CRIMINAL LAW - Appeal - Interlocutory appeal - Ruling by judge that evidence of complainants cross-admissible - Whether reasonable possibility of collusion or contamination - Whether judge wrongly approached matter by treating applicant as carrying burden of proof - Whether judge erred by making findings upon matters of disputed fact - Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded - Appeal allowed - Ruling set aside - In lieu, ruling that evidence not cross-admissible - Question whether indictment should be severed remitted for re-hearing and determination by another judge - Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW - Appeal - Interlocutory appeal - Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with 'grooming' by sex offenders - Concession by Crown on appeal that evidence inadmissible - Concession rightly made - s 79 Evidence Act 2008 - Whether witness had relevant expertise - Whether evidence had any probative value - Circularity - Whether, in any event, evidence should have been excluded under s 135 Evidence Act - Whether evidence was about a matter upon which expert evidence was receivable - Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act - Whether, if so, evidence should have been excluded under s 101 - Whether unacceptable risk that evidence would trespass into propensity evidence - Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act - Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW - Appeal - Interlocutory Appeal - Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication - No reasons given - Note made by counsellor of statement attributed to complainant - Note contained in confidential communications earlier released for inspection by accused's legal advisers - Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial - ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 - Whether peremptory refusal complied with statutory obligations imposed upon judge - Whether peremptory refusal and later ruling supportable - Appeal allowed - Ruling set aside - In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW - Appeal - Interlocutory appeal - Ruling that prosecution might adduce evidence of accused's pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates' Court in, 'rebuttal' if credibility of victims of those offences was challenged in cross-examination - Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence - Crown statement that evidence of some witnesses would not be relied upon at a trial - Whether any basis revealed for prosecution being permitted to split its case - Consideration of possible juridical bases upon which evidence might be admissible - Appeal allowed - Ruling set aside - In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

1 On 12 February this year the Court granted leave to an accused man to appeal against five interlocutory decisions made by a County Court judge.[1] It allowed the appeals, set aside the decisions, in part remitted matters for consideration by a different judge and in part made rulings in lieu of those which had been struck down. It stated that it would later publish reasons for that disposition. These are those reasons.[2]

2 The appellant[3] pleaded not guilty before the judge to an indictment containing 10 charges - nine of indecent assault and one of rape - four of the charges being referable to KL, three to AJ and three to KG.

3 On 11 November last year, the judge began to hear pre-empanelment argument. A number of issues were raised for her Honour's determination by both prosecution and defence. Certain evidence was adduced, and counsel made submissions.

4 The impugned rulings ('the rulings') were some only of the rulings which the judge made.

5 In the case of each of those rulings, the judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 ('the CPA').[4]

6 Broadly speaking, the effect of the rulings, and this Court's resolution of the challenge to them, was as follows:

• The judge refused an application to permanently stay the charges referable to KL and AJ. The Court set that decision aside, and remitted the application for re-hearing and determination by a different judge.

* ruled that the evidence of KL and AJ was cross-admissible in respect of the seven charges referable to one or other of them. The Court set that decision aside, and in lieu thereof ruled that the evidence was not cross-admissible;

* ruled that evidence which the Crown proposed to lead from KG was admissible as tendency evidence in the appellant's trial on the charges referable to KL and AJ. The Court set that decision aside, and remitted for consideration[5] by a different judge the question whether that evidence was admissible upon the charges (except the charge of rape)[6] referable to KL and/or AJ;[7]

* ruled that evidence which the Crown proposed to lead from five women who had been complainants in a criminal proceeding brought against the appellant in 2008 (shortly, though not wholly accurately 'the 2004 witnesses') was admissible as tendency evidence in the appellant's trial on all the charges on the indictment. The Court set aside that decision. It remitted for consideration by a different judge[8] the question whether the proposed evidence of three of those witnesses ('the Berwick witnesses') was so admissible, except on the charge of rape. Otherwise, it ruled that the proposed evidence was not admissible;

* ruled that the charges on the indictment should not be severed. The Court set aside that decision, and remitted for consideration by a different judge[9] the question whether there should be severance, and, if so, its extent.

• The judge ruled that the opinion of a psychologist, Dr Owen - broadly, to the effect that behaviour of the appellant antecedent to commission of the alleged offences against the three complainants was consistent with him 'grooming' the victims in preparation for offending - was admissible. The Court set aside that decision, and ruled that the evidence was inadmissible.

• The judge refused leave to the appellant to adduce 'protected evidence' - the contents of a diary note dated 24 March 2009 ('the 24 March note') - in cross-examination of KL.[10] The note, made by Dr Jude, a psychologist who has treated KL since 2008, purported to record certain statements made by that complainant. The Court set aside the decision, and in lieu thereof ruled that the protected evidence may be adduced on cross-examination of KL, both on the remitted application for a permanent stay, and in a trial which may be had relating to any charge on the indictment referable to KL.

• The judge ruled that the prosecution might adduce evidence of guilty pleas entered by the appellant in 2008 respecting the 2004 witnesses, and of an agreed summary of facts upon which the pleas were entered. This would be permitted in 'rebuttal', if the appellant challenged the credibility of those witnesses. The Court set aside that ruling. It remitted for consideration by a different judge[11] the question whether evidence might be adduced by the prosecution of the pleas and summary, so far only as they related to the (three) Berwick witnesses. Otherwise, it ruled that the proposed evidence was not admissible on any trial of the appellant which might be had on this indictment.

7 The foregoing thumbnail sketch of the rulings and the effect of our disposition of the appeals allows us to go into the matter more fully.

8 The charges brought against the appellant are as follows:

9 Unusually in the case of historic sex offences, all of the charges referable to KL and AJ, as can be seen, are alleged to have involved misconduct on particular dates between 21 February and 11 April 1987. The appellant was aged 29 in that period, and KL and AJ were both aged 15.

History of proceedings up to 11 November 2013

10 The appellant was charged subsequent to AJ, KL and KG making statements to the police between late 2008 and late 2010. There was a committal hearing in January 2013. Thereafter, it appears, the appellant was charged with offences against six persons on the one indictment.[13] At some stage before the hearing before the judge began on 11 November, the one indictment was replaced by three, one of which was the indictment relevant to these appeals.

11 A number of preliminary hearings were held before 11 November. Later in these reasons we will refer to some of what transpired at directions hearings, held before different judges, on 4 and 23 October 2013; and at a mention before one of those judges on Friday, 8 November.

12 It is next desirable to describe the impugned rulings a little more fully. There were five of them, although there were only four appeals. As can be seen from the table below, by what we will call 'Appeal No 2' the appellant challenged two rulings; and within one of them, a number of sub-rulings.

Defence application for permanent stay of trial re KL and AJ

Crown application to rely on tendency evidence and cross-admissibility thereof

Tendency evidence cross-admissible, severance refused

Defence application to exclude opinion evidence of Dr Owen as to grooming behaviours of child sexual offenders.

Defence application[14] under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 for leave to adduce evidence disclosing confidential communications, namely Dr Jude's counselling notes re KL

(Ruling No 8 of 4.12.13 re disclosure through Dr Gibbs - this ruling is NOT challenged on appeal)

(Ruling No 11 of 6.12.13 re disclosure through KL)

Crown application to lead evidence of appellant's guilty pleas and agreed statement of facts in Magistrates' Court of Victoria in 2008, relating to sexual incidents in 2003-4 against other complainants, some of whom are to give tendency evidence for the Crown

Evidence admissible in rebuttal if defence challenges witnesses' accounts of what occurred

(Ruling No 13 of 12.12.13) ('Guilty plea Application')

12 It is next convenient to set out some of the circumstances of the matter in chronological order. For the most part, at this stage, we will eschew reference to what the judge said in her impugned rulings about those circumstances.

13 The material upon which the following recitation of circumstances is based includes - (a) statements made by KL and AJ to the police; (b) the depositions of KL and AJ at a committal hearing held in early 2013; (c) the evidence of each of those complainants on a voir dire; (d) the statement, made in 2010, of a school teacher (Mr Rojo), his evidence at the committal hearing, and notes which he made in 1987; (e) statements of a school counsellor, Ms De Young, made in October 1987 and April 2013, and her evidence on a Basha enquiry; (f) the statement of KL's mother made in November 2013, and her evidence on a Basha enquiry; and (g) the 'redacted' 1987 diary entries of KL and AJ.

14 The prosecution case concerning KL is that the appellant indecently assaulted her during a private music lesson at his home on Saturday 21 February 1987, indecently assaulted her the following Saturday 28 February whilst driving her to a matinee performance of a musical which she had been given permission to attend with him, indecently assaulted her on Saturday 7 March when she was at his home for a private music lesson, and raped her on Saturday 21 March when she was at his home on a second occasion.

15 The prosecution case concerning AJ is that the appellant indecently assaulted her on 9 April 1987 when, whilst at a tramways depot, he had her sit on his lap, that he indecently assaulted her on Saturday 11 April whilst he was walking her to a seat at a matinee performance of the musical which she had been given permission to attend with him, and that he indecently assaulted her later that day at his home.

16 The appellant denies any sexual misconduct and has filed alibi notices. The second of them, which supplanted the first, alleges that on 21 March and 11 April 1987 he performed in the orchestra for the musical to which we have referred and that his doing so meant that he could not have raped KL (charge 5) or indecently assaulted AJ (charge 8).[15]

17 On 15 April, some days after the last offending conduct had allegedly taken place, KL and AJ discussed the appellant's conduct by telephone. The following day, they met and discussed it further.

18 In mid 1987, in circumstances about which Mr Rojo, KL and AJ have given considerably differing accounts, Mr Rojo and later Ms De Young learnt that the girls were alleging that they had been sexually assaulted by the appellant. The matter was reported to the headmaster, and it appears that the complainants repeated their accusations to him. On 30 July 1987, the appellant was summarily dismissed, no reason being given.

19 The appellant retained a solicitor, Mr Hubbard, who engaged in correspondence with the school's solicitors in relation to the dismissal. Through his solicitor, the appellant asserted he had been wrongfully dismissed. His contract of employment required that he be given one term's written notice of termination except if he was terminated for gross misconduct. He also claimed the school had denied him natural justice by failing to provide him with adequate reasons for his dismissal and an opportunity to respond.

20 Following unsuccessful negotiations to resolve the matter - the appellant seeking reinstatement and withdrawal of the allegations of gross misconduct, and the school offering the appellant the opportunity to resign with effect from the date of dismissal - the appellant challenged his dismissal before the Teachers (Independent Schools) Conciliation and Arbitration Board ('the Board'), this being an emanation of the then Industrial Relations Commission of Victoria. A Board hearing was conducted on 6 October 1987.

21 KL and AJ kept personal and school diaries in 1987. Each of them made certain entries in the former. That was the way in which, they have said, they initially identified the dates on which the offending took place. Those dates are the foundation for the detail on the indictment.

22 It would appear that, in preparation for the Board hearing, the school took statements from each of KL and AJ and requested that they produce their personal diaries. The school photocopied parts of the diaries which were said to contain contemporaneous relevant entries, and directed or permitted each of KL and AJ to redact from the photocopies portions of the entries which in their view were not pertinent.

23 It appears that KL, at least, re-arranged and re-photocopied the redacted parts of her photocopied diary entries.

24 The school kept possession of the redacted diary entries and returned the diaries to the complainants.

25 KL and AJ, together with their parents, were requested to attend the Board hearing on 6 October, along with representatives of the school. KL and AJ were requested to bring their personal diaries.

26 KL, her mother and father, AJ and her parents, Mr Rojo and Ms De Young from the school, and the school's solicitor, attended at the Board. The headmaster also did so, according to Mr Rojo.

27 At the Board hearing, the appellant's solicitor opened his client's case. Then the appellant gave evidence. Notes made by the solicitor who appeared for the school show that the appellant was examined, cross-examined and re-examined; and that, at least in re-examination, he relied upon what would be called alibi in the criminal context.

28 KL, at the time, was alleging in substance that the rape had been committed not long after her music lesson had ended at midday at the appellant's home; and (as recorded in notes taken by Mr Rojo) was not suggesting that she had gone home and returned to the premises later on. The appellant's 'alibi' evidence - always bearing in mind that no record of the detail of what he said at the Board is now extant - must necessarily have been directed to meeting that allegation. But subsequently, as will be seen,[16] KL's account of the time at which the rape was committed has varied a good deal. The judge apparently considered that this weakened the significance of the loss of alibi witnesses. For reasons which we will explain, it was the converse.[17]

29 The appellant did not call alibi witnesses at the Board.

30 It is clear that KL was called as a witness for the school, that she produced her diary for inspection, and was cross-examined by the appellant's solicitor. It is not in debate that she found the cross-examination a distressing experience.

31 It is also clear that it was after KL gave evidence that the appellant and the school negotiated a settlement. The appellant was paid one term's salary - his contractual entitlement in the event of termination other than for gross misconduct - and given what the judge described as a 'limited reference', in that it referred to his teaching abilities but omitted any reference to his character. The appellant withdrew his application and the school withdrew its allegation of gross misconduct.

32 Whether any witness other than KL gave evidence for the school before the matter was settled is unclear, and now cannot be ascertained with any level of certainty. Neither is it now possible to ascertain what evidence any such person gave. Mr Rojo said at the committal that he, Ms De Young, and perhaps the headmaster also, gave evidence. But Ms De Young has not so averred, whilst the situation regarding the principal was not illuminated before the judge, or us.

33 Appellant's counsel contended before the judge that the settlement was favourable to his client, this reflecting the fact that KL had gone badly in cross-examination when questioned with respect to entries in her diary - that is, her diary rather than the redacted photocopies. KL's evidence under cross-examination at the committal was that she had been cross-examined at the Board to the effect that entries in her diary, or perhaps the redacted photocopies - we say this because her answers were not clear whether she admitted being cross-examined about entries other than those which had been photocopied and redacted - were a fantasy.[18] KL gave evidence at the committal that they were not.

34 Although a reading of the judge's reasons gives no hint of it, KL was not the only person who has given evidence upon the question whether she was cross-examined at the Board with respect to entries in her diary - that is, other than the photocopied entries.

35 AJ gave evidence at the committal that she was told by KL, immediately after the Board hearing, that this had happened; and that she - KL - had been cross-examined about what she considered were 'irrelevant' entries. One was a comment which she had written about another teacher's hairstyle.

36 Mr Rojo gave evidence at the committal that he had been present during KL's cross-examination, and that she had been questioned about 'other events' that she had recorded in her diary. It was his recollection that KL had been directed to entries where she had made positive comments about the appellant. It was not his recollection that she had been asked whether entries recorded events which had actually occurred. Contrast the evidence of KL on the committal.

37 Proceedings at the Board were not transcribed. Notes of the hearing made by the school's solicitor are sketchy; and, giving evidence on a Basha enquiry, the solicitor stated that he now has almost no recollection of what transpired.

38 After the Board hearing ended, the diaries were returned to KL and AJ. The school kept copies of the redacted photocopies.[19]

39 Later in 1987, KL destroyed her diary, and AJ tore out and destroyed a number of pages.[20],[21] The two complainants have given inconsistent accounts as to whether they respectively knew, in 1987, that the other kept a personal diary; and as to what knowledge each had of the other's destruction of her diary.

40 No complaint was made to the police in 1987 in respect of the appellant's conduct by the school or by the parents of either complainant. KL's mother has said that the school advised against it, and that both the school and she and her husband considered that it would be detrimental to KL's well-being to have made such a complaint.

41 On 12 February 2008, the appellant pleaded guilty to offences of indecent acts[22] committed upon ten female students at two schools, the offences spanning the period between June 2003 and July 2005. Having initially been charged with multiple offences against most of the students, the Charge and Summons sheet was amended after negotiations between the police prosecutor and appellant's counsel so as to allege a single offence against each complainant. A summary of offending was read to the Magistrate.[23] Although there was now a single charge in respect of each complainant, the summary alleged multiple incidents of criminal conduct against each of them.

42 According to the evidence of the police prosecutor before the judge, the magistrate imposed an Intensive Corrections Order and a Community Based Order upon the appellant.

