SY v R

Court of Criminal Appeal (NSW)|2017-08-30|Before: Hoeben CJ, Davies J, Bellew J

Judgment

HOEBEN CJ AT CL: I agree with the reasons of Davies J.
DAVIES J: The applicant was charged with assaulting the complainant and at the time of the assault committing an act of indecency on him in circumstances of aggravation. The circumstances of aggravation were that the complainant was under the age of 16 years being aged 15 at the time of the assault.

The alleged offending

The applicant was a Deacon at St Joseph's Maronite church, Croydon and the complainant, aged 15 years, served as an altar boy at the same church. The complainant first met the applicant when the applicant first came to the parish as a subdeacon about two to three years prior to the events complained of.
In October 2005 the Holy Relics of the Saints of Lebanon toured Australia. The Relics were present at St Joseph's church from 7pm Saturday 15 October 2005 until 7pm on Wednesday 19 October 2005. During that time the complainant joined in one of the all night vigils and stayed overnight in the church. The complainant's mother gave evidence that she was reluctant to allow the complainant to remain at the church when she was going home but the applicant said that he would make sure the complainant was taken home.
The next morning while it was still dark the complainant went with the applicant who said he was taking him for breakfast at McDonald's before driving him home. The complainant got in the front seat of the applicant's car and reclined the seat. Almost immediately he began to fall asleep. A few streets later the applicant pulled over. He placed his right hand under the drawstring of the complainant's pants, between his pants and his underpants, and masturbated the complainant until he ejaculated. The complainant pretended to be asleep. The applicant then drove the complainant home. Nothing was said.
The complainant identified on a map where the offending occurred. He also accompanied the police in a car and pointed out the route where the applicant drove him from the church and indicated where the offending occurred. The evidence in that regard was that the applicant drove west in Wychbury Avenue for two blocks, turned left into King Edward St and left again into Monash Parade. He stopped the car under a street light on the corner of Monash Parade and Acton St. The church was further down that block on the corner of Acton Parade and Wychbury Avenue.
Although the complainant did not tell his parents or the police until 2014 there was evidence from friends of the complainant of early complaint. The complainant first told his cousin [CT] a few days after the incident. [CT] had noticed that the complainant had been "distant for a couple of days" and [CT] asked him if everything was okay. The complainant then began to tell him about what happened. He said, "I was in the car with [SY] you know and he touched me bro and I blew". [CT] said that the complainant seemed very distraught and very emotional when he told him. [CT] said he shut the conversation down very quickly because he was reluctant to believe it. A little further in his evidence when asked again what the complainant said [CT] said that the complainant said "[SY] touched my inner thigh and I blew".
There was also evidence from two other friends Alex Saade and Matthew Ayoub. They said they were at Chris Touma's house with Chris and the complainant around the pool. Mr Saad's evidence was this: A. Okay. Well, he, well, he told us pretty much that at the nights he was staying at the relics at the church, he was sleeping at the church, that one night [SY] told him, "Get up. I'm going to take you somewhere to go eat." It was early on, in the morning during the morning hours before the sun had rose. They were, were - they arrived at a destination but the place was closed. So on the way back they were driving back towards the church. He fell asleep in the car and he was--- Q. When you say "he", who? A. [The complainant]. [The complainant] fell asleep in the car. Q. Did he use those words, that he fell asleep or --- A. Yes, he --- Q. --- something similar or different? A. He said, yes, he fell, he fell asleep in the car and he recalled finding himself in the side street with [SY]'s hand on [the complainant's] dick and he --- Q. Did he use those words? A. Yes, he said "dick". He used those words. Found himself - outside of his pants on his dick and he was too shocked to move or he was really scared to open his eyes and he found, he found [SY] rubbing [the complainant] outside of his pants on his dick until [the complainant], until [the complainant] blew, pretty much, and then he wiped the, the cum onto [the complainant's] pants, and that he was too scared to open his eyes or, you know, pretty much react to anything, and then they drove back to the church. Q. Did [the complainant] say this all at once or did he say it in phrases where there were breaks or pauses or --- A. He was pretty upset while he was saying it but it was all at once. Like, he was a bit emotional while he was saying that. Q. Was there anything that prompted him to say that in terms of anything you said or Matthew --- A. No.
Mr Ayoub's evidence was this: Q. As best you can remember them? A. Okay. He said that one of the nights that he was sleeping at the church that [SY] offered to take him to go get something to eat during the night. It would have been late, late night/early morning and he said that there was no food open. They went back to get - they went back to the church and they were sitting in the car and he had fallen asleep and they - he said that he had woken up and [SY] rubbing over his private parts. Q. Did he use the word "private parts"? A. No, he used "dick". Q. What were the words he used? Don't worry about offending anyone. A. Yeah. Okay. Okay, no worries. Yeah, he said --- Q. We weren't there. What was the best recollection of what [the complainant] said to you? A. He, he said that he felt [SY] rubbing his dick and he had woken up from that and he pretended to be asleep because he was scared and didn't know what was happening and after that he - they had gotten out of the car and he - I remember he was - at first I wasn't sure, like can this be for real and he started crying, got very emotional.
There was also evidence from another friend, Fred Succar. He said that around the time he turned 14 (he was born in January 1992) the complainant asked him had [SY] ever touched him on his dick or in that area. The complainant then told Mr Succar what had happened.

The applicant's case

The applicant denied the incident. He had no recollection of even seeing the complainant during one of the all-night vigils. He denied driving him home in the early hours of the morning, or at any time during the visit of the Relics. He did not stop the car and touch the complainant's genitals.
It was the applicant's case that, having regard to the evidence in the crown case as a whole, the jury could not be satisfied beyond reasonable doubt that the incident occurred. There were inconsistencies in the complainant's accounts of the incident. There was no support for the proposition that the complainant was present in the church during one of the all night vigils. It was highly improbable that the applicant would stop the car very near to the church and the location of many of the families who attended the church and masturbate a young boy.
The complainant, although 15 years old, was a great deal taller and stronger than the applicant and could have easily brushed his hand away. Photos and videos showed that the complainant continued to attend church after the incident, including attending the applicant's ordination as a priest and receiving a blessing from him at that ordination, subsequently attending youth camps with the applicant, and receiving holy communion from, and going to confession with, the applicant all of which were inconsistent with having been assaulted by him.
The applicant's case at the trial concentrated on a number of matters. First, the applicant denied the allegation and gave evidence to that effect.
Secondly, the applicant led evidence about the goings on during the visit of the Relics to the church. In particular, he said that there was a considerable amount of food during the vigils and adorations. He was very busy and there were lots of people present. He would stay up until after midnight and would have to wake around 6:30 to prepare for mass. There was no reason, contrary to the suggestion of the complainant, to leave the church for food. The applicant's own evidence was that he himself did not eat breakfast until after mass and that was corroborated by another witness.
Thirdly, it was improbable that the complainant would have been at the church alone and unobserved.
Fourthly, the complainant's conduct after the time of the alleged indecent assault was entirely inconsistent with the complainant having been indecently assaulted by the applicant. It was also inconsistent with the complainant's initial evidence about his interaction with the church after the alleged indecent assault. The conduct referred to was the continuing relationship that the complainant had both with the church and with the applicant such as attending the applicant's ordination as a priest and attending at church youth camps where the applicant was involved.
Fifthly, contrary to the complainant's contention that his life took the turn for the worse after the alleged indecent assault, the complainant had serious problems before that time.
Sixthly, the allegation was completely uncorroborated despite the considerable number of people present at the time.

