SY v R

1. [1]

   HOEBEN CJ AT CL: I agree with the reasons of Davies J.

2. [2]

   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.

3. [3]

   He was tried before Judge Wass SC and a jury of 12 and on 18 May 2016 he was convicted of the offence. On 4 October 2016 he was sentenced to a period of imprisonment for two years from 4 October 2016 expiring on 3 October 2018 with a non-parole period of 12 months expiring on 3 October 2017.

4. [4]

   The applicant appealed against his conviction. At the conclusion of the hearing of the appeal the Court announced that the appeal was upheld, the conviction quashed and in lieu there should be entered a verdict of acquittal. The following are my reasons for joining in the making of those orders.

5. [5]

   The applicant sought leave to appeal against his conviction on the following grounds:

The alleged offending

1. [6]

   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.

2. [7]

   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.

3. [8]

   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.

4. [9]

   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.

5. [10]

   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”.

6. [11]

   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:

7. [12]

   Mr Ayoub’s evidence was this:

8. [13]

   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

1. [14]

   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.

2. [15]

   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.

3. [16]

   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.

4. [17]

   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.

5. [18]

   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.

6. [19]

   Thirdly, it was improbable that the complainant would have been at the church alone and unobserved.

7. [20]

   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.

8. [21]

   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.

9. [22]

   Sixthly, the allegation was completely uncorroborated despite the considerable number of people present at