43 It is convenient to interpolate that the prosecution gave notice of intention to call five of the complainants - that is, the five whom we have earlier identified as 'the 2004 witnesses' - to give evidence at the appellant's trial on the present indictment, it being contended that their evidence was admissible as tendency evidence. The appellant disputed that the evidence was so admissible. The judge ruled that it was admissible, as a part of her impugned Ruling No 5, which the appellant challenges by Appeal No 2.

44 We pause further to note that the Crown also sought to make use, at the appellant's trial, of the pleas of guilty and the summary read to the magistrate. The judge ruled that the prosecution could do so, in a particular way. That was the subject-matter of Ruling No 13, which the appellant challenges by Appeal No 4.

45 Returning to the narrative, in 2008 KL discovered that the appellant was facing the charges to which we have been referring. It appears, indeed, that she attended the Magistrates Court hearing.

46 Her discovery ultimately led her to make formal complaint to the police. AJ, having been told by KL that she intended to complain to the police, also decided to make a formal complaint.[24] This sparked an investigation which in time resulted in the laying of charges against the appellant relating to KL, AJ and also KG. The last-mentioned was a student at the school in 1987, although she was some years younger than the others.

47 It is apparently uncontroversial that, in the period between 1987 and the present time, all but one of the brass section of the orchestra in which the appellant played in March and April 1987 have died, that the appellant is unable to identify other members of the orchestra, and that relevant documentation[25] is no longer available. It can be established that the musical to which we have referred was showing at the time, that the appellant did play in the orchestra, and that he did so at matinee and evening performances. The times when those performances began can likewise be established. But it appears that what cannot now be established by an alibi witness (this probably includes the one elderly survivor), is at what time the matinees ended on 21 March and 11 April 1987 and whether the appellant played in the matinee and evening performances on those two dates. That bears upon the appellant's ability to maintain alibi, compounded as it is by the fact that KL's account of the time at which the rape was committed has varied with the passing of time.

48 We next need to say a little about several of the hearings which preceded the hearing which commenced before the judge on 11 November 2013.

49 By 4 October 2013, a number of issues which required pre-empanelment resolution had been identified. On that day, at a directions hearing, junior counsel for the appellant[26] informed the judge that there was to be a stay application. Counsel said that she would need a voir dire 'in relation to that'. She went on to refer to 'a voir dire in relation to collusion which will be relevant to the prosecution seeking to lead tendency evidence that there's a possibility of collusion'.

50 This was apparently a reference to the possibility of collusion between KL and AJ, although before the judge appellant's counsel also contended - unsuccessfully - that there was a possibility of collusion between two of the 2004 witnesses.

51 On 4 October, counsel appeared to link the foreshadowed stay application with a question as to the cross-admissibility of the evidence of KL and AJ. She did not volunteer, nor was she asked, what the connection might be.

52 Counsel went on to foreshadow that certain applications would soon be made under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 for the production of Medicare records relating to KL.

53 The prosecutor then asked whether particulars of the stay application would be provided. The judge replied that 'there was a basis mentioned to some extent by [counsel for the appellant].'

54 Appellant's counsel responded, in effect, that particulars could not be provided until a voir dire had been held. She said that 'this matter was in effect litigated decades ago'. She said that the fact that evidence had been given long ago 'will form part of the stay application'. She did not volunteer, and was not asked, what the suggested significance was of the fact that evidence had been given at the Board. As became apparent before the judge, and later before us, it could have significance for the stay application in a number of ways.

55 Counsel went on to submit that she needed to have a voir dire 'early on in relation to the stay' because she didn't know 'whether the complainant or her family ha[d] approached the police at that time ... '.

56 Then counsel submitted that 'the main thing supporting [the stay application] is that there is significant delay in this case'.

57 The judge then observed to the prosecutor that '[a]pparently [appellant's counsel] has to apply for Basha hearings and see where that goes before any proper submissions could perhaps be formulated'.

58 There the matter rested. The reference to possible collusion had been mentioned, (possibly) in connection with the foreshadowed stay application; as had the fact of the Board hearing and the question whether the police had been informed of the appellant's criminal conduct in 1987. No analysis had been sought or given as to the possible significance of evidence of collusion to the foreshadowed stay application, or of the potential significance of the Board hearing. Counsel had, however, said that particulars in support of the stay application could not then be given.

59 Plain it is that no direction was given which would limit the cross-examination of KL or AJ on voir dire to the issue of possible collusion and as to whether the police had been informed of the appellant's offending in 1987.

60 As will be seen, however, the judge did in fact limit the cross-examination of KL and AJ on the voir dire to those issues. In the case of AJ, she accepted the prosecutor's statement as to what had transpired on 4 October. In the case of KL, she formed her own opinion, having considered the transcript. It was submitted for the appellant, on the appeal against the refusal to grant a stay (Appeal No 1, Ruling No 3), that the judge had erred by wrongly confining cross-examination, with the consequence that her Honour resolved the stay application on incomplete material.

61 We next refer to the directions hearing on 23 October 2013. Before the judge, relevantly, was an application under s 32C of the Evidence (Miscellaneous Provisions Act 1958, for leave to issue a subpoena, directed to the counsellor Dr Jude, to produce certain notes of KL's consultations with her. The judge eventually granted leave for a subpoena to be issued 'only in relation to any account given of the alleged offending' by KL.[27]

62 The matter came back before the judge on 8 November. By then, her Honour had read material produced by Dr Jude in answer to the subpoena. She gave the defence access to almost all of that material. It included what we have called (see [6]) 'the 24 March note'.

63 On 11 November, the judge 'ruled', after brief debate, that she was 'going to proceed with the Bashas', and that she would hear the stay application when she knew what the evidence would be. The persons to give evidence were at that stage identified as KL, AJ, KL's mother, Ms De Young, Dr Owen,[28] Dr Flower, two police officers concerned with the 2008 prosecution and the 2004 witnesses.

64 All those persons, and the solicitor who had appeared for the school at the Board hearing, gave evidence in the period 11 to 19 November. But this is not to say that the evidence took up anything like all of the court time on those days.

65 On 15 November, the appellant filed a s 32C application to cross-examine KL - that is, in anticipation of a trial - upon entries in Dr Jude's notes. That was after KL had been cross-examined on the voir dire, and thus after the judge had peremptorily refused leave to appellant's counsel to cross-examine on the voir dire on the 24 March note. As the appellant would have it, in that note, KL admitted or acknowledged that the redacted photocopies[29] presented her with a problem respecting her allegations of criminal conduct against the appellant. Later on, the judge largely refused that application (Ruling No 11, Appeal No 3).

66 Submissions relating to the many issues alive between the parties were made after the last of the evidence was adduced on 19 November, and the judge progressively delivered Rulings.

67 As we have said, KL and AJ were cross-examined on a voir dire. The judge limited their cross-examination to the question of possible collusion, and also the question whether the police had been informed of the alleged offending in 1987. The appellant submitted before us that the limitation infected the judge's decision on the stay application.

68 We have referred to the now elderly, retired solicitor, Mr Hubbard, who represented the appellant at the Board. In circumstances to which we will later refer in more detail, after some expressed uncertainty appellant's counsel intimated that he did not intend to call Mr Hubbard on the stay application. Later, however, he sought to do so. By then, he was part way into submissions on the stay application. The judge refused to adjourn the matter so that the prospective witness could be called.

69 The appellant sought leave to call Mr Hubbard in this Court. We refused the application. The appellant alternatively submitted that the judge had erred by refusing him an opportunity to call Mr Hubbard, and that this infected her Honour's decision on the stay application. We shall say more about our refusal to hear Mr Hubbard, and the appellant's alternative submission a little later in these reasons.

70 As will appear in these reasons, we are critical of what we regard as instances of the prosecution overreaching below. There is occasion to note that counsel who appeared for the Crown before us was not the prosecutor below. In conducting the appeal, counsel made concessions which were fully justified, and submissions which, in large part, were appropriately reasoned and of assistance to the Court.

Refusal to grant a stay (Ruling No 3, Appeal No 1)

71 In submissions in this Court, the appellant pursued two broad bases of challenge to the judge's refusal to grant a permanent stay. His counsel rightly accepted that refusal of a stay is a discretionary decision, and that he must demonstrate that the discretion miscarried.

72 We are amply satisfied that each of the broad grounds had been made out. That is why we granted leave to appeal against the stay ruling, allowed the appeal, set aside the decision, and remitted the application for a permanent stay for re-hearing and determination by another judge in the County Court.[30]

73 The two broad grounds pursued by appellant's counsel were first, that the judge wrongly confined the evidence on the stay application; and second, that in her ruling the judge erred in a number of specific respects.

74 There were multiple threads to the first broad ground of attack. One of them essentially emerged in answer to questions asked by the Court. It led to an unopposed application to add a ground of appeal. As finally articulated, the threads were that the judge erred - (a) by confining cross-examination of KL and AJ to the issue of possible collusion or contamination and to the question whether any complaint was made to the police in 1987; (b) by refusing leave to the appellant to cross-examine KL upon the content the March note; and (c) by refusing the appellant, at a particular stage of the hearing, an opportunity to call Mr Hubbard as a witness.

75 The alleged errors in the judge's ruling upon which the appellant relied were that - (a) her Honour wrongly concluded that the 1987 Board matter was not resolved favourably to the appellant; (b) the judge wrongly concluded that the any unfairness by reason of lost/destroyed evidence - this encompassing both alibi witnesses and the complete 1987 personal diaries of KL and AJ - could be adequately dealt with by directions; and (c) her Honour applied the wrong test for determining the impact of lost evidence upon the ability to have a fair trial.

76 There was a degree of interrelationship between the two broad bases of attack. For it was submitted that the judge's erroneous findings were to an extent the consequence of her Honour confining the evidence.

77 There is no doubt that the judge did confine cross-examination of KL and AJ. The question is whether her Honour erred in doing so. We begin by stating a general proposition. As counsel for the Crown readily accepted, the judge was obliged to ensure that the stay application - which rested upon the appellant establishing 'unfairness'[31] - was fully ventilated. A judge is obliged to ensure that a trial is conducted as fairly as possible from the standpoint of the accused (and also the Crown). When it is contended by an accused that it would be unfair that a trial be had at all, a matter with potentially grave consequences for both the defence and the prosecution, and a matter which the judge must decide, there must be a corresponding obligation. It could hardly be satisfied if the judge ruled upon the alleged unfairness on incomplete material.

78 The circumstances in which the judge confined the cross-examination of KL and AJ was the product of a generally confused situation. In our view, none of the prosecutor, appellant's counsel, or the judge, emerged from the matter free of some blame. We must detail what occurred.

79 On 12 November, the prosecutor told the judge that AJ was required on the voir dire 'in relation to the defence application for severance from [KL] on the possible bases of contamination, collusion and so on'. It was the prosecutor's submission that 'cross-examination should thus be confined to those particular issues', given that AJ had been cross-examined at the committal.

80 This was an incomplete account of what junior counsel for the appellant had said at the directions hearing on 4 October. Simply because it was incomplete, it was inaccurate.

81 That criticism aside, the prosecutor linked cross-examination about contamination or collusion to an application to sever - not to the foreshadowed stay application. In that respect, the prosecutor may well have accurately discerned the import of what appellant's junior counsel had said on 4 October.

82 It is not known whether, as at 12 November, the prosecutor had a transcript of that directions hearing available. Probably she did not, because counsel for the appellant told us without objection from the Bar Table that he did not have one at that time; and it seems likely also that the judge was in a like position.

83 In this situation of probable common ignorance, the judge agreed with the prosecutor's submission, and defence counsel stated that this was his understanding.

84 When, however, AJ was called soon after, defence counsel said that 'I'm told there's a question of a stay application as well.' The judge's response was that the court was dealing with all the evidence, and 'all the other applications' would be heard at its conclusion. Counsel then said, further muddying the waters, that 'this is all about the evidence about who told the police, that's all'.

85 The matter was by this stage going well off the rails, so far as a full illumination of circumstances pertinent to the foreshadowed stay application were concerned. AJ and KL had been cross-examined to an extent at the committal about what had become of their 1987 diaries, and with respect to the redacted photocopies. But that cross-examination was well short of what might have been expected in pursuit of the stay application.

86 AJ was then cross-examined. On six occasions, in the course of cross-examination of, the judge interrupted the cross-examination so as to refer to the supposed limitation. It proved unnecessary for the prosecutor to raise any objection.

87 Putting to one side the matters which caused the judge to intervene - they were essentially inconsequential - counsel indeed limited his cross-examination to the issue of possible collusion[32] between AJ and KL.

88 There the matter stood when AJ's evidence was completed.

89 On 13 November, before KL was called, the judge stated that she understood that the only reason for further cross-examination of KL was 'in respect of the issue of collusion or contamination.' Counsel for the appellant replied 'correct'.

90 A little later, the judge noted that KL had already been cross-examined twice - at the Board and the committal - that she had made statements in 1987 and more recently to the police, that she was going to be cross-examined 'on the issue of collusion', and that her Honour would require good persuasion if there was going to be an application to cross-examine KL on counselling notes.

91 A little later again - still on 13 November - appellant's counsel told the judge that he had forgotten to say that the cross-examination was not to be only about collusion or contamination, but 'with respect to the stay and notification of the police'. The judge said that she was not aware of that. She asked if it had been discussed at the directions hearing (on 4 October). Counsel said that he had not been there.

92 The judge then referred to what she described as 'my note' of the 4 October directions hearing. She said that she read it 'as collusion and nothing more'. Counsel said that he was told it 'would be in the transcript' - that is, of 4 October - this supporting his statement in this Court that he did not then have the transcript.

93 By 14 November, the judge evidently had a copy of the 4 October transcript. She referred to it, and said that what was foreshadowed was cross-examination limited to collusion and, for the purposes of the stay application, the question whether the police had become involved in 1987. In effect, the judge was picking up the prosecutor's submission, made much earlier, that cross-examination as to possible collusion had to do with a severance application. The question whether the police had been informed in 1987 was, as her Honour put it, the sole matter sought to be agitated with respect to the stay application.

94 The prosecutor made no submission at all about this overall analysis.

95 Junior counsel for the appellant, however, agreed, that the cross-examination of KL was to be limited to the two topics; and the judge so limited it.

96 Before the debate on 13 and 14 November, appellant's counsel had raised a number of issues which bore upon the stay application. They included the difficulty in now maintaining an alibi defence - not only because of the death or unavailability of witnesses, but also because of KL's shifting accounts of when the rape took place; the destruction of the diaries;[33] problems posed by the availability only of the redacted photocopies; the course of proceedings at the Board hearing; and the delay in reporting the alleged offences. We are bound to say, in that context, that we do not understand - (a) how it could have been thought by the judge that the only issue relevant to the stay application about which KL could be cross-examined was whether the police had been informed of the appellant's offending in 1987; (b) how it could have been thought that other issues pertinent to the application had already been the subject of adequate cross-examination of KL - if that is what the judge thought; (c) how appellant's junior counsel could have agreed with the judge's analysis; and (d), how it could be that the prosecutor left everything up to the judge and made no submission as might illuminate the issues about which KL could legitimately be cross-examined.

97 In the event, counsel did confine his cross-examination of KL. There were, however, a number of occasions upon which either the judge or the prosecutor questioned whether particular cross-examination was within the permitted ambit. Sometimes counsel was able to justify his cross-examination as being within that ambit; but not always. Eventually, the judge told counsel that she was 'going to give [him] another fifteen minutes, at most'. That speedily brought an end to cross-examination.

98 In all, the judge did not hear full cross-examination of KL or AJ on relevant topics. That is so, irrespective of what proportionate blame might be attributed to the various participants. Counsel for the appellant told us that he had wished to examine KL and AJ more extensively that he was permitted to do. There was no reason to doubt that assertion.

99 Thus, simply focussing upon limitation upon cross-examination of KL and AJ, the judge decided the stay application upon wrongly confined evidence, and the ruling could not be permitted to stand.

100 We turn to Dr Jude's counselling notes. On 14 November, the judge peremptorily refused to permit KL to be cross-examined on the counselling notes, counsel having specifically raised the matter of the 24 March note.

