R v Brookman

The tendency evidence relied upon

1. As to the tendency evidence, through its tendency notice, the Crown will allege that the accused has two relevant tendencies. First, he had a sexual interest in the complainant and an associated tendency to act upon it by repeatedly engaging in conduct similar to the conduct for which he is charged whilst he had the care of the complainant in 1989. In respect to this evidence, the Crown relies upon the complainant's evidence of 'uncharged acts', set out in his written statements dated 12 March 2019 (paragraphs 9-11) and 13 August 2020 (paragraphs 4-7). (Exhibit 7 on the Voir Dire) In paragraphs 9 - 10 of his first statement, for example, the complainant stated that "from almost the first night, the abuse started. It would always happen at night. There was never a night that it didn't happen to me." He referred to a routine, of the accused "always wearing those same style of boxers and… always start laying on top of me and saying a prayer before starting to kiss me".
2. Secondly, he had a sexual interest in young males. The Crown seeks to establish this tendency from two main sources. First, public statements were made by the Accused, in 2004 and 2012. The first of those statements was made at a 'National Forum on Marriage' at Parliament House in Canberra. In this statement, he spoke of his being a homosexual for 30 years, before 'reclaiming' his heterosexuality. Whilst he was gay, he stated that yearned for a man with whom he could share his life and 'male partnership'. He said that in the 1970s, he moved to a country town where he trained as a teacher. In his sexual frustration, he found fantasy at times leaning towards 12 year old boys and young teens who he taught; as he was attracted to their "innocence, their youthfulness, and their uncomplicated stage of life", although he did make what might be viewed as exculpatory statements that "By God's grace, my fantasies did not extend to interfering with kids in any way" and focussed on "male peers."
3. The second of those statements was made at a 'Gender Re-orientation Testimony'. In that statement, the Accused referred to his experiencing homosexual attraction whilst he was a very young child and practised homosexuality as a teenager until his mid-teens. This was until he became a member of a church where, he understood homosexuality to be wrong. He indicated that when a youngish man, apparently in the 1970s, he felt tormented since he had a secret desire to find a "brother", but did not feel that he could share that secret with anyone. He stated "My sexual frustration and the loneliness of my secret caused was [sic] eased by my fantasizing over boys who I taught in a country town." Later, the accused spoke of the circumstances in which he 'converted' towards a heterosexual orientation and how he achieved that.
4. Secondly, evidence from the accused's former wife, Ms Monica Bennett-Ryan, who was married to the accused form 1978 to 1985. In the part of the evidence that the Crown relies upon to establish tendency, Ms Bennett-Ryan stated that the accused would often tell her "about his sexual fantasies, including his desire to sleep with men and his admiration for young males whom, he said, 'turned him on'".
5. On the application, in addressing the accused's point on s 101, the Crown relied upon a document which sets out the passages from the tendency evidence. (Exhibit 11) The forensic purpose of this was to seek to illuminate that there was no substance to the objection of prejudice under s 101, or at least any insurmountable objection that could not be addressed by the partial exclusion or limitation on evidence said to establish tendency, or tendencies; not taking into account, also the impact of directions to the trier of fact.

The legislative provisions

1. The accused was arraigned on 4 December 2020. This means that the provisions in the Evidence Act 1995 (NSW) regulating the admissibility of tendency evidence are ss 97, 97A and 101 of that legislation.
2. Section 97 provides: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible 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 unless-- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if-- (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
3. Section 97A relevantly provides: (1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. (2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b)-- (a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest), (b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. (3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally. (4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. (5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account-- (a) the sexual interest or act to which the tendency evidence relates (the "tendency sexual interest or act" ) is different from the sexual interest or act alleged in the proceeding (the "alleged sexual interest or act" ), (b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred, (c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act, (d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act, (e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act, (f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features, (g) the level of generality of the tendency to which the tendency evidence relates. (6) In this section-- "child" means a person under 18 years of age.
4. Section 101 relevantly provides: (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
5. In response to submissions advanced on the accused's behalf, to the extent that they alluded to case-law predating the amendments made to Part 3.6 of the Evidence Act, the Crown also relied upon s 94, which relevantly provides: "(4) To avoid doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this Part to tendency evidence or coincidence evidence about a defendant.
6. The Crown referred me to the observations in the Second Reading Speech to the Evidence Amendment (Tendency and Coincidence) Act 2020 to assist in the construction of s 97A. As to the general purpose of the legislation, the Attorney-General said: "The passage of this targeted provision should send a strong message that Parliament expects that this type of tendency evidence generally will have significant probative value in child sexual abuse prosecutions, irrespective of its particular features. This recognises the close connection between a tendency to have a sexual interest in a child or children and/or a tendency to act upon such an interest, and criminal proceedings in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. The nature of such tendency evidence means that the link is significant, whether or not there are any unique similarities between the tendency evidence and the alleged conduct of the accused person in the proceedings - the length being sexual offending against a child or children' (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020).
7. As to the question of whether 'sufficient grounds' existed which displaced the presumption in s 97A(4), it was observed in the Second Reading Speech that: "The bill does not specify what may constitute "sufficient grounds", but such grounds should be considered in light of the objective of this reform to facilitate greater admissibility of tendency evidence and, specifically, the intent of the proposed section 97A to facilitate greater admission of tendency evidence in child sexual offences"
8. However, with specific focus upon s 97A(5), the Attorney General further observed in the Second Reading Speech that: "The matters set out (in proposed s 97A(5) … are the sort of myths and misconceptions that have historically prevented evidence about a defendant's tendency to have a sexual interest in a specific child, or in children generally … from being seen to have probative value in criminal proceedings for child sexual offences, and have therefore excluded such evidence and prevented it from being considered by the trier of fact. The matters are drawn from the Royal Commission and address issues in recent case law. Explicitly listing these matters in the proposed targeted provision is intended to support the operation of the revival presumption by ensuring that courts do not determine that the presumption is rebutted on the basis of the sorts of myths or misconceptions about the probative value of tendency evidence that may have been perpetrated in case law, but were dispelled by the Royal Commission.
9. In relation to s 101, the Attorney-General said the following: "Changing the test from substantially outweighs to simply outweighs seeks to address asymmetry in the assessment of whether evidence with significant probative value should be admissible under the current test, which is disproportionately weighted towards the exclusion of such evidence. It would strike an even and appropriate balance between the competing interests of ensuring that relevant tendency.. evidence with significant probative value is admissible, and in preventing unfair prejudice to the defendants in criminal proceedings."
10. The Crown submits that the complainant's evidence sustains the first alleged tendency, being the accused's sexual interest in him, and also the tendency to act upon it repeatedly by routinely engaging in similar conduct: entering the bedroom when the complainant was on the bed, lying on top of him, kissing him on the lips and moving his hips up and down, back and forth such that the complainant could feel the accused's erect penis on his leg. It submitted that the uncharged acts had 'significant probative value' for the purposes of s 97(1)(b). It relies upon the presumption in s 97A(2)(a), which applies where tendency evidence is of a character of being evidence about the accused's sexual interest in children, whether or not the accused has acted on that interest. By s 97A(3), the presumption applies even if the sexual interest is directed solely to the complainant in the proceeding, although it may also apply where the sexual interest is directed to another child, or children generally.
11. The Crown submits that the evidence of Ms Bennett-Ryan, in conjunction with the evidence of the accused's public statements, in 2004 and 2012, establish that at the time of the alleged offending, in 1989, the accused had a sexual interest in young males. Again, the Crown submitted that the evidence had 'significant probative value' and, again, relied upon the presumption in s 97A(2)(a); even if the evidence relied upon did not reflect instances where the accused acted upon his sexual interest in young males. The evidence, it was suggested, betokened sexual fantasy and sexual ideation involving young males.
12. In assessing probative value, the Court should take the evidence "at its highest" and it does so by assuming that the trier of fact will accept it.
13. The Crown also submits that the probative value of the evidence outweighs the risk of any unfair prejudice to the accused, so as to satisfy section 101(2) of the Evidence Act. The Crown notes that it is no longer necessary for it to establish that the probative value substantially outweigh the risk of unfair prejudice. Further, the extent that prejudice to the accused arises, it is capable of being addressed by careful directions from the trial judge.
14. The solicitor advocate for the accused makes the first general submission that the evidence does not have significant probative value, for the purposes of s 97(1)(b). Although he did not dispute that the presumption in s 97A(2)(a) was engaged, he submitted that, within the meaning of s 97A(4), there were 'sufficient grounds' for rebutting it. By 'sufficient grounds', the accused argued that in the absence of a definition of that expression, it was enough for the Court to be satisfied that the matters invoked by him were enough to meet the purpose of logically establishing the conclusion that the evidence did not have significant probative value.
15. As to the complainant's expected evidence, as reflected in his witness statements regarding the putative tendency in the accused to have a sexual interest in the complainant, the evidence was of such generality that it was, at most, relevant. Simply evidence of the accused's attraction to the complainant did not increase the probative value of the evidence in assisting the Crown to prove that the accused committed the offending act. Simply being attracted to someone was not probative of the likelihood that the accused would try to act upon that interest, as was shown in some cases in the High Court, including Hughes v The Queen (2017) 263 CLR 338 and McPhillamy v The Queen (2018) 92 ALJR 105.
16. As to the evidence of the accused's former wife, relied upon to establish the second putative tendency (sexual interest in young males), there was an absence of specificity in what was meant by 'young males'. There was also a temporal doubt. The marriage endured from 1978 to 1985. The offending in question allegedly occurred in 1989. There was no evidence to show any link between the conduct fantasised about and the conduct allegedly perpetrated upon the complainant. To the extent that she referred to the accused's expression of sexual fantasies, there was no detail. Similarly, in the absence of evidence of the accused acting upon the interest, the evidence has lesser probative force.
17. As to the evidence of the public statements made by the accused in 2004 and 2012, the first of those occurred 15 years after the alleged offending; the latter occurring 26 years after the alleged offending. This evidence did not have significant probative value when regard is had to the paucity of evidence in which the putative tendency (sexual interest in young males) has manifested itself, the generality of the evidence.
18. The accused's second general submission is that the prejudice to the accused outweighed any probative value. This was, it was said, particularly acute as it concerned the accused's public statements. There was no submission that the probative value of the complainant's evidence to establish the tendency of the accused's sexual interest in the complainant was outweighed by unfair prejudice.
19. About the second of the alleged tendencies, complaint is made about the adequacy of the particulars relating to the tendency that the accused was interested in young males. The prejudice was the fact that in an earlier stage of his life, the accused had homosexual ideation at the same time as being a religious minister. The prejudice was amplified by the accused subsequently changing his sexual orientation from homosexual to heterosexual. No matter what directions might be given to the trier of fact, they (or the trial judge) will not be able to overcome a sort of dual pronged prejudice of fluidity in sexual orientation, alleged paedophilia and the connection with the Church. Some of the content of the public statements might also be perceived as indicating that the accused is homophobic.
20. The accused identified as matters indicating unfair prejudice as arising from the nature or quality of the conduct the subject of the tendency evidence; whether or not it has been established or is subject of admissions, whether it involved many factors giving rise to confusion or distraction, whether it was corroborated, whether the jury might underestimate the number of persons who share the tendency; a jury's emotional response to particular evidence; whether or not the accused has been convicted in the past or made admissions as to past conduct. These matters were raised at a level of generality.
21. The accused's third submission was that no directions might be made to the trier of fact could overcome the prejudice.
22. In reply, the Crown submitted that differences in the tendency sexual interest from the alleged tendency interest, and any time lapse between the tendency evidence and the alleged offending are now expressly prohibited by s 97A(5), absent the Court's determination of 'exceptional circumstances'. Further, whatever criticisms that the accused made about the changes to the legislation which facilitated the admission of tendency evidence in child sexual offence proceedings, the changes reflect empirical research. I understood this submission to be that the Court must faithfully give effect to the text and tenor of s 97A and the dilution of the quantum of probative value under s 101 of the Evidence Act.

