Wade v R

Wade v R - [2018] NSWCCA 85 - NSWCCA 2018 case summary — Zoe

[8]

Evidence of MB

MB was aged 54 at the time he gave his evidence. He said that he was a student at Marist Brothers Hamilton from Year 7 in 1975. He knew the appellant only by the name of Brother Christopher.
He said in effect that he had little personal interaction with Brother Christopher. He saw him regularly at assembly and might sometimes see him walking around.
As to the appellant's reputation he said: "Brother Christopher had a reputation of being a very hard and a cruel punisher. We called him "Chuck", "Chuckie" because he looked like the angry little murdering doll on the movies on television. People would say that if you went to the office for trouble, Brother Christopher, when he caned you, you stayed caned for weeks. He was apparently a very barbaric man in that respect".
MB gave a description of the location and layout of the principal's office. He said he had never had to attend the principal's office before the occasion in question. There was an occasion in 1976 when he was aged 13 or 14 when he felt very ill in the stomach. He put his hand up in class and told the teacher that he was unwell and told the teacher that he needed to go home or see someone. The teacher said that he should attend the office and see the ladies there to organise something.
MB said that he went to the office and there were two administration ladies there. He told them that he felt ill. One of the women told him that he would have to see Brother Christopher. She knocked on the door, opened it and ushered him into the appellant's office. The appellant was sitting behind his desk wearing his usual white robe.
MB said that Brother Christopher said to him, "Come and sit on my knee, darling, and tell me all about it". MB said that he was shocked and did not know what to think, adding "I've never been called darling by a male in my life". He said he walked around the desk to the chair where the appellant gestured and sat him on his right knee.
MB described in some detail how he sat on the appellant's right knee with his back against or close to the appellant's right chest area. He said the appellant then "slid his right hand under the elastic of my shorts, in my underwear, and took hold of my penis" (Count 1 - indecent assault). He said that while the appellant was "rubbing it and fondling it" the appellant put his left hand into his robe and while fondling MB's penis the appellant started "playing with his own penis … his hand was moving up and down and it was bumping my left buttock" (Count 2 - act of indecency with MB).
MB said that he was "just absolutely in shock and disgusted and still feeling really sick". He said it was hard to say how long this went on for, "it was probably 20 seconds … seemed longer than it actually was".
MB said that he did not say anything and nor did the appellant. He was "feeling really ill and … was in shock". He crouched forward, raised himself off the appellant's lap and moved forward which had the result that the appellant's hand came out of his pants. He moved his body in that way, "because I didn't want anything to do with it …I was sick and shocked and disgusted". MB described the appellant as then appearing to be angry and he ushered MB out of the room so that arrangements could be made for his mother to come and pick him up.
After a phone call was made by one of the administration women to MB's mother to arrange for her to come and pick him up, MB walked out of the school entrance and then walked some distance away because, he "just wanted to get away from the place". He walked down the road in the direction from which he knew his mother would be approaching. She picked him up and took him to a doctor.
MB said that he did not complain to his mother because: "A. In those days, the brothers and the church were - my mother was quite a strong believer and had a - I just don't think she would've believed me. I think - they were just held in such high esteem and we were thought to be so privileged to be going there that I just don't think she would've believed me. I don't know why but - and I just didn't want to think about it. I wanted to put it out of my head. Q. How were you feeling when you got in the car with your mother? A. Apart from being ill I was still really scared. I felt really disgusted. Q. Did you tell anyone else at that time what had happened? A. No, I didn't tell anyone else about this until last year. Q. Did you tell any teachers or anything what had happened? A. No. That's - that just wasn't even an option in those days. Q. Why didn't you tell anyone what had happened? A. Because I didn't want anyone to know about it. I didn't want to be labelled as a whatever. It was pretty harsh in those days if you were labelled a poufter or a teacher's pet or something. You would - it wasn't even something you'd think about. You would not tell anyone."
At the conclusion of his evidence in chief, MB said that he did not know anyone who attended the Marist Brothers High School in Kogarah. He had no idea who TM was and had never discussed what had happened to himself with TM.
MB was cross-examined about his evidence of the appellant having the nickname "Chuck". He said it was the nickname he had for the whole time that MB was at the school. He maintained that he had been told that it derived from a fictional character of an "angry little murdering doll". This was something he had been told before he left the school. He was confronted with the proposition that the character was not created until 1988 (which was confirmed later in the evidence of the police officer in charge of the investigation): "Q. The character Chucky was only created in 1988 and your reference to Brother Christopher being called Chuck as a result of the angry little murdering doll is something you have constructed later, isn't it? A. I don't believe so. I, I, I firmly believe that that's what I've always believed. Q. And you have a very firm [belief] about that now that it's not a reconstruction, right? A. Can you -- Q. I'll put it in a different way. Your memory today is that that's why he was called Chuck? A. My memory today is that that was one of the reasons he was called Chuck. Q. And if, in fact, that character, Chucky, wasn't created until 1988, that still doesn't change your memory that the reason why he was called Chuck was because of the angry little murdering doll? A. I, I think no, no."
Much of the cross-examination was concerned with MB's recollection of the location and layout of the appellant's office. It was clear that his recollection was imperfect as to the location of doors and the internal layout. For example, MB had provided a sketch and given evidence that he had approached the appellant's desk from the right hand side from his perspective but it was suggested that there was a return on that side of the desk which would have made that improbable. MB questioned the accuracy of the layout of the office that was put to him by way of diagrams and a photograph. It seems to have been the case that there was some remodelling and there appeared to be an issue, at least, in MB's evidence, as to whether what was put to him as the correct layout and furnishing of the office was in fact the layout and furnishing at the time of the event in question.
Obviously in anticipation of evidence to be given by a Mr John Di Gravio, MB was asked whether he had ever been to the appellant's office on a previous occasion. MB denied having ever said anything to Mr Di Gravio that was inconsistent with his evidence that he had never been to the principal's office before.
MB was challenged as to his recollection of events after 40 years since they had occurred. He maintained that the words uttered by the appellant, particularly the word "darling" had stuck in his mind for that period of time. It was put to him, and he agreed, that he had said in his police statement in 2016 that, "they are his exact words, I've never forgotten them". He said that that was not in respect of just the word, "darling" but the whole term: "come and sit on my knee, darling, and tell me all about it".
In re-examination, the Crown Prosecutor adduced evidence from MB to the effect that those words had stuck in his mind for 40 years. He had thought about them during the rest of his high school, after he had left school, and during his 20's, 30's, 40's and 50's. He had not thought during that period about aspects of the layout of the principal's office. He was first asked to think about such things in July of 2016 when the police had asked him. He said: "Q. When did you first think about things like windows in the office and doors in the office and the desk in the office? A. In July last year when the police asked me about that sort of thing. That's nothing I'd ever thought about at all. I didn't think about what colour the carpet was or where the doors were. All I thought about was the - what happened to me in there."