Ground 1: The trial judge's directions to the jury about evidence that the complainant was not sighted at the church late at night were apt to mislead or confuse the jury regarding the onus and standard of proof as it applied to evidence led by the accused and thereby occasioned a miscarriage of justice.

The summing-up

The applicant complained about the following remarks in the trial judge's summing-up to the jury. Her Honour said this: To use a couple of examples from this case, many witnesses have given evidence that they did not recall seeing [the complainant] at the church later in the evenings on any nights of the relics but is this, after ten years or so, reliable evidence to help you decide whether he was there or not? That is entirely a matter for you. It is important to consider that this is evidence of a negative and just because you do not see someone at an event it does not mean that they were not there. This is to be contrasted to the evidence that a person was seen, which is obviously evidence that they were there. Whilst a number of witnesses had no recollection at all of seeing [the complainant] at the church, something Mr James says is unlikely if he had, in fact, been there given that he was a young teenager seemingly alone, it seems that perhaps he was there in the evening and anticipating to stay later on one occasion. You might recall the cross-examination of [the complainant's mother], [the complainant's] mother, where Mr James suggested that on one night of the relics she had a conversation with her son, [the complainant], about permitting him to stay on at the church and that there was a later conversation about this with the accused at about a time when [the complainant's mother] was tired and wanted to go home. Mr James suggested it might have been at about 8 or 9 o'clock at night. It was suggested by Mr James that the accused said something like, "Leave him. I'm sure he'll get home safe," and I will come to it in a moment but there was clearly a contest about the contents of that conversation. That is not the point I am trying to make. What I am trying to say is that there is some evidence to suggest that maybe he was attempting to stay late on one night of the relics. What you make of that evidence, that no one else can remember him being there in light of that evidence, is entirely a matter for you. As I say, witnesses might not have remembered him for a number of reasons. It might be because he was not there. It is possible that perhaps he was not there on every night and perhaps he was not there for very long on each night. It might be that he was like the service station attendant, that people were so busy doing their own thing that they never noticed him much at the time so as not to be able to recall it some eight to ten years later. Or perhaps, if asked at a time much more proximate to the events in questions, they might have remembered [the complainant] being there or they might have remembered specifically that he was not there but now, ten years later, they have forgotten. (emphasis added)

Submissions

The applicant submitted that the effect of these remarks was to mislead the jury on the onus of proof and the potential effect of the evidence led by the applicant. The applicant submitted that whilst every matter raised by her Honour was perfectly accurate, the overall impression given was that the defence witnesses who said that they did not see the complainant present at the relevant time were somehow less capable of proving a relevant fact, namely, whether the complainant was present.
The applicant submitted that the comment paid no heed to the fact that the defence witnesses did not need to prove positively a single fact. Rather, their function was to establish or provide a basis for the jury to have a reasonable doubt. The relevant doubt was as to whether or not the complainant was even at the church at the time he claimed to be there.
The applicant submitted that any remark about the capacity of the defence witnesses to prove any fact should have come with an express and unequivocal warning, coinciding temporally with the remark in question, that the question for the jury was not whether the strength or reliability of evidence called by the accused person was better than that called by the Crown, but whether or not it was satisfied that the prosecution had discharged its burden of proof beyond reasonable doubt.
The applicant submitted that a comment of this kind was such that there was a real risk that the jury may have perceived the case as a genuine contest of the strength of two competing bodies of evidence. Although a Liberato direction [Liberato v The Queen (1985) 159 CLR 507] was given, it served to downplay the importance of the evidence of other witnesses called by the applicant because it characterised the conflict as being one between the complainant's evidence and the evidence of the applicant.
The applicant accepted that no application for a re-direction had been made at the trial and that, therefore, r 4 Criminal Appeal Rules 1952 (NSW) applied.
The Crown submitted that the passages complained about were orthodox and correct directions to assist the jury to assess the evidence of all of the witnesses called. The Crown submitted that the trial judge ultimately directed that the evidence of each of the witnesses had to be assessed and the jury then had to determine whether or not the Crown had proved the case beyond reasonable doubt. The Crown submitted that the trial judge was at pains throughout the summing up to emphasise that the applicant bore no onus of proof and that it was for the Crown at all times to satisfy the jury of his guilt of the charge beyond reasonable doubt.

Consideration

In my opinion, an overall reading of the summing up does not lead to the view that any criticism was being levelled by the trial judge at the defence case by reason of the fact that the defence witnesses were largely giving evidence of a negative proposition. It was appropriate for her Honour to distinguish between giving evidence about a negative or an unlikelihood and a witness giving positive evidence about a fact. None of what was said about the way the jury should assess the evidence of the witnesses diminished the significance of the onus of proof and the trial judge's repeated reference to that onus.
Significantly, after the passage criticised by the applicant (set out at [23] above) the trial judge said this: But what is most important in this case, given the onus of proof that remains on the Crown throughout, is you should examine each witness's evidence very carefully in order to satisfy yourselves as to whether or not you can safely act upon that evidence to the high standard required in a criminal trial. The evidence of each witness must be considered in light of all of the other evidence in the trial. It does not matter who calls the witness, what side calls the witness. You have to assess each of the witnesses and then determine whether or not the Crown has proved the case beyond reasonable doubt.
The Liberato direction given by the trial judge was in these terms: It is important for me also to direct you that where, in this case, it turns essentially on a conflict between [the complainant's] evidence and the evidence of the accused, when assessing who you believe in respect of that evidence, even if you prefer the evidence of [the complainant] over that of the accused, you should not convict unless you are satisfied beyond reasonable doubt as to the truth and reliability of [the complainant's] evidence on the critical elements. Even if you do not positively believe the accused's evidence, you cannot find against him if the evidence is such that you still have a reasonable doubt on those elements. A verdict of guilty or not guilty does not just depend on you making a choice between each of the two versions. You must always bear in mind the onus of proof that the prosecution has.
I do not agree that that direction downplayed the importance of the evidence of other witnesses. The case did essentially involve a conflict between the complainant's evidence and that of the applicant. Moreover, her Honour dealt at length with the evidence of the other witnesses and the approach that should be taken to the assessment of their evidence.
It is of some significance that very experienced senior counsel for the applicant at the trial sought no redirection in relation to this matter. By contrast, a redirection was sought in relation to the matters the subject of ground 2 in the appeal. No basis exists for r 4 not to apply to this ground of appeal. Accordingly, I would reject this ground of appeal.