The first sexual tendency - sexual interest in the complainant

1. As to the first of the tendencies, the accused's sexual interest in the complainant as at the date of the offending, the expected evidence of the complainant's about the accused's 'uncharged acts', reflected in each of his witness statements, does have probative value. The salience of this in establishing sexual interest in a particular person was recognised in Bauer, even before the 2020 amendments to the Evidence Act.
2. Further, I find not only that the presumption in s 97A(2)(a) is engaged, but further that it has not been rebutted. As that particular provision indicates, the text expressly contemplates, that it is unnecessary that the accused has acted upon his sexual interest in the complainant. Further, I note that, again, taking the expected evidence at its highest, the complainant's evidence that the uncharged acts occurred in a routine, that is to say, in a materially similar way, to the way in which the alleged offence occurred, further strengthens the probative value of the evidence of these uncharged acts in establishing the sexual interest in the complainant.
3. In relation to s 101, there was no suggestion that the nature and volume of uncharged acts could swamp the trier of fact when considering whether the accused committed the offending act in question. A direction to the trier of fact will include that the trier of fact should not substitute evidence of other alleged uncharged acts, or a conclusion that the accused had a sexual interest in the complainant, for what was alleged in the particular charge.
4. To the extent, if at all, that it is suggested that the evidence is unfairly prejudicial, I find that the evidence outweighs the danger of unfair prejudice. In so finding, I draw no distinction between the position that would apply if the trial was by judge alone, or trial by jury.