[9]

Evidence of TM

TM said he attended Marist Brothers High School at Kogarah and left at the end of 1980. Brother Christopher was the principal. TM did not see him very often; he saw him at "school assembly or something". He gave a description of the whereabouts of the principal's office. He said the only time that he could remember having to attend that office was on the occasion in question. At the end of his evidence in chief, however, he said there was an occasion when he had been disciplined with a leather strap by a teacher and it left a big welt on his wrist. He showed his mother and she took him to the principal's office. He could not remember any other occasion of going there.
TM said there was a day in 1980 when he suffered a twisted testicle. It occurred when he was walking down some stairs. He was in agony from it. It was "the most pain I've ever had in my life to this day". He knew he had to go home; he had to see a doctor. He went to the principal's office. He told the secretary he needed the principal's permission for his mother to be called in order to take him home. He could not recall what the secretary said but as a result he went into the principal's office and the door was closed behind him. Brother Christopher was sitting at his desk. He was asked if he could describe the office and he said, "I don't have a great memory of the office, to be honest", but he believed the desk was in front of a window that overlooked the school.
TM explained the problem and said he had excruciating pain in his testicle and wanted to go home. He said the appellant asked to see it; "he asked for me to pull my pants down". TM said he was embarrassed but he pulled his trousers down. The appellant then asked him to pull his underpants down. He did not want to but he complied. He was asked how he felt standing there with his pants down and he replied: "I was scared. I was in a lot of pain. I was confused. I didn't know why I had to do this."
The appellant got up from his seat and came around to kneel in front of TM. He then started playing with TM's penis and testicles (Count 3 - indecent assault). TM said that he was confused and frightened. He said that TM then said, "This will help you" or "This might help you" and he put TM's penis into his mouth (Count 4 - indecent assault). TM said that as he was looking down: "I could just see the top of his head. You know, his hair swept across, slightly bald. I could feel his breath, I could feel his whiskers."
He felt the appellant's whiskers "on like the sides of my legs and my testicles".
The appellant had TM's penis in his mouth for about 30 seconds. As this occurred the appellant was rubbing himself; "he looked like he was playing with himself", "around his groin". TM then pushed him away. The appellant got up and went back to his desk. TM said that the appellant seemed angry; he just stormed off.
TM pulled his underpants and pants up and left. He went and saw the secretary and said, "I need to call my mum". His mother came and picked him up from the front of the school.
The Crown Prosecutor asked TM how he felt when he walked out of the appellant's office. He said: "I was 13. I, I didn't understand the, what had just happened. I just, I, I felt, it was the strangest feeling 'cause I just felt, I felt like I was watching myself. I just felt disconnected. I felt like I watched myself walk out of that room and I was just in pain. I was in so much pain."
TM was taken by his mother to the nearest GP and that night he was taken to hospital where he was admitted. (Medical records confirmed that TM was an in-patient at St George Hospital with a presenting problem of "tortion of testes" from 22 to 24 September 1980 - Exhibit H.)
TM said that he did not tell his mother what the appellant had done to him because: "I don't know, shame. I didn't, I still haven't told my mother. I didn't, I didn't want anyone to know."
As to why he did not tell anyone else, he said: "He was the headmaster. Who's, who's going to believe me?"
TM said that he did not want to go back to school because he "just felt that there was no one to look after me there" and he "didn't want it to happen again". He had a lot of sick days. He left Marist Brothers Kogarah at the end of the year and the following year went to a different school.
TM reported the matter to the police in July 2015. Prior to that he spoke to someone at a "12 step meeting" who described being abused by a Marist Brother; "Brother Alex or something like that". He searched on the internet for that person and he came across stories about Brother Christopher. He then realised that the appellant was alive. He said he realised he should tell someone "because obviously there [was] a forum there that I could tell my story".
TM said that he did not know anyone who had attended Marist Brothers High School at Hamilton in Newcastle. He did not know MB and had never discussed what had happened in the principal's office with a person called MB.
In cross-examination, TM agreed that he had said in his statement of 16 July 2015, "I do struggle to remember the details of what happened". He explained that he was referring to "specific details". He agreed that he said in his statement that Brother Christopher had got up from his desk and came around to him before asking him to pull down his pants and underpants. He agreed this was different to the evidence he had given and that it was "one of the details that you struggle to remember". He denied the possibility that one of the details he struggled to remember was "who did this to you".
TM agreed that he had commenced proceedings against the Marist Brothers and in that connection he had been assessed by a psychiatrist. He agreed that he had told the psychiatrist that he thought the abuse had occurred when he was in year 6 or year 7, but he agreed that it would not have been in year 6 because there was another principal for the junior school at that time.
TM agreed that he had drawn a diagram of the principal's office at the request of the police and that he had "got the office wrong". The location of the door, the window and the desk were wrong.
He was challenged as to the whereabouts of the principal's office. He thought it was on the first floor, not the ground floor. He had said in his evidence in chief that it overlooked the playground. When pressed in relation to this he said, "I don't remember the exact specifics, no". It was put to him that he was "not abused in Brother Christopher's office at all" but he said, "that's not true".
TM denied looking up Brother Alex on the internet because he was trying to find something to trigger a memory about who had actually abused him.
TM agreed that if a student was sick at school they did not see the principal to go home and that you could see your class master. He denied seeing his class master on the day that he had a twisted testicle.
TM's evidence of taking a lot of sick days after the event was challenged. He maintained "I had a lot of sick days". He agreed that he had told the psychiatrist "something like" that the number of sick days increased from 2 to 22. He was shown some school records and agreed that they did not show an increase in the number of sick days he had taken after Brother Christopher had abused him. It was put that this was "because he didn't assault you" but he said that proposition was "not true".
TM was cross-examined on the medical records from St George Hospital. They included someone having written "not distressed" and "no distress". He said that was not a word he would have used.
He was also cross-examined about his evidence of feeling whiskers when oral sex was being performed on him. He said, "I could feel whiskers, I don't know whether they were shaven or not" and "I could feel something that was itchy, scratchy hair on the face". He did not know whether the appellant shaved every day.
In re-examination, TM said that the details he struggled to recall included the layout of the principal's office but not whose office it was or the detail of how he was assaulted and who by and that it occurred on the day that he had a twisted testicle.
After some further cross-examination and re-examination, a sequence of events was clarified. TM had attended some meetings regularly and he had spoken at a meeting of having been sexually abused when he was aged 13 by the headmaster of his school but he did not go into specifics. Subsequent to that he had seen a psychologist and disclosed that he had been sexually abused by the appellant. It was after that when he was told by a person that that person had been sexually abused by a Marist Brother, perhaps Brother Alex. It was after that when he had looked on the internet and had seen reference to the appellant. He then saw a lawyer who referred him to a psychiatrist for a report. Subsequent to that he made his statement to the police.

[11]