101 Later in these reasons,[34] we express our conclusions that the judge erred in so ruling; and that, had her Honour turned her mind to relevant considerations, she must have permitted KL to have been cross-examined on the 24 March note. We explain also how such cross-examination would have been relevant on the stay application.

102 In the event, in this second way the judge wrongly confined the evidence relevant to that application.

104 On Thursday 14 November, appellant's counsel flagged the prospect of calling Mr Hubbard, whom he said had 'long since retired', was 83, and 'recovering from cancer.'

105 On Friday 15 November, however, counsel stated that he was not going to call Mr Hubbard on the following Monday. He accepted the judge's summation that he was 'not relying on [Mr Hubbard's] evidence'.

106 On Monday 18 November, a discrete issue was addressed which is not of present relevance.

107 On Tuesday 19 November, Mark Diserio was called for the appellant. He was the solicitor who had appeared for the school at the Board hearing. At the conclusion of his evidence, appellant's counsel stated that that was all the evidence he was calling.

108 Counsel then began submissions on the stay application. He submitted that the Board hearing had been settled on terms favourable to his client. He also submitted that KL had been cross-examined upon her now destroyed diary with apparent success at the Board hearing.

109 With respect to alibi concerning the rape charge, counsel reminded the judge that in 1987 KL had told the teacher, Mr Rojo, that the rape had occurred at about midday, whereas in her 2009 police statement she had said that it was dark when she left the appellant's home. So the alibi now had to relate, in effect, to both the matinee and evening performances of the musical; and it did so.

110 Counsel pressed that the outcome of the Board hearing had been favourable to his client, and that it should be inferred that this was because KL had not gone well in cross-examination. From the appellant's standpoint, it was important for a number of reasons that the judge was persuaded of those matters. KL had denied fantasy at the committal, and, because of the way in which cross-examination had been confined, cross-examination as to what evidence she had given at the Board had been out of bounds on the voir dire. The fact that there was no transcript of the Board hearing meant that the appellant could not demonstrate by that mechanism that KL had not gone well in cross-examination, and why that was. Further, if cross-examination at the Board had been directed to the contents of KL's diary, not simply the redacted photocopies, and if it should be inferred that KL had fared badly, then the destruction of her diary meant that such cross-examination could not be replicated. Further still, if it should be inferred that KL had fared badly, one source of attack - a comparison of the diary and the redacted photocopies - was now unavailable.

111 Pressed by the judge, counsel submitted, as we understand it, that the direct evidence as to the use of the diary, and answers given, 'would have to come from Mr Hubbard who was ill'; and that he had decided not to call him 'because of his health primarily'. Indirect evidence, he submitted, was to be found in the 24 March note.

112 It became increasingly clear that the judge was not going to infer that the Board hearing had gone badly for the school, still less that it had done so because of effective cross-examination of KL. Counsel said that, absent Mr Hubbard's evidence, all he could do was point to the effect of KL's evidence upon her. He then said that he had not called Mr Hubbard because he 'thought he was ill'; and that 'we've tried to get hold of him since and we're having difficulty getting him'.

113 Counsel then referred again to the 24 March note. But the judge told him to 'put the s 32C stuff away'.

114 Counsel then said that he 'would like to call' Mr Hubbard, because the latter could 'of his own memory give evidence as to what he did and the responses that were put'. The judge said 'no', that his application was refused. Counsel had had his opportunity to call evidence of his choosing.

115 Placed before the Court was a document dated 13 December 2013, signed by counsel, which recited what evidence Mr Hubbard would give, if permitted. In part, the document stated that Mr Hubbard would give evidence that KL was cross-examined on the whole of her diary, that she admitted that some of its contents may have been fantasy, and not true, and that this cross-examination was instrumental in the Board settlement. The document was provided in support of the application to call Mr Hubbard before us. Counsel was frank in telling us that he had not known of the detail of the proposed evidence when he applied to the judge to call Mr Hubbard on 19 November last year.

116 We refused the appellant leave to call Mr Hubbard. The Court may grant leave to a party to adduce additional evidence on the hearing of an appeal against an interlocutory decision - see s 300(1) of the CPA. Given the interlocutory nature of the appeal, we think that, at a minimum, the Court would be most unlikely to favourably exercise its discretion except if the proposed evidence constituted fresh evidence. Mr Hubbard's proposed evidence would not meet that test. Accepting that its detail was not known to the appellant's legal practitioners as at November 2013, there was nothing to show that by reasonable enquiry it could not have been. In substance, appellant's counsel, for reasons good or bad, made a forensic choice not to call the witness; and, when things went wrong, he was caught by that choice.

117 We do not consider, either, that the judge erred by refusing the appellant a belated opportunity to call Mr Hubbard. We accept that his evidence, as described, could have been very relevant on the stay application; and it is the fact that counsel was not far into his submissions when he sought to call the witness. Many judges, on a stay application which was evidently not without force - even on the material which was before her Honour - would, we think, have permitted counsel to re-open his client's case. To do so would have facilitated all relevant material being placed before the judge. But on a matter of procedure, we could not say that the refusal bespoke error. Rather, it emphasises an unease we feel about the evidentiary limitations otherwise imposed upon pursuit of the stay application.

118 We turn to the alleged errors in the judge's reasons on the stay application. The first of them relates to her Honour's findings about the disposition of the Board hearing.

119 The judge found that - (a) there was nothing in the materials which would support the appellant's contention that KL was cross-examined successfully, resulting in the case being settled on terms favourable to the appellant. That was not the inevitable inference. The appellant was given the equivalent of termination without the employer having to give cause. He was given a limited reference, which made no mention of his character; (b) on the basis of the evidence of KL, her mother and Ms De Young, KL was distressed by the cross-examination, and her distress was a motivating force for the school to settle without subjecting KL to further cross-examination, or AJ to any cross-examination; and (c), there was, additionally, force to the Crown's submissions that the appellant being denied procedural fairness could not be discounted as a factor motivating the settlement, that settlements occur for many reasons and the reasons for the settlement were not before her Honour.

120 The appellant challenged the judge's finding that he had failed to prove that the settlement was favourable to him. That finding, which we hereafter conclude was unsupportable, affected the way in which her Honour considered the appellant's sequence of submissions that - (a) the settlement reflected the fact that KL's evidence as to the appellant's alleged offending had not gone well; (b) it had not gone well in circumstances where she had been cross-examined on the content of her diary, not just the photocopied entries; (c) KL later destroyed her diary, and so she could not be cross-examined at trial on its content; (d) destruction of her diary also meant that it was now impossible to establish that the photocopied entries did not faithfully reproduce particular diary entries; (e) this was also a consequence of there being no extant transcript of the Board hearing; and, possibly, (f) KL destroyed her diary because she knew that its contents harmed the prospect of acceptance of her allegations against the appellant.

121 Those submissions were important to the application for a permanent stay of the charges relating to AJ and KL. As the appellant wished to put it, this was not simply a case of long delay, and loss of alibi witnesses[35] and other alibi evidence, but of destruction of documents upon which one complainant had been cross-examined, an absence of a transcript of the cross-examination, and the survival only of incomplete and self-censored notes which counsel wished to contend had been admitted by KL - that is, in the 24 March note, in respect of which a right to cross-examine had been refused - to raise problems for her account of the appellant's alleged offending.

122 Relevant as to what transpired at the Board in 1987 were - (a) the self-censored photocopied diary entries of AJ and KL; (b) some cross-examination of the two women at the committal hearing in January 2013; (c) evidence given by Mr Rojo at the committal; (d) Basha evidence given by KL's mother as to her attendance at the Board; (e) Basha evidence given by Ms De Young as to her attendance at the Board; (f) notes made by Mr Diserio; (g) correspondence passing between solicitors for the appellant and the school before and subsequent to the Board hearing; (h) a common understanding that, except in the case of gross misconduct, the appellant's contractual entitlement was to a term's pay in the event of termination of his employment; and (i) a common understanding that the Board matter was settled after KL had given evidence.[36]

123 Also relevant, but not adverted to before the judge, were certain provisions of the Industrial Relations Act 1979 (Vic), and learning which touched upon those provisions. A little later in these reasons, we refer to that learning and to pertinent provisions.

124 Concerning the Board hearing, the following circumstances derive from the materials before the judge: (a) by correspondence preceding the hearing, the appellant sought reinstatement and the school offered the appellant the chance to resign as at the date of his summary dismissal; (b) if the appellant had been guilty of gross[37] misconduct, the school had been entitled to dismiss him summarily; (c) otherwise, in the event of termination, he was entitled to receive a term's pay; (d) in correspondence preceding the hearing, the appellant's solicitor had complained that his client had not been afforded an opportunity of knowing what was alleged against him;[38] (e) at the hearing, the appellant's solicitor opened his client's case. He submitted that his client had not been given warning of dissatisfaction with his teaching, or of the allegations now made.[39] If gross misconduct was alleged, particulars should have been given. If the issue was of the appellant not teaching properly, then he should have been given a term's notice. If such notice had been given, then it might not have been necessary to provide reasons for the termination;[40] (f) the appellant then gave evidence, and denied the allegations of sexual misconduct. He was cross-examined, and re-examined. At least in re-examination he referred to what has now become his alibi. He did not call alibi witnesses; (g) KL then gave evidence. She was examined and cross-examined. She had her complete diary with her. At the committal, she variously said that the appellant's solicitor had asked her questions about her diary. She either denied or could not recall whether she was asked about entries in the diary for days other than those on which she alleged that the offences had been committed. The lawyer had implied that she was having fantasies in her diary. But they were not fantasies. The lawyer had not pointed to a number of incidents of fantasy in the diary. She could not recall being questioned 'specifically about other dates'; she could not 'actually remember'. It had been distressing to be told that what had happened was a figment of her imagination; (h) others present at the Board hearing have stated that KL was cross-examined on her diary;[41] (i) by the settlement, the allegation of gross misconduct was withdrawn, and in lieu of summary dismissal the appellant was given a term's pay - but not reinstatement. The school was also to provide 'an acceptable reference in relation to [the appellant's] teaching abilities'; and it did so.

125 In our opinion - (a) there were a number of flaws in the judge's reasoning, and the materials before the judge did not permit her Honour to conclude that motivating factors in the settlement were those which she identified; (b) the materials required a conclusion that the Board settlement was favourable to the appellant; and (c), probably, though we do not decide the matter, the favourable outcome was a consequence of KL being cross-examined in a way that cast doubt upon the reliability of her allegations against the appellant.

126 The flaws which we have identified are these. First, it was incorrect for the judge to require, if she was to draw the inference that the Board matter was settled on terms favourable to the appellant, that it be the 'inevitable inference'. That was to require of the appellant, albeit that the stay application was his, the standard required of the Crown in a criminal proceeding at trial. A balance of probabilities test was in point. Here, in our opinion, the judge made an error of law.

127 Counsel for the Crown did not attempt to submit, before us, that the judge had applied the correct test, if she should be taken to have meant what, literally, she wrote. But he submitted that there must be some other explanation for what her Honour wrote. He could not identify what it might be.

128 Second, the inference which the judge in fact drew, that a motivating force in the settlement was KL's distress, and the school's wish not to have her further cross-examined, or to expose AJ to cross-examination, was in our opinion no more than speculation. KL gave no such evidence when questioned at the committal, nor did Mr Rojo. Nor again did Mr Diserio do so before the judge. The same situation applies in the case of Ms De Young. The mother appears not to have been present at the time when the Board matter was resolved. The judge expressed evident concern that KL had been required to give evidence at the hearing - see paragraphs [12], [24], [28] and [29] of Ruling No 3. But such concern did not provide a legitimate basis for drawing the inference now under discussion.

129 Third, the Crown's submission that 'the denial of procedural fairness cannot be discounted as a factor motivating the settlement', which the judge said had force, was beset by problems. The timing of the settlement - that is, after the conclusion of KL's evidence - was opposed to such a conclusion. KL gave evidence after the appellant's case had been opened, and after he had given evidence. Denial of procedural fairness had been flagged in a letter from the appellant's then solicitor to the school dated 6 August 1987 and it had been mentioned in the opening. It was an uncontroversial circumstance. It is wholly improbable that it would suddenly have become a factor motivating settlement after KL had been cross-examined. Again - we note that this was not mentioned in submissions before the judge - the Board's jurisdiction, by statute, was relevantly in respect of a dismissal which was 'harsh, unjust or unreasonable'. As the evidently experienced industrial law practitioners who appeared for the parties would have known, want of procedural fairness in a dismissal - put aside the position at common law - did not preclude the employer from showing that the dismissal did not meet the statutory test.

130 Fourth, the judge also found, as we understand it, that there was force in the Crown's submission that 'settlements occur for many reasons and the reasons for settlement [were] not before [her]'. The first of those propositions was unremarkable, but said nothing about the circumstances of this settlement. The second was true insofar as there was no direct evidence of why the settlement was entered into. But the judge had in fact already identified what she concluded were motivating factors, and had rejected another suggested explanation.

131 Fifth, it was inaccurate for the judge to state that the allegation of misconduct was withdrawn. That minimises the import of what occurred. An allegation of gross misconduct, which alone could found the contractual right to summary dismissal, was made and then withdrawn.

132 We turn to our conclusion that the materials required a conclusion that the settlement was in fact favourable to the appellant. These matters are in point: (a) the school withdrew its allegation of gross misconduct; (b) the appellant abandoned his claim for reinstatement; (c) the appellant received his contractual entitlement in the event of termination other than for gross misconduct - a term's pay; (d) the appellant was given a reference, to which he had no contractual entitlement.

133 The judge's conclusion that the settlement was not favourable to the appellant because he sought reinstatement, but did not get it, should be rejected. The evidently experienced industrial practitioners who appeared for the parties should be taken to have known that the Board's power to order reinstatement was very unlikely to have been exercised in this case, even if the appellant had established that his dismissal had been harsh, unjust or unreasonable.[42]

134 The judge's conclusion that the settlement was not favourable to the appellant because the reference said nothing about his character failed to address the point that he had no entitlement at all to a reference. Further, whilst the reference did not refer to the appellant's character, we think it inconceivable that the school would have given the reference which it did if KL's allegation of rape had survived cross-examination.

135 The judge's observation that the appellant did not call alibi witnesses at the Board hearing was true. But where did it lead?[43] This was not a criminal proceeding, rather the hearing of a wrongful dismissal claim in a jurisdiction in which informality was a byword.[44]

136 If the settlement was favourable to the appellant, then why? Strictly, that question need not be answered. It is enough that the judge's reasons with respect to the settlement were premised on an incorrect legal basis, and that they disclose unsupportable reasoning. Because they went wrong at the outset, the judge did not consider what might flow from correction of the flawed conclusions. Since the stay application must be re-heard and determined for a number of reasons, we observe only that the timing of the settlement suggested that it was connected with the cross-examination of KL, and that the fact that the school gave the reference which it did is quite inconsistent with its continuing to accept the reliability, at least, of KL's allegation of rape.

137 Next there falls for consideration the judge's treatment of the alibi defence.

138 The defence, as we have already noted, addresses (or is at least intended to address) charges 5 (rape of KL on 21 March 1987) and 8 (indecent assault upon AJ on 11 April 1987).

139 The Notice of Alibi dated 13 November 2013, which replaced an earlier version, on its face refers only to 21 March. But the judge accepted that it was intended to refer also to 11 April.

The Complaint swore that she had a trombone lesson and telephoned the accused after lunch on 21 March 1987 and was with him until after dark on that day. The period the accused is to account for is the period from after lunch to after dark on Saturday 21 March 1987.

141 What follows is an attempt to construct a time line for the alleged offending, deriving from different accounts given by KL from time to time. It yields the consequence that the alibi must address the period between lunch time and after dark.

142 Then set out is the proposed evidence of the surviving alibi witness. It suggests that the witness can give some general information about the musical, and as to the appellant's membership of the brass section of the orchestra. It also implies that he cannot now say whether the appellant played in a particular performance on a particular day and, if he did, when he arrived for the show and how long that performance lasted.

