R v BK

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)

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

Judgment

1. 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.
2. 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).

Nature of Crown Appeal Against Acquittal

1. 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."
2. The present appeal falls within s.107(1)(b) being an appeal from an acquittal at a Judge-alone trial in the District Court.
3. The right of appeal conferred by s.107(2) is confined to any ground that involves a question of law alone.
4. 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].

Grounds of Appeal and Questions of Law

1. 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.

1. 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.

1. 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.
2. 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.

The Evidence in the Trial

1. 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.
2. 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
3. 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.
4. 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).
5. 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).
6. The complainant alleged that the Respondent then placed the complainant's penis in his mouth and fellated him (Counts 5/6).
7. Thereafter, the Respondent and the complainant went to Lancer's Barracks for cadet training. The Respondent's Evidence
8. 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).
9. 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.
10. 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

The Tendency Notice Relied Upon by the Crown at the Trial

1. The Crown relied upon a Tendency Notice dated 17 February 2021 served for the purpose of s.97 Evidence Act 1995.
2. 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).
3. 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."

The Role of the Tendency Evidence During the Trial

1. 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
2. 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).
3. 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
4. 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).
5. 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).
6. 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

Judgment of the Trial Judge

1. After the closing addresses on 26 March 2021, his Honour reserved his decision and adjourned the trial to 30 March 2021.
2. 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.
3. 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).
4. 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."
5. 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."
6. 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."

Some General Observations Concerning the Grounds of Appeal

1. 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.
2. 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.
3. 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.

Ground 1 - Failure to Take Tendency Evidence into Account in Assessing the Respondent's Evidence Submissions for the Crown

1. 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".
2. 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.
3. 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].
4. 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.

Ground 2 - The Trial Judge Erred in Failing to Record his Findings with Respect to the Tendency Evidence

1. The second ground of appeal is expressed as an alternative to the first ground.
2. 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
3. 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].
4. 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].
5. 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].
6. 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.
7. 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).

The Residual Discretion Submissions for the Crown

1. 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.
2. 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.
3. 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.
4. 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
5. 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.
6. 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].
7. 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.

Conclusion and Orders

1. 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.
2. By whichever route is taken, I would uphold the appeal by the Crown under s.107 Crimes (Appeal and Review) Act 2001.
3. I am satisfied that it is in the interests of justice to order a new trial of the Respondent.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

The individual offences

1. 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.
2. 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'."
3. 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).

The tendency case

1. 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."

The competing submissions at trial

1. 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]

The relevance of the tendency evidence in the present case

1. 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."
2. 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."
3. 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]

Judge Jeffreys' reasons concerning the tendency evidence

1. 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.
2. 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.
3. 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.

The grounds of appeal

1. 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.

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

1. 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.
2. 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.
3. 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.
4. 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.

Ground 2: that the trial judge erred in failing to record his findings with respect to that tendency evidence

1. 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.
2. 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."
3. 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.

Appropriate orders

1. 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".
2. 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.
3. 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.
4. 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.

Endnotes

1. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 (Mason CJ); [1990] HCA 33.
2. Evidence Act 1995 (NSW), s 97(1)(b).
3. Appeal Book, p 17; Verdict Judgment, p 10.
4. Appeal Book, p 17; Verdict Judgment, p 10.
5. Appeal Book, p 20; Verdict Judgment, p 13.
6. Appeal Transcript, 22 October 2021.
7. 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.
8. Reasons for Judgment of Johnson J at [98], [99].
9. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639 (Brennan and Dawson McHugh JJ); [1990] HCA 20.
10. Ibid. at CLR 642-643; at [7] (Deane, Gaudron and McHugh JJ).
11. 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).
12. Reasons for Judgment of Johnson J at [48].
13. Reasons for Judgment of Johnson J at [57].
14. Winner v R (1995) 79 A Crim R 528 at 530-1 (Kirby ACJ); (Court of Criminal Appeal (NSW), 14 July 1995, unrep).
15. Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68.
16. 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.
17. Ibid at [27] (Gleeson CJ, McHugh, Gummow and Kirby and Callinan JJ)
18. Criminal Procedure Act 1986 (NSW), s 33(3).
19. Fleming, supra, at [31]-[33].
20. While irrelevant for this appeal, the provision also applies to appeals from a directed verdict.
21. Appeal Book, p 17; Verdict Judgment, p 10.
22. Ibid.
23. Reasons for Judgment of Hamill J at [275], citing Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [13].
24. Trial tcpt p 8.
25. Trial Tcpt, 23 March 2021, pp 106-107
26. Trial Tcpt, 23 March 2021, p 111.
27. Trial Tcpt, 23 March 2021, pp 116 -117.
28. Trial Tcpt, 26 March 2021, pp 165-166; 175-177; 185.