Evidence of the appellant

The appellant was aged 81 at the time of the trial. He said he became a member of the Marist Brothers in 1954. He began teaching at Hamilton in 1969 and became the principal in 1971. He became the principal at Kogarah in 1977.
He had prepared a plan showing the principal's office at Hamilton (Exhibit 1). There were two women who worked in the secretaries' office outside the principal's office. They were both deceased.
The appellant said that there was not a well-established procedure at Hamilton when students became sick; sometimes they might be attended to by their roll teacher and sometimes by the year master. Typically, a sick student would not come to the principal but he could not exclude that a student might.
There were about 950 students at Hamilton. The appellant did not remember MB from 1976. In about 30 years he had been the principal of in excess of 10,000 students and he did not remember them all. He could not exclude the possibility that MB had come to him saying that he wanted to go home sick. He said, "it would be a possibility that he saw the secretaries and … that they brought him in".
A photograph of the principal's office in the 1976 yearbook was tendered (Exhibit 5). It showed a return on the side of the desk (the side MB said he was asked to walk around).
Broad details of the allegations of MB were put to the appellant and he denied them.
The appellant was then asked about Marist Brothers High School at Kogarah. There were three women who occupied the secretarial office near the principal's office, one of whom may not have worked full-time. The two whom he was certain worked full-time were since deceased.
The appellant described the principal's office as being a flight of steps down from the playground (contrary to TM's evidence that it was on the first floor overlooking a playground).
There were about 1300 students at Kogarah. The appellant did not remember TM.
The procedure at Kogarah if a child became sick was "better established". Year masters or the roll teacher would usually take care of such matters and the principal would "not necessarily" see the student. The appellant did not know whether TM came to see him in order to go home sick. He said, "I can't exclude it … because it would have been possible, in some circumstances, for my attention to be drawn to a sick student".
Broad details of the incident alleged by TM were put to the appellant and he denied them.
The appellant said that he left Kogarah at the end of 1980 and was transferred to North Sydney. He was there for a year during a transitional phase working with the principal-elect, Mr Grahame Smollett. Mr Smollett had been on the teaching staff at Kogarah.
The appellant concluded his evidence in chief by saying his practice when at Kogarah was to shave every day.
In cross-examination the appellant conceded that he was mistaken about some things. They included aspects of the layout of the area of the administration area at Hamilton he had drawn on a diagram (Exhibit 1). He agreed that it was not easy to remember such details, even when he had sat in the principal's office for more than a year. He agreed that he could not even be sure what the desk looked like.
The appellant maintained his evidence of shaving every day but accepted that he could not say whether he missed any parts on any given day, or whether his razor was sharp every day. In re-examination he said that he "always had a very light beard".
The allegations of each complainant were put to him and he denied them. He denied having a sexual interest in them.
The appellant said in response to a question asked by the judge that he did not know if he had a nickname when he was at Hamilton. His Honour also asked whether he was starting to go slightly bald on top when he was at Kogarah and he said that although he really did not know, "it's certainly possible".

[13]

Evidence of Dr Donald Thomson

Dr Donald Thomson gave expert evidence that was based upon his specialised knowledge of memory. He gave evidence of various ways in which a person's memory may be unreliable with reference to a variety of literature on the subject. He included in his report that it has been well documented that a consequence of delay in recalling an experience is that recall becomes unreliable.
According to Dr Thomson's evidence, one form of false memory occurs when an event or person has similar features or characteristics as a previously experienced event or person and, because of the resemblance, is falsely recognised or identified.
Another form of false memory was said to be attributable to "source confusion"; an observer recalls an event or incident they had previously experienced or identifies a person as the person they had previously seen, but wrongly attributes the place or the time of that event or person. This was referred to as "transference". An example pertinent to this case was that a person thinking back to their experience at school might remember the principal because he was the prominent person in the school and might attribute to him events or actions that were done there, but were not carried out by the principal.
A third form of false memory occurs when a particular event has never been experienced or a particular individual never seen, but because of suggestive influences, the "rememberer" comes to believe he or she has experienced that particular event or observed that particular person.
Dr Thomson also referred to "hindsight bias", being the reconstruction of past events in light of present knowledge and beliefs.
Dr Thomson was asked about the ability of an adult to recall a statement said to have been made by the accused: "Come and sit on my knee, darling, and tell me what it's all about" (from the evidence of MB). He said that research had shown that the capacity to recall verbatim is extremely poor, even over some small number of years; "What we tend to recall is the gist of it".
Dr Thomson was also asked about MB's evidence of the appellant being known to students by the nickname "Chuck", which counsel said was supposed to have derived from a fictional character which was not created until 1988. Dr Thomson said this "shows the reconstructive nature of how one constructs things, taking into account a present knowledge, a present experience and reinterpreting past experiences".
Dr Thomson generally agreed in cross-examination with suggestions to the effect that the ability of a person who is now an adult to recall an event that occurred well in the past when they were a child was affected by a number of variables; for example, whether the event was unique; whether the person was personally involved in the event; whether they had an emotional reaction to it; and whether there were more senses involved than just sight.
Dr Thomson also agreed that personal characteristics had an influence on the capacity for accurate recall; different people had different abilities with memory.
He agreed that he could not predict if and when an individual's memory had been affected by the factors he had outlined in his evidence and that all he could do was point out those that may affect memory. The mere passage of time did not mean that a person could not recall something accurately, but Dr Thomson added that "research has shown that it is highly probable that it could".

[15]

Submissions for the appellant

In written submissions it was said that it might be assumed that the trial judge rejected the evidence of the appellant. However, nowhere did he state that to be the case. More importantly, at no point did his Honour say why he rejected the appellant's evidence, or how he treated that evidence in the light of the applicable legal context. It was submitted that this amounted to an error of law having regard to the fact that there was an obligation upon the judge pursuant to s 133 of the Criminal Procedure Act 1986 (NSW) to give reasons.
The written submissions then referred to the terms of the legislation and to some case law which will be discussed below.
It was submitted that while it might be surmised that the judge rejected the appellant's evidence, the reasons do not permit this Court to see whether his Honour's treatment of the evidence of the appellant was tainted by error and nor do they permit the appellant to know why he was convicted.
It was also submitted that the correct approach was for the judge to first have regard to whether the evidence of the appellant was accepted. If so, there would be an acquittal. If the evidence was not accepted, regard should then have been had to whether the evidence nonetheless gave rise to a reasonable doubt. Again, the result would be acquittal. If the evidence was rejected, it should then have been put to one side (with reasons for doing so provided) and an evaluation of the strength of the prosecution case begun.
In oral submissions it was again acknowledged that there was an inference that the judge rejected the appellant's evidence but it was submitted that, without any express statement made to that effect, there was also the possibility that he "perhaps unconsciously simply subjectively, notionally, set the appellant's evidence aside in terms of the appellant's credibility and reliability and dealt only with the complainant's evidence" (T3.31). It was submitted that it was possible the judge made "a serious error in not addressing the appellant's evidence in the way that he had directed himself he had to" (T5.15; similarly at T7.5). It was accepted that elaborate reasoning dealing with every factual dispute was unnecessary but that there had to be at least short reasons as to what led the judge to disbelieve the appellant's evidence (e.g. T4.10).
Senior counsel for the appellant (Mr Neil SC) relied upon Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at 263 [30] for the proposition that there was error in a failure to demonstrate, either expressly or by implication, that a relevant principle of law had been applied. When pressed as to what "principle" he was referring to he responded, "the principle of adequate reasons" (T8.13).

[16]

Submissions for the Crown

In written submissions, the Crown submitted that, although the judge did not make an express finding in respect of the appellant's credibility, the reasons when read as a whole make clear that the evidence of the appellant was rejected.
It was submitted that it was possible to discern from the reasons whether the judge's treatment of the evidence of the appellant was tainted by error. The judge had appropriately directed himself that if the appellant's evidence was believed, or might be true, then there should be acquittals and if it was not believed he should put the evidence to one side and consider whether, upon the basis of the evidence that was accepted, the Crown had proved guilt beyond reasonable doubt.
The Crown submitted that it was not necessary for the judge to say why he did not accept the appellant's evidence. The essence of his evidence was a denial of the offences: the appellant did not recall either complainant but he denied assaulting any student in the manner they alleged.
The Crown referred to "sub-issues" in the evidence that were said by the appellant to cast doubt upon the credibility and reliability of the complainants. It was submitted that the judge appropriately addressed each of these issues when considering the credibility and reliability of the complainants. He also considered and rejected the suggestion that the complainants were mistaken that the perpetrator of the indecent assaults was the appellant rather than someone else. Comprehensive reasons were given for the finding that both complainants were credible and reliable.
In summary, it was the Crown's submission that it is clear that the judge rejected the appellant's denial of the offences; he gave extensive reasons for his findings accepting the complainants' evidence beyond reasonable doubt; and the issues raised in the trial were not such that it was necessary for the judge to provide reasons for his rejection of the appellant's evidence.
By reference to the terms of s 6(1) of the Criminal Appeal Act, the Crown submitted in the alternative that any error this Court might find as to inadequate reasons would not amount to a miscarriage of justice and, further in the alternative, if there be found such a miscarriage, it would not amount to a substantial miscarriage of justice.