143 Then the notice attempts to construct a time line for the alleged offending on 11 April. That task is evidently easier. The foreshadowed evidence of the alibi witness is no different.

144 Other than that, the notice foreshadows that the appellant will rely upon data as to the time of sunset on 21 March 1987 - said to be 7.02pm.

145 The judge took the position to be that the alibi notice was asserting that there was insufficient time on KL's evidence 'for the rape to have taken place, either before the matinee performance or between the time of the matinee performance and evening performance, or after the evening performance.' Her Honour took the position, with respect to AJ, to be that there was insufficient time 'for the indecent act ... to have occurred between the time [AJ] said the accused drove to pick up some Chinese takeaway at about 7.30pm and the time he would have been required to be at the theatre for the evening performance ...'.

146 The judge noted that she had been informed from the Bar Table, and she apparently accepted, that enquiries had revealed that all other members of the brass section - save for the survivor to whom we have referred - were dead, that the appellant did not know the names of the performers in other sections, that he could not now say what booking agency had retained him, and that he now had no payment records pertaining to his participation in the show.[45]

147 The judge stated that there was evidence that there had been matinee and evening performances on 21 March and 11 April, and that it was uncontroversial that there was a gap between them.

148 Her Honour accepted that records would have been available in 1987, had complaint then been made.

149 Then the judge noted that the appellant had not called alibi witnesses at the Board hearing. We infer that her Honour was seeking to minimise the fact that such potential witnesses are no longer available. Perhaps she was implying that such persons could not or might not have assisted the alibi. In either event, having regard to the nature of the Board hearing, it would be speculative to so conclude.

150 What the judge had so far said led her to this conclusion:

'I do not accept that any prejudice flowing from the loss of evidence in relation to the accused's performance ... cannot properly be the subject of an appropriately crafted direction. Indeed, this is commonplace.'

151 Then the judge expressed the view that the disadvantage flowing from the unavailability of alibi witnesses 'is not alone or in combination with the other matters relied upon sufficient to justify the grant of a stay.'

In any event, as I understand it, the prosecution case is not put as narrowly as the alibi notice asserts in respect of those two charges, 5 and 11. As I understand the way the Crown puts its case, evidence that the accused perform in the matinee and evening performances on those days would not render the charges, that is Charges 5 and 11, incapable of being proved. It is not the prosecution case as I understand it that the rape the subject of charge 5 could only have occurred during the time the Sugar Babies matinee was being performed. Nor is it the prosecution case that the indecent assault the subject of Charge 11 could only have occurred after 7:30 pm.[46]

153 In our opinion, her Honour erred in this analysis, by which we mean that she made findings which were not open.

154 In 1987, according to Mr Rojo's notes, KL told him that the rape had been committed at about midday;[47] and said nothing to suggest that she had gone home after her music lesson but later returned, first meeting the appellant in a park.

155 When KL made a statement to the police in 2009, she said that she had gone home, had later met him in a park, and had then gone to his home, where later a rape was committed. She fled. It was dark when she left.

156 This latter version, which shifted events by hours, to a degree found its way into the summary of the prosecution opening. There it is said that KL met the appellant in the evening, and that it was dark when she left his home.

157 Then there is KL's evidence on the committal. Initially, she agreed that she had gone to the appellant's home 'in the early afternoon'. Not much later, she told the cross-examiner that she did not agree with his assertion that it was early afternoon. A little later she said that she had gone there in the afternoon, but could not be any more precise. A little later again, she agreed that she could not say at what time she had left the appellant's home, or how long she was present there.

158 Whilst it may be said that KL's differing accounts could be exploited by an able cross-examiner were the matter to go to trial, the fact that she has given a number of accounts bears upon the difficulty of establishing an alibi defence after so long an elapse of time. The judge appears to have treated the fact that the prosecution case is not 'put as narrowly as the alibi notice asserts' in order to accord the unavailability of alibi witnesses lesser significance than it might otherwise have had. But the shifting sands of KL's account in fact means that the appellant can now only set up an alibi if he can account for a long period of time; and he must do so many years after the offending is said to have occurred, with the problems in marshalling evidence which have been described.

159 Thus, at least with respect to the charge of rape, we consider that the judge erred in her analysis of the prejudice to the appellant flowing from the unavailability of alibi witnesses.

160 That error is highlighted, we consider, by the judge's observation that she did not accept that any prejudice by reason of unavailable alibi evidence could not be the subject of an 'appropriately crafted direction', which 'is commonplace'. In our view, that treated this matter, which had a considerable number of unusual features, as 'just another' forensic disadvantage case.

161 Finally, we turn to the judge's treatment of the loss of the diaries.

162 It is necessary to refer to a few more aspects of the ruling. Thus, her Honour stated or concluded that - (a) it was not put to the complainants that the diary entries were false, forged or not made contemporaneously; (b) if it was part of the defence case that the complainants colluded, and that the diary entries were forged, then she accepted that there was disadvantage or prejudice to the defence from the absence of the original diaries; (c) this was a case of innocent destruction of evidence. She was not satisfied that destruction of the diaries irreparably prejudiced the appellant in his defence, because he could no longer compare the photocopied entries with the diaries.

163 Her Honour, then, stated that it was not put to the complainants that their entries were false, forged or not made contemporaneously. But, in fact, KL had been specifically cross-examined to the effect that she had altered a photocopied entry from her diary.

164 Related to this, the judge appears to have accepted with reluctance that it was part of the appellant's case that the complainants colluded, and that diary entries were forged. From that starting point, she reasoned that there was prejudice to the defence, because the redacted photocopies could not be compared with the diaries. Nonetheless, the prejudice was not irreparable.

165 In fact, the only cross-examination which had been permitted of KL and AJ[48] was with respect to possible collusion. Cross-examination about changes to KL's redacted photocopies were directed to the point. Whilst we accept that, in part, the challenge was oblique, there could be no doubt that it was made.

166 The starting point for the judge's consideration whether loss of the diaries caused the appellant prejudice in his defence was reluctant acceptance that the appellant alleged collusion and forgery. We think it is inevitable that this must have tended to diminish, in her Honour's estimation, the significance of the loss of the diaries.

167 The appellant's case as to the impact of the destruction of the diaries, we must add, was not confined to the issues of collusion and falsification. As we have already noted, he asserted that KL had been cross-examined on her diary at the Board hearing. Whatever be the effect of KL's evidence at the committal, there was evidence that there had been such cross-examination.[49] The appellant asked the judge to infer that the cross-examination damaged KL's account and that this led to what he claimed was a favourable Board settlement. The judge declined to draw that inference. We have concluded, however, that her Honour's reasoning - in any event founded upon incomplete material - was flawed.

168 In all then, with respect to the second broad basis of attack on the stay ruling, we have concluded that the judge made findings which were not open - that is, concerning the Board settlement, the alibi defence, and the loss of the diaries.

The tendency application (Ruling No 5, Appeal No 2)

169 We have already set out many of the circumstances of the matter. We will only repeat what is particularly pertinent, and add what more is necessary, in order to deal with the attack upon the judge's ruling that the evidence of KL and AJ was cross-admissible.

170 At common law, similar facts were admitted into evidence only where they bore 'no reasonable explanation other than the inculpation of the accused in the offence charged'.[50] Hence, in Hoch v The Queen,[51] it was said in the joint judgment of Mason CJ, Wilson and Gaudron JJ that admissibility depends upon the evidence 'having the quality that it is not reasonably explicable on the basis of concoction'.[52] Although the test as formulated in Hoch is not the test for admission of tendency or coincidence evidence under the Evidence Act 2008 ('the Act'), it is now well settled that the possibility of joint concoction or contamination must be assessed in order to determine the probative value of such evidence.[53] It is the reasonable possibility of concoction, collusion, collaboration or contamination ('collusion or contamination') - not a probability or real chance of concoction or contamination, which renders such evidence inadmissible. So much is clear from the joint judgment in Hoch which approved the speech of Lord Wilberforce in Boardman.[54] In Murdoch v The Queen, Redlich and Coghlan JJA made clear that 'a reasonable possibility' of collusion or contamination, will lead to the exclusion of the evidence because 'a rational jury might regard the evidence as providing a credible explanation for the similar features in their accounts'.[55] Priest JA said that where there is 'a real possibility' of collusion or contamination, evidence of tendency and coincidence will fall at the threshold as inadmissible.[56] The evidence will not then possess the necessary probative value under ss 97 or 98. Nor will it satisfy the required probative value under s 101.[57]

171 Both parties referred extensively to Murdoch's case during their submissions below. This should have been instructive, as it identified other aspects of the approach of the trial judge in Murdoch which were productive of a miscarriage of justice. In Murdoch, the issue of cross-admissibility was wrongly approached as though the burden of persuasion as to collusion or contamination rested upon the defence.[58] The trial judge in Murdoch wrongly thought that it was for the trial judge to determine whether the evidence established collusion or contamination.[59]

172 It is not in debate that in 1987, when the offending conduct is said to have occurred, KL and AJ were best friends at school. Beyond that, both complainants and Mr Rojo were cross-examined at the committal, and the complainants then gave further evidence on the pre-trial voir dire. There were material differences between the accounts of the three witnesses concerning the timing and detail of various meetings, and what was said. But for the purposes of determining whether there was a reasonable possibility of collusion or contamination, it will suffice to make reference to such facts as were deposed to by one or more of them and which a jury might rationally accept without identifying any material differences between their accounts or the internal inconsistencies in the accounts of each complainant.

173 Thus approached, the evidence was to this effect: on 15 April 1987, the complainants spoke with each other on the telephone concerning the conduct of the appellant, and on the following day they met and spoke further about the appellant's conduct, discussing in detail the conduct of the appellant which was said to be the offending conduct. They were then seen together by Mr Rojo on 28 July 1987. In each other's presence, they each detailed their allegations concerning the appellant's conduct. Mr Rojo made notes of those allegations. After the meeting, Mr Rojo typed up his handwritten notes. On 11 September 1987, both complainants adopted the statements prepared by Mr Rojo. He witnessed their adoption. Subsequently, in 2008, the complainants spoke on the telephone and following that discussion each made a complaint to police. At least by the time of the voir dire, KL and AJ admitted being aware that the other had kept a personal diary in 1987. Both of them destroyed their original diaries by their own hand not long after the Board hearing. At about the time they destroyed their diaries, each was aware that the other had done so.

174 The trial judge ruled that the evidence of the two complainants was cross-admissible. She rejected the appellant's submission that there was 'clear evidence' of contamination. Having regard to the evidence which the complainants gave on the voir dire, her Honour found the evidence pointed to the innocent destruction of the diaries some time shortly after the Board hearing in 1987. Her Honour rejected the appellant's contention that there had been a plain attempt by KL to fabricate an entry of 16 April 1987. Her Honour was of the view that the jury 'could accept' the explanation offered by the complainant on the voir dire and reject as a reasonable possibility that the entry had been fabricated. Her Honour reiterated during her ruling that the matters relied upon by the appellant did not provide 'clear evidence' of contamination or collusion.

175 Her Honour's approach to the question of contamination or collusion was fundamentally flawed. First, there was no onus upon the appellant to establish collusion or contamination. It was for the prosecution to satisfy the trial judge that there was no reasonable possibility of the same. It was not for the appellant to demonstrate by 'clear evidence' that there was collusion or contamination but for the Crown to exclude that as a reasonable possibility.

176 Second, her Honour did not undertake the correct task. As this Court observed in BSJ v The Queen, for the purpose of determining whether there is a reasonable possibility of collusion or contamination, the trial judge must engage in a fact-finding exercise in which the objective record about matters such as relationship, opportunity and motive are to be considered. Those are matters which are to be assessed without usurping the function of the jury.[60] That approach conforms with the view expressed in the joint judgment in Hoch[61] that a voir dire 'will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction'. In BRS v The Queen,[62] Gaudron J further emphasised that where an issue of concoction between witnesses arises or where there is a possibility that the first witness became aware of the events to which the second witness deposed before the second witness complained of the events giving rise to the offence charged, the possibility of concoction must be explored by means of a voir dire if necessary and the possibility excluded if the evidence is to be admitted. In Murdoch, Redlich and Coghlan JJA observed:

As to the express evidence of collusion, it was not for the trial judge to make her own assessment of the credibility of that evidence. The trial judge was not to determine the actual weight that she considered should be assigned to the evidence or make any prediction about the weight that the jury would assign to the evidence. Her Honour's task was to determine only whether there was a reasonable possibility that a rational jury might regard that evidence as providing a credible explanation for the similar features in their accounts. If the hypothesis of collusion and concoction could not be excluded, the accounts would not have that quality of independence necessary to achieve the probative value required by s 101.[63]

177 Before the trial judge, the Crown contended that the evidence of KL and AJ exhibited the necessary pattern for the purpose of tendency reasoning. It nevertheless submitted that as the accounts of KL and AJ were not 'mirror images of each other,' and as they had given no evidence that they had colluded, or that their accounts were contaminated, the trial judge could, upon an evaluation of their credibility and reliability, find there was no real possibility of contamination. On appeal the submission was repeated that, in the absence of explicit evidence of collusion or contamination, her Honour was entitled to form a view about the complainants' credibility in order to decide whether collusion or contamination had occurred. The Crown maintained on appeal, in the face of the objective record of contact between the complainants in which they discussed the appellant and later made their complaints together, that the trial judge could evaluate the complainants' reliability and was entitled to eliminate the reasonable possibility of collusion or contamination.

178 As authority makes plain, her Honour's task was not to undertake an assessment of the reliability or credibility of the witnesses when deciding whether there was a 'real possibility' that concoction or contamination had occurred. Yet the trial judge undertook such an assessment of the complainants and formed the view that the jury could accept their evidence. Her Honour fell into plain error as the question was not whether a jury could accept the complainants' exculpatory accounts and reject a reasonable possibility of concoction or contamination but whether a jury acting reasonably could find there was a reasonable possibility of collusion or collaboration between complainants, or that their accounts were contaminated.

179 Third, her Honour failed to address those facts, not commonly found in cases involving multiple complainants, which in our view clearly gave rise to a reasonable possibility that the accounts of the complainants were contaminated or the reasonable possibility that there was collusion or collaboration between the complainants. Leaving to one side the internal inconsistencies in each of the complainant's accounts and the inconsistencies between them[64] as to the circumstances in which they came to complain to the school, the uncontroversial evidence was that the complainants were best friends and had discussed the appellant's conduct towards each of them. They discussed that over two consecutive days. Subsequently, according to the evidence of KL and Mr Rojo, they made their detailed complaints to him in each other's presence. Extracts from their respective diaries of what the complainants said were relevant entries concerning the appellant were later photocopied for the hearing before the Board. Whether or not at any time there were alterations made to either to the diaries or the copies of the selected parts thereof, the complainants to the knowledge of each other both destroyed their original diaries following the Board hearing. These facts inexorably lead to the conclusion that collusion or contamination was a hypothesis that the Crown could not exclude. That the Crown did not concede this on appeal is particularly difficult to understand given the Crown's proper concession during the appeal, in the face of evidence no more compelling, that it could not exclude the possibility of collusion with respect to KD and VS,[65] two of the five 2004 witnesses (whom we shall call the 'Emerald witnesses').

180 In accordance with its overriding duty the Crown must always seek to ensure that it does not overreach and so expose an accused to an unfair trial. Given the state of the evidence, the course that it sought to pursue was such as would secure to it an unfair and very substantial advantage. It would have exposed the appellant to the clear prospect of a miscarriage of justice. In the face of well settled and clear authority, the prosecution pursued an indefensible position in maintaining that the evidence of KL and AJ was cross-admissible.

181 The Crown's error was exacerbated by the failure of the defence explicitly to emphasise before her Honour those facts that were a barrier to the Crown excluding the reasonable possibility of collusion or contamination. That said, those matters were obvious enough. The trial judge, having been referred to relevant authority including Murdoch, should have rejected the Crown's contentions and found that the reasonable possibility of concoction or contamination could not be excluded by the prosecution.

182 For these reasons, we concluded that the appeal must be allowed so far as cross-admissibility of the evidence of KL and AJ was concerned.