The second tendency - sexual interest in young males

1. The principal fact in issue is whether in 1989, the accused engaged in sexual misconduct towards the complainant, a 13-year old boy.
2. The suggested tendency is an interest in "young males". This was the expression referred to in Ms Bennett-Ryan's account of what the accused said to her during their marriage. That account, as it appears in the police statement (Exhibit 8 on the Voir Dire) was put in narrative form; rather than direct speech. Nevertheless, the written statement was of course a manifestation of the evidence she proposes to give, if called, but conceivably, the narrative account might reflect a memory of what she heard him say. It is not necessary, at the point of a pre-hearing ruling on the admissibility of evidence that Ms Bennett-Ryan is expected to give to preclude her capacity to give evidence at trial as to what she recalls that the accused did say.
3. On first impression, there is some force in the criticism that this is vague expression, in a context where the requirements for admissibility of tendency evidence are directed towards children under the age of 18. The expression may capture not only teenage children (or even worse, children younger than that) but also males aged between 18 and the early 20s, who may be 'young', but are not 'children' under the statutory definition. I note, in contrast, that in the case of McPhillamy v The Queen (2018) 92 ALJR 1045, the tendency interest in that case was directed to 'young teenage boys'.
4. Nevertheless, as the Crown points out, it is not a sufficient ground for the purposes of negating the presumption in s 97A(2) as to the "level of generality of the tendency to which the tendency evidence relates" (s 97A(5)(g)). To reason that a person has a sexual interest in young males and a sexual interest in teenage boys does not present mutually exclusive alternatives. The latter is a sub-set of the former. To reason otherwise might, arguably, be to perpetuate a 'myth or misconception' which the 2020 amendments are designed to eliminate. It is not lightly to be supposed that there is any hard and fast distinction between a person's sexual interest in 13 year old boys, or other teenage boys, and a sexual interest in (to take one bracket) 19 year old boys. In my view, the absence of greater specificity in the expression 'young males' is not a sufficient ground bearing upon probative value. Further, even if there may be any difference in age between the complainant as he was at the time of the offence, and the age range of 'young males', that would also not be taken to be a sufficient ground to determine the absence of significant probative value (s 97A(5)(c)).
5. In my opinion, and consistently with the approach of taking the evidence at its highest, it is appropriate that the Court consider the expected evidence, being paragraph 13 of Ms Bennett-Ryan and certain parts (which I will specify shortly) of the public statements of the accused together, rather than isolating them, to determine whether they are admissible to proving the second tendency. In my view, the general deficiency in the accused's submissions is that it tries to treat each contested item of relevant evidence in isolation. The course that I propose is sanctioned by s 97(1)(b) of the Evidence Act; even before the 2020 amendments. It applies, with all the more force in light of those amendments and the purposes underlying them. In other words, there are parts of the witness statement of Ms Bennett-Ryan, and the public statements of the accused, which, when read together, are capable of establishing a sexual interest in young males, and which have probative value.
6. The fifth and sixth paragraphs of the accused's public statements at the National Forum on Marriage in Canberra on 4 August 2004, read together, indicate that at least through the ages of 11 to 16, the accused had an interest in young males. Then, throughout the 1970s, he had homosexual ideation towards 12 year old boys and the young teenagers he taught.
7. The Crown also wishes to place before the trier of fact what the accused said, in his 2004 statement, about the facts of: 1. his commencing to study in the Christian ministry at the age of 26; and 2. his entry into a relationship with a woman whilst at Theological College, entry into marriage with that woman, and the period that this marriage lasted.
8. These are contextual facts without which, in my view, the jury may have a distorted impression of the accused. Certainly, they place the evidence of Ms Bennett-Ryan in some context.
9. In a statement (Exhibit 9 on the Voir Dire), which although undated, I was informed from the Bar Table was published in 2012, the accused referred to homosexual ideation regarding boys who he taught in a country town, until he ceased actively practising homosexuality from his mid-teens. But in the decade before he turned 26 (apparently the mid-1960s to the mid-1970s) he shielded his secret to find a 'brother'.
10. I return again, to paragraph 13 of Ms Bennett-Ryan's statement (shorn of her opinions) about the accused telling her about his desire to sleep with men and young males who 'turned him on'. By reason of the agreed period of marriage, this was the period 1978 to 1985.
11. From this evidence, viewed as a whole and taken at its highest, the trier of fact could determine that from his teenage years up to period when he was either in his late 30s or early to mid-40s, the accused had a sexual interest in young males.
12. In relation to Ms Bennett-Ryan's evidence, even if s 97A did not apply, on the basis that it could not be said to relate to tendency evidence about the accused's sexual interest in children, I would have found that the evidence was of significant probative value even under s 97(1)(b). An expression of sexual interest by a married man to his wife about his sexual fantasies and 'admiration' about young males in the period from 1978 to 1985, when viewed in combination with the accused's statements and the complainant's evidence of uncharged acts in 1989, had significant probative value to establishing a sexual interest in young males in 1989, being the year of the alleged offending, for the purpose of that provision.
13. I acknowledge a difference in time between the evidence of the accused, which was predominantly identified as occurring in the period between the mid-1960s and mid-1970s, and the period identified by Ms Bennett-Ryan, being between 1978 and 1985. That leaves a gap between the period of the accused's former marriage and the year in which the offending allegedly occurred (1989). But the tendency notice does not limit the use to which the complainant's evidence is put merely only to the first alleged tendency, being the accused's sexual interest in him, and not to the tendency to be interested in young males more generally. That being so, the complainant's evidence of uncharged acts in 1989 is also, in my view, evidence which, in combination with Ms Bennett-Ryan, and the accused's statements about events in the 1970s (made in 2004 and 2012), could establish this tendency about young males more generally. Section 97(5)(e) would, in any event, preclude my reliance upon any time difference in the tendency sexual interest in young males and the occurrence of the accused's interest in young males at the time of the charged misconduct.
14. I do not consider that Ms Bennett-Ryan's omission to identify, with precision the content of the accused's expression of sexual fantasies, and consequential inability to link the fantasies to the alleged conduct in question as an impediment to the admission. Section 97A(5)(f) does not require identification as the precise nature of sexual interest in young males, including fantasized or imagined sexual acts, and comparison with the sexual misconduct allegedly perpetrated upon the complainant. In the way that the Crown relies upon it, the tendency is directed to the state of the accused's mind. Again, under s 97A(5)(g), the content of the sexual interest in young males need not be specified more than it is.
15. I accept that the Court's discretion is not entirely fettered by s 97A(5) and that exceptional circumstances can apply. However, the matters raised on the accused's behalf, to the extent that they coincide with the list of proscribed matters in s 97A(5)(a)-(g) have not been shown to be 'exceptional', whether or not that word means, as the accused submits that it means, 'out of the ordinary'. The accused's submissions, without disrespect, do not go much further than to complain about the state of affairs left by the insertion of s 97A(5) and invite the Court to rely upon case law established prior to the 2020 amendments in an attempt to persuade the Court that they provide the sufficient grounds for determining that the evidence does not have substantial probative value or that they provide the exceptional circumstances required to judicially override s 97A(5). The Attorney General stated that the standard of exceptional circumstances sets a 'high bar'. Far from resorting impermissibly to selective aspects of case-law in relation to s 97 prior to the 2020 amendments, it seems to me that the accused's submissions would effectively seek to restore the position as it was prior to the 2020 amendments. That would not, in my view, be a legitimate exercise in judicial power.
16. I accept the Crown's submission that by the text of s 97A(2)(a), there is no inhibition upon the Crown relying upon the evidence to establish the sexual interest in young males. Nor do the matters which the accused relies upon, to the extent that they are not otherwise proscribed by s 97A(5) - and it was not clear to me that they were not matters proscribed by s 97A(5) - provide sufficient grounds for displacing the conclusion that the tendency evidence as to the accused's sexual interest in young males has significant probative value (s 97A(4)). In this regard, the accused's invocation of factors found in case law predating the amendments in 2020 faces the difficulty of s 94(4).
17. This leaves the accused's submission about unfair prejudice. The relevant test has changed, in a comparison between substantial probative value and unfair prejudice to simply one of probative value and unfair prejudice. I have noted the Attorney-General's observations about the purpose of the amended s 101 earlier. In terms of the balancing exercise under s 101, in assessing 'probative value' the starting point is that the evidence is accepted (Bauer at [95]). I find that the tendency evidence actually has substantial probative value.
18. As to the uncharged acts, the similarity and asserted repetition between these acts and the alleged offending makes it more likely that the trier of fact will not only accept a sexual interest in the complainant, but also a preparedness to act on that interest when the opportunity arose.
19. As to the sexual interest in young males, the probative value is borne out by the circumstance that the evidence comprises admission by the accused, initially to his wife; and thereafter in two published statements. To my mind, the probative value of the published statements is not significantly lessened by the passage of time since the tendency was expressed by the accused. The trier of fact would be expected to take into account the fallibility of memory, but the memory here was not of an event, but a state of mind which, the trier of fact might reason extended over a considerable period, including the time when the alleged offending occurred. The trier of fact, when directed, is not likely to misuse the evidence of these admissions.
20. The main point on prejudice raised the emotional reactions which the accused fears will be engendered in the trier of fact as a result of learning not only that (a) the accused was a homosexual, and evinced homosexual ideation, whilst he was a Minister of the Uniting Church, but also because of (b) the subsequent sexual reorientation and statements, explaining that reorientation, which might be regarded or interpreted as being homophobic.
21. As to (a), although there is a risk of some emotional reaction likely to divert the trier of fact from its obligations, by the circumstance that the accused was gay and evinced sexual fantasies about young males whilst a Minister of religion, that is not large. In my view, the trier of fact would have to have sustained a very sheltered live to be oblivious of allegations about gay men in religious positions having a sexual interest in young males: it dominated the affairs of the Royal Commission into institutional child sexual abuse. Section 101, read with ss 97 and 97A, is "intended to facilitate greater admissibility" of tendency evidence, and, in relation to s 97A in particular, Courts are enjoined to take into account the myths dispelled by the Royal Commission. It is counter-intuitive to reject tendency evidence for being prejudicial when it might show a tendency of mind of a male religious minister to have a sexual interest in young males where the whole point of s 97A is to liberalise the admissibility of such evidence.
22. As to (b), I consider that there is force in the accused's submission about the revelation of the accused's altered sexual orientation, from homosexual to heterosexual runs the risk of creating unfair prejudice. It is also, in my view, irrelevant. The issue is the sexual interest at the time of the offending. It is not relevant, at least for the Crown's case, to establish that the accused's sexual orientation has changed from what it was when he was aged 40 (the age he was at the time of the alleged offending), the reasons for that change, or the circumstance that the accused might feel impelled to speak about that change in a public forum, or forums. I accept that there are certain parts of the accused's 2004 and 2012 public statements which might be interpreted by some as betraying either religious bigotry or homophobia or both. I would go a step further and say that it would at least be a distraction if the jury was confronted with evidence about the journey of the accused's sexual orientation throughout his entire life; even after the alleged offending.
23. The solution however, is not to reject the evidence of those statements in their entirety, but to exclude the relevant parts which give rise to the prejudice or risk of prejudice. It is recognised, in the context of s 101, that to prevent or mitigate the danger of prejudicial evidence, the Court may exclude parts of evidence (Odgers, Uniform Evidence Law, 15th edition, [EA.101.190], p 822). It is difficult to see why the Crown would need, for its purposes to establish anything more than when the accused became a homosexual, and his continued identification with and management of that condition up to the time of the alleged offending.
24. As indicated by a document (MFI 11) prepared by the Crown during the hearing of these applications, the Crown tried to forestall the accused's complaints about prejudice, under s 101. The document is an Agreed Statement of Facts which the Crown proposed be admitted under s 191 of the Evidence Act. That document related to the two public statements of the accused. However, the solicitor advocate for the accused indicated that although no real dispute existed that these were the accused's words, the document did not alleviate his concerns about the prejudicial effect of the evidence. Accordingly, no agreement was reached about the facts, the use to which they may be put, or limitation imposed upon the admission of those facts.
25. To take the 2004 statement (Exhibit 10 on the voir dire), for example, I accept that what is contained in paragraphs numbered (manually) 5 and 6 is probative. Further, I accept the additional facts that the Crown relies upon to prove when he commenced his theological study and his entry, first, into a relationship and then marriage to a woman is appropriate so as not to mislead the trier of fact. The circumstance of marriage will come out, anyway, in the evidence of Ms Bennett-Ryan. Disclosure of marriage of a gay theologian to a woman in the 1970s or 1980s whilst he trained or worked in a country town before moving to the city would not, in my view, result in prejudice to the accused.
26. In relation to the 2012 statement, the Crown has indicated that it proposes only to rely upon the paragraphs (manually) numbered 4 and 12 (Exhibit 9 on the voir dire) on the assumed basis that the accused accepts that paragraph 4 is attributable to the period of his life when he was in his early 20s. If the accused is unwilling to admit this, then in my view, it would be appropriate to allow what lies behind paragraphs 2-3, in addition to paragraph 4, so as to place paragraph 4 in its proper temporal context. I propose to leave it to the Crown and the accused to have further discussions as to that.
27. Paragraph 12, however, deals with how it was that the accused re-oriented his sexuality. In my view, for reasons plainly indicated, that is prejudicial and should not be permitted.
28. What I have said, so far, does not eradicate the other aspect of prejudice which the accused referred to, namely his having homosexual orientation at a time when he was in the Church in the 1970s and 1980s. That is not prejudice of such moment as to outweigh the probative value of the tendency evidence. In this regard, there are plain indications that in the construction of the admissibility of tendency evidence in child sexual offence cases, Courts are to have regard to matters arising out of the Royal Commission. Although that was directed more to s 97A, I do not see why it is not also relevant to the test under s 101. A trier of fact would have to have been living under a rock to be oblivious to the incidence of allegations of men associated with religious orders perpetrating sexual misconduct against young males, and even teenage boys. There is an inherent risk of prejudice which arises in a context where, although allegations have surfaced, there was no adjudication of criminal guilt. But such risk is ordinarily managed. It is virtually routine in such cases, even without tendency evidence, for jurors or a judge alone, to be warned about taking into account extraneous matters, not only including media publicity, but also the findings about men linked with certain religious orders having a sexual interest in young males. As I say, such a direction would likely be made even in the absence of an attempt by the Crown to rely upon tendency evidence.
29. I have already found, generally, that the tendency evidence, with appropriate exclusions identified and taking into account appropriate directions into which the accused will have input, has significant probative value, by reason of the presumption which has not been rebutted. I am satisfied that even without the presumption, the evidence has substantial probative value. I am satisfied that the evidence outweighs the unfair prejudice to the accused.
30. In so determining, it is not necessary to attach primary significance to the question whether the trial is to be judge, or by jury; even though much of the above reasoning speaks of the adequacy of directions. That discussion is premised on the supposition that a judge, sitting alone may be thought less likely to misuse tendency evidence than a jury.