[17]

Statutory provisions and principles

Section 133 of the Criminal Procedure Act 1986 (NSW) provides as follows: "133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
This provision is in the same terms as its predecessor, s 33 of the same Act, which was considered by the High Court of Australia in Fleming v The Queen.
The "finding" referred to in s 133(1) is a reference to the ultimate guilt or otherwise of the accused: Fleming v The Queen at 262 [25].
The requirements of s 133(2) and (3) are "legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law … and may also mean that justice has miscarried" within the second and third limbs of s 6(1) of the Criminal Appeal Act: Fleming v The Queen at 262 [27].
It was also said in Fleming v The Queen (at 263 [28]) that the requirements of s 33(2) (and hence s 133(2)) are not: "satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached."
There was a further point of construction of the former s 33(2), now s 133(2), noted in Fleming v The Queen (at 263 [30]) of significance to the present case: "Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded." (Emphasis added)

[18]

Other case law

Counsel for the appellant referred to AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 in which comparable statutory provisions were considered. It was submitted that "Gummow and Hayne JJ considered that the question of adequacy of reasons is one of compliance with the mandatory provisions of the legislation" and a footnote to this referred to their Honours' judgment at [56] and [58]. Reference was also made to the judgment of Heydon J (also in the majority) who observed (at [84]) that compliance with the relevant statutory provision (identical to s 133(2)) is one of degree but went on (in [85]) to say that the trial judge's failure to comply with the provision was "almost as complete a failure as could be imagined". Reference was also made to Heydon J saying (at [108]) that the value of reasons was not just to inform the parties as to why there has been a conviction or an acquittal but also to offer close appellate scrutiny of the trial judge which creates "an essential discipline".
Reference was also made to R v MPW (Court of Criminal Appeal (NSW), McInerney, Dunford and Simpson JJ, 14 December 1995, unrep). In that case a failure to state that the good character of an accused had been taken into account was found to comprise a failure to satisfy the statutory obligation in the then s 33(2). Dunford J (with whom McInerney and Simpson JJ agreed) said that the trial judge may have taken the accused's good character into account but "he did not say so and we cannot be sure that he did; in particular, we cannot be sure that he took it into account on both issues" (namely, on the question of guilt and on the question of the credibility of the accused's sworn evidence). There was a failure to comply with s 33(2) so that the trial miscarried.
Earlier in the judgment of Dunford J there was reference to Wood J (as his Honour then was) having said in R v O'Brien (Court of Criminal Appeal (NSW), 5 November 1993, unrep): "It needs to be observed that s 33(2) requires a statement of the findings of fact on which the judge relied. It does not require a statement of any other findings, or necessarily the process of reasoning to those findings on which reliance was placed. Further, s 33(3) does not require express mention in the reasons for judgment of any relevant warning. What is required is that such warning be taken into account. Silence does not mean that a warning has been overlooked. As a matter of practice, however, it would normally be desirable for a judge to state whether he has, or has not, taken into account any warning which it might be expected would be considered by a trial Judge for possible inclusion in a summing up to a jury." (Emphasis in original)
These remarks were quoted with apparent approval by Levine J (Carruthers and Bruce JJ agreeing) in R v Visser (Court of Criminal Appeal (NSW), 29 September 1994, unrep).
It should be observed that what was said about s 33(3) not requiring any express mention of a warning has been overtaken by the statement in Fleming v The Queen at 263-4 [32] that such warnings derive from principles of law which are expressly required by s 33(2) to be included in the judgment.

[19]

Consideration

Stated simply, the issue for the trial judge to determine was whether the Crown had proved the guilt of the appellant beyond reasonable doubt.
The case sought to be made by Mr Brady SC for the appellant in his closing address had three major components: 1. The evidence of the appellant would cause the trial judge to have a reasonable doubt that his guilt had been proved. 2. The period of time that had elapsed between the asserted occurrences of the events in question had given rise to the appellant suffering from a significant forensic disadvantage. 3. The evidence of each of the two complainants was unreliable.
The judgment of the trial judge was structured as follows: 1. A recitation of each of the counts in the indictment. 2. A summary of the evidence of MB in relation to Counts 1 and 2 including various matters raised in cross-examination. Interspersed in the summary were references to the evidence of Mr John Di Gravio (his conversation with MB) and of Senior Constable Green (significant forensic disadvantage relating to MB's evidence and the "Chucky" issue). 3. A summary of the evidence of TM in relation to Counts 3 and 4 including various matters raised in cross-examination. 4. Reference to the arrest of the appellant and his exercise of his right to silence. 5. A summary of the defence case comprising the evidence of the appellant, Mr Smollett and Dr Thomson. 6. A recitation of relevant legal principles and other directions which would usually be given to a jury. These included the onus and standard of proof; the need for separate consideration; and a direction derived from R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. 7. A discussion of the essential elements of the offences. 8. A summary of the Crown Prosecutor's submissions in her closing address. 9. A summary of the appellant's counsel's submissions in his closing address. 10. Reasons for concluding that the evidence of each complainant was sufficiently reliable to be satisfied beyond reasonable doubt that the acts of the appellant alleged by the complainants occurred.
The judge adequately and correctly complied with the requirement to set out the legal principles he was required to apply, the first of the two imperatives of s 133(2). There is no criticism of the judgment in that respect. The principles included the most fundamental direction given in a criminal trial; that the Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. This included, unsurprisingly, the concomitant concepts that the accused was presumed to be innocent and that even if his Honour felt that he was probably guilty he was required to return a verdict of not guilty if he held a reasonable doubt about his guilt.
At the beginning of his summary of the evidence of the appellant his Honour said: "The accused … gave evidence. He was not obliged to do that. By taking that course he did not alter the fundamental principle concerning where the onus of proof lies. There is no onus of proof on the accused. It is not for the accused to satisfy me of his innocence but for the Crown to prove his guilt beyond reasonable doubt of the charge that I am considering. This means the following. In the first instance, if I believe that the accused's evidence I will obviously acquit him of the charges. Secondly, if I find difficult [sic] in accepting his evidence but think that it might be true then I will acquit him of the charges. Thirdly, if I do not believe him then I will put his testimony to one side. The question still remains: Has the Crown, upon the basis of the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt of the charge in respect of the complainant I am considering?"
Having regard to all of the above matters that were included in the judgment, it is abundantly clear that the judge: a) had regard to the correct legal principles in relation to the onus and standard of proof, including that if he considered that the appellant's evidence was true, or could reasonably be true, he must acquit; b) had regard to all of the evidence, including that of the appellant and the other evidence in the defence case; and, c) did not consider that the appellant's denials of the offences gave rise to a reasonable doubt about his guilt.
The submissions for the appellant included that "it might be assumed that the trial judge rejected the evidence of the appellant". In my view, there is no other inference reasonably available. The possibility that he referred to the appellant's evidence and to the relevant legal principles and then disregarded them entirely is implausible.
The appellant's evidence has been summarised above. In short, he did not dispute that each of MB and TM may have seen him in his office for the reasons they claimed. However, he denied committing the offences.
The bulk of the appellant's evidence was concerned with peripheral matters such as his employment as a teacher and as a school principal with the Marist Brothers; the location and layout of his office at the schools at Hamilton and Kogarah; and, in relation to the complaint by TM, whether he had whiskers.
The judge clearly accepted the defence case, largely based upon the appellant's evidence as to those peripheral matters. He discussed his assessment of the evidence of the complainants in the light of errors in their accounts of the location and layout of the appellant's office. He discussed TM's evidence in the light of an acceptance of the evidence that the appellant shaved on a daily basis.
In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused's version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his "not guilty" responses when arraigned at the commencement of the trial.
In AK v Western Australia, to which counsel for the appellant referred, the failure of the trial judge to provide reasons was vastly different. It was so obviously a failure that it was not an issue for debate in the High Court; it was common ground that the trial judge had not complied with the equivalent statutory provision and the only question was whether the Western Australian Court of Criminal Appeal was in error in dismissing the appeal by applying the proviso. (The majority in the High Court held that there was a substantial miscarriage of justice and the appeal was upheld.)
The case was concerned with an issue of identification of the offender of alleged offences of indecent dealing with a child where the complainant had no doubt that AK was the offender. However, her evidence did not clearly exclude the possibility that another male who was present might also have been responsible for the offences. The trial judge stated his conclusion that he "thought that the complainant was generally a thoughtful and truthful witness as to the events about which she had spoken". He noted some concessions she made in cross-examination and the absence of any prompt complaint. Aside from this he simply stated that each of the offences had been proved beyond reasonable doubt.
AK v Western Australia provides an extreme example of a failure to give reasons. But, as Heydon J observed, it is a question of degree. The examples his Honour provided (at 467 [84]) indicate that the question whether there has been a departure from the statutory imperative will depend, at least in part, upon the nature of the evidence and the issues in the case at hand.
Returning to the present case, the trial judge discussed the evidence of the complainants in detail, including the various criticisms made of it. He expressed reasons why he was satisfied of the appellant's guilt beyond reasonable doubt notwithstanding such criticisms which were based in part upon the appellant's evidence which he clearly accepted.
The only thing left unsaid by the judge was that he rejected the evidence the appellant gave that the allegations by the complainants were untrue. However, that he was of that view is obvious enough (and he said so in his judgment on sentence).
There was no inadequacy of reasons generally. There was also no failure to comply with the legal imperatives of s 133(2); the judgment included the principles of law applied by the judge and it also included the findings of fact on which he relied.
This ground must be rejected.