183 It was common ground between the parties that, if the evidence of the complainants was not cross-admissible, the question whether the charges on the indictment concerning each complainant should be severed[66] should be remitted to the County Court for determination by a different trial judge. We so ordered on 12 February.

184 By a notice under s 97 of the Act the prosecution applied to adduce tendency evidence. The 'tendency' described was:

(a) To act in a particular way, namely:

(i) to use his role as a music teacher at the schools where he taught to develop a close relationship with young female students;

(ii) to attempt to normalise sexual contact with young female students in order to develop sexual contact; and

(iii) to touch them sexually or perform sexual acts on young female students when he was in close proximity to them at school during music lessons, during private lessons at his house or at public places.

(b) To have a particular state of mind, namely:

(i) to be attracted to young female students to whom he taught music;

(ii) to use his position of trust to facilitate sexual contact with your female students he taught; and

(iii) a willingness to act upon that interest for his own gratification.

185 As the particulars of conduct relied on to establish the appellant had the tendency asserted, the notice recited the following:

(a) The acts the subject of each charge;

(b) Other sexual or sexualised conduct, referred to by each of the complainants in the depositions (whether from their diary entries, attested to in their statements forming part of the handup brief, or from their evidence at committal); and

(c) Other sexual or sexualised conduct concerning 5 other young women who were students of the accused in 2003 or 2004 when he taught music at Berwick and Emerald Secondary Colleges. Each of them had previously made statements in 2004 or 2005 alleging sexual misconduct by the [appellant]. The sexual or sexualised conduct relied on in the tendency notice in respect of these 5 tendency witnesses is contained in those statements.

186 We have already set out our reasons for concluding that the evidence of the complainants KL and AJ is not cross-admissible. It is necessary to say something of the evidence of the five women whom we have called the 2004 witnesses - the 'Berwick' witnesses JT, AW and JS, and the 'Emerald' witnesses KD and VS.

187 In ruling the evidence of the five women to be admissible as tendency evidence in support of the conduct charged in the indictment, the judge summarised the effect of their evidence:

[JT] was a 14 year old student at Berwick Secondary College in 2003. The [appellant] was her singing teacher. He sent her three postcards, signed off with kisses when he went on holidays. On his return he 'groped' her, grabbed her bottom and tried to kiss her. During a private lesson he touched her on the legs and bottom and called her 'honey'. He touched her breasts, telling her he needed to do so to check her breathing technique. He commented on her breasts and told her she should show them off. He arranged for her to record her singing at a studio away from the school. Whilst there he grabbed her bottom.

[AW] was a 15 year old student at Berwick Secondary College in 2004. The [appellant] was her singing teacher. During a lesson he tickled her knee, put his arms around her knees and hugged them, and placed his hand on her inner thigh. He did the same a week later, placing his hand further up her thigh on this occasion. The following week he hugged her at the start of the lesson, and groped her breasts.

[JS] was a 15 year old student at Berwick Secondary College in 2004. The [appellant] was her singing teacher. Over a period of some months during her private singing lessons he would regularly hug her, kiss her on the cheek and hold her hand while she sang. On an occasion in October 2004 he picked her up and hugged her, with her feet off the ground, and holding her body close to his for about two minutes, before putting her down. He kissed her on the forehead, the cheek, and on the lips. He said to her, 'I can't wait until you turn 16. Oh how I adore you'.

[KD] was a 14 year old student at Emerald Secondary College in 2004. The [appellant] was her music teacher. At a small group lesson in August 2004, saying he was checking her breathing, the accused placed one of this hands on the front of her body on her pubic hairline, and the other on her bottom. Some weeks later, again in a small group singing lesson, the [appellant] patted her bottom three times and called her 'lovey'. Some weeks after that during a singing lesson the [appellant] touched her breasts, saying he was checking her breathing.

[VS] was a 15 year old student at Emerald Secondary College in 2004. The [appellant] was her music teacher. She was in the same small group lesson as [KD]. On one occasion during a lesson the accused touched her breasts during a warm up exercise. On another occasion he rubbed her thigh with his hand while she was seated beside him on the piano stool.

188 Counsel for the appellant submitted below that the evidence of the five women should be excluded on the basis that there was a risk of concoction, collusion and contamination between two or more of them, and of contamination between them and the complainant KL. The judge rejected that submission. That rejection notwithstanding, in this Court counsel for the respondent conceded, in the face of the defence challenge to admissibility, that there was a reasonable possibility of collusion with respect to KD and VS. In consequence, their evidence was not cross-admissible between them. Whether their evidence could nonetheless be used as tendency evidence to support the complainants was not a question which arose for determination on the appeal, as counsel for the Crown informed us that it would not seek at trial to rely upon the Emerald witnesses, and that the Court's order could reflect that circumstance. Counsel conceded also that the evidence of the Berwick witnesses and of the complainant KG would not be admissible as tendency evidence on the charge of rape (charge 5). We consider that each of the concessions was properly made, and the course announced by counsel with respect to the Emerald witnesses should also be given effect. On 12 February we made orders accordingly.

189 There remain four witnesses - KG and the Berwick witnesses - whose evidence may arguably establish a tendency by the appellant receivable on the trial of the charges referable to KL and AJ. On 12 February, we set aside the ruling that such evidence was admissible as tendency evidence, and remitted the question for re-hearing and determination. We did so in circumstances where counsel for both parties accepted that, assuming the stay application was refused after a re-hearing, the state of the evidence would nonetheless not be the same as it was when the judge made her ruling, and when it might be the case that the charges referable to KL and AJ had been severed.

190 For the assistance of the judge to whom these questions are remitted - and assuming always that the stay application is refused - we identify at least some of the questions that will have to be resolved. Is the evidence of the complainant KG tendency evidence in support of the other complainants? Is the evidence of the three Berwick College witnesses tendency evidence that supports all or some of the complainants? May the accounts of the three Berwick witnesses be used as tendency evidence to support each other? Do the answers to any of these questions affect the discretionary considerations raised in s 101 and s 137 of the Act?

191 The sixth ground of the second interlocutory appeal contends that the judge erred in admitting the evidence of a clinical and forensic psychologist, Dr Karen Owen, concerning the patterns of grooming offenders indulged in by those who commit sexual offences against children. In particular, the ground alleges that the judge erred by:

• ruling that Dr Owen's evidence was not tendency evidence within the meaning of s 97 of the Act;

• failing to apply s 101, or, alternatively, s 137 of the Act;

• permitting Dr Owen to define the appellant's behaviour as the modus operandi of a paedophile;

• permitting that opinion to be given 'when the primary facts upon which the opinion was based included evidence that the charged acts were committed'; and

• failing to rule that the evidence failed to have sufficient probative value.

192 On the hearing of the appeal - notwithstanding the attitude adopted by the trial prosecutor - counsel for the respondent conceded that the evidence of Dr Owen was not admissible, and thus that the appeal must be allowed with respect to the judge's ruling admitting the evidence.[67] We are of the opinion that the concession was properly made. The evidence of Dr Owen should not have been admitted, and the trial judge erred in refusing to exclude it. It is for that reason that on 12 February we set aside the relevant decision and ruled, in lieu thereof, that Dr Owen's evidence was inadmissible. It is necessary that we set out our reasons.

193 It is desirable to begin with a brief statement of Dr Owen's training, study and experience. She is a clinical and forensic psychologist, who has been involved in the treatment of sex offenders since 1997. Among her multiple qualifications, she holds a Doctorate in Psychology (Clinical), and she has trained at a doctoral level in child and adult psychopathology. For 26 years she had worked with sex offenders in mental health and forensic settings, and is a recognised expert in the field of sex offender treatment, assessment and management. She is conversant with the relevant literature, has herself authored and presented a number of papers on child sex offenders and has been involved in training others in the assessment, management and treatment of child sex offenders.

194 Dr Owen provided a report dated 1 June 2013 to the prosecution. The report described its purpose as to provide 'expert opinion in relation to [the appellant's] behaviour with the complainants'; 'whether his behaviour indicates that he was grooming the complainants for later sexual behaviour'; and 'anything else' she considered 'relevant in relation to his behaviour'. She encapsulated the matter upon which her opinion was sought this way: 'the question under examination pertains to grooming of the victims.'

195 Dr Owen reported that part of her methodology was to use a Modus Operandi Questionnaire ('MOQ'), which 'allows data to be collected on all modus operandi stages, from gaining access to the victim to maintaining their silence about the sexual abuse'. Dr Owen said that: 'Using the MOQ scales the victim statements and depositional material was reviewed and examples gathered under six relevant categories Targeting [sic.]; Gaining the Victim's Trust; Filling a Need; Isolating the Child and Sexualising the Relationship'.[68] She also, she said, used a separate category, 'Gaining the Trust of Adults'. Dr Owen concluded that 'the complainants' accounts in the materials provided pertaining to [the appellant's] contact with them reveal an extensive range of behaviours that are highly consistent with known patterns of grooming across every relevant domain'. There was, she said, 'significant and concerning detail contained within the material that appears consistent with entrenched patterns of grooming empirically identified in recidivist sexual offenders'.

196 A number of observations may immediately be made about the witness's report.

197 First, the range of behaviours which Dr Owen identified were behaviours encountered in persons who - by conviction after trial or on a plea of guilty - had been identified as child sex offenders. Thus, grooming behaviours were established by looking at what proven offenders had done (almost entirely)[69] before offending.

198 Second, the modus operandi questionnaire which the witness used to characterise the appellant's behaviours 'is generally used as a self-report instrument that assesses the modus operandi of sexual offenders against children'.[70] Such use, consistently with what we said at [197] above, it is not forward looking, or predictive. In evidence, we add, the witness said of the modus operandi that 'It's not predictive in any way, and doesn't pretend to be predictive.'

199 Third, the report specifically addressed itself to reported conduct of the appellant. The opinions expressed in the report referred to him, and not to some hypothetical individual who coincidentally acted in the same alleged fashion.

200 Fourth, the report addressed accounts given by seven persons - the complainants in the present indictment, the Berwick witnesses, the Emerald witnesses, and one other woman in respect of whom a proceeding was withdrawn in the Magistrates' Court. Further, Dr Owen noted that these accounts were supported by other witnesses, friends of the complainants, who attested to patterns of behaviour by the appellant. Her ultimate opinion evidently drew upon all these accounts.

201 Fifth, under the heading 'sexualising the relationship' - one of the behaviour 'domains' in the modus operandi questionnaire - the witness set down what appears to be, in the case of each of the seven persons, the entirety of the charged conduct. In evidence, the witness said that such conduct was relied upon only as grooming behaviour - assuming that the jury accepted that it had occurred - and not as proof of offending. There would be very little chance of a jury understanding and maintaining that distinction. In any event, if the jury found that the charged offences had been committed, that would be an end of the matter.

202 We should next note that Dr Owen gave evidence on 12 November. Cross-examination was directed to the witness's report. The prosecution filed written submissions dated 21 November. Oral submissions were not made until 26 November. At some stage, as it appears, between 12 and 26 November the prosecution filed a document which outlined the evidence which it would seek to elicit from Dr Owen. She was not to be taken to her report. Rather, it was intended to put to her what were described as 'hypotheticals'. Each was intended to represent the evidence in chief which it was expected a particular complainant would give. None of them identified the appellant by name as the person whose conduct was to be the subject of the witness's opinion, but it could not have been clearer that he was that person. The conduct respecting a complainant upon which Dr Owen was to be asked to give her opinion was, as appears from a 'hypothetical' referable to KL set out by the judge, somewhat more compact than the material set out by the witness in her report respecting that complainant. But all of the charged conduct except for the rape was to form part of the material the truth of which the witness was asked to assume. This is the hypothetical referable to KL as described by the judge:

1. The prosecution has now indicated that it does not propose to ask Dr Owen questions about the individual complainant's account based on the deposition of material. Instead, it intends, if permitted, to put a series 'hypothetical questions' to Dr Owen. It has, by notice, identified the hypothetical questions it proposes to ask. They are questions based on what the prosecution reasonably anticipates the complainants will say at trial. Instead of being asked to assume the depositional material is true, Dr Owen will be asked, in effect, if certain facts existed, what categories under the caps MOQ would be satisfied?
2. By way of illustration, the first hypotheticals identified are in these terms:

If a person working as a teacher at school, who had been teaching a particular adolescent student for six months in the previous year, offered one of the students private lessons at home and he:

• rubbed the student's leg;
• hugged the student;
• complimented her on her appearance;
• took her to watch him perform in a production and kissed her on the head, rubbed her thigh, and held her hand;

What categories under the MOQ could satisfy that behaviour?

What if the touching progressed to for example:

• kissing on mouth; intimate cuddling; asking if she liked him, telling her he could get the sack if anyone found out, expressing love for her;
• reacting with ostensible disappointment and sadness when she told him she didn't like him;
• telling her no one would believe her if she told anyone;

What categories under the MOQ might be satisfied?

203 The judge's ruling shows that similar 'hypotheticals' had been constructed in respect of the anticipated evidence of AJ and KG, and the prosecution intended to seek the witness's opinion of the behaviours disclosed. The consequence would surely have been that the witness would have averred, not once, but three times, that the behaviour of the unnamed individual - including at least most of the charged offences referable to the particular complainant - was consistent, or highly consistent, with patterns of grooming behaviour by child sex offenders.

204 The witness, obviously, was not cross-examined about the evidence which the Crown proposed to elicit from her. That was unsatisfactory. It was not the fault of counsel for the appellant. The judge observed that it was anticipated that Dr Owen would give the same answers as in her report; and 'in that sense' it worked no disadvantage to the defence. The accuracy of her Honour's observation was untested by cross-examination of the witness.

205 Before the judge, the prosecution submitted that Dr Owen's evidence was relevant, since it concerned the kinds of grooming behaviours engaged in by those who commit sexual offences against children. The prosecutor contended that there were patterns of behaviour by the appellant which were capable of being seen by the jury as 'grooming' the complainants. The prosecution relied on s 79(1) of the Act for the admissibility of Dr Owen's opinion, and submitted that it satisfied the 'six propositions' set out in Makita.[71] Counsel further submitted that neither s 135 nor s 137 of the Act was engaged.

206 Essentially, the appellant sought exclusion of Dr Owen's evidence on the basis that it was tendency evidence, the factual basis underpinning it being in dispute. It was also submitted that any probative value it might possess was outweighed by its prejudicial effect. Counsel further submitted that the evidence was propensity evidence, and in any event involved circular reasoning. He submitted also that the 'hypotheticals' were not hypothetical at all, but that there was a solid link with his client. The judge described the submission of counsel as being that 'the opinion sought to be led from Dr Owen amounts to no more than saying a person does these things ... has a particular character, reputation, conduct or tendency, namely that of child sex offender'.

207 In ruling Dr Owen's evidence to be admissible, the judge noted that it was not challenged that Dr Owen is a person who has specialised knowledge based on her training, study and experience in respect of the modus operandi of sex offenders, in particular child sex offenders. Dr Owen's evidence that there is a 'well-established, documented and published peer reviewed body of literature with respect to the modus operandi of sexual offenders, particularly child sex offenders' was, the judge said, also unchallenged. The judge noted that Dr Owen was asked specifically to address whether the conduct of the accused, as set out in the depositions, revealed a modus operandi, or pattern of behaviour that could, within the terms of the literature that she described, be characterised as 'grooming'. Her Honour expressed satisfaction that 'the conduct of the accused and the complainants and their responses to him may, without expert evidence, risk jurors devaluing and failing to understand the potential significance of the accused's behaviour and the complainants' responses'. In the judge's opinion, the evidence 'bears on, and may be of assistance in evaluating the conduct of the accused, that is, in determining whether conduct (individual acts or a number of apparently independent, isolated acts) is innocent, a natural or normal product of the teacher/pupil relationship existing between the accused and the complainant, or is properly characterised, in context, as grooming behaviour'.