Ground 2: The trial judge's numerous references to various matters never having been "suggested" were productive of a miscarriage of justice by:

(a) implying that there was some kind of onus on the accused to raise alternative scenarios; or

(b) by wrongly intimating to the jury that they could not take into account certain matters that they were entitled to in determining whether the Crown had discharged its burden of proof.

The summing-up

The four passages identified by the applicant were these: But you do have those two other pieces of evidence to consider. It is the evidence of [the complainant] himself that he was there, indeed, his recollection that he undertook some quiet reflection in the church. I will come to [the complainant's] evidence in more detail shortly but it is important to remember too that it was never suggested to [the complainant] that he was making his evidence up or that he was lying or exaggerating. It was never suggest that that is not his genuine memory now. What was certainly suggested is that his evidence of the matters are so lost in the mists of time so as to be unreliable, particularly as to matters of detail and that his memory is of such a low quality that you could not find the accused guilty beyond reasonable doubt based upon it. (SU 13) … Reliability depends on two different but overlapping things. One is honesty or truthfulness; the other is accuracy. It is important to note that, other than the accused, no one in this case has suggested that the other witnesses are being dishonest. It is certainly suggested though that they are being inaccurate and unreliable, but not dishonest. So far as the accused is concerned, you might recall that a number of times Mr Crown asked the accused, "Is that an honest answer?" There are many factors that we can have that bear on a witness's honesty. (SU 14) … No one has suggested [the complainant] was deliberately making the events up or that someone else, other than the accused, had committed the offence that [the complainant] says happened, nor is it said that, whilst in the car, [the complainant] must have misconstrued some kind of innocent touching. The accused completely denies what happened in the car and you can take that matter into account. The accused says on his oath that it did not happen. Mr James points out that there is little else that the accused could say given the lapse of time that has occurred since the events other than to try and establish, as best he can, what was happening in the church at the time. (SU 28) … As I say in this case, the accused's counsel, Mr James, did not assert to either [the complainant] or his friends that some kind of complaint or words said did not take place but he certainly did challenge exactly what was said, who, if anyone, had been drinking, the kind of emotional state [the complainant] was in and whether or not they believed the account. He also tested the reliability of everybody's memory of the event so as to be able to accurately record it now such that you can rely on it. (SU 33-34)
At the end of the summing up the applicant's counsel sought a re-direction which was given in the following terms: There is one thing I want to make very clear though. You might recall that I asserted to you that Mr James had not suggested to the witness, that is, [the complainant], that what had occurred and, indeed, the complaint evidence was being made up, fabricated, as opposed to misremembered. There are two things about that. One is it is not Mr James's job to do so. It is raised because that was the fact but the reality is the onus of proof is always on the Crown and it is not for Mr James to assert that things are made up or not made up. The point is his client denies the allegation. He gave that denial in the witness box and it was clear during the course of the trial that it was always denied. And in respect of the complaint evidence, there are two things about that. Given the passage of time, the only thing really left that Mr James could do was to test the recollections of it and, given that his client was not even there when that complaint was made, it was not incumbent upon him to put a denial that the complaint occurred. It is simply the fact of the case in this that it is not suggested that there was, for example, as there is in some cases, collusion between the witnesses where they make things up, a totally different case to this one. What this case is really about and what Mr James's submission to you was really about is that the evidence in this case, and particularly the recollections of [the complainant] on which this case depends, are such that you could not come to a view, given the problems with reliability, beyond reasonable doubt that the offence had occurred. It certainly was not a suggestion that he had to prove anything and certainly not prove that the witnesses were lying. (SU 47-48)

Submissions

The applicant submitted that the four passages deprived him of a chance of acquittal because they were apt to mislead the jury materially in two ways: (a) the impugned remarks suggested some kind of onus on the applicant to make such suggestions or to prove such matters of fact; (b) the remarks suggest, by implication, that the jury was required to exclude the possibility of any such alternative explanation which had not been suggested.
The applicant submitted that there were two problems created by the trial judge's reference to matters which were not suggested. First, her Honour implied that the matters which were not suggested were matters which could not be taken into account by the jury in determining whether the Crown had made its case out beyond reasonable doubt.
The applicant submitted that impliedly the jury could not take account of the following possibilities: (a) That the complainant was making his evidence up or that he was lying or exaggerating; (b) That the complainant's evidence was not his genuine memory now; (c) That one or more of the witnesses was being dishonest; (d) That someone else, other than the applicant, had committed the offence that the complainant said happened; and (e) That the complainant did not make complaints to the complaint witnesses.
The applicant submitted that by his plea, by his counsel's opening and closing addresses, and by his sworn evidence, he set up a factual proposition (the denial) which was in direct conflict with other evidence in the trial. In light of the conflict, the jury was entitled to disbelieve that evidence for any one or more of the reasons in (a), (b), (c) and (e). The jury was entitled to find that the Crown had not discharged its burden because of the failure to exclude those possibilities. Similarly, it was open to the jury to be satisfied that the complainant was indecently assaulted but not by the applicant. The possibilities were not bare possibilities of innocence but rather conclusions which were open to any reasonable juror.
The applicant submitted that the second problem was that the redirection was insufficient to have any real ameliorative benefit. It was essential that there be no confusion in the minds of the jury as to where the onus and standard of proof lay and to be completely clear that the applicant was under no obligation to call or give evidence.
The Crown submitted that the trial judge did not suggest a reversal of the onus of proof and that her Honour made clear on a number of occasions that the onus of proof remained upon the Crown.
The Crown submitted that the trial judge's directions to the jury were made in the context of the confined way in which senior counsel for the applicant defined the issues in the trial. The trial judge did no more than assist the jury to understand the evidence by reminding them of what had and had not been suggested by senior counsel for the applicant in his cross-examination of the witnesses and in closing submissions.
The Crown submitted that the trial judge properly directed the jury that it was their duty to consider the honesty of all of the witnesses, including the complainant. As such, the trial judge did not limit or foreclose the findings open to the jury.