'COMPLAINT' EVIDENCE

1. As noted, there are two aspects to complaint evidence. There is objection to the evidence of a Crown witness. There is also objection to evidence of a documentary complaint.

Mr Gammon's evidence

1. As to the complaint evidence, the Crown proposes to call Graeme Gammon as a Crown witness. On 9 October 1989, the complainant absconded from the care of the accused. He travelled to South Australia with Mr Gammon.
2. On 29 October 1989, the complainant reported to South Australian police for offences committed upon him by Gammon. After the police received that report, South Australian police returned the complainant to his mother.
3. In a witness statement dated 6 November 2019 (Exhibit 4 on the Voir Dire), Gammon stated that in October 1989, he was staying at a refuge, within the Uniting Church in Newtown, when he met the complainant. During the course of playing billiards, he states that the complainant told him that he wanted to run away. He stated that he could not recall the exact words, but, in substance, recalled that the complainant had said that "it was the person looking after him at the church (who) was beating him and abusing him". He stated that he interpreted the complainant's reference to 'abuse' as amounting to sexual abuse and that the person looking after him at the Church was the person who was in charge of the church and the refuge.
4. However, in a record of interview with the South Australian police, on 30 October 1989 (Exhibit 5 on the Voir Dire), Gammon told the South Australian police that "maybe a month ago" (ie September 1989), the complainant, when playing billiards with Gammon, asked the latter if he could run away with him because the 'person who was looking after him claimed that he was beating him and, child abuse type situation …'
5. I think the trier of fact might find a close similarity between the versions given to the SA police and NSW Police, but in the case of the former - plainly much closer in time than the statement to the NSW Police - specific reference was made to child sexual abuse as being the form of abuse.
6. That said, the Crown has indicated that it does not propose to lead the evidence of the statement made to the SA Police. It has been adduced on the voir dire to supply context to the interpretation of the statement made to the NSW Police in 2019.
7. It appears to be the case that the representations by the complainant, such as they were, were made at a point proximate when Gammon took him to South Australia.

The Accused's objection

1. The solicitor advocate for the accused submits that the content of the complaint, as foreshadowed in the witness statement leaves the trier of fact to speculate what it is that the complainant is complaining about. Does a complaint about being "abused" mean sexual abuse?
2. The accused submits that the evidence is inadmissible under ss 66(2) and 66(2A) of the Evidence Act. Further or alternatively, it would be inadmissible under s 137.
3. As to the s 137 objection, beyond the assertion that the evidence was prejudicial, the point was made that it comes from a person who himself sexually assaulted the complainant and imprisoned for it, but Gammon's own misconduct was not referred to by him in his police statement.
4. The Crown says it does not propose to lead evidence about what Gammon subjectively perceived. It only seeks to lead evidence about what the complainant said to him, or, what Gammon heard him say.