[23]

Consideration

It is clear that the judge accepted the opinions of Dr Thomson as to various matters that might adversely affect the reliability of the evidence of the complainants. He summarised the psychologist's evidence in some detail while stating that he was not canvassing it all (Jdgmt pp 17-20). He included reference to it when summarising the submissions that had been made in the closing addresses by the Crown Prosecutor (Jdgmt pp 27.3 and 29.4) and by Mr Brady SC for the appellant (Jdgmt pp 35.9 and 36.3). Further, and importantly, his Honour made reference to it when later explaining why he accepted the evidence of the complainants.
It was not suggested that anything raised by senior counsel for the appellant in his closing address was not taken into account by the judge. I have read and re-read the transcript of his address alongside his Honour's reasons for judgment and can understand why no such complaint was made.
Dr Thomson's evidence was concerned with the quality of a person's memory after such a substantial period of time had elapsed. The reasons provided by the judge as to why he accepted that each complainant had been assaulted as they alleged, and why he accepted that the appellant was the perpetrator, provide many examples of his Honour's mindfulness of this issue. It will suffice to mention just some examples. Some involve specific reference to Dr Thomson while others are indicative of him having his evidence in mind.
TM's account of the location of where the assault occurred was not consistent with the location of the principal's office and this was said to suggest that he was assaulted by someone else. However, the judge accepted TM's evidence that he had only been to the principal's office on one other occasion. It was not located near the office of any other teacher. Further, TM remembered the door through which the appellant's secretary showed him through to the appellant. The judge's consideration of this issue is indicative of him having in mind the concept of transference about which Dr Thomson had given evidence.
The judge had regard to the possibility of TM having unconsciously reconstructed the number of sick days he had off after being assaulted but gave reasons for accepting his evidence nonetheless. This was another concept about which Dr Thomson had spoken.
The judge accepted a submission by the Crown "that the itchy, scratchy feel of the accused's whiskers does not exclude him from being the offender" and that "what TM was describing was the course [sic] … texture of a man he could feel to his sensitive areas contrasted to the soft face of a woman". This was a matter that had been raised by Mr Brady SC with reference to Dr Thomson's evidence.
Further, the judge said: "I do not consider there is the possibility of TM transferring the identity of the accused for someone else for the various reasons outlined by Dr Thomson including being influenced to believe this when TM accessed the internet and saw the name of Brother Christopher. I accept TM is accurate in his evidence that he told his psychologist and other attendees at a meeting that the accused had assaulted him before looking at the internet."
In the course of explaining why he accepted the evidence of MB, the judge referred to his evidence of the appellant having said, "Come and sit on my knee, darling, and tell me all about it". MB was asked what he thought when the appellant made this statement and he replied, "I just was shocked and I didn't know what to think, I've never been called darling by a male in my life". Dr Thomson's evidence included that, "research has shown that capacity to recall verbatim is extremely poor even over some small number of years" and that, "What we tend to recall is the gist of it". The judge said: "Whilst I accept that MB may not have remembered over the years the exact sentence uttered by the offender but the gist of what was said to him, as Dr Thomson said the chances of remembering a particular word was much higher than a verbatim remembering of a sentence".
The reasons given by the judge for accepting that it was the appellant, as opposed to some other adult at the school, who assaulted MB are indicative of his Honour again being mindful of the concept of "transference". For example, he referred to the issue about MB possibly having confused the appellant's office with someone else's office. He particularly referred to MB having described, accurately, the appellant having two secretaries who sat outside on either side of the door to the appellant's office with one of them being "behind the other or something and that the woman in front was the one who spoke to me". The judge referred to a photograph (Exhibit 6) which showed two secretaries on either side of the door, one being seated further back than the other.
The judge also referred to the event described by MB as "a unique event with the person who was not just one of the many teachers at the school but the principal of the school".
As to the reference in MB's evidence that the appellant was referred to as "Chucky" and his apparently mistaken description of the appellant's desk, his Honour said: "Whilst MB may have falsely believed that he had heard the name 'Chucky' for the accused in 1976 rather than at a later time, it does not follow that MB has been influenced by something else to believe mistakenly that he was assaulted by the accused. Nor do I consider as significant as Mr Brady submitted that MB described in his evidence going around the side of the accused's desk with a return. As reflected in Dr Thomson's examples of the person in the bank remembering the gun and not the description of the robber and the children focusing on the track shoes of the robber, it is what is of interest to the person which can play a role in a memory. I accept the Crown's submission that what would have been of significance to MB was not the layout of the office but sitting on the accused's lap and what he then did."