208 Having expressed satisfaction that the evidence was admissible under s 79, 'and is in conformity with the principles identified in Makita', the trial judge expressed her view - despite the parties not having addressed the issue - that Dr Owen's evidence was 'likely' also to be admissible under s 108C(1)(a) and (b)(i) of the Act,[72] and that 'this would likely be an appropriate case for an application for leave to adduce the evidence pursuant to s 108C(1)(c)'.

209 The judge did not consider that there was any potential misuse of the evidence such that 'the danger of unfair prejudice to the accused is outweighed by its probative value under s 137', or that 'the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial ... misleading or confusing, or result in undue waste of time under s 135'. In summary, the judge said she was satisfied that 'the evidence is capable of having real and substantial significance to the issues in the trial, namely whether the acts the subject of the charges occurred, whether the conduct of the accused relied on by the prosecution as grooming occurred, and if so, whether it is grooming or innocent incidents of a teacher/pupil relationship'. The judge expressed the view that '[t]he credibility of the complainants (in its broadest sense) is clearly brought into issue as a result'.

210 We consider that, for a number of reasons, the judge erred in ruling that the proposed evidence was admissible. In short, Dr Owen's opinion evidence ought to have been excluded because it did not fall within s 79 of the Act at all, or else must have been excluded under s 135 of the Act. Then there is a question whether the proposed evidence would be a matter for expert evidence at all. But if the evidence was admissible under s 79 and was not excluded, and if the proposed evidence was a matter for expert evidence at all, then it was tendency evidence, which should have been excluded under s 97(1)(b) of the Act, or else when consideration was given to s 101 of that Act. Further, there was also an unacceptable risk that it would have strayed into propensity evidence; and in that event should have been excluded under s 135 or s 137 of the Act. Further still, the judge would have erred had she relied upon s 108C of that Act to admit the evidence.

211 There is no doubting Dr Owen's expertise, which we identified at [193] above, whilst her report and evidence shows that the modus operandi questionnaire has been carefully developed. But the witness's expertise and the questionnaire relate to the evaluation and treatment of known sex offenders. Here, however, what the prosecution sought to elicit was forward looking, rather than a retrospective characterisation, of conduct; a characterisation which could not assume the commission of the offences. In our view, Dr Owen revealed no specialised knowledge based on training, study or experience which permitted the reception of the opinion which the Crown sought to elicit from her. Heydon JA (as his Honour then was) said in Makita (Australia) Pty Limited [73]Sprowles:73

[T]he opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusion reached: that is, the expert's opinion must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience' and on which the opinion is 'wholly or substantially based' applies to the facts assumed or observed so as to produce the opinion propounded.

212 This aspect of his Honour's judgment was upheld by the High Court in Dasreef Pty Ltd v Hawchar.[74] In our view, the attempt to adduce Dr Owen's evidence starkly revealed a disconnect between the field of 'specialised knowledge' in which the witness is expert and its application to the facts to be assumed for purposes of her opinion. As the plurality made clear in Dasreef, such a disconnect goes to admissibility, not simply to weight.

213 There is a related criticism. It would provide a second powerful basis for ruling that the proposed evidence did not fall under s 79 - that is, because it had no probative value; or else, if it was considered to satisfy the opinion evidence threshold, for excluding it under s 135. There was a subtle yet seductive vice associated with Dr Owen's proposed evidence. She has been involved in the treatment of proven sex offenders over a number of years, so that the grooming behaviours that she has observed, or which emerged from the modus operandi questionnaire, were of proven or admitted child sex offenders. Some of the conduct of those offenders - which was described generically as 'grooming' - could be recognised as such once the commission of the sexual offending against the relevant children had been established. Prior to that point, however, as her report reveals, the conduct could not be properly be characterised as grooming, since by and large the impugned conduct was also consistent with innocent interaction. In other words, the impugned conduct or behaviours only took on the characteristics of grooming for sexual purposes once the offending had been established. Thus to endeavour to use the hypothetical man's conduct as 'grooming' in order to establish that it fitted the modus operandi of sex offenders (and thus, in substance, to make it more likely that he had committed the charged offences) was to promote wholly circular and illogical reasoning, since his conduct could only be seen to be grooming once the relevant offences were established. It truly begged the question, as can be seen from witness's report, in which the commission of the charged offences was a circumstance called in aid in proof of the appellant's grooming behaviour. As we have pointed out at [202] above, the 'hypotheticals' did not create any different situation. In truth, the jury could only be satisfied of this aspect of 'grooming behaviour' if it was satisfied of the commission of the offences. That was so despite the prosecution's somewhat simplistic attempt, via the 'hypotheticals', to divorce Dr Owen's proposed opinion from the conduct of appellant.

214 Thus far, we have assumed that the proposed evidence - if there was a relevant field of expertise, in which Dr Owen was appropriately skilled - would be admissible as opinion evidence. But it is far from clear that this would be so. We doubt that the behaviour of the appellant which Dr Owen opined was (highly) consistent with grooming was a matter for opinion evidence at all. We doubt that a jury would require assistance in the form of expert opinion in order to evaluate the appellant's conduct forming the background to the alleged offences.

215 But if we were to assume that the evidence would be admissible under s 79(1) of the Act, that it was not excluded in reliance upon s 135, and that it touched upon a subject-matter respecting which the jury required assistance, then in our opinion it would be tendency evidence within the meaning of s 97(1). The prosecution's attempt to depersonalise the evidence by use of the 'hypotheticals' would be utterly unlikely to distract attention from the real focus of the evidence - the complainants' allegations of the appellant's conduct. So viewed, the evidence would be evidence of the 'conduct' of the appellant, or of a 'tendency' that he had 'to act in a particular way, or to have a particular state of mind'. The reality is that, through Dr Owen, the prosecution wished to establish that certain of the appellant's conduct toward the complainants, rather than being that of ordinary and innocent interaction between teacher and student, instead bore the hallmarks of the modus operandi of a child sex offender. Seen in that light, the evidence plainly was tendency evidence which, by virtue of s 97(1)(b), was required to 'have significant probative value'.[75]

216 In the artificial situation now under discussion, we consider that it could not be regarded as having such value. It would still face the problem of being evidence based upon research which was retrospective in its analysis of the conduct of proven offenders. Dr Owen's evidence would establish no more than that, if the appellant behaved in the manner suggested - which included behaving in the manner which constituted the alleged offending - then it fitted the pattern of grooming behaviours of known sex offenders. Moreover, her opinion was expressed in the face of her acknowledgment, in her report, of 'a broad consensus among researchers that child sexual offending and child sexual offenders are heterogeneous'.

217 Further, by virtue of s 101(2)(b), the evidence could not be used against the appellant 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have' on the appellant. In our view, having regard to the considerations we have mentioned inter alia at [197], [198], [201], [202], [203] and [213] above, that condition could not possibly be satisfied. Again, clothed as it was in a mantle of scientific verisimilitude, any probative value that Dr Owen's evidence might have possessed would be clearly outweighed by its potentially prejudicial effect. The potential for its misuse would be high; and thus any probative value that it might have would be - as the appellant contended in reliance on s 135 and s 137 - outweighed by the danger of unfair prejudice.

218 Further upon the question of prejudicial effect, we should mention another matter. The task which a jury would have to undertake would involve consideration of the entirety of the appellant's conduct as described by each complainant in the charges referable to her. The prosecution case, making use of Dr Owen's proposed evidence, appeared to assume that the jury might approach its task in one of two ways, each of which, we think, was divorced from reality, but each of which invited a form of reasoning which was apt to distract the jury from its task. First, focussing upon the alleged offending, the jury might be doubtful that it had occurred. But then it might resort to antecedent conduct in order to reach a level of satisfaction to the criminal standard that the offending conduct had indeed occurred. Second, the jury might begin with the antecedent conduct,[76] decide that it had occurred, was indeed grooming behaviour, and that this led to a conclusion that the offences had been committed.[77]

219 Then there is the question of propensity. If Dr Owen were to give evidence in accordance with her report, her opinion would turn, in part, upon disreputable conduct attributed to the appellant by complainants other than KL, AJ and KG; and also by other persons. To that extent, it would be propensity evidence. An anti-propensity warning would have to be given; but that, in our view, would not be enough. Rather, the evidence should be excluded under s 137 of the Act. What in our view would be rank propensity evidence would not assume some different character because it was clothed in the language of scientific research. Indeed, so it seems to us, the proposed evidence would positively invite syllogistic reasoning - child sex offenders exhibit a range of grooming behaviours; the appellant exhibited a number of those behaviours; therefore the appellant is a child sex offender and committed the charged acts.

220 But, it can be said, the prosecution eschewed reliance upon the report in favour of seeking Dr Owen's opinion based upon 'hypotheticals'; and those hypotheticals would refer only to the circumstances of which KL, AJ and KG would give evidence.

221 Whilst, were the witness's evidence to be so limited, propensity reasoning would not seem to be involved, appellant's counsel would be significantly hamstrung in his cross-examination. The risk of propensity evidence emerging would, we think, be real. Counsel, to take an example, could scarcely cross-examine upon instructions given to the witness, or the nature of the advice sought by the prosecution. In those circumstances, there would be a serious question whether the evidence should be excluded altogether.

222 Before leaving Dr Owen's proposed evidence, we should say that it would have been erroneous for the judge to rely on s 108C(1)(1)(a), (b)(ii) and (2)[78] of the Act as a basis for admitting the evidence. The prosecution sought to adduce the witness's evidence to characterise, in reality, the behaviour of the appellant and to implicate him in the alleged offending, not as touching upon the credibility of the complainants.[79] That was the topic to which the witness's expertise was said to go, that was what her report addressed, and it was that which the Crown proposed that the witness should address in evidence - as can be seen from the 'hypothetical' set out at [202] above. It was that topic which had been addressed in cross-examination of Dr Owen on the Basha. The judge's 'tentative view' that s 108C might be engaged did not address those considerations at all.

223 Unhappily, in our opinion, the attempt to introduce the evidence of Dr Owen was, in all, another example of the prosecution overreaching in this case, and of its submissions being too readily accepted the judge. Fortunately, during the course of hearing the appeal, counsel for the Crown obtained instructions to resile from any attempt to support the ruling.[80]

Confidential communications application (Ruling No 11, Appeal No 3)

224 KL consulted the counsellor, Dr Jude, between 22 May 2008 and 29 October 2013. Dr Jude made notes at the consultations.

225 On 8 November 2013, a judge of the County Court - not the trial judge - permitted parts of those notes to be produced for inspection.

226 Of particular importance to a number of grounds of appeal, on 24 March 2009 Dr Jude noted:

Has written her statement and felt good about it. Nine pages long. Worried about how other side will pull it apart. Discussed how the school took her diary and photocopied it for tribunal. Worried copies still around and used against her. Reassured her about her case and that all survivors together saying the same thing would help - she is not alone.

227 We have earlier described the events which culminated in the appellant's dismissal, and which led in turn to the Board hearing and its aftermath. At the risk of some repetition, the available evidence suggests that in July 1987 KL and AJ told the school teacher Mr Rojo that the appellant had touched them inappropriately. We need not recapitulate the detail of the accounts given by the three of them as to the precise sequence of events. In the event, on 30 July 1987 the appellant was summarily dismissed, this prompting him to take proceedings for wrongful dismissal. The school took statements from AJ and KL and had them produce their diaries. Certain pages were photocopied, and the photocopied entries were redacted by their authors. The original diaries were returned to AJ and KL. The two complainants took their intact diaries to the Board, and KL's intact diary was produced to the appellant's solicitor for inspection. There is considerable evidence - though KL at the committal variously denied it or could not say - that the appellant's lawyer cross-examined KL on her diary entries. Following her cross-examination the proceeding settled on terms which, we have concluded, were favourable to the appellant. Not long after the hearing, KL and AJ destroyed[81] their diaries.

228 A number of grounds of appeal, not all in the one appeal, contend that the 24 March note is relevant in a variety of ways, and that the trial judge erred in her treatment of it.[82] In substance, the grounds contend that the judge erred by refusing appellant's counsel leave to cross-examine KL on the note on the voir dire, this contributing to findings adverse to the appellant which should not have been made; and that the judge erred in ruling that the appellant should not be permitted to adduce evidence pertaining to the note in cross-examination of KL at trial.

229 In our opinion the trial judge did err in refusing appellant's counsel leave to cross-examine KL on the note on the voir dire and in ruling that the appellant should not be permitted to adduce evidence of the note in cross-examination of KL at trial.

230 Before discussing these aspects in greater detail, it is necessary to refer to the statutory scheme which governed the proposed adduction of the entry into evidence. Subsections 32C(1), (6) and (7) of the Evidence (Miscellaneous Provisions) Act 1958 ('the Act') provide:[83]

32C Exclusion of evidence of confidential communications

(1) In a legal proceeding -

(a) a party cannot seek to compel another party to produce a document containing a confidential communication;

(b) a document is not to be produced if it would disclose a confidential communication;

(c) evidence is not to be adduced if it would disclose-

(i) a confidential communication; or

(ii) the contents of a document recording a confidential communication -

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).

...

(6) For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the appellant for leave.

...

(7) Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.

231 Section s 32B(1) of the Act defines a confidential communication to be 'a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.' (It is not argued that the entry does not contain a confidential communication, so we need not pause to further consider whether the entry evidences the kind of communication at which the definition is aimed.) Section 32B(1) also defines protected evidence to be 'evidence that is protected from being produced or adduced by section 32C(1)'. (Again, it not suggested that the evidence is not protected evidence.) And as defined in the subsection, harm 'includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear)'.

232 Section 32D provides:[84]

32D Restriction on granting leave

(1) A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that -

(a) the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

(b) other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and

(c) the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account -

(a) the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;

(b) the extent to which the protected evidence is necessary to allow the accused to make a full defence;

(c) the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

(d) whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

(e) whether the protected confider objects to the disclosure of the protected evidence;

(f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

(3) A court may grant leave to compel the production of, or to produce or adduce, part of -

(a) a confidential communication; or

(b) the contents of a document recording a confidential communication -

and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.

(4) The court must state its reasons for giving or refusing to give leave under this section.

(5) If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

233 Both s 32C and s 32D are concerned with production of a document containing a confidential communication on the one hand, and the adduction of evidence of a confidential communication on the other. By the time counsel for the appellant sought to rely on the entry containing the confidential communication, it had already been produced in answer to a subpoena, and leave had been granted under s 32D(3) for it to be produced to the appellant's legal advisers. Thus, the judge granting leave for its production must have been satisfied that the entry had substantial probative value to a fact in issue; other evidence of similar or greater probative value concerning the matters to which the entry related was not available; and that the public interest in preserving the confidentiality of the confidential communication containing the entry, and of protecting the complainant KL from harm, was substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value. Moreover, the judge giving leave to produce the entry must have been satisfied that the extent to which the entry was necessary to allow the appellant to make a full defence trumped the likelihood, and the nature or extent, of harm that would be caused to KL by its production (and of the other matters spelled out in s 32D(2)(c) to (f)). It is difficult to see how any of those relevant considerations might have changed by the time counsel sought to adduce evidence of the entry.

234 In connection with the application for a permanent stay, counsel for the appellant sought leave to make use of the 24 March note in cross-examination of KL.[85] The use that counsel could have made of it would have been very limited because of the way in which the judge restricted cross-examination of that complainant. But, focussing only upon the dates to which the redacted photocopies referred, there was some evidence to suggest that KL had fabricated an entry. As for the diary more generally, there was evidence that KL had been cross-examined at the Board upon entries for days other than those to which the photocopied entries related; and it was the fact that the Board proceeding had been settled after KL had been cross-examined.

235 Against that background, the 24 March note was potentially of considerable significance. There was no evidence, as we apprehend it, that the school had photocopied all the entries in either diary for the calendar year 1987 up to 30 July. Depending upon what answers KL gave in cross-examination, 'copies' must have meant either the photocopied entries made by the school in unredacted form, or the entries as redacted. If she meant the former, it was arguably capable of leading to an inference that KL feared, focussing only upon the unredacted photocopied entries - that is, as distinct from other entries in her by then destroyed diary - that their contents could damage her allegations against the appellant. But if she meant the latter, then it might be said to evidence, inter alia, her concern that the authenticity of at least one of the entries in the redacted photocopies was susceptible of challenge. Even on the limited question of collusion, that would have been pertinent.

