", the tendency evidence in coming to the conclusion that the respondent's denial raised a reasonable doubt about his guilt. I am unable to accept the suggestion that the trial Judge placed the respondent's evidence in an "hermetically sealed compartment" [32] whereby he disregarded the other evidence in the case, including the tendency evidence, in making the ultimate and critical findings. To have done so would have been to ignore the directions of law he had set out earlier in the judgment. His Honour set out earlier in the judgment the evidence upon which the prosecution relied, the fact that it was not in dispute, and the process of reasoning by which the tendency evidence could be used as circumstantial evidence in support of the prosecution case and, thus, in undermining the credibility of respondent's denials. His Honour had obviously not forgotten that there was undisputed evidence led in support a tendency case. There is no sensible explanation as to why or how the Judge would have failed to consider the tendency evidence "at all" in making his assessment of the respondent's denials. A fair reading of the reasons as a whole does not allow for this interpretation.
I would reject the first ground of appeal.
The duty to give reasons for a verdict in a trial by judge alone arises from s 133(2) and (3) of the Criminal Procedure Act:
"(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 ("Fleming") the High Court considered the predecessor provision (in what was then s 33 of the Criminal Procedure Act). The current provision is in relevantly identical terms to that considered by the High Court. Fleming concerned an appeal against conviction and the High Court noted that s 6 of the Criminal Appeal Act 1912 had now to be seen "through the prism of s 33". [33] There are obvious differences in the terms of the provision in s 6(1) of the Criminal Appeal Act (relating to appeals against convictions whether following a trial by judge alone or by jury) and those in s 107(5) of CARA (relating to an acquittal following a judge alone trial). Those differences may be significant to the outcome of the present appeal. However, they do not diminish the importance of the principles stated in Fleming concerning the duty of a trial Judge sitting without a jury to provide adequate reasons for their verdict or verdicts. At [24]-[31], their Honours enumerated eight propositions concerning the operation of the provisions and the duty to give reasons. The fifth proposition stated by the High Court is important to the disposition of the ground of appeal currently under consideration:
"Fifthly, whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached." [34]
In AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 the third member of the majority, writing separately, reiterated at [108] one of the matters lying at the heart of the decision in Fleming:
"As the Court said in Fleming v The Queen of the New South Wales equivalent to ss 119(3) and 120(2), a legislative concern is evinced 'that, in the operation of the new regime ... whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done'." [35]
They also observed at 467 [84]:
"In many cases the question of whether there has been compliance with the duty imposed by s 120(2) of the Criminal Procedure Act will raise questions of degree. Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the 'reasoning process linking' the principles of law to the findings of fact." [36]
It has been held that there is no proscriptive standard, and the adequacy of reasons given in a judge-alone trial will be a question of degree, [37] and dependent on the individual circumstances of the case. [38]
Wade v R [2018] NSWCCA 85 was a case where the appellant complained the Judge did not take certain expert evidence into account in making a finding as to the accuracy and reliability of the two complainants' evidence. [39] RA Hulme J at [99]-[104] restated the general principles articulated in Fleming, before concluding at [120]:
"In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused's version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his 'not guilty' responses when arraigned at the commencement of the trial."
To similar effect are the following observations in Thornton v R [2017] NSWCCA 86 at [158]-[165]:
"158. The Crown argues that, while it is necessary that the judge articulate the essential ground or grounds on which the decision is based, there is authority that while in many cases the reasons for preferring one conclusion over another should be given, where the resolution depends entirely on credibility, it is (or may be) enough that the judge simply finds one way over another (citing Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280-281; W v R [2014] NSWCCA 110 at [147]; Siafakas v R [2016] NSWCCA 100 at [68]; Cutajar v R [2016] NSWCCA 222 at [12].
The appellant relies on Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, where the High Court upheld an appeal as to the insufficiency of reasons. There, the Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) at [12] identified the error of the Court of Criminal Appeal of the Supreme Court of South Australia as being to view the appellant's trial as reducing to a case of 'word against word' and went on to say:
'It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.
160. The Court said (at [13]) that to dismiss the complaint as to sufficiency of reasons on the footing that the trial judge's acceptance of the complainant's evidence necessarily carried with it rejection of the appellant's evidence "was to overlook that the judge's acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as to guilt" and that:
'Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true.'"
In Thornton v R, Ward JA concluded at [165]:
"Accepting that there is force to the criticism that on some issues (such as the presence of D at the time of the offences) her Honour's reasoning involved simply a statement of conclusion, there was in my opinion a sufficient statement of reasons for her Honour's ultimate satisfaction beyond reasonable doubt as to the appellant's guilt on the indecent assault counts."
Campbell J agreed with Ward JA with N Adams at [226] said she was "not satisfied that the trial judge's reasons were inadequate." In Thornton, there were a number of significant evidentiary issues explained by Ward JA which were not linked to the issue of credibility of the complainant in the trial Judge's judgment. Even so, it was held the reasons were sufficient because the issue, whether the complainant's evidence established the offences beyond reasonable doubt, was simple.