[30]

TM not complaining for decades

A number of matters were raised, albeit with brevity, concerning the circumstances of TM's disclosure decades after the events in question. Aside from one issue that was spelt out in a little detail, it was not indicated in either written or oral submissions what was said to arise from the other matters referred to.
Reference was made to TM disclosing what he claimed the appellant had done to him "in the context of a civil action for damages, in which the complainant spoke to many people before the police, including a psychologist and a psychiatrist".
The sequence of events concerning TM's disclosure of what he said the appellant had done to him has been summarised above (at [51]).
The only point in the submissions that was based on this chronology was that "It was apparent that the account given by [TM] to the psychiatrist of what had occurred was not entirely accurate and that at least an extremely exaggerated account of the number of school absences following the claimed assault had been given". (This was a reference to the evidence summarised above at [48].) The relevance of all of the other aspects of the chronology of TM's disclosure to the asserted lack of cogency is not self-evident. This includes the final sentence of the submission, "It is also apparent that the complainant had regard to medical records in the context of the proposed civil claim prior to giving an account to the police". This, presumably, is a reference to the means whereby TM was able to ascertain the date of the assault by reference to the hospital records that indicated his admission on 22 September 1980. That has no bearing on the cogency of TM's evidence.
As to the assertion to the psychiatrist by TM that there were a large number of sick day absences from school after the event, the trial judge reasoned: "Whilst there might have been unconscious reconstruction of the number of sick days TM had off after being assaulted, that does not exclude to my mind that TM was assaulted in the way he described. He gave evidence, which I accept, that he left Marist Brothers Kogarah and went to another school because he did not want to go back because of what happened to him. The records indicate he did not attend the last three days of the school year at Kogarah."
It was open to the trial judge to reason in that way. The fact that TM sought out another school because he no longer wanted to attend at Marist Brothers Kogarah was not disputed. It was a significant point as it supported his account of having been sexually abused by the school principal.

[33]

The evidence of the appellant

The contention in relation to the appellant's evidence was that none of it was counterintuitive or hard to accept; it carried significant plausibility; appropriate concessions were made in cross-examination; and he was left "unshaken and undiminished by cross-examination".
On the face of it, this appears to be correct. There is nothing of significance in the appellant's evidence that is inherently implausible and nothing was said at trial to suggest that he was "shaken or diminished" by cross-examination. However, it was necessary for the trial judge to weigh the appellant's evidence, and that of his witnesses, against the evidence relied upon by the prosecution. He had the advantage of seeing the witnesses and hearing their evidence as it was given whereas this Court is confined to the printed pages of the transcript.
The judge described TM as a witness in the following terms: "I find that TM was an honest witness. I formed the impression that he did his best to give as straightforward and candid evidence as he could without embellishment. He acknowledged there were details he could not remember. That does not mean, of course, that his evidence was accurate and upon which I could rely."
He described MB as a witness this way: "I find that MB was an honest witness. I formed the impression that he did his best to give as straightforward and candid evidence, to borrow an expression from the Crown, 'in a no nonsense way'."
The prosecution case was that each complainant felt unwell and attended upon the appellant as the principal in order to obtain permission to leave the school. A secretary ushered the complainants into the principal's office and the door was closed. It was well open to the trial judge to accept that this occurred.
The complainants' evidence was that it was in those circumstances that they were indecently assaulted by the appellant. They described the assaults with detail that gave their accounts considerable verisimilitude. It was well open to the judge to accept that the assaults occurred in the manner they described. For example, his Honour said in respect of TM's evidence: "[H]e was … fourteen years old and able to comprehend and be alert to what was personally happening to him. His recollection of the description of his testicles and penis being touched, feeling the hot breath of the perpetrator and the course texture of a man's face against sensitive parts of his body have a particular significance."
In relation to MB's evidence the judge said: "This was a traumatic and unique event experienced by a thirteen or fourteen year old boy who was able to comprehend what was happening which has troubled him for many years. … I agree with the Crown's submission that the evidence of MB that the offender told him to sit on his knee 'darling' and tell him all about it, have a particular significance. Having watched and listened to his evidence carefully it was clear that particularly being called 'darling' had, as he said, stuck in his mind over the years and that he had never been called 'darling' in his life by any other man."
Having concluded that the complainants were assaulted in the manner they described, it was well-open to the judge to be satisfied that it was the appellant who perpetrated the assaults. As the principal, the appellant was a significant person at each of the schools. Each of the complainants recalled going to his office because they were suffering from an incident of ill-health. They recalled being admitted to the appellant's office after first speaking with a secretary. They each recalled again speaking to a secretary after leaving the appellant's office and arranging for their mothers to be contacted in order to come and pick them up. The prospect of such detail being merged with a memory of an assault that was committed by some other adult somewhere else at the school appears to be most unlikely.
The acquittal of the appellant in respect of the offence charged in Count 2 of the indictment did not detract from MB's credibility. The judge said that he was "satisfied beyond reasonable doubt that it was the accused who in Count 2 fondled his own penis through his robe under MB's buttocks". Count 2 alleged that the appellant committed an indecent act "with" MB. The judge was not satisfied of the "with" aspect.
On my assessment, it was well open to the trial judge to be satisfied of the guilt of the accused in respect of the three indecent assaults charged in Counts 1, 3 and 4 of the indictment beyond reasonable doubt.
Leave to appeal in respect of this ground should be granted but it cannot be upheld.

[34]

Conclusion

None of the grounds of appeal against conviction should be upheld. The appeal against conviction should be dismissed.
In relation to sentence, I agree with the reasons and conclusion of Schmidt J that leave should be granted but the appeal be dismissed.
Section 18 of the Criminal Appeal Act provides that "time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant's sentence". It is necessary to adjust the dates of commencement of the sentences in order to reflect the fact that the appellant has been on bail since 23 November 2017. He was in custody for 21 whole or part days from 3 to 23 November 2017 and so his first sentence should be specified to commence on 20 April 2018.
Accordingly, the orders I favour are: 1. Leave to appeal against conviction and sentence granted. 2. Appeals against conviction and sentence dismissed. 3. Pursuant to s 18 of the Criminal Appeal Act, the sentences imposed in the District Court on 3 November 2017 are varied as follows: Count 1 - the sentence of imprisonment for 6 months is to date from 20 April 2018. Count 3 - the sentence of imprisonment for 6 months is to date from 20 July 2018. Count 4 - the sentence of imprisonment for 15 months with a non-parole period of 6 months is to date from 20 July 2018. The non-parole period will expire on 19 January 2019 at which time the appellant will become entitled to release on parole. The total term of the sentence will expire on 19 October 2019.
SCHMIDT J: At the time of his offending, each of the appellant's offences attracted a maximum penalty of 5 years. He did not give evidence on sentence. In November 2017 Arnott SC DCJ sentenced him to an overall term of imprisonment of 18 months with a non-parole period of 9 months, having concluded that the individual sentences should be: Count 1 - the indecent assault involving the fondling of MB's genitals, a fixed term of imprisonment of 6 months commencing on 3 November 2017 and expiring 2 May 2018; Count 3 - the indecent assault involving the fondling of TM's genitals, a fixed term of imprisonment of 6 months commencing on 3 February 2018 and expiring 2 August 2018; Count 4 - the indecent assault involving fellating TM, a non-parole period of 6 months commencing on 3 February 2018 and expiring 2 August 2018, with a balance of term of 9 months, expiring 2 May 2019;

[38]