236 Of course, it cannot be predicted to what extent KL's reliability or credibility might have been affected, particularly if cross-examination had not been limited. But one thing can be said. It is much more likely that any impact would have been adverse, rather than the contrary.

237 The judge's refusal to permit use of the 24 March note arose in the following way. As now commonly occurs, it had been arranged that KL would give evidence on the voir dire by video link. On the morning that was to happen, the trial judge - by reference to a transcript of the directions hearing that took place on 4 October 2013 - informed counsel that her understanding was that leave to cross-examine on the voir dire had been limited to concoction and collusion, and whether there had been any report to the police in 1987. Immediately following the judge's announcement of how she perceived the cross-examination to be limited, and immediately before KL was to be examined on the voir dire, counsel for the appellant enquired whether the witness had her redacted diary notes with her at the remote facility at which she was located. The judge indicated that she would ask KL, prompting the following exchange:

[COUNSEL]: Before we do so, Your Honour, with respect to the 32C material that Your Honour saw yesterday there was a reference that I think I referred to in the extract of 24 March 2009, and I'll just - - -

HER HONOUR: Why are you raising this now before the cross-examination of the witness?

[COUNSEL]: Because it's about the diary notes, Your Honour. With respect to - - -

HER HONOUR: Well, there is no leave to cross-examine this witness about the content of the counselling notes on the Basha.[86]

[Counsel]: I understand that, Your Honour. What I'm raising for this aspect of it would Your Honour grant me leave to use that entry on the 24th of the 3rd 09 with respect to the diary notes - I'll just read it, if I can? 'Discovered how the school took her diary', sorry, 'Discussed how the school took her diary and placed it', I presume it's 'Placed it', 'With the tribunal. Worried copies still around and used against her. Reassured her about case and that all', something, 'Together saying the same things would help. She is not alone.'

HER HONOUR: No, leave is refused.

238 The refusal of leave was peremptory. The trial judge does not appear to have turned her mind to the requirements of s 32C and s 32D. Had she done so, we consider it likely that she would first have taxed counsel with the fact that notice under s 32C(2) with respect to the adducing of evidence had not been given as required. But there is no point in speculating about that, or about counsel's possible response. For the short point is that the judge's peremptory refusal of leave put an end to the application. We add that if the judge's unspoken reason for refusing leave to the appellant to cross-examine on the entry on the voir dire was the appellant's failure to make application to adduce the evidence within the relevant statutory time limit, in our view it would have been unreasonable in the circumstances not to abridge time, particularly when the entry had already been produced. We further note that - (a) the counselling notes had not been produced to the defence until Friday 8 November, and that KL's evidence was taken on 14 November. The appellant could not have complied with s 32C(2) in the time available - even if, which was not the case, the giving of a notice had been the only thing occupying his legal advisers in that period; (b) a possible application to use the notes in cross-examination of KL was mooted on 13 November. Appellant's counsel did not then state a clear position. The discussion prompted the judge to refer to the number of times that KL had been or would be cross-examined before trial, and to observe that this would be relevant to any application which might be made.

239 Had the application for leave been considered on its merits, and particularly if cross-examination of KL had not been wrongly confined, the judge would have had to determine whether, for the investigation and resolution of the issues raised on the application for a permanent stay, the entry had substantial probative value to a fact in issue; whether other evidence of similar or greater probative value concerning the matters to which the entry related was not available; and whether the public interest in preserving the confidentiality of the confidential communication containing the entry, and of protecting the complainant KL from harm, was substantially outweighed by the public interest in admitting evidence of substantial probative value. She would also have been required to consider the extent to which the adduction of evidence of the entry was necessary to allow the appellant to make a full defence, and to have considered the matters set out in s 32D(2)(a), and (c) to (f). (As we have said, those matters had previously been considered by another judge in determining that leave to produce the entry had been given.) In summarily refusing leave without giving reasons, her Honour did not conform to the requirements of s 32D(4) - '[t]he court must state its reasons for giving or refusing to give leave under this section' - and it is thus impossible to say what considerations prompted her refusal.

240 We are of the opinion that, had the judge properly considered the requirements of s 32C and s 32D, she could not have failed to grant leave to adduce evidence of what the note contained through the cross-examination of KL. At the very least, when taken at face value the note was capable of demonstrating that KL was conscious of the fact that even the redacted the photocopied entries would be damaging to her. It was legitimate for counsel to explore the source of her concern about those entries in circumstances where the destruction of the intact diary was a matter sought to be agitated on the stay application, where one line of cross-examination on the voir dire was that a particular photocopied entry had been fabricated, and where the redacted entries could no longer be compared with the original diary entries.[87] Carrying out the balancing exercise required by ss 32D(1)(c) and (2), the judge could not have failed to find that the public interest of admitting evidence of substantial probative value, and of permitting the appellant to make full defence, outweighed any relevant 'harm'. It will be remembered that, by the time counsel sought to adduce the evidence, the note had already been produced to the parties by leave of another judge. Thus, the content of the note had already been revealed. Moreover, the cross-examination was to take place in camera, and exposure of the content of the note would thus remain limited to the witness, the judge, counsel and solicitors and court staff. It is thus difficult to see how there could be any 'stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear)' by adducing the note in cross-examination beyond the discomfort ordinarily experienced by a witness when confronted by evidence impinging on credibility.

241 Despite the trial judge having refused the appellant's counsel the opportunity of putting the note to KL on the voir dire, the judge was yet prepared to find that there was 'nothing in the materials placed before [her] on the stay application which arose out of the pre-trial examination of witnesses before [her], or which [she had] been able to find from the depositions, which would support the contention made by [counsel] that [KL] was cross-examined successfully, resulting in the case being settled on favourable terms to the accused'.[88] Whether counsel for the appellant, following cross-examination on the note, could have more strongly pressed for a contrary conclusion is an unresolved question. But the fact is that he was prevented from attempting to do so. The judge was wrong to shut counsel out from adducing the note on the stay application in circumstances where the content and destruction of the original diaries was pivotal to the application.

242 The note was important in another respect. Having been prevented from adducing the entry in support of the stay application, counsel nonetheless wished to cross-examine KL on it for the purposes of the evidence to be put before the (yet to be empanelled) jury. Application was made accordingly. Part of Ruling No 11 related to the application to cross-examine KL on the note before the jury. As we have indicated, it cannot be gainsaid that the contents of KL's diary, and the circumstances of the destruction of her original diary, were relevant to her credibility. Incomplete and redacted parts only of the original remained. Examination of the redacted photocopies revealed, so it was argued, that an entry had been fabricated. Counsel for the appellant wished to cross-examine on the 24 March note to show that the original diary had deliberately been destroyed because KL was concerned about the effect that the unexpurgated diary entries might have on her credibility, and that she remained concerned that unedited copies of her diary might still exist. In refusing the application to adduce the note through cross-examination of KL, the judge remarked that she was not satisfied that KL had been cross-examined 'successfully' at the Board.[89] Further, she said that 'there is no evidentiary support for the contention [KL] knew the diaries were damaging to her'.[90] Ultimately the judge held:[91]

Even if the entry were thought to have substantial probative value to [KL's] credibility or reliability, there is a substantial body of other evidence concerning the circumstances in which the redacted diary entries were produced, and in which the diary was produced at the [tribunal] hearing. In those circumstances I do not consider that the accused is denied the opportunity to make full defence if permission to cross-examine [KL] on this portion of the notes is refused. In my view, the public interest in preserving the confidentiality of confidential communications and protecting [KL], a protected confider, from harm substantially outweighs the public interest in permitting cross-examination in respect of this entry in the notes.

243 With due respect to the trial judge, it is difficult to understand how the 24 March note could be said to have other than substantial probative value to KL's reliability. Moreover, and again with due respect to the trial judge, although there was a body of evidence concerning the circumstances in which the redacted diaries were produced, there was precious little direct evidence independent of KL which bore upon her motives for destroying the original intact diary.

244 Although, as we have said, it is not the only interpretation open, the reference in the 24 March note to KL discussing with Dr Jude how the school had taken her diary and photocopied it, and to her being worried that copies may still be 'around and used against her', is in our view capable of founding an inference that KL was concerned that unsanitised copy entries taken from her original diary might still be in existence and harmful to her credibility. Cross-examination on the note might lead to a reasonable jury drawing the inference that the unredacted diary might be harmful to KL's credibility, and that KL was fully cognisant that this was so. At the very least, the note might lead a jury - acting reasonably - to enjoy a well-founded doubt about the completeness and accuracy of the surviving copy diary contents. The note, whether taken alone or in combination with other evidence concerning the diary - for example, the evidence of Mr Rojo that he copied all relevant entries, none of which record penile-vaginal rape having occurred[92] - might be critical in the jury's analysis of KL's evidence. Even were the note simply taken to demonstrate that KL was conscious that her diary might be damaging to her, that is a matter which may well legitimately bear on her credibility.

245 In our opinion, the judge's finding that there was no evidentiary support in the 24 March note for the notion that KL was cross-examined 'successfully' at the Board,[93] even on the evidence which her Honour permitted to be adduced, was doubtful, for the reasons set out at [136] above. Further, it was not open to the judge to conclude that the note had other than substantial probative value, or that cross-examination on it was not necessary for the appellant to make 'full defence'. There was little other evidence independent of KL to establish her attitude to the contents of her diary. Moreover, in a situation where the appellant is charged with, among other charges, KL's rape, it is difficult to conclude that the public interest in permitting evidence of substantial probative value is outweighed by the public interest in preserving the confidentiality of the communication. After all, the note is not a record of some personal reflection or experience directly related to the trauma of sexual abuse, the revelation of which might have the potential to cause personal embarrassment or further trauma to a victim of a sexual offence. Rather, on one view the note reflects the fear that the complainant has concerning her own credibility if cross-examined on her diary.

246 In the event, the judge erred by refusing the application to adduce evidence of the 24 March note via cross-examination of KL. Instead, she should have permitted cross-examination of KL on the entry as part of the application for the stay, and, on the assumption that any stay properly was refused, she should have permitted cross-examination on the entry before the jury.

247 For the sake of completeness, we note that, in refusing to permit cross-examination on the entry, the trial judge did not invoke ss 32D(a), (c), (d) or (f) as justification for refusing the application. Moreover, although s 32AB of the Act provides 'guiding principles' which are to be followed in interpreting s 32C and s 32D,[94] in our view none of them had immediate relevance to the task that we were required to undertake.

248 In the event, both in any cross-examination of KL on the re-hearing of the stay application, and at trial if the application is refused, the appellant ought be permitted to cross-examine KL in the manner sought. We ruled to that effect on 12 February.

Guilty plea application (Ruling No 13, Appeal No 4)

249 The fourth appeal is concerned with Ruling No 13, which was that the appellant's pleas of guilty to allegations of indecent assault by the Emerald and Berwick witnesses and the summary of agreed facts ('the summary') read out on the plea could be adduced by the Crown in rebuttal of a foreshadowed challenge to the truthfulness and reliability of the account of those witnesses.

250 Beyond seeking to rely below on the viva voce evidence of the five Berwick and Emerald Secondary College witnesses, the prosecution sought also to rely on what the trial judge described as 'evidence of admissions by the accused of the very sexual misconduct which it proposes to lead from the five witnesses'. Her Honour said that '[t]he evidence on which it relies to prove the admissions is evidence first, that the accused pleaded guilty to one rolled up count of indecent act with each of the five witnesses in the Melbourne Magistrates' Court on 12 February 2008, and secondly, of the content of an agreed statement of facts put before the magistrate and which formed the factual basis for the charges to which the accused had pleaded guilty in respect of these 5 witnesses'. The judge noted that the prosecution 'does not intend to lead, as part of its case, evidence of the admissions made by the accused to such conduct'; but that, '[i]f however, the [appellant] challenges the credibility or reliability of the five witnesses in respect of the conduct alleged by them, the prosecution has advised it intends to lead in rebuttal, evidence of the admissions made by the accused of the conduct'.[95] The 'admissions' of which the judge spoke she described as 'the guilty pleas and the agreed statement of facts'.

251 It will thus be noticed that her Honour characterised the appellant's pleas of guilty and the agreed statement of facts as 'admissions'. She understood that the prosecution did not desire to lead the 'admissions' as 'part of its case'; but that, should the appellant challenge the credibility or reliability of the five witnesses, the prosecution wished to lead the evidence of 'admissions' in 'rebuttal'.

252 In her ruling, the judge summarised the evidence sought to be led in rebuttal as follows:

The circumstances in which the pleas of guilty were entered, and the statement of fact was agreed were the subject of evidence on a voir dire. Sergeant Van Geyzel gave evidence he was the prosecutor with the carriage of the prosecution of the accused on multiple charges of sexual offences against multiple complainants, which was booked in for a 10 day contested summary hearing in the Melbourne Magistrates' Court in February 2008. After the first complainant gave evidence and was cross-examined on the first day, [named] defence counsel then appearing for the accused, had entered into negotiations with him to settle the matter.

The matter was ultimately resolved by the accused entering guilty pleas to 10 charges of indecent act, one in respect of each of 10 complainants. Each charge was a rolled up charge, alleging the accused engaged in indecent acts with the particular complainant between specified dates, generally a period of some weeks or months.

A summary of the facts in respect of each individual rolled up charge was negotiated between Sergeant Van Geyzel and the accused's counsel. It identified, complainant by complainant, the particular acts and surrounding circumstances which were encompassed by each rolled up charge. As is customary in summary prosecutions, the prosecutor had prepared a summary of charges, and in the course of negotiations, the summary was amended. As Sergeant Van Geyzel said in cross-examination, some of the amendments were favourable to the defence, some to the prosecution. Following the negotiations over the content of the summary, defence counsel conferred with the accused for, Sergeant Van Geyzel estimated, approximately 1 hour. He then told Sergeant Van Geyzel the summary was agreed.

Sergeant Van Geyzel said the court then reconvened, and the accused pleaded guilty to the 10 rolled up charges, the remaining charges were withdrawn, and the agreed summary was read to the court. Sergeant Van Geyzel identified the copy summary tendered before me on the voir dire with handwritten amendments on it as a true copy of the agreed summary he had negotiated and read to the court. He said the handwritten amendments were in his handwriting. He said he read aloud on the plea hearing the whole of the agreed summary, save for the passage concerning the complainant [JT], word for word from the document. The summary concerning [JT] was not read aloud. He said [JT] was the complainant who had given evidence the previous day. The parties agreed the summary accurately summarised the evidence she had given the previous day, and by agreement, the factual basis for the charge concerning [JT] was the whole of her evidence the previous day. He said, and was not challenged on this, that [JT's] evidence was untouched by cross-examination. It follows the foreshadowed oral evidence from [JT] is the same as the evidence which was relied on for the purposes of the plea, and the summary in the agreed summary is an accurate summary of the evidence she actually gave.

Sergeant Van Geyzel said he was confident he had read the agreed summary, in respect of the other 9 complainants, word for word, without omission or addition, in accordance with his practice when a plea had been negotiated on an agreed set of facts. The audio recording of the evidence adduced from [JT], the entry of the guilty pleas, and the reading of the agreed summary no longer exists. It was destroyed in accordance with what was then the normal practice in the Magistrates Court, some time after the time for appeal had expired.

253 Before the judge, counsel for the appellant accepted that the pleas of guilty and the summary on the plea constituted 'admissions' but challenged the admissibility of the evidence on the basis that it should have been excluded pursuant to s 101 of the Act . He submitted that if the evidence of the 2004 witnesses was admissible as tendency evidence - something which he challenged - then the evidence of the course followed by the appellant in pleading guilty to the allegations by the 2004 witnesses was also tendency evidence which should be excluded. Implicit in the submission was an assumption that the evidence, if admitted, would be treated as evidence of the truth of the facts asserted in the summary. He submitted that to admit the course followed on the plea would be prejudicial and that the evidence would not have substantial probative value for the following reasons. There had not been a full hearing of the allegations in the Magistrates' Court. The facts supporting the allegations of indecent assault were uncertain. It should be inferred that the appellant pleaded guilty to obtain a lesser sentence. The plea and summary followed negotiations to secure that lesser sentence and involved 'factual concessions' by both parties. There was room for error as to what facts the appellant actually admitted by the pleas. The evidence of the 2004 witnesses would be challenged at trial. The judge should regard the cogency of the evidence of the five witnesses as impaired, and their evidence would be unfairly bolstered by the evidence that the appellant had pleaded guilty and admitted the facts in the summary.