Consideration

The matter developed in this way. After the conclusion of the evidence of Mr Saade and Mr Ayoub (two witnesses concerned with early complaint) her Honour raised with Mr James QC for the applicant in the absence of the jury what might conveniently be called the Browne v Dunn rule.
The transcript relevantly reads (at T 397): HER HONOUR: … This is a matter that you might not want to respond to now, Mr James, but it's a matter that's got me a little worried, I might say. There was a question that you put to Alex Saade, which is probably the best example of what's bothering me, and that was something to the effect - and I don't have the transcript so it's going off my note - and it was about when you were asking questions about the side street to the church and you got the answer, "I don't know what street," and I think you then put this proposition to the witness or something like it: "It's unlikely that it would have occurred with all those parishioners living in those houses." JAMES: Yes. HER HONOUR: It's not a proposition you put to the complainant. It's a proposition you came near to but --- JAMES: Yes, I didn't put it in that explicit way. HER HONOUR: No, and, as I understand it - and you certainly didn't put to him that it didn't occur. You certainly didn't put to him that he was misremembering, lying, anything like it, so --- JAMES: No, I haven't put to him that he has - I'm trying to remember the precise terms of s 108. I certainly haven't put those matters, but we've explicitly raised that it didn't happen. Your Honour will recall I opened on that, that he's pleaded not guilty, and that I have put a direct challenge to the witness on the various events and, if your Honour is minded to raise that against me on the basis that I haven't it put in an explicit term, I'd ask for him to be recalled and I'll put it to him in an explicit way. HER HONOUR: My understanding is that you were deliberately not going to put that. JAMES: No. What I'm not putting to him is invention --- HER HONOUR: And I thought it was a deliberate thing on your part. JAMES: --- reconstruction or suggestion. HER HONOUR: What is left? JAMES: We are not placed in a situation where an accused has to either put that and invoke the 108 (sic) or shut up. A strenuous denial without putting invention, reconstruction or suggestion doesn't raise anything at all. HER HONOUR: I'm worried about fairness to the witness because if, in submissions, you're going to say anything like, "It was unlikely to have occurred. It didn't occur. It couldn't have occurred because of where the street was," those kinds of things, they're not things that you've put to the witness. JAMES: No, I'm not going to put to him that it couldn't have occurred because of what he says about where the street was. HER HONOUR: That's something you put to Mr Saade. JAMES: But "unlikely" is a different question. The overall unlikelihood of the account the witness gives is inherent in that account. Also, that account has been tested again and again. HER HONOUR: My sense of what's been tested is, at length and in detail, the peripheral matters. Whether he was taken in the car --- JAMES: Whether the opportunity existed, whether the --- HER HONOUR: What occurred in the car, to my recollection, was not raised squarely. JAMES: I specifically went into the question of ejaculating inside the pants and inside the underpants and this business occurring of swiping (sic) the ejaculate off the hand didn't occur. HER HONOUR: I'm raising it now because we've got until Tuesday and, with the benefit of the transcript on Tuesday - we've got longer than until Tuesday. All I am raising now is what triggered a concern. JAMES: If your Honour is putting to me that I have to put it explicitly I would. I'm making my case quite clear. HER HONOUR: It depends what you're going to say in submissions, Mr James, because you might not want to say - and I might not let you recall --- JAMES: I'm going to say that the jury cannot accept this account by the complainant. I'm going to put exactly what I put in my opening. HER HONOUR: Maybe both parties can have some thought to it, because I had rather thought that you very deliberately ran a very fine line about where you were going, and I fully appreciated why you did that. JAMES: I am, but I'm putting quite squarely that is not to believed or accepted, that the matter is a criminal matter, that the issue between the parties is such that it cannot be resolved in favour of the Crown on that account on this evidence as it stands. HER HONOUR: It's a different thing I think. My understanding was that what you were likely to say to the jury, and obviously I don't want you to say anything if you don't want to, but what I understood that you would be likely to say to the jury was that given the period of time that has elapsed, and the quality of the evidence that was given, they couldn't come to a view beyond reasonable doubt about those matters. JAMES: Certainly given those --- HER HONOUR: In general terms, that's what I understood your question. JAMES: Yes, certainly given those things, and in terms of the quality, going through the evidence bit by bit as I did. But if your Honour feels it's incumbent on an Allied Pastoral or fairness basis for me to put it directly to the witness I will. HER HONOUR: Well, I'd need to hear from Mr Crown about that, because as I --- CROWN PROSECUTOR: I'm reluctant to make an application under 46. The witness has been here for three days. It wasn't put - and the 108 cases are quite clear on this, if it wasn't put it didn't happen, that doesn't transgress 108. That's my concern, your Honour, and the absence of opportunity was certainly forensically well tested and explored, but the next small existential step to saying well it didn't happen because there was no opportunity, that was not put to the witness. HER HONOUR: No. CROWN PROSECUTOR: He was here for three or four days. HER HONOUR: Anyway, I don't want to say anything more about it now, and it would need some debate with the transcript if there's going to become an issue about it, but it just rather depends what you're going to say in the end because --- JAMES: It's you can't be satisfied, not we say it didn't occur, except for this. I'm going to call my client. HER HONOUR: Is your client going to say it didn't happen? JAMES: Yep. HER HONOUR: Then you've got problems I think Mr James. JAMES: In that case I'd better --- HER HONOUR: And we need to talk about that on --- JAMES: In that case I'd better put it explicitly to him. HER HONOUR: Well --- JAMES: I've put it in any manner except that one question. HER HONOUR: --- it might not be resolved that way. All right, I think we now know where it's going. We'll need to have argument about it on Tuesday. JAMES: So your Honour --- HER HONOUR: Not maybe even Tuesday, it may not. JAMES: No, no. If I call my client, right, and he says it didn't happen, that does not raise fabrication, invention or anything of that order. HER HONOUR: It's about fairness to the witness. You didn't put to the witness that it didn't happen. JAMES: I thought I put it frankly, although not explicitly, in about a thousand times in about a thousand different ways. HER HONOUR: I don't think you did, Mr James. I'd need to check the transcript, and obviously we all need the benefit of the transcript. But I was mindful of what you said when we opened. I was expecting that you wouldn't put it, and I was expecting that your client wouldn't say it, nor would you say it in submissions. JAMES: Well, your Honour, in that case if there's a failing, it's mine and I'll put it. HER HONOUR: Well --- JAMES: Give the witness every opportunity, as I tried to do right throughout every bit of that cross-examination. HER HONOUR: I don't know that I can say anything more usefully without