Arnott SC DCJ's reasons

After recounting the circumstances in which the offences occurred, which his Honour noted had been set out in detail in his judgment on verdict, Arnott SC DCJ turned to consider the seriousness of the offences which had been found proven, having rejected the evidence given by the appellant at trial, in which he denied having committed any of the offences.
His Honour then outlined the victims' evidence as to the impact which the offending had had upon each of them, concluding that the effect had been significant. He considered that this evidence had to be taken into account in determining the penalty to be imposed, but he did not take those impacts into account as a matter of aggravation, because they were an inherent part of each offence.
In assessing the seriousness of the offence against MB, Arnott SC DCJ took into account: "a) The nature of the indecent assault involved fondling the boy's genitals, not simply on the outside of his clothing, but inside against his skin; b) The offence lasted for a short period of time; however, as Howie J (with the agreement of the other members of the appeal court) said in Mayall v R [2010] NSWCCA 37 at [44], "I do not understand that the effect upon the child depends upon the length of time of the abuse"; c) It was without the boy's consent and unwelcomed which would seem at the time that s 81 was in force considered more serious than a consensual assault; d) It involved a gross breach of trust, being the head of a school of teachers having care of the child; e) Whilst the offender did not use threats to secure the boy's silence, he relied upon his authority and position as an adult and headmaster of a Catholic school making it unlikely the boy would complain or be believed; f) The offence occurred when MB was aged 13 or 14 years old, which is an aggravating factor; g) The offence was opportunistic, taking advantage of an opportunity not just to be alone with MB, but having a ready excuse that he was comforting a boy with a sick stomach if someone walked into the room."
In assessing the seriousness of the offences against TM, Arnott SC DCJ took into account: "a) The nature of the indecent assault involved in Count 3 was fondling the boy's genitals, not simply on the outside of his clothing, but against his bare skin when his pants were down. And that in Count 4 involved fellating the boy's penis; b) Each offence lasted for a short period of time; c) Each was without the boy's consent and unwelcomed; d) Each involved a gross breach of trust, being the head of a school of teachers having the care of the child; e) Whilst the offender did not use threats to secure the boy's silence, he relied upon his authority and position as an adult and headmaster of a Catholic school, making it unlikely the boy would complain or be believed; f) Each offence occurred when TM was aged 14 years old, which is an aggravating factor. I might add, the offence was also committed when the boy was in considerable pain with a twisted testicle; g) Each offence was opportunistic, taking advantage of an opportunity not just to be alone with TM, but having a ready excuse if someone walked into the room that he was investigating the boy's twisted testicle condition."
His Honour concluded that: 1. The assault involving the act of fellatio was the most serious of the appellant's offences, given that it involved a gross breach of trust committed against a 14 year old boy. It was assessed as falling within the middle of the range. The other two offences were found to have been of similar seriousness. 2. General deterrence had to feature in the appellant's sentence, given that children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties which can be caused by such conduct. 3. Given the seriousness of his offending and that the appellant had used his position as principal of the victims' schools, his subjective circumstances, including his prior good character could result in little allowance by way of mitigation of the offending.
The appellant's subjective circumstances were, however, taken into account. They included that the appellant, who on sentence was aged 81 years, was 40 at the time he assaulted MB and 44 when he assaulted TM.
His Honour also explained the extensive material tendered about the appellant's circumstances, including reports from a psychiatrist; a psychologist; the applicant's general practitioner; medical records; the safety and well-being plan prepared for the applicant by the religious order of which he was then still a member; some 21 testimonials; a presentence report; and a presentence psychological report.
His Honour noted that this evidence showed: "The offender was born in December 1935. He has three sisters, all of whom are married with children. He is close to them all. He was a good student at school. After completing the leaving certificate, he decided to become a Brother at the age of 16 years old and went straight from school to the Marist Brothers College at Mittagong. He has devoted his life to the Brotherhood and teaching since that time. He started teaching in 1955 and a few years later enrolled in a teaching degree by correspondence and graduated in 1962. He later obtained a theology degree through the University of San Francisco in 1992. When he started teaching, he worked as a primary school teacher for about seven years before progressing into secondary school education. He was an English and religious education teacher and became a full time principal in 1971. He retired from formal teaching in 2000 but has continued with some part-time duties and special projects for a number of Sydney Catholic schools since then. The offender has lived within the Brotherhood since he was 16 years old. He has been in a Marist aged care hostel for Brothers since 2001. This is located next door to a school. His best friend died about 12 months ago. His family and other Brothers at the hostel are his primary areas of support. He has had surgery to remove kidney stones in the past and a right knee replacement in 2012. He will preferably need a left knee replacement in the next 12 months and he has been asked to consider an operation on his right shoulder joint for osteoarthritis and rotator cuff syndrome. His local medical practitioner, Dr Meers, lists a range of mostly age related conditions and the medications prescribed. There is also a medical summary included in the material tendered in his case. The conditions include, without referring to them all, high blood pressure and elevated cholesterol, heart arrhythmia, obesity, osteoarthritis and the rotator cuff syndrome in the right shoulder particularly troubling him at the home and causing disrupted sleep, colonic polyps, a Bell's Palsy affecting the facial nerve. The offender himself describes his physical health as good for his age. He sees a cardiologist every six months and takes medication for high blood pressure and cholesterol. He currently suffers from depression resulting from the allegations in this case, the outcome of the trial and the destruction of his reputation for which is prescribed antidepressant medication. I consider that any time in custody would be more difficult for him because of his age and medical conditions and accordingly it is appropriate to mitigate any sentence. There are testimonials from relatives, those in the Brotherhood with him, parents and students and people from a variety of backgrounds and occupations whose lives he has influenced and helped in a very positive way. There is a particularly moving testimonial from a 42 year old man who grew up in an environment of domestic violence and poverty, who ran away from home when he was 15 years old. The offender found out where he was living in a small room and organised for him to board at the Marist Brothers school where he taught and, with other Brothers, paid his entire boarding and school fees. This man has now a successful occupation, is married with children and a few years ago swam the English Channel. He says the offender's "generosity and kindness totally changed my life". This testimonial is but one of many attesting to his helping others over the years. I have read carefully all the testimonials. He has had a high profile within the Marist Brothers and a fine reputation in education circles. When Brothers are charged with or convicted of offences such as the present, they are placed on a personal safety and wellbeing plan by the Provincial who is the leader of the Marist Brothers Province. Brother Peter Carroll is the current Provincial. These safety plans restrict the individual Brothers' type of work, freedom of movement and limit involvement in other areas or activities. There is an officer supervising adherence to the plan. Such a plan has been developed for the offender. It includes, amongst other things, a residential condition, the requirement to obtain written permission from the Province Professional Standards Office before entering a school and not to be in the immediate company of children or young persons without supervision by a responsible adult."
His Honour concluded that while the appellant had not demonstrated any remorse for his offending, the evidence did establish that he had rehabilitated himself and was unlikely to re-offend, his last offence having occurred 37 years ago and there having been no further offending since that time.
His Honour took the view, however, that while the offences which the appellant had committed against children were "stale crimes", the delay in prosecution had enabled him to demonstrate his rehabilitation.
Arnott SC DCJ also took into account the materials and submissions which the parties advanced in relation to sentencing practices at the time of the applicant's offending, which occurred prior to the enactment of the Sentencing Act 1989 (NSW), when the specification of non-parole periods was regulated by the Parole of Prisoners Act 1966 (NSW). That Act did not prescribe a prima facie proportion between the non-parole period and head sentence. His Honour also took into account that at that time, sentencing practice was to fix a non-parole period of between a third and a half of the term of the sentence.
His Honour also accepted that sentencing for sexual offences against children was at the time of the offending significantly more lenient than now, but concluded that there were no discernible patterns of sentencing for the appellant's offences under s 81. Accordingly, his Honour's approach was to have regard to the maximum penalty for each offence at the time it was committed, as well as the other matters which normally would be taken into account on sentencing. They were identified to include the relevant objective and subjective matters established by the evidence, as well as relevant authorities.
Given that the appellant's offences had been committed by a headmaster of a church school against 13 and 14 year old children, in serious breach of his position of trust and authority, Arnott SC DCJ concluded that while the appellant's offences were not of the most serious kind, the only appropriate sentence was one of full time custody, even when sentencing standards at the time of the offending were taken into account.
His Honour noted that the sentences he imposed were considerably less than those which would be imposed, had the offences been committed today, because they now carry more than a maximum 5 year sentence. While he accepted that current sentencing practices were thus inapplicable, his Honour concluded that alternatives to full time custody were not warranted, given the objective seriousness of the appellant's offending.
Arnott SC DCJ also took the view that the non-parole period he imposed represented the minimum period of imprisonment required to be served by the appellant for his offences. The sentences for the offences against TM were made wholly concurrent, as the result of the application of the totality principle, because they had occurred as a part of the one ongoing act of criminality. His Honour took the view that a degree of partial accumulation for the offence against MB was warranted, because that was a discreet and separate crime against another victim.
Special circumstances were also found and the applicant's release at the end of the non-parole period was directed.