Consideration

1. As to the first objection, the question of whether, for the purposes of s 66(2), a representation is made 'fresh in the memory' in large measure depends upon the Court's consideration of the factors in s 66(2A) of the Evidence Act; although those factors are not exhaustive.
2. The accused's objection does not seriously engage with all of those factors. The complainant's representation was made in October 1989. The alleged sexual misconduct appears to have occurred in the previous month. That is not an overtly long period of time for an offence of this kind. The Queen v Bauer (2018) 92 ALJR 846, it was acknowledged that evidence of complaints in cases of alleged sexual abuse may be treated as fresh evidence even "years" after the event (at [89] and [92]), a matter I will return to below when considering the objection to a documentary complaint. I consider that it is of some significance that Gammon's evidence, if accepted - which is the relevant standard for assessing its admissibility - would suggest a very close temporal connection between the making of the representation and the complainant's decision to go away with Gammon. The complainant was of the age of 13 both at the time of the alleged event and at the time of the representation. I accept the Crown's submission that a representation about being 'beaten and abused' by a person looking after the victim is something a 13 year old would recall and make complaint about. There is nothing indicated on the evidence to suggest that the age or health of the victim was likely to be a factor preventing him from making complaint to someone who he was friendly with at the time.
3. In the circumstances, I am satisfied that the test under s 66(2) is satisfied.
4. That leaves the objection under s 137. Relevant to this is the still (but soon to be) unresolved question of whether the trial will be by jury or judge alone. It is less likely that a judge, sitting alone, will be affected by the unfair prejudice to which the evidence may give rise. But of course where the trial is by jury, consideration needs to be given to the warnings that might be given. They are not insignificant and include, the warning of potential unreliability of the evidence under s 165. At bottom however, unfair prejudice might mean the trier of fact will use the evidence improperly in some way (Bauer at [73]).
5. For the purpose of s 137, probative value means 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.' To assess probative value, the Court must look to all the other evidence to be adduced in the proceeding (Ayturgrul v The Queen (2012) 247 CLR 170 at [30]). Also, I am to proceed, for the purpose of the s 137 analysis, on the basis that the evidence of complaint is accepted as credible and reliable: IMM v The Queen (2016) 90 ALJR 529 at [54]-[55].
6. This last point is significant in the context where, it is clear, the accused's complaint, under s 137 is that Gammon lacks credibility or reliability, because of his own conduct and, what is more, his failure to disclose his own conduct. But in my opinion, even if it may be accepted that Gammon himself exploited the opportunity of his time away with the complainant to abuse the complainant, it is hard to see why that discreditable conduct makes his evidence about the complainant's complaint to him about the accused less reliable or credible. It is not as if his reporting of the complainant's complaint to him could be exculpatory of his own conduct. It was not suggested, for example, that Gammon received any discount on sentencing because of his assistance needed or rendered to the law enforcement authorities in connection with its investigation to the accused. That being so, I do not find that the potential credibility or reliability, of lack thereof, of this witness to undermine the probative nature of his evidence.
7. In my view, taken on its own, a representation made that the person looking after him at the church was 'beating' him and 'abusing' him, may not, viewed in isolation, be probative. But when considered in the context of the complainant's expected account and, also the tendency evidence, at least to the extent that the tendency evidence goes to the accused's sexual interest in the complainant, this item of evidence does have probative value. It corroborates the complainant's account and importantly provides independent evidence to indicate that this is an occasion, proximate to the event, where the accused has acted upon his sexual interest in the complainant.
8. Once it becomes clear that the Crown will not be inviting speculation from Gammon about what the complainant meant, and once it is accepted, as it should, that his own lack of credibility or character does not undermine the probative nature of the evidence that is proposed to be led, it may be seen that there is no remaining footing for the s 137 objection. Despite a generalised assertion that the evidence was 'enormously prejudicial', it is not indicated how it is in the requisite sense of misuse of the evidence.
9. Whether the trial is to be by judge alone, of by jury, the complaint evidence expected to be given by Gammon is admissible.

The YouTube commentary

1. A document contained within the accused's bundle of documents on the Voir Dire includes a YouTube commentary by the complainant. The commentary by the complainant was apparently in response to an interview between the accused and a third person, Anthony Venn-Brown. The interview appears to have occurred in 2005. The commentary appeared to come to Mr Benn-Brown's notice in July 2018. Within the commentary itself, there is a reference to a matter having occurred in 2016, so it at least appears that representations contained within it were made about conduct allegedly occurring approximately 27 years before.
2. The Crown also seeks to tender that document as complaint evidence under s 66(2) of the Evidence Act. The tender is objected to, not only on the basis that s 66 is not established, but also because of prejudice, with reference being made to s 137.
3. The solicitor advocate for the accused cited a range of authorities in which complaint evidence was rejected where the delay was for shorter periods than the period in question here.
4. He also submitted that there was evidence to suggest that the context in which the representation was made, between 2016 and 2018, casts doubt upon the reliability. Specifically, it was said that the representation was only made when the complainant was googling the accused where the accused was referring to gay conversion therapy and had been a closet homosexual.
5. In anticipation of the objection based upon prejudice, the Crown had earlier supplied Mr Walsh with a redacted version of the YouTube commentary which it had been supplied to the accused's solicitor advocate prior to the hearing. I will first address this matter with reference to s 66.
6. The Court must consider all of the matters in s 66(2A), but they are not exhaustive.
7. It is true that one of those matters (s 66(2A)(c)) is the lapse of time between the asserted fact - the charged and uncharged acts in September or October 1989, and the representations asserted, at least by 2016. The length of time is plainly significant and there are authorities (collected in Odgers at [EA.66.180], pp 462-463) where periods of delay lesser in duration than this period have been regarded as too long to admit the evidence. The accused's solicitor advocate pointed to a range of such examples in case law authority. Nevertheless, it is well-established that the period of delay is not determinative: R v XY (2010) 79 NSWLR 629 at [79]. Indeed, in R v Gregory-Roberts [2016] NSWCCA 92, the Court of Criminal Appeal permitted complaint evidence to be admitted notwithstanding a period of delay of 28 years, having regard to the consistency in the complaint evidence and the account given to the police. In that case, the Court of Criminal Appeal observed that the main question is the state of the complainant's memory.
8. At any rate, in Bauer, with reference to s 66(2A)(a), the High Court (at [89]) noted that the nature of the sexual abuse may remain fresh in the memory of a victim for many years. Important, in this regard, when reference is made to the YouTube commentary was the specific description of the alleged sexual offending (both charged and uncharged). The description resembles, very closely, the accounts given in witness statements supplied by the complainant to the police in March 2019 and August 2020, in evidence on the hearing of these applications.
9. To reiterate, the Crown's case is that the alleged offence closely resembled a range of uncharged acts which were of a very similar character. That is to say, the allegedly offending conduct, and the uncharged acts, commonly involved the accused lying on top of the complainant, whilst he was aged 13, kissing him on the mouth and moving his body on top of the complainant. The YouTube commentary does not itself referred to the sexual gratification that the accused obtained from this - he does not mention feeling the accused's erect penis - although certain inferences might be drawn from commentary about his gratification. In any event what was represented in 2016 or 2018 as being done was fundamentally similar to what was represented in the complainant's police statements. I accept, further, at the point of admission under s 66, that the nature of the events, objectively, was likely to be traumatic. The charged (and uncharged) alleged acts of the accused, as described, were unusual for a 13 year old boy. I consider it is likely that the complainant's memory of them would endure, even for 27 or 28 years (and beyond).
10. As to the accused's submission regarding a lack of reliability in the complaint evidence, that submission is rejected. The question of admissibility, subject to any exclusionary provision, is approached on the assumption that the evidence of complaint is truthful, as I have already said, credible and reliable. In this regard, I observe that although no specifics of the alleged charged and uncharged conduct were apparently (ie by reference to witness statements supplied by) conveyed to Mr Gammon, the YouTube commentary is consistent with what Gammon is expected to say was disclosed to him.
11. In my view, on balance, the evidence is admissible under s 66(2).
12. This brings me to s 137. In its original unredacted version, the document refers to two matters which are prejudicial. The first is the suggestion that conduct by the accused had a connection with the complainant being abused by another person who, although his name was not stated in the commentary itself, was identified as being Mr Gammon; and, secondly, some emotive language in which he labels the accused as a paedophile. The Crown reacted to the accused's objections to that evidence, on the ground of prejudice, by supplying to the Court at the hearing of the application a redacted version of the You Tube commentary which excised those references.
13. But the solicitor advocate for the accused contends that it does not go far enough. He took objection to the reference to the complainant's use of the expression "it's not homosexuality" followed by a description of the acts which the complainant alleges that the accused engaged in. Further he took objection to the complainant's reference to the accused being 'affectionate'. The latter, it is said, is a species of tendency reasoning.
14. I will address the Crown's redacted version before addressing these specific objections. I consider that, subject to a reservation, the redacted version goes a long way to limiting unfair prejudice to the accused. My reservation is the last line of the commentary, in which the complainant gives vent to his emotional attitudes towards the accused. In my opinion, the admission of that last sentence in the redacted version is plainly emotive and also unfairly prejudicial and should be excised.
15. Turning now to the accused's objections, in my view the words "it's not homosexuality when", which amount to the expression of a lay opinion, does carry the risk of a trier of fact (a jury less so than a judge) misusing the evidence of the acts which are described. Subsequent to receiving the accused's objection, the Crown has also accepted that, as part of its redacted version of the YouTube commentary, the words 'it's not homosexuality when" should be excised. That is appropriate.
16. As to the second objection, I do not regard the complainant's use of the word 'affection' as constituting unfair prejudice. To the contrary, it places the alleged uncharged and charged acts in the most benign light for the accused. At the very least, I would have thought, a person kissing the complainant on the lips, male or female, gay or straight, would betoken an act of affection. The objection to this word is rejected.
17. Subject to the additional excision of the current last sentence of the most recently proposed redacted version, I allow the admission of the document containing the YouTube commentary.