the transcript, but that's my concern at the moment, and I had rather formed the impression that that was a very careful forensic decision made in your camp. JAMES: Frankly --- HER HONOUR: And knowing you, as I do, I was not surprised that it was a careful forensic decision made by you in your camp. I hadn't thought that it was an oversight. JAMES: No, it's not an oversight. I thought that I was putting it, but not having to put it directly. One of the problems is I don't want to expose us to any more outbursts that are likely to cause a difficulty with the trial. HER HONOUR: You can't have it both ways I don't think because --- JAMES: Your Honour may be right. HER HONOUR: You can't dodge around it, be anxious to wound him and not strike and --- JAMES: Your Honour, it wasn't dodging around. To say to him that he wasn't there at the time he said it happened, the father wasn't there at the time when it said it happened, the father was off elsewhere, that he's got the night wrong, if he was there at a night at all, that the conversation related to an earlier time in the vigils. Now, all of that is plainly enough saying it didn't happen. HER HONOUR: I think we need the benefit of the transcript, because even, for example, that assertion that he could not have been there, I didn't take it in terms that your client wasn't there for any of the three nights, couldn't have ever taken him for breakfast --- JAMES: No, of course not, no, no. HER HONOUR: --- didn't ever pick him up in his car ever during the three nights. That's the sort of particularity that I think needs to be explored to make good whatever submission you might want to good about it, and for the Crown to do the same. JAMES: Well, your Honour --- HER HONOUR: I am concerned about the course you now have told me that you're thinking of taking. JAMES: Well, if your Honour is concerned then, I'll put it directly. I'll give the witness every opportunity I can, as I've tried to consistently. HER HONOUR: Obviously the sooner that debate occurs --- JAMES: Yes, I'll talk to the Crown now. HER HONOUR: It's going to take some time isn't it? CROWN PROSECUTOR: I'm not in a position to give a response. HER HONOUR: I don't want you to do it now. JAMES: No, no, I'll talk to the Crown now. CROWN PROSECUTOR: Whether your Honour should grant leave under 46 is the first thing that concerns me. HER HONOUR: Absolutely. CROWN PROSECUTOR: [The complainant] may well have had enough of this jurisdiction for the time being. He may not want to - the interests of justice warrant it, warrants a fair trial. I just can't respond immediately. JAMES: I'm concerned since it's been raised that whether I might have been making a forensic decision or not, or whatever course I've taken, might result in any unfairness to the witness, leave aside the Crown case, at all. Now, there's been no secret about our position all the way through, even from the moment which I opened. HER HONOUR: Well, my sense of your opening was, and I'd have to go back to it, was that you were being - I thought it was going to become a question of the quality of the evidence and whether or not it was of the kind that the jury could be satisfied, rather than a direct challenge to what --- JAMES: No, I directly said, if I recall, in the opening that there was this issue and that the jury could not be - that we pleaded not guilty, we put the event in question by our plea, and that the jury would not be satisfied, at the end of the day that it had occurred. HER HONOUR: That I appreciate, but I think that's a different thing to your putting to a witness, challenging the witness that it did not occur. For example, is it going to be said that your client gave the complainant a lift somewhere but nothing happened? JAMES: No. HER HONOUR: That they went for breakfast, that nothing happened. JAMES: No. HER HONOUR: That he never gave him a lift home at all? That he wasn't there for any of the nights so it couldn't have been any - none of those questions were put to the witness. JAMES: No, it's not going to be said that he wasn't there for any of the nights. In fact, we've said again and again he was there for large portions, if not the whole of it, up until the relics go off to Mount Druitt and he accompanies them with the bishop, Mr Mana, and I've forgotten the name of the other gentleman, and that by that stage the opportunities for a vigil with the relics had gone because they'd gone, and that up till that point of time he'd had one night at the vigil. We'd never said that they hadn't had contact, but I've never put to him expressly that you never drove off in the car with him and so forth. Now, if that's what your Honour's concern is, then I should put it. If an interests of justice matter, then I should put it. HER HONOUR: All right. JAMES: My own contention was I was sufficiently explicit, but I was attempting to, as I said, to be delicate or open. I wasn't attempting to trick anybody. HER HONOUR: Well there's probably not anything more we can usefully do, but I must say I was concerned because for the first time out of - the question was the one that went to Alex Saade which was, whatever I said it was, and my notes might not be accurate either, and it may be I'm worrying about nothing but --- JAMES: All right, I'll talk to the Crown and see if --- HER HONOUR: --- that's not how I had understood --- JAMES: I'll talk to the Crown and see if I can sort it out.
On the morning of the next sitting day, further debate ensued with Mr James drawing attention to a number of cases including R v Whitmore [1999] NSWCCA 247, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 and MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329.
The debate concluded by the following exchanges: HER HONOUR: Are we left in the situation that both of you are of the view that the cross-examination would allow a submission to be put that it didn't occur and for your client to give that evidence but depending on what you say in final address you will be hamstrung to some extent by what you put, is that what you say? JAMES: Yes and in fact to be entirely fair I won't be hamstrung by the way in which the case has been run. I'll be hamstrung by the fact that ten years after the event and recollections naturally enough of a very busy time are the context in which all this is being put. HER HONOUR: Do you agree with that, Mr Crown? CROWN PROSECUTOR: Yes, your Honour. HER HONOUR: That Mr James won't be precluded from calling evidence and putting a submission that it didn't occur and that much would depend on what he says in addresses about how far he can go to it being improbable, unlikely, impossible depending on what was put to the complainant? CROWN PROSECUTOR: Broadly, no. I don't think I can oppose that. My only concern was and it's my friend was most anxious to avoid a 103 issue rather a 108 issue but Whitmore suggests simply putting a denial doesn't invoke that clearly and in Palmer in the High Court why would the complainant lie/motive to lie issue. It was put squarely to the complainant in that case it didn't happen and then the complainant says well why would I lie about it.
As senior counsel for the applicant made clear both in pre-trial applications and in his opening address to the jury, the matter was defended on the basis that the event complained of did not happen. Mr James also made clear that the applicant did not intend to raise a suggestion of fabrication. In that regard it should be noted that the reason fabrication by the complainant was not asserted by the defence was to avoid the Crown adducing evidence which might be admissible under s 108 of the Evidence Act 1995 (NSW).