[40]

The sentence was not manifestly excessive

In my view nothing advanced for the appellant established that his Honour erred, either in his approach to the sentences he imposed on the applicant, or in the conclusions which he reached, as to any of the matters advanced for the appellant on the evidence, or as to the applicable principles, or in the sentence imposed upon the appellant.
As was conceded on sentence, none of the authorities or the statistical material relied on established any particular pattern of sentences for offences against children dealt with under s 81, at the time of the appellant's offending. The one case of Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188, did not establish such a pattern and involved relatively different offending. In the result, his Honour's approach accorded with that explained in Magnuson.
Proper account was also taken by his Honour of the applicant's subjective circumstances and that he had not offended again, for some 37 years. That this did not reduce the objective seriousness of the offences for which the applicant was being sentenced, was also correct.
As his Honour accepted, the appellant's circumstances did reduce the role of specific deterrence in the sentence, as did the conclusion that the appellant had been rehabilitated and was unlikely to offend again.
Despite the conditions proposed under the Marist Brothers' plan, given the nature and seriousness of the offences which were found proven and the obligation imposed on sentencing judges to sentence in accordance with the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, there was in my view also no error in the conclusion that a custodial sentence was warranted. These purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
Nor was there any error in his Honour's conclusion that the sentence for the appellant's offences should not be suspended.
While the appellant's offending was opportunistic, involving as it did two children who went to see him when they were ill and needed to go home, the abuse of the position of trust and authority which the applicant then had as the head of the religious school in whose care the victims had been entrusted, was substantial. Contrary to the case advanced for the appellant, that was more significant on sentence than would have been the case, had he been a classroom teacher, who did not occupy such a position.
In that context, in the case of both victims, the nature of the appellant's assaults were sufficiently serious to have warranted the conclusion that a term of full time custody had to be served by the appellant, albeit one much shorter than that which would have been imposed upon him, if he was to be sentenced in accordance with current law.
Even approaching the sentence in light of sentencing practices prevailing at the time of the offending, the sentence imposed on the appellant had to result in a minimum period of actual incarceration during which the appellant had to be placed in full time custody. That period had to reflect the elements of punishment including rehabilitation, the objective seriousness of his crimes and his subjective circumstances: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628-629.
As was the Crown's case on sentence, his Honour did have to take into account the fact that not only was the appellant's offending callous in both cases, the more so for TM who was in agony from the twisted testicle from which he was then suffering, but understandably, it had serious ongoing consequences for both of the appellant's victims.
In the circumstances, the appellant's concession that the s 5(1) threshold had been passed, so that a custodial sentence was warranted, was properly made. The conclusion that a suspended sentence, in order for the appellant to live under the proposed Marist Brothers' Plan was not appropriate, given the nature of that plan and the limited legal consequences which would result for the appellant if he breached the plan, was also properly open.
The result of his Honour's approach, an overall term of imprisonment of 18 months with a non-parole period of 9 months, has not been shown to be manifestly excessive in all of the relevant circumstances established by the evidence.

[41]

Orders

In the result, I would order that leave to appeal on sentence be granted, but the appeal be dismissed.
In relation to the conviction appeal, I agree with the reasons, conclusions and orders which R A Hulme J proposes. Accordingly, I agree that the orders his Honour proposes should be made.
HAMILL J: I agree with R A Hulme J that the appeal against conviction must be dismissed. I agree with his Honour's reasons for that conclusion.
It would have been preferable for the trial Judge to have stated clearly that he rejected the appellant's denials that he committed the offences. However, as R A Hulme J explains, in the circumstances of this case, the only explanation for the verdicts and acceptance of the complainants' evidence (beyond reasonable doubt) was that the Judge rejected the appellant's evidence on the central issue in respect of each charge. This is clear from the legal direction his Honour gave himself and which is set out by R A Hulme J at [114]. From that legal direction, it is plain that the trial Judge did not "believe the accused's evidence" or conclude that his evidence "might be true". In either of those circumstances, the principles of law stated would have resulted in an acquittal on each charge.
Further, allowing for the possibility that the failure explicitly to reject the appellant's evidence constituted an error of law or a failure to comply with the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW) (neither of which proposition do I accept), it is clear that there was no miscarriage of justice in the sense referred to by the High Court in Filippou v The Queen at [4] and [13]. Counsel for the respondent very properly brought the Court's attention to certain passages from the decision of the High Court in Kalbasi v Western Australia [2018] HCA 7. I accept Ms Baker's submission that the observations of the plurality did not purport to overturn what was said in Filippou although the language at [12] and [13] sits a little uneasily with the High Court's earlier judgment. In the circumstances of the present case, it is clear that there was no miscarriage of justice because, as R A Hulme J demonstrates, the only possible explanation for the trial Judge's conclusion is that he rejected the appellant's evidence.
In relation to ground 4, I have examined the transcript and exhibits and concluded that it was open to the trial Judge, in the sense explained by the High Court in cases such as M v The Queen and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, to be satisfied beyond reasonable doubt of the appellant's guilt. This is a case where the trial Judge's advantage in seeing and hearing the evidence, especially the evidence of the complainants and the appellant, is significant. Any doubt said to arise from matters such as the erroneous evidence of MB in relation to the appellant's nickname ("Chucky") is resolved by reference to the trial Judge's advantage of seeing and hearing MB's reactions to the cross-examination on this and other peripheral issues. As to these matters, I respectfully adopt the analysis of R A Hulme J at [157] - [195].
I agree with Schmidt J that the sentence appeal must also be dismissed. The sentences were severe given the age of the appellant, extensive delay and substantial increases in maximum penalties and sentencing patterns in the ensuing forty years: see, for example, MC v R [2017] NSWCCA 316. However, this was a case involving an egregious breach of trust by a head master charged with the responsibility for the pastoral care of the vulnerable young victims. The material relied on to establish the sentencing patterns existing in 1976 to 1980 does not establish that the sentences imposed by Judge Arnott SC were manifestly excessive.
Accordingly, I agree with the orders proposed by R A Hulme J.

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (35)

Cited By (9)