EVIDENCE OF SEXUAL REPUTATION OR EXPERIENCE

1. On the indictment, the offence for which the accused is charged was said to have occurred between 31 July 1989 and 8 October 1989. Before, during and after that period, the complainant had a certain level of sexual experience and sexual activity. The accused wishes to adduce evidence about that sexual experience.
2. To do so, the accused must overcome the prohibition on the admissibility of evidence referred to in s 293(3), which provides that evidence that: "discloses or implies-- (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity is inadmissible"
3. Section 293(4) relevantly provides that this prohibition does not apply, amongst other grounds: "(a) if the evidence-- (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant ……. and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission."
4. Specifically, the accused wishes to adduce evidence of the complainant taking part in two discrete aspects of sexual activity: 1. sexual activity with a gardener at Southern Sydney Refuge on 25 June 1989; and 2. at certain dates in September 1989, he engaged in sexual activity at the Wall in the Kings Cross area.
5. The accused submits, firstly, that the evidence is relevant. It is relevant at least to the complainant's credit, because it is argued that it undermines evidence he gave to the police to the effect that he did not realise that the charged and uncharged acts he alleges were perpetrated by the accused were inappropriate; and also his expected evidence that he only came to know of the accused's sexual interest in young males because of what he was told by Gammon.
6. It was also relevant since at least in relation to the second aspect of sexual activity, there was evidence to show that the accused's conduct in looking for the complainant at the Wall, having the awareness that the complainant had had a history of male prostitution, before complaining to DOCS, to the police, and also to the complainant's mother, about the complainant leaving the Mission with Gammon was inconsistent with his acting in a way that he was himself a sexual abuser. It was suggested that the complainant's returning to the Mission after his absconding was inconsistent with the complainant's allegation that he had already been indecently assaulted by the accused.
7. The accused's solicitor advocate then addressed s 293. He submits that the evidence of sexual activity with the gardener in June 1989 was part of the complainant's sexual experience "at or about the time of the commission of the offence". He also submits that the sexual activity itself was at or about the time of the offence. Then, he submits that s 293(4)(ii) was also satisfied. Mr Walsh candidly indicated that he wanted to cross-examine the complainant on whether he had made a false allegation of sexual assault against the gardener.
8. The accused submits, also, that the sexual activities at the Wall occurred at or about the time of the commission of the offence. In each case, the requirement in s 293(4)(a)(i) was satisfied. Further, the evidence concerned events that were part of a connected set of circumstances in which the alleged offence occurred, thus satisfying s 293(4)((a)(ii). It was submitted that the complainant's sexual history was so connected, temporally and factually, with the accused's conduct and handling of him that exclusion of the evidence would lead to an unfair trial.
9. The accused referred to evidence to the effect of the uncharged acts occurring every night.
10. Further, or alternatively, the accused submits that the sexual activities in relation to both gardener and at the Wall occurred at a time sufficiently proximate to the concept of a 'relationship', between accused and complainant, for the purposes of s 293(4)(b) of the CP Act.

Consideration

1. I propose to treat the two species of incident separately.
2. The two requirements in s 293(4)(a)(i) and (ii) are cumulative. That is, both limbs must be satisfied: JWM v R [2020] NSWCCA 248 at [57]. In Jackmain v R [2020] NSWCCA 150 ('Jackmain'), Leeming JA identified (at [193]) the first limb as imposing a temporal restriction; whilst the second limb imposed a restriction in terms of connectedness.

The sexual activity with the gardener

1. As to the gardening incident, I am not persuaded that this episode formed part of a connected set of circumstances in which the alleged offending by the accused occurred, so as to satisfy the requirement in s 293(4)(a)(ii). Here, the evidence was the complainant only came under the care of the accused on 5 September 1989. At its highest, although the indications are imprecise, the incident with the gardener occurred in June 1989.
2. The only circumstance suggestive of a connection between the activity in June 1989 and the alleged offending, according to the solicitor advocate for the accused, was that he wanted to demonstrate that the complainant had made a false allegation about being subject to a sexual assault. His argument was that if the complainant made a false allegation of sexual abuse by someone in the past, prior to the alleged offending, then this was relevant to his general credibility and, in that way, was connected to the alleged offending.
3. This argument was rejected by the Court of Criminal Appeal in Jackmain. As Leeming JA (delivering the leading judgment) noted, at [193]-[194], s 293(4)(a)(ii) is directed to particular events and imposes a restriction on the connectedness between those events. Although in that case, the time discrepancy was much more marked than the time discrepancy between the June 1989 incident with the gardener and the alleged offending in September or October 1989, the principle is the same: there must be a connectedness between the events. That connectedness is not established by a mere 'relatedness', in the sense of an alleged propensity in a complainant to fabricate allegations.
4. This means that the exception in s 293(4)(a) does not apply. If I am wrong, I would have found that the sexual activity had not occurred at or about the time of the offence; occurring, as it apparently did, months before the subject offending. In saying this, in my view it is not necessary to determine the continuing status of the holding in R v Burton [2013] NSWCCA 335 per Simpson J (R A Hulme J and Barr AJ agreeing) at [79] that the temporal requirement is measured in hours, following later decisions of the Court of Criminal Appeal in R v Edwards [2015] NSWCCA 24 or Jackmain. But I note that in Jackmain, Leeming JA (delivering the lead judgment) at [191] alluded, without disapproval, to part of the Attorney-General's observations, when introducing the bill, to the effect that the inquiry about the prior sexual activity with other persons should not be made in relation to conduct occurring 'last week, last month, or last year'. That observation makes me even less likely to depart from the test indicated in Burton even if I had authority to do so. I would have found that an event occurring a good two months (plus) prior to the alleged offending did not have the temporal proximity to engage s 293(4)(a)(i).
5. The accused did not place any reliance upon the exception in s 293(4)(b) to sustain the admissibility of evidence relating to this incident.