In his opening address Mr James said this: So the issue we present to you to determine is not concerned with any legalisms as to what may be an indecent assault, what may be an assault or something like that. It is a square issue of fact for which, the ladies and gentlemen of the jury, are the tribunal, the law determines should determine that question and that is did this event happen, and you will take into account when assessing whether it did or did not happen, the opportunity for it to have occurred. … So it is a narrow issue and one that is very, very much in contest, entirely appropriate for your determination.
The cross-examination of the complainant was chiefly directed to the accuracy of his recollection about the period of time when the Relics were present at the church, matters concerned with difficulties he had at school that predated the visit of the Relics, and matters relating to his continued involvement with the church, the youth group and the applicant subsequent to the visit of the Relics, with some particular emphasis on the complainant's recollection of, and attendance at, the ordination of the applicant some eight or nine months after the visit of the Relics. The questions concerned with the period of time the Relics were at the church also concerned the improbability of the events complained of occurring.
At no time was it suggested to the complainant that he had fabricated, exaggerated or embellished his evidence nor that he was dishonest in any way.
Similarly, in his closing address senior counsel for the applicant cast no doubt on the credit of the complainant. Rather, that address also focused on the improbability of what was alleged with the improbability being supported by what was said to be the complainant's continued involvement and relationship with the church and the applicant. Consistently with the agreement referred to at [48] above, the Crown in his final address made no comment about any challenge or lack of challenge to the complainant's credibility.
Whilst from a logical point of view a challenge to the improbability of what the complainant said happened might be thought to cast doubt on his credibility or at least his reliability, his credibility was not the issue upon which the trial was run. As judges always tell juries, a criminal trial is not an enquiry into the truth of what happened. Rather, the trial is about the guilt or otherwise of the accused based on the issues joined between the parties.
In the present case, the parties agreed that there was no obligation on the part of the applicant's lawyers to challenge the complainant's honesty and credibility without precluding the applicant arguing that the events complained of did not occur. In the face of that agreement the trial judge raised for the jury matters beyond the issues upon which the trial was being conducted and effectively drew the jury's attention to the credibility of the complainant's evidence in a manner detrimental to the applicant.
The trial judge did this by impliedly suggesting to the jury that there had been a failure on the applicant to put certain matters to the complainant and some of the other Crown witnesses. In any trial a comment of that sort might be thought to be inappropriate as suggesting an obligation on the part of the accused to prove something. What was said by the High Court in MWJ v The Queen points strongly against any such comment being made by the judge.
The joint judgment of Gummow, Kirby and Callinan JJ said: [38] We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice's reference to the appellant's counsel's failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. [39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution. … [41] … The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.
In the present case the need for recall of the complainant or any other witness did not arise because of the agreement reached between the Crown prosecutor and senior counsel for the accused.
I accept the submission on behalf of the applicant that proof beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecution case: Moore v R [2016] NSWCCA 185 at [43], [99] and [105].
The effect of the impugned passages in the trial judge's summing up, even if it was not an implied criticism of the way defence counsel was running the trial, was to suggest to the jury that the lack of suggestion to the complainant of making up his evidence, exaggeration or lying meant that they did not need to consider the reasonable possibilities which might flow from such a consideration. Four of the five possibilities identified by the applicant were such reasonable possibilities that need to be considered in the light of the challenges to the complainant's evidence and to the evidence of other Crown witnesses. Those possibilities were these: (a) That the complainant was making his evidence up or that he was lying or exaggerating; (b) That the complainant's evidence was "not his genuine memory now"; (c) That one or more of the witnesses were being dishonest; and (d) That the complainant did not make complaints to the complaint witnesses.
I do not agree, however, that the possibility that someone else had committed the offence was raised in any way by the evidence, nor was there any reasonable ground to entertain it: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]; Moore at [38].
It was, in the circumstances of the agreement reached on the matter between counsel, and apparently accepted by the trial judge at the time, an error for her Honour to have raised with the jury the asserted lack of suggestion by the applicant's counsel. In Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 Adamson J (with whom Beazley P and RA Hulme J agreed) said at [225]: It is particularly important that the judge does not raise in the summing up matters which have not been raised by the Crown but which advance the prosecution case since this could amount to a denial of natural justice as the accused will, in that event, have no opportunity to respond: R v Meher [2004] NSWCCA 355 at [87]-[88] per Wood CJ at CL (Buddin and Shaw JJ agreeing). Furthermore, the raising by the trial judge in the summing of matters not put by counsel in address tends to compromise the appearance of impartiality: R v Esposito (1998) 45 NSWLR 442 at 455D-E per Wood CJ at CL.
The effect of the impugned passages was to raise a matter not raised by the Crown, not by oversight but as a result of the agreement effectively worked out during debate before the trial judge.
Nor do I consider that the further direction given at the conclusion of the summing-up (at the request of the applicant's counsel) cured the problem. The reference to any lack of suggestion was not an isolated one by the trial judge. The applicant had identified four passages that are spread throughout the summing-up. There was, in addition, a further reference (at T 31) where the trial judge said: And, again, it is not suggested to any of the witnesses, including [the complainant], by Mr James that some kind of complaint was not made.
It is difficult to see how the re-direction at the end of the summing-up could undo the force of five separate references to a lack of suggestion to the witnesses by defence counsel that their evidence was not true. If the trial judge had also explained that all reasonable possibilities consistent with innocence needed to be excluded before the applicant could be found guilty, that statement, together with what the re-direction said, may have gone some little way to overcoming the problem already created. But the re-direction said nothing about the need to exclude all of the other reasonable possibilities. I accept the applicant's description of the re-direction as "too little, too late".
In my opinion, this ground is made out. That would entitle to the applicant to a re-trial if no other ground was successful. However, for reasons to be given, the error here is of some significance in a consideration of ground 3.