254 The judge rejected each of these submissions. She ruled that the guilty pleas entered to the five 'rolled-up' charges in respect of the five witnesses, and the contents of the summary, were capable of 'evidencing a genuine admission of guilt of those charges on those agreed facts'. In considering the question of unfair prejudice flowing from putting before the jury that the appellant had previously been convicted of other sexual offences, her Honour thought it 'necessary to consider the purpose for which the evidence is to be led, and the circumstances giving rise to the foreshadowed adducing of it'. The prosecution, the judge observed, 'seeks to rely on evidence of the admissions only if the accused challenges the truthfulness and reliability of the five witnesses on the issue of whether the accused engaged in the conduct alleged by them, and if so, whether it amounted to sexual misconduct'. She went on:[96]

In my view, there is a clear distinction between evidence led in proof of a fact, here the evidence of the five witnesses as to what they said actually happened and evidence led to rebut allegations put to the witnesses they were lying, mistaken, or unreliable.

In my view, it would have been open to the prosecution to lead, as proof of the matters relied on as tendency evidence in respect of the 5 witnesses, not just their oral evidence, but also the admissions made by the accused he engaged in that very conduct. It has chosen not to do so, so avoiding leading, as part of its case, evidence which, although probative of the conduct, is also prejudicial to the accused.

As I said in Ruling No 5, it cannot be the case that an accused, having pleaded guilty to charges, on an agreed statement of facts, concerning the very same conduct relied on in this trial, can then argue he is unfairly prejudiced by the admission of that evidence if he challenges the evidence of the complainants which is in the same terms as those admissions. The prejudice he suffers is caused by his own conduct, in seeking now to deny what he had previously admitted, in what I am satisfied is a genuine admission of guilt. That is not unfair prejudice within the meaning of s 137 or 135.

255 As drawn, the grounds of appeal focus only upon the question whether the evidence should have been excluded under s 101. They obscure the problems attending the manner in which the parties and the judge approached the evidence now impugned.

256 Before going further, this must be noticed. The impugned ruling was consequential upon the judge having ruled that the evidence of the 2004 witnesses was admissible as tendency evidence, and should not be excluded. Before us, counsel for the Crown accepted that there was a reasonable possibility of collusion between the two Emerald witnesses, and stated that the prosecution would not call them at trial. We acted upon that concession and statement in our disposition of the matter on 12 February. At that time, for reasons which we have explained,[97] we also set aside the judge's ruling that the evidence of the Berwick witnesses was admissible as tendency evidence, and remitted that question for re-hearing and determination. The question whether the appellant's guilty pleas and the summary - or rather, those parts which relate to the Berwick witnesses - are admissible will thus depend, in the first place, upon the disposition of the tendency argument.

257 In this Court, it was initially submitted for the Crown, by its written case, that the 'prosecution did not intend to lead as part of its case the fact of this admission'. The written case continued:

The prosecution's position was that it would only adduce evidence of the admission if the 2003-4 witnesses gave the evidence that it was expected they would give and the appellant contended before the jury (in evidence or by suggestion through his counsel) that the appellant had not committed the offending described by the 2003-4 witnesses.

258 But after an adjournment over the weekend, counsel submitted - based, as he said, upon 'instructions' from the trial prosecutor - that when the prosecutor informed the judge that she wanted to lead evidence in 'rebuttal', she did not mean 'rebuttal' as ordinarily understood by those familiar with the ordinary and orderly processes of criminal trials. That is, the prosecutor did not have in mind to split the prosecution case so as to introduce the impugned evidence following the presentation of the defence evidence (if any). Rather, when the prosecutor spoke of rebuttal, what she really meant was that the prosecution would lead the evidence as part of its primary case if the five witnesses were challenged in cross-examination.[98]

259 Whatever the prosecutor may have intended, it is clear that the judge understood the prosecutor's submission to be that the prosecution would split its case - by leading evidence in rebuttal after the defence case - should the defence challenge the truthfulness or reliability evidence of the five 2004 witnesses concerning the appellant's conduct with them. Even if the situation into which the judge was led by the prosecutor was the product of infelicitous and imprecise use of the term 'rebuttal' in the manner lately suggested by the trial prosecutor, there can be no doubt that the judge understood that the prosecution wished to introduce the evidence after the appellant had mounted his defence. That was the course that the judge sanctioned.

260 It is somewhat surprising that, beyond submitting that the proposed evidence was inadmissible as tendency evidence, appellant's counsel did not submit below that it would be inappropriate for the anticipated evidence to be led by way of rebuttal. Moreover, beyond the judge describing the pleas of guilty and the summary of evidence as 'admissions', none concerned with the trial seem to have given any thought to the possible juridical basis (or bases) for the admissibility of the evidence.

261 As to the permission that the judge gave to the prosecution to lead the evidence of the pleas of guilty and summary of facts in rebuttal, in our opinion the judge should not have given her imprimatur to that course. If the evidence was admissible - a matter to which we will return - it was incumbent on the prosecution to lead it as part of its primary case rather than hold it back for rebuttal.

262 One of the fundamental principles underpinning the adversarial system of criminal justice is that, as a general rule, the prosecution is required to put its case fully and fairly to the jury before the accused is called upon to announce the course that will be followed. It is, as a general rule, improper for the prosecution to split its case. The rule is venerable.[99] It is borne of fairness to the accused. As Dixon, McTiernan, Webb and Kitto JJ observed in Shaw:[100]

[T]he prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. ... It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.

263 As matters presently stand, we can see nothing in the circumstances of the case which would warrant departure from the general rule. When evidence of such a nature is admissible to support a prosecution witness it should be offered by the prosecution in the ordinary way as part of its primary case. In our opinion, the judge was wrong pre-emptively to permit the prosecution to lead the evidence in rebuttal should the appellant's counsel be bold enough to attack the credibility or reliability of the evidence of the 2004 witnesses. To sanction such a course was to contemplate a situation in which the trial would became completely and unfairly unbalanced to the prejudice of the accused. There is nothing special or exceptional that we presently can see which would warrant departure from the principle that the prosecution must offer all of its proofs during the progress of its case. The judge was wrong to permit such a Damocletian sword to be hung over the head of the defence.

264 From what we have already said, it may be gleaned that the judge gave no noticeable consideration to the general rule that the prosecution should not, save in very special or exceptional circumstances, be permitted to split its case. Had she properly directed herself, it would have been necessary to refuse the prosecution's application to lead the evidence of the pleas of guilty and statement of facts in rebuttal. Her failure to do so vitiates her ruling, such that it must be set aside. We should not leave this aspect, however, without observing that it is regrettable that the judge was in the first place led into error by the prosecutor who suggested this course. Her Honour was not thereafter given the assistance to which she was entitled from either end of the Bar table.

265 We turn to the anterior question that should have been investigated. On what juridical basis might the pleas of guilty and statement of facts be admissible?

266 In this Court, counsel for the Crown, pressed in oral argument as to the evidentiary basis upon which the plea and summary were admissible, obtained instructions when the hearing was adjourned over a weekend. Upon resumption, he submitted that the prosecution did not intend to introduce the evidence of the pleas of guilty and summary as evidence of the truth of any fact contained within them. Rather, it was now submitted for the first time that the introduction of the evidence was justified as a response to a prior inconsistent statement, and would go only to the appellant's credibility. Those somewhat startling propositions were perspicuously absent from the submissions that the prosecutor put to the judge. Further the judge did not proceed upon that basis but treated what she characterised as the evidence of admissions as one would expect, namely as evidence of the truth of the facts asserted.

267 The admissibility of prior inconsistent statements is governed by s 43 of the Act. The section is directed to the cross-examination of a 'witness' as to a prior inconsistent statement made by the witness. The appellant is not yet - and may never be - a witness. Hence s 43 would not permit the impugned evidence to be admitted as a prior inconsistent statement as part of the prosecution's primary case. Section 43(2) permits the introduction of the prior inconsistent statement only if the witness does not admit that he made the prior statement. In those circumstances the party who seeks to adduce the statement may re-open its case.[101]

268 Unless the appellant was to give evidence and was to contradict the representations to be inferred from his pleas of guilty and the summary, s 43 could have no application.

269 Counsel for the Crown then submitted in oral argument that, as the trial proceeds (assuming that there is to be a trial) it may be inferred from puttage in cross examination of the Berwick witnesses that the appellant asserted facts in his instructions to counsel which contradicted his guilty pleas and the summary. This submission was only advanced after it was recognised that s 43 of the Act could not apply unless the appellant gave evidence. The contention that evidence of the pleas of guilty and of the summary would be admissible as a statement of the appellant inconsistent with his instructions to his counsel and thus going to his credibility was not advanced before the trial judge and was not the basis upon which the judge ruled the evidence admissible. None of the exceptions to the credibility rule were called in aid to justify such a course.

270 The inferences to be drawn from facts asserted in the puttage of cross-examining counsel is always problematic in a criminal trial. It should be borne in mind that although counsel's questions may sometimes be relied upon as evidencing an accused's instructions in a criminal trial, such inferences are discouraged and must only be drawn with extreme caution.[102] Furthermore, even if, as a future trial developed, it could be inferred that the appellant had instructed his counsel to raise assertions of fact in his questions so as to challenge the Berwick witnesses, the Crown did not identify an evidentiary basis for admitting the pleas of guilty and the summary for its intended limited purpose of undermining the appellant's credibility. Possibly, counsel contemplated that evidence could be adduced from the police prosecutor of the fact that the summary was read out, and of its content, and of the appellant's plea of guilty, in reliance upon s 108B(3)(c) of the Act.[103]

271 We turn then to her Honour's characterisation of the evidence of the plea and summary as admissions. The Dictionary to the Act relevantly defines an 'admission' to be a 'previous representation' made by a party to a criminal proceeding that is 'adverse to the person's interest in the outcome of the proceeding'; and a 'representation' includes an express or implied representation (whether oral or in writing), and a representation to be inferred from conduct. The admissibility of admissions is governed by Part 3.4 of the Act (ss 81 to 90). The evidentiary basis for their introduction into evidence as admissions was not addressed in the parties' submissions before her Honour or in the ruling or in the written case of the parties on appeal.

272 The first question pertaining to admissibility that would need to be considered relates to relevance. Here, the relevance of the presumed admissions would depend upon them being admissions of conduct admissible as tendency evidence. If the evidence of the Berwick witnesses did not have that character, neither could the pleas of guilty and summary.

273 Next, in a particular case the course followed on a plea may permit an inference to be drawn that the defendant made a representation or representations of fact.[104] If so, the 'representations' will encompass all that would be conveyed to the observer.[105]

274 It can be inferred from what happened on the plea that the appellant made a number of representations as to the facts asserted in the summary. It will be for the trial judge to determine whether it would be open to a jury to conclude from the plea and the summary that the appellant was admitting the facts contained in the summary to be true. That question must be left for determination by the trial judge as must the further question whether as a matter of discretion the evidence should be excluded under s 90 of the Act on the basis that 'having regard to the circumstances in which the admission was made, it would be unfair to [the appellant] to use the evidence'. So also, the exclusion provisions referable to tendency evidence would need to be considered.

275 Before us, counsel for the Crown disclaimed reliance on the pleas of guilty and summary as evidence of the truth of the facts asserted. If evidence of those matters was to be admitted as admissions, it is difficult to see how the evidence could be confined in the manner which the Crown suggested on appeal - as going merely to the appellant's credit.[106] If the evidence was received as admissions and even if there be an evidentiary basis upon which its use could be limited to credibility of the appellant or the witnesses, the question would arise for consideration by the trial judge whether a direction to the jury to that effect would be sufficient to avoid the risk that the jury would regard the appellant as having admitted the truth of the facts in the summary. Section 137 might then be called into play.

276 As is clear from the foregoing, there are a number of reasons why the judge's ruling admitting the impugned evidence could not be permitted to stand. First, insofar as part of it related to the evidence of the Emerald witnesses, in the face of the defence challenge the prosecution no longer contended that their evidence was admissible, and it conceded that a deal of the other evidence could not be led in support of charge 5. Second, the judge failed to direct herself properly as to whether the prosecution should be permitted to lead the evidence by way of rebuttal. Third, although characterising the evidence as constituting 'admissions', the trial judge did not address the evidentiary basis for their admissibility, or any discretion to exclude such evidence. We add that the judge understandably did not consider whether the evidence could, by reference to puttage, as the prosecution submitted in this Court, be introduced to prove a prior inconsistent statement and as going only to credit.

277 In all, if the Crown wishes to introduce the pleas of guilty and the summary at a trial, close attention will need to be given to the juridical basis or bases for admission which is or are relied upon. If the tendency application fails, there could be no basis for admitting the evidence. Otherwise, depending upon the way that the matter is put, it might be possible for a judge to rule upon admissibility before trial. In other circumstances, admissibility might depend on the course which the trial takes. In either event, if the oral evidence of the Berwick witnesses is ruled to be tendency evidence on charges relating to any of the complainants, it is certain that issues to do with excluding the evidence of the pleas and summary will arise.

278 This Court has consistently emphasised the need for interlocutory appeals to be confined to circumstances which rigorously comply with the filter imposed by s 295 of the CPA;[107] and it has consistently attempted to dispose of appeals expeditiously. But preparation for, hearing and resolution of these interlocutory appeals has occupied a very great amount of the Court's time; an amount of time which would be unsustainable in all but the rarest of cases. A number of factors, which we have identified in our reasons, explain why these appeals fell into that very rare category. We will mention five of them. First, the appeal against the judge's refusal to grant a permanent stay, it not being based only upon presumptive prejudice, involved not simply the application of principles to established facts, but (successful) challenge to the facts found. It required a close examination of voluminous material deriving from multiple sources. Second, the appeal with respect to the admissibility of Dr Owen's evidence required consideration of proposed evidence - novel, so far as we are aware, in Victoria - the reception of which was pressed below, but was abandoned on appeal. It was necessary to explain why the concession as to inadmissibility was rightly made. Third, the cross-admissibility of the complainants' evidence was pressed by the prosecutor below on a basis which departed from authority, and the judge resolved cross-admissibility on that basis. It was necessary to illuminate, and correct, that flawed approach. Fourth, the bases upon which the Crown sought to introduce the appellant's pleas of guilty to other charges, and the summary, were varied and their juridical bases were unidentified, as was the basis upon which the trial judge ruled them admissible. Fifth counsel for the appellant, as we have explained, at different times did not give the judge the assistance to which she was entitled. This contributed to the approach which the judge took, for instance, to the reception of evidence on the voir dire, an approach which, we have concluded, was erroneous.

[1] The rulings were made after the appellant had been arraigned before the judge, but before he had been arraigned before the jury; and thus the trial had not commenced. See ss 210 (1) and 295(3) of the CPA.

[2] They are expressed in the present tense, notwithstanding our disposition of the matters on 12 February. Nothing turns on them being in that form.

[3] We shall so describe him, although the starting point of the proceeding before us was an application, in each instance, to review the judge's refusal to certify. See n 4.

[4] In order to grant leave to appeal, it was thus necessary for the Court to determine applications to review the decisions - see s 296(1) of the CPA - necessarily considering the matters referred to in s 295(3), and being satisfied as required by s 297. Our reasons for allowing the appeals reveal why we granted leave to appeal, and we do not separately address that question.

[5] By 'consideration' we mean re-hearing and determination.

[6] On the charge of rape, the Court held that KG's evidence was inadmissible as tendency evidence.

[7] That is, assuming that no order for a permanent stay was made.

[8] On the assumption referred to in n 7.

[10] Both on the voir dire and at trial.