The Wall

1. Notwithstanding the date range in the indictment, the Crown contended that the period in which the complainant was under the accused's care was in the narrower range of 5 September 1989 to 10 October 1989. For present purposes, however, the point is that no single date is specified for the alleged offence. That, to my mind, has ramifications for the aspect of temporal proximity in s 293(4(a) and (b)).
2. The solicitor advocate for the accused developed the argument, which was not contradicted by the Crown, that in the circumstances that occurred after the alleged offence had happened, and as part of his complaint, the complainant instructed his lawyers to make a demand for the purpose of obtaining compensation against the Uniting Church in which it was asserted that the accused had groomed him and was responsible for the sexual misconduct later (but not much later) perpetrated upon him by Gammon. In his statements to the police, the complainant conveyed the impression that it was only from October 1989, when he met Gammon, that he came to realise the wrongfulness of what he alleged the accused had done to him. The complainant did not, in this respect, differentiate between the uncharged acts and the alleged offence in question.
3. It was said that the prosecution had disavowed any assertion of grooming by the accused and so the assertion was relevant to the complainant's credibility. Further, the solicitor advocate pointed to multiple instances, at or around the time of the alleged offending, in which the accused, who it was said knew of the complainant's acts of child prostitution, had sought out the complainant at the Wall in Kings Cross. This was not, it was submitted, and with reference both to the uncharged acts and the alleged offending, conduct consistent with his being, or having been, a child sexual abuser. The frequency of the acts of child prostitution also gave context for the evidence that the complainant gave to the police of his saying that the uncharged acts occurred "every single night whilst I was in the (accused's) care". The Crown emphasised that this was not inconsistent with evidence that might suggest that at least during the period when he was under the accused's care, there may have been some nights when he was not at the Mission, and could not have been abused. That construction of what the complainant said may be right, but it is not the only interpretation of what the complainant said in his witness statements or what he might say when he gives evidence.
4. In my opinion, the evidence concerning acts of child prostitution at a point temporal to the uncharged acts, and charged act, is relevant to assisting the trier of fact to evaluating the true relationship between the accused and the complainant at the time of the commission of the alleged offence. The Crown did not dispute that there was evidence of more than one instance of child prostitution in the period covered by the indictment, which, I reiterate, does not specify a single date when the alleged offence occurred. There was, to take one example, a note within documents before the Court on the application (Exhibit B on the Voir Dire) recording an entry made on 12 September 1989 of the complainant 'prostituting himself'. Other documents produced by DOCS suggested acts of the complainant absconding on 9, 10, 13 and 17 September 1989. Evidence to suggest that, contemporaneously with the period in which it is said that offending (and uncharged acts) occurred, the complainant was engaging in multiple acts of child prostitution does bear upon the nature of the relationship between accused and complainant. It is relevant to establishing the opportunity for the accused to engage in the uncharged acts and alleged offending, about which the complainant gives evidence. It is also relevant, at least, in the sense that the inquiries of the complainant, and complaints made to authorities by the accused, may bear upon the characterisation of the relationship between accused and complainant. Certainly, the accused's case, as argued in the pre-trial application, is that his conduct evinced concern for the complainant, which may ground an argument that he behaved as the trier of fact might think a respectable person in his position would act. At least it could be used to counteract the Crown's case that he misconducted himself in the sense alleged.
5. In circumstances where the Crown itself does not pinpoint a particular date when the alleged offending occurred and, moreover, relies upon a series of uncharged acts, of a similar kind, to prove the tendency and therefore the offending, in my view it is unnecessary for the accused to pinpoint, with any greater temporal specificity, when the complainant's acts of child prostitution occurred.
6. I am satisfied that the exception in s 293(4)(b) of the CP Act is made out.
7. I must then consider the balancing test in s 293(4). After oral argument had concluded, the Crown was invited to supply authority to demonstrate how the balancing exercise had been exercised in earlier authorities. As it was, the Crown did supply the Court with three authorities. Upon my brief perusal, none of them appeared obviously to address the point in which I was concerned, being how the balancing exercise had been carried out in past cases.
8. I find that the probative value of the evidence is significant. The evidence may undermine the complainant's credibility when he asserts that he belatedly (and only as a result of a conversation with Gammon) came to realise the wrongfulness of the accused's conduct, and/or that the accused had groomed him. It is relevant to establishing that the accused, when he sought to inquire of the complainant's whereabouts and thereafter complained to different persons, engaged in conduct which might be accepted by the trier of fact as being inconsistent with his being an alleged child sex abuser.
9. In the way that s 293(4) is drawn, although it speaks, implicitly of possibility of distress, humiliation or embarrassment, it is the case that those results are almost presumed. But even if that it is not right, I accept that there is at least a possibility of distress, humiliation or embarrassment at evidence that might expose the complainant as having engaged in acts of child prostitution in temporal proximity to the alleged offence and the alleged uncharged acts and the nature of his relationship with the accused.
10. Nevertheless, and whilst regretting the likely consequence of that emotional harm to the complainant, in my opinion, the balancing exercise weighs in favour of the probative value outweighing that distress. The liberty of the accused is at stake and his capacity to raise a defence, including also his capacity to cast reasonable doubt upon the Crown case, in my view predominates. I note, in this regard, that the complainant's evidence will be given in camera, which confers protection, of sorts, to him, in terms of his reputation; which might to some extent alleviate emotional harm arising from the questioning.
11. My findings about s 293(4)(b) makes it unnecessary to consider s 293(4)(a). The Crown did not dispute that acts of child prostitution around the time of the alleged offending meant that the temporal requirement in s 293(4)(a)(i) was made out, in the sense of it establishing the complainant's sexual experience at or about the time of the alleged offending. For the same reasons that I have found that the evidence relates to the relationship between complainant and accused, the requirement in s 293(4)(a)(ii) would also have been made out.

Scope of questioning

1. Section 293(8) requires the Court to identify the nature and scope of the evidence that is admissible.
2. To assist with that responsibility, I refer to the document that the solicitor advocate furnished the Court during argument, being a schedule of the proposed questions to raise of the complainant (MFI 4). The Crown availed itself of the opportunity to make written submissions responding to the proposed questions after the close of verbal argument.
3. It follows from my ruling that questions 1-7 (incl), relating to the 'gardening incident' are rejected.
4. As to the balance, in my view, there is a distinction to be drawn between absconding for the purpose of engaging in acts of child prostitution and absconding for other reasons, where the documents suggest that the distinction is clearly apparent. The question concerning an event on 12 September 1989 falls into the latter category (question 11). I agree with the Crown's submission that this question does not arise under s 293.
5. Question 37, in its form is too vague as to potentially mislead the complainant and is rejected.
6. More generally, questions 32-38 are objected to by the Crown, on two bases. First, the Crown submits that they would not arise under s 293. Secondly, they are framed on a false premise, being that the anticipated evidence of the complainant will be that he only made complaint after he had googled the accused in 2018 when, in fact, his evidence is likely to be that he realised the wrongfulness of the accused's alleged conduct after speaking with Gammon on about 10 October 1989.
7. I reject those objections. First, the questions, as a whole are, as I have said, relevant to the relationship as between the complainant and the accused at or about the outer point of the period charged on the count in the indictment. There is sufficient temporal proximity. Secondly, on their face, the questions do not contain the suggested premise and are not misleading. At any rate, the accused is entitled to ask questions which test the complainant's evidence of when he first realized that the accused's conduct was wrongful as they go to his the nature of the relationship with the accused, and also his credibility.
8. Question 33, as the Crown points out, curiously appears to refer to matters which, whatever answers are supplied, is apt to generate the prejudice to the accused which underscored the accused's objections to tendency evidence and his application to have a trial by judge alone. The question on its face alludes to the accused's gay conversion therapy subsequent to the offending. In my view, I should not bar the question. It is a matter for the accused's solicitor advocate, but if the question is asked, it may have forensic consequences for the accused not intended by raising the question.
9. The Crown objects to Questions 45-58. I propose to break those questions down.
10. Questions 45-50 relate to an assertion, express or implied, made by the complainant as it appears in the evidence to suggest that the accused was responsible for grooming the complainant in a way connected to Gammon. In my view, that evidence falls outside the scope of s 293. The pertinent question is the nature of the relationship between the complainant and the accused which explains the circumstances of the accused's offending. Conduct by the accused, apparently after the offending has occurred and which contributes, in some way, to someone else's offending is not probative.
11. Questions 51 to 53 are addressed more directly to Gammon's criminal conduct. In my opinion, questions about the crime Gammon perpetrated upon the complainant falls outside the scope of s 293, are not sufficiently proximate to the alleged offending by the accused and similarly do not go to the relationship with the accused, so those questions are not permitted either.
12. As to questions 54-58, to the extent that they are directed to the complainant's subjective beliefs or motivation in relation to Gammon, those questions fall outside the scope of s 293 and are not permitted.
13. In summary, I would permit the accused's solicitor advocate to ask questions 8-10, 12 - 32, 33 (if the solicitor advocate is willing to run the risk adverted to), 34-36, 38 and 39-44 (incl).

APPLICATION FOR TRIAL BY JUDGE ALONE

1. The accused makes application for trial by judge alone under s 132(1) of the CP Act. He also relies upon s 365 of the same legislation, which was amended to address the COVID-19 Pandemic. I note, in the latter respect, that during the course of the hearing of these applications, it appears that the operation of s 367 and therefore s 365 is currently being in the process of being extended by the COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021, which has passed both houses and awaits Royal Assent. The effect of the legislation is to extend the operation of the provision up to 26 September 2021, with an option for another 6 months.

The Accused's submissions

1. The accused accepts that he bears an evidentiary onus for establishing that it is in the interests of justice for the trial to proceed by judge alone, although this was displaced in the circumstances of the pandemic and the issue of how a fair trial is to be achieved was at large.
2. In the accused's written submissions, the considerations said to point to the desirability of the trial being by judge alone were:

• it was the accused's subjective view that he could not receive a fair trial by a jury;
• an advantage of trial by judge alone is that the judge must provide reasons; thereby enhancing confidence in the administration of justice.