Ground 3: "The verdict of the jury was unreasonable, or cannot be supported, having regard to the evidence."

Submissions

The applicant submitted that the jury's verdict was unreasonable or not able to be supported having regard to the evidence. The submission was based on three "pillars".
First, the assault was inherently improbable given the surrounding circumstances in which it was alleged to have occurred. The applicant identified that the assault allegedly occurred nearby the church on a busy night when there were many people in the vicinity. The complainant alleged that the applicant's car was parked in a location that was open and well lit by street lights. Furthermore, no Crown witness was able to depose that the complainant was present at the Church, or in the applicant's company, at the relevant time. The pretext under which the applicant and complaint were said to have left the church - to get breakfast at McDonalds - was also unlikely given that the church was replete with food during the night.
Secondly, the Crown's suggestion that the alleged assault was a turning point in the complainant's life was contrary to the evidence. The applicant submitted that the complainant was experiencing behavioural problems well before the assault allegedly occurred and therefore no "watershed moment" could be inferred from the evidence.
Thirdly, the complainant's conduct following the alleged assault was inconsistent with the way in which a victim of (recent) indecent assault might be expected to behave. The complainant was photographed participating in a ceremony with the Relics within days of the assault allegedly occurring. He attended the applicant's ordination less than a year later and opted to receive communion from the applicant rather than from one of two other priests. When the applicant exited the church in a procession with other priests, the complainant was filmed applauding the applicant. Furthermore, the complainant attended confession with the applicant on a number of occasions after the alleged assault.
The applicant submitted that, in combination and cumulatively, these objective circumstances rendered the complainant's allegation improbable and that, on that basis, the jury ought to have had a reasonable doubt about the Crown's case.
The Crown submitted that the matters raised by the applicant would not, either individually or in combination, cause the Court to conclude that the jury's verdict was unreasonable or unsupportable.
The Crown submitted that the primary question for the jury to consider was whether the complainant was an honest and reliable witness. In this regard, it was submitted that the complainant was a truthful and reliable witness and that this Court must be cognisant of the advantage of the jury having observed the complainant give evidence.
The Crown submitted that there was ample time for the offence to have occurred during the night, notwithstanding the events taking place at the church and the other objective circumstances. That no Crown witness could recall, over ten years after the event, seeing the complainant on the night was not, in the Crown's submission, sufficient to cast doubt on the complainant's account. Furthermore, the complainant's mother gave evidence that she was with the complainant at the church earlier on one of the nights.
The Crown submitted that evidence regarding the complainant's behavioural problems, while relevant to the surrounding circumstances of the offence, did not advance significantly the Crown case.
In relation to the complainant's contact with the applicant after the alleged assault, the Crown submitted that victims of indecent and sexual assaults may not react in ways that are expected or rationally explicable: Day v R [2017] NSWCCA 192 per Johnson J at [91]; Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232 per Johnson J at [192]. In the complainant's case, he and his family were deeply involved with the church, including his sister who was a nun. Having felt guilt and shame following the event and not wishing to cause any embarrassment to his family, the complainant's continued participation was not, in the Crown's submission, unsurprising.