The present case was essentially a credibility case, or a "word against word" case. It is arguable that it was sufficient for the trial Judge to say "little more" than he did. That seems to accord with approach taken by this Court in both Thornton v R and Wade v R, each of which were cases involving appeals against convictions. While Judge Jeffreys found nothing to diminish the credibility of the complainant's account, he could not reject the respondent's denials beyond reasonable doubt. To put it another way, there was a reasonable possibility that the respondent's denials were true. As the High Court in Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 made clear "the judge's acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as [the accused's] guilt". [40]
However, with some reticence, I am persuaded that the Director is correct and that more needed to be said by the trial Judge in the present case. Because of the evidence of admitted predatory sexual conduct towards two other school boys at around the same time, the reliance on the tendency said to be established by that evidence, and the favourable finding concerning the complainant's credibility, the trial Judge needed to explain how he dealt with the tendency evidence. As the Director submitted, the pathway to a reasonable doubt must have involved the trial Judge either (1) not drawing the inference that the respondent had the tendencies alleged or, (2) finding that he had some or all of those tendencies but that he did not act on them as alleged by the complainant in this case. The reasons for judgment should have indicated transparently the pathway his Honour took, or have provided some explanation as to the approach taken to the tendency evidence. The situation is analogous to that described by Basten JA in Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]:
"121 …Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another."
[My emphasis.]
For those reasons, I am satisfied that the Director has established ground 2.
In R v BA Brereton JA said at [31]:
"Pursuant to CARA, ss 107(5)-(6), the Court of Criminal Appeal may affirm or quash the acquittal appealed against, and if the acquittal is quashed, may order a new trial in such manner as the Court thinks fit. Although expressed in different terms to (NSW) Criminal Appeal Act 1912, s 5D, these provisions should be understood as incorporating the "residual discretion" of a Court of Criminal Appeal to dismiss a Crown appeal notwithstanding the establishment of material error in the decision of the trial judge, and it is for the Crown to satisfy this Court that it should not exercise its residual discretion to decline to intervene."
His Honour also observed at [32]:
"In this respect, the public interest in the due prosecution and conviction of offenders is a weighty consideration. So is the purpose of a Crown appeal, which is not for the mere correction of error in an individual case, but to provide general guidance. In this case, the regular course of justice has miscarried, because the respondent has not been tried in accordance with law, having been acquitted by direction on an incorrect basis, with the result that the charge against him was never considered on a correct basis by the tribunal of fact."
In Lazarus v R [2017] NSWCCA 279; (2017) 270 A Crim R 378 Bellew J remarked at [157]:
"Determining where the interests of justice lies is not a mathematical exercise, in which the relevant factors are "tallied", and a determination reached as to the particular side of the line on which the majority of them fall. Rather, it is a balancing exercise which involves assessing each individual factor and ascribing the appropriate weight to it. Importantly, the weight to be ascribed to individual factors in that balancing exercise may vary according to the circumstances of the particular case."
In the present case, the "public interest in the due prosecution of offenders" is, as the Director submitted, a weighty consideration in favour of quashing the acquittal and ordering a retrial. Also favouring such an order is the concession of senior counsel that the case against the respondent was a strong one. [44]
On the other hand, the offences were allegedly committed more than 35 years ago. Evidence tendered on the appeal shows that, since he was acquitted, the respondent has moved interstate and suffers from a neurological disease similar to multiple sclerosis. Clearly, his health is deteriorating, and he is attempting to move on with his life. Those matters are entitled to some weight but would not outweigh the public interest in the respondent being tried according to law for the very serious offences.
In my assessment, the critical factor in the exercise of the discretion is that the trial Judge, having heard the two critical witnesses give evidence and with the knowledge that the respondent had committed similar offences against two other school boys, was left with a reasonable doubt as to the respondent's guilt. While his Honour failed adequately to expose the approach he took to the tendency evidence, and while this constituted a legal error, his finding on the critical issue was quite clear:
"In my view I cannot exclude the reasonable possibility that the accused's evidence is true an accordingly I am not satisfied beyond reasonable doubt …"
In the light of that finding, and the nature of the error established, it would be wrong to put the respondent to trial again. The appropriate order is to affirm the verdict of not guilty.
Accordingly, the orders I would make are these:
1. Pursuant to s 107(5) of the Crimes (Appeal and Review) Act 2001 (NSW), affirm the acquittal of the respondent entered by Judge Jeffreys in the District Court on 30 March 2021.
Trial Tcpt, 26 March 2021, p 165.
Trial Tcpt, 26 March 2021, p 166.
Johnson J at [70] quoting counsel for each side in their oral submissions on appeal (Appeal Tcpt, 22 October 2021, pp 16 and 24).
A colourful phrase employed by Gummow, Hayne and Crennan JJ in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 and adopted by the Director in written submissions at [26]-[27].
Fleming v The Queen (1998) 197 CLR 250 at 262; [1998] HCA 68 at [26].
Fleming v The Queen (1998) 197 CLR 250 at 263-264; [1998] HCA 68 at [28].
AK v The Queen (2008) 232 CLR 438 at 481; [2008] HCA 8 at [108].
AK v The Queen (2008) 232 CLR 438 at 467; [2008] HCA 8 at [84].
Toohey v R [2020] NSWCCA 166 at [24].
Mifsud v Campbell (1991) 21 NSWLR 725 at 728.
Wade v R [2018] NSWCCA 85 at [144]-[145].
Douglass v The Queen [2012] HCA 34 at [13]; (2012) 290 ALR 699.
Crimes (Appeal and Review) Act 2001 (NSW) s 107(2).
The bewildering body of case law explaining the operation of this provision is legendary: most recently, see, for example the judgment of Gageler J in Hofer v The Queen [2021] HCA 36; 95 ALJR 937 and N Adams J's helpful analysis of that judgment in Tomlinson v R [2022] NSWCCA 16 at [121]-[132].
R v PL [2009] NSWCCA 256 at [91] (Spigelman CJ). See also Regina v XHR [2012] NSWCCA 247 at [99] (Beazley JA, as her Excellency then was) and Green v United States, 355 US 184 at 187-188 (1957) (Black J), cited by the former Chief Justice in R v PL.
Appeal Tcpt, 22 October 2021, p 30.
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Decision last updated: 16 March 2022