1. During the hearing, the solicitor advocate, Mr Walsh, was granted leave to rely upon an affidavit he had prepared shortly before the hearing. The evidence was adduced to prove that there had already been extensive adverse media publicity concerning the accused since his arrest on 14 January 2020.
2. In his oral submissions, the solicitor advocate for the accused pressed that evidence of homosexual ideation and the accused's subsequent re-orientation towards heterosexuality would, essentially, be too much for a jury to bear in terms of discharging their duties impartially and dispassionately. There was a risk that one or more jurors might be irredeemably prejudiced against the accused which no direction to the jury could arrest.
3. Further, with reference to decisions of Elkaim J in the Supreme Court of the Australian Capital Territory (R v Coleman [2020] ACTSC 97) and Lerve DCJ in this Court (R v BD (No.1) [2020] NSWDC 150, the incidence, and continued risks associated with the Pandemic favour a trial by judge alone. The accused's solicitor advocate submitted that there was a risk of disruption, or perhaps interruption, to a trial by jury because of the pandemic.
4. In Mr Walsh's affidavit, he referred to and annexed articles relating to the accused's charges and appearances in the Court, and also extensive internet coverage. That internet coverage not only concerned him, but also a Crown witness, Mr Anthony Venn-Brown, who was said to have had a significant role in the accused's arrest and charging.
5. Mr Walsh deposed to the nature of the publicity, as being not merely the circumstance that the accused was a former Minister of the Uniting Church, but that, also, he ran "one of the country's most prominent gay conversion therapy programs". Reference was made to an internet article in which one of the state's well-known plaintiff's law firms encouraged compensation claims for harm allegedly perpetrated by the accused.
6. Another category of material which prompted concern was to evidence tending to indicate the accused's gay conversion.
7. In relation to Mr Anthony Venn-Brown, it was said that this witness' background indicated that he has an ideological hostility towards the accused, having an agenda in which he seeks to criminalise gay conversion programs.

The accused's preference and confidence in the administration of law

1. The accused's preference for trial by judge alone is respected, but it is hardly determinative. Trial by judge alone is not available simply because the accused asks for it. In R v Stanley [2013] NSWCCA 124, Barr AJ (Macfarlan JA and Campbell J agreeing) at [42]-[43] observed that the interests of the accused are not simply coterminous with the interests of justice. A collateral benefit to trial by jury is the community's involvement in the administration of justice which helps keep the law in touch with community standards. As Spigelman CJ said in R v Jamal (2008) 72 NSWLR 258 ('Jamal') at [24], public confidence in the administration of the system of criminal justice turns, to a significant degree, upon its participation.
2. The generic suggestion that the administration of justice is better served by a Judge who can articulate reasons, than a jury which does not, pays no heed to, and derides, the historical importance of justice delivered by juries and, indeed, is contrary to the existence of the public interest which underpins the conventional practice of trial by jury: DPP v Farrugia [2017] NSWCCA 197 at [10], in which reference is also made to constitutional considerations underpinning trial by jury.
3. It became tolerably clear in the course of oral argument that part of what underpins the accused's preference for trial by judge alone is the accused's fear of what the jury might make of his sexual re-orientation from homosexual to heterosexual and public statements he has made, explaining the process of that re-orientation. In particular, he is concerned that the public statements he made might be misconstrued as those of a religious bigot and/or homophobe.
4. This concern, the solicitor advocate for the accused accepted, underscored the objection under s 101 to the tendency evidence relying upon the accused's public statements to suggest that, at the time of offending, the accused had a sexual interest in young males.
5. As these earlier reasons indicate, the parts of those public statements which indicate that the accused had undergone a sexual reorientation and the means by which he did so are excluded.
6. That should, reasonably, dispel the accused's concern about any impression that the statements made by him he might be viewed as those of a religious bigot or homophobe.
7. That could still leave in him a concern that a jury might think that, contemporaneously with the alleged offending, or the uncharged acts, he had homosexual ideation, and that he did so in the capacity of being a Minister of the Uniting Church. He submits, in particular, that there remains a bias against LGBIT persons which might influence jurors' decisions. That being so, whatever directions were made to them, there was a latent risk that the jury would not respond rationally to directions and be distracted because of their emotional response to the evidence.
8. I do not share the accused's pessimism that the jury, or jurors, may be treated as being biased against middle aged males alleged to have engaged in sexual offending against children when they were (a) gay; and (b) associated with a religious body. As I observed elsewhere in these reasons, in view of the array of incidents identified in the Royal Commission, and, since then, prosecutions, I doubt that any community member having a reasonably broad exposure to current affairs would be instinctively shocked at such allegations, as if they were hearing them for the very first time. But jurors understand the difference between allegations, even those referred to in the media, and proof of the allegations in a criminal trial. I acknowledge that there is a risk of prejudice, but in my opinion, no differently to other similar prosecutions in similar circumstances, that risk can be addressed by judicial direction. In circumstances where the Crown does not propose to lead evidence and, where such evidence that it does seek to lead will excise references to his sexual reorientation, aside from the point of media publicity which I will address below, I do not understand how the accused's position fundamentally differs from any other person charged with conduct of the type that was identified at the Royal Commission. Moreover, the circumstances that there has been a Royal Commission into institutional sexual abuse involving institutions such as religious bodies, in my view, adds weight to the consideration that community involvement in the prosecution of alleged offences for conduct of the kind will actually augment public confidence in the due administration of criminal justice.

The Covid-19 argument

1. The decisions identified for the accused were delivered on 22 April 2020 and 29 April 2020, respectively. That is nearly a year ago at a point in time, according to my recollection, when this State (and, I believe the ACT) was in some form of lockdown. The legislation which the accused relies upon was generally intended to keep the essential services of government, including the judicial arm of government, ticking away.
2. The experience of the ensuing year shows that there are no guarantees about this Pandemic. The recent extension of the operation of the CP Act reflects that. But at the risk of undue parochialism and without wishing to tempt fate, the experience also shows that in this state, with the tracking that has been in place in the ensuing year, outbreaks have been effectively managed, in the sense of being localised. There is no reason to think that they cannot be continue to be reasonably managed. We are not currently in an emergency that gripped this state, and other parts of the country nearly a year ago, and it is not currently foreseeable that we will be. Trial by juries in criminal proceedings has been a functioning feature of this Court's work for many months now. Indeed, the Court is now quite used to and, if I may say so, is adept, at deploying social distancing restrictions to mitigate any risk.
3. I reject this consideration as having any real weight.

Media publicity

1. The solicitor advocate did not elaborate on the significance of this evidence, which had not been referred to in written submissions before the hearing of this application. He eschewed the opportunity to make verbal submissions about the point in argument at the hearing of the pre-trial applications.
2. The Crown submits that the media interest, such as it is, has not been apparent since February 2020, at or about the time of committal, subject to one article in November 2020. I accept the Crown's submission, borne out by the absence of publicity over the course of 2 days' of argument in pre-trial applications, that pre-trial publicity has abated. That is a significant factor when considering the likelihood of jurors being prejudiced on account of what they have heard in the media: R v Obeid [2015] NSWSC 897 at [61]. In the same decision, Johnson J drew no distinction between long-standing forms of media and the internet (at [62]-[64]).
3. I do not share the accused's lack of confidence in the capacity of jurors to put aside prejudice and follow directions. I refer, in this regard to the observations of Spigelman CJ in Jamal at [17]-[21], in which his Honour, after surveying earlier case-law authority, reaffirmed:

• the decisive rejection of the proposition that jurors are "exceptionally fragile and prone to prejudice" and
• the prevailing assumption in criminal justice that jurors are true to their oaths and comply with judicial directions.

1. I am not persuaded that media publicity in this case, affecting the accused is of such currency or intensity as to cast doubt upon the capacity of jurors, properly directed, that they are not to allow media publicity to distract them from their task of impartially assessing the evidence.
2. In short, the arguments raised on the accused's behalf for departing from the historical and conventional involvement of juries in participating in the administration of criminal justice are not persuasive. Further, having regard to manifest signs of the community's interest in the prosecution of alleged offences relating, generically, to child sexual abuse in institutions, such as a religious body, there is much to be gained by the community's involvement.
3. The accused's application for trial by judge alone is rejected.

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