Consideration

The principles which must be applied in determining whether a verdict "is unreasonable or cannot be supported" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) are well known. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the judgment of Mason CJ, Deane, Dawson and Toohey JJ said (at 493-495): [7] Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v. The Queen (1983) 152 CLR at 686; Chamberlain v. The Queen (No.2) (1984) 153 CLR at 532; Knight v. The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v. The Queen (No.2) (1984) 153 CLR at 621). … [9] … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (17 Chamberlain v. The Queen (No.2) (1984) 153 CLR at 618-619; Chidiac v. The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v. The Queen (1991) 171 CLR at 443, 451, 458, 461-462). …
Those principles have subsequently been reiterated and applied by the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [55]-[58]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14]; and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12].
However, in relation to the deference to the jury's advantage in resolving any doubt which the appellate court might have, that is qualified if wrong directions have been given to the jury in the judge's summing-up.
In SKA v Regina [2012] NSWCCA 205 Adams J (with whom Hislop J agreed) said: [311] It seems to me significant also that, accepting that the directions significantly erred in the way I have described, the verdicts should be approached on the basis that they were, or might well have been, influenced by the jury (wrongly, as I have held) taking into account evidence that ought not to have been considered. This problem is especially potent in respect of the 2006 offences and their consideration of the appellant's alibi evidence. It seems to me that the only appropriate course is to interpret the verdicts on the basis that the jury followed the directions they were given. For this reason, there is no room for applying the deference required by the principle, otherwise relevant in considering appeals brought on the ground that the verdict was unreasonable or unsupportable, that "the jury is the body entrusted with primary responsibility of determining guilt or innocence" (SKA v The Queen [2011] HCA 13 at [13], citing M v R (1994) 181 CLR 487 at 493). Furthermore, it follows that "the jury's advantage in seeing and hearing the evidence" cannot resolve a doubt experienced by a Court of Criminal Appeal (vide M 181 CLR at 494).
In Popovich Adamson J said: [278] … Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported and there is no challenge to the directions given by the trial judge, the weight to be given to the jury's verdict may be considerable: R v Baden-Clay [2016] HCA 35 at [65]-[66]. But where an appellate court finds that a jury has been misdirected or that there has been a relevant miscarriage of justice, the position is otherwise since the assumption is to be made that the jury follows the directions of the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ. [279] In such circumstances, the weight to be attributed to a jury's verdict may be relatively slight (SKA v R (No. 2) [2012] NSWCCA 205 per Adams J at [311], Hislop J agreeing, Beazley JA dissenting on other grounds). In some circumstances, the jury's advantage ought be excluded from consideration in this exercise altogether, as was found to be appropriate in R v Ortega-Farfan [2011] QCA 364; 215 A Crim R 251 where Fraser JA said at [75] (Chesterman JA and Mullins J agreeing): "I am not persuaded that the doubt is one which is capable of resolution by reference to the advantage of the jury in seeing and hearing the complainant and the other witnesses give evidence. The jury must have found that the complainant was a reliable and credible witness. Her demeanour might well have suggested to the jury that she was a truthful witness. But her demeanour could not resolve the doubt about the reliability of her account which arises from the inconsistencies and weaknesses apparent on the face of the record. In any event, the jury's verdict should not be taken into account in this exercise because the jury might have attributed substantial weight to the evidence of the covert conversations which should not have been admitted." [Emphasis added.]
The effect of the impugned passages in relation to ground 2 went to the very basis of the jury's consideration of whether the Crown had proved its case beyond reasonable doubt because the jury may well have excluded a consideration of alternative reasonable possibilities. In those circumstances, this Court should resolve the unreasonable verdict ground with little regard to any advantage the jury had in seeing and hearing evidence.
The jury were sent out to consider its verdict on 9 May 2016 at 1.04pm. They deliberated for the remainder of that day and the whole of 10, 11 and 12 May. On 16 May at 12.14pm the jury was given a Black direction. At 3.22pm on 16 May the jury was given a majority verdict direction. They then deliberated for the remainder of that day, the whole of 17 May and finally reached a verdict at 2.51pm on 18 May.
There were two significant areas of evidence which needed to be considered in the context of whether a reasonable doubt existed concerning the applicant's guilt. The first area concerned the improbability of the offending having occurred in the way the complainant asserted.
The Crown's case was not that there was any planning or "scheming type conduct". Rather, the Crown prosecutor said in closing that "the accused had a window of opportunity available to him; he took it". That tends to suggest the unlikelihood of the applicant having suggested driving to McDonalds to get breakfast. The evidence was that there was food available at all times during the visit of the Relics because the church was open 24 hours a day.
Even if the complainant's mother is accepted along with the complainant that the applicant requested the complainant be allowed to stay at the church and that the applicant would drive the complainant home, that does not lead to the view that the complainant was present at the church in the early morning hours between, perhaps, 1:00am and 4:00-5:00am. No witness was able to say that the complainant was seen at the church at those times. Moreover, some regard must be had to the applicant's evidence that he ordinarily went to bed at about midnight during the time of the Relics because he had to be up by about 6:30am to prepare the church for morning services. Regard must also be had to his unchallenged statement that he did not eat before morning mass.
Next, there is the improbability of the alleged route taken by the applicant in his car and the location of where the offence was said to have occurred. The complainant said that the applicant drove from the church in a westerly direction along Wychbury Avenue, turned left at the second street being King Edward Street, and then turned left again at Monash Parade travelling at that time in an easterly direction. The car then stopped at the corner of Monash Parade and Acton Street. Turning left at Acton Street would have brought the car back to the church a few hundred metres along Acton St near the intersection with Wychbury Avenue. In that way the car had driven almost a complete circle to come back near the church.
If that was the way to the complainant's home the direct route would have been to drive away from the church in the opposite direction or, at the least, to take the first left at Alexandra Avenue as the applicant said he ordinarily did when heading in that direction. Similarly, it was not a route that took them to either of the McDonalds' in the area.
The next consideration is the location where the offence is said to have occurred. That was, on the complainant's own evidence, under a street light at the corner of Monash Parade and Acton Street (shown in Exhibit 24) with the church being only a few hundred metres north in Acton Street, and in circumstances where parishioners lived in those streets, the church was open 24 hours a day at the time and people were coming to and going from the church. Nor should it be overlooked that the applicant was driving a highly noticeable motor vehicle painted in multicolours and with highly visible markings described in the evidence as a silver flash on the side. Exhibit 26 showed this vehicle. It was a vehicle that the applicant had driven for some time and had used in the course of his work at the parish. The likelihood of it being recognised by a parishioner was high.
Finally, in relation to this evidence, there was the complainant's explanation of why he simply did not push the applicant's hand away when he became aware of it particularly as the evidence disclosed that the complainant was much bigger and stronger than the applicant. The complainant said: A. Why? Why? I'll tell you why. I should stay, just stay calm. I'll tell you why. Firstly, you're a 15 year old boy and do you know what a priest is to me - was to me? He's like a, to, how does a 15 year old boy say no to God? How do you expect a 15 year old boy who's been raised as a good Christian Maronite who used to go to church every single Sunday, every single church event - and I've lost all respect for it now because of this man - and you're telling me how do I say no to God? Sorry, but I, I was spiritual. I was very soft.
The explanation was, in essence, that he was not able to say "no" to a priest because a priest was like God. In fact, the applicant was not a priest at the time. His ordination took place some seven or eight months later.
The second group of matters concerns the complainant's behaviour in relation to the church and the applicant subsequent to the events complained of.
The complainant was not able to say on which night that the Relics were present that the offending occurred. The evidence overwhelming demonstrated that it could not have been the final night because on that night the Relics were taken to the church at Mt Druitt, the applicant also went to the church at Mt Druitt and returned to St Joseph's church with other clergy. There was no all-night vigil at St Joseph's church for the complainant to have attended that night.
The significance of that fact is that if the offending occurred it must have occurred on one of the earlier nights. Yet, evidence, particularly the photographs comprising exhibit 3, shows that the complainant was present on the last day on which the Relics were present at St Joseph's church.
The complainant's evidence was that he stayed in bed and did nothing on the day after the incident. Further, he said that from that moment his life changed and he was only ever present at the church "by force". There was no evidence of any reluctance of the complainant to attend the celebrations on the last day the Relics were present nor any evidence that he had to be forced to attend as he and his mother claimed was the position subsequent to the Relics leaving the church.
More significant is the evidence largely contained in exhibit 7 which was the DVD of the applicant's ordination in May 2006. Even if the complainant's evidence is accepted that he did not remember attending the ordination, the DVD showed him to be present and apparently enthusiastic in supporting the applicant on that day. One measure of that support comes from the complainant's choice of joining the queue being ministered to by the applicant in dispensing holy communion when he had a choice of four other priests. Although he did not in fact receive holy communion he sought and obtained a blessing from the applicant on that occasion.
There was also abundant evidence of the complainant's continued involvement with the parish and with the youth group including attending camps at Pennant Hills where the applicant was present and acting as the priest for the youth group. It may be accepted that the complainant explained his presence subsequently at the church and with the youth group to family and peer pressure. However, some of the photos show the complainant's involvement in the youth group and at the church without any indication of reluctance. I do not overlook what has been said in such cases as Day and Tonari about the ways that victims of indecent and sexual assaults may react but the evidence of the complainant's ongoing involvement is of some significance.
The complainant also gave evidence in chief to the Crown prosecutor that he helped out with "hundreds" of masses where the applicant officiated. That could only have occurred after the applicant was ordained to the priesthood and, therefore, after the incident complained of.
Finally, in this regard, there is the evidence of the complainant that some years after the event when he was aged about 19 or 20 he went to confession with the applicant. There was no suggestion that the purpose of the confession was to confront the applicant about what had happened some years before. The applicant's evidence was that he had heard the complainant's confession a number of times. That could only happen after the applicant's ordination to the priesthood.
On the appeal, the applicant submitted that a third area of evidence should also be taken into account in respect of this ground of appeal. That evidence concerned whether the behaviour and other problems of the complainant were referable to the incident or whether what occurred subsequently was simply a development of problems that had already manifested themselves before the visit of the Relics such as misbehaviour at school which led to the complainant's expulsion from Christian Brothers Lewisham at the end of 2005.
Whilst that evidence was required to be considered, I do not find it sufficiently clear or unambiguous to regard it as significant for consideration of whether a reasonable doubt exists as to the applicant's guilt.
However, in my opinion, a consideration of the evidence concerning the improbability of the events as asserted together with the evidence of the complainant's ongoing involvement with the church, the youth group and the applicant results in a conclusion that a reasonable doubt exists as to the applicant's guilt. That is a reasonable doubt which the jury ought to have had. That evidence ought to have caused them to scrutinise with some care the evidence of the complainant. However, the misdirections that resulted from the impugned passages in the summing-up (relating to ground 2) are likely to have deflected the jury from that course.
This evidence ought to have raised in the jury's mind one or more of the possibilities set out at [39] above. A consideration of this evidence ought to have resulted in a conclusion that those possibilities were not fanciful or speculative (Moore at [37]) nor mere conjecture (Baden-Clay at [47]). In those circumstances there was a reasonable possibility that guilt had not been proved beyond reasonable doubt. In those circumstances the applicant should have been acquitted.
For those reasons the following orders were made:
The appeal is allowed.
The conviction is quashed.
The verdict of acquittal is entered.
Order that the Appellant be released forthwith.
BELLEW J: I agree with Davies J.

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Criminal Appeal Rules 1952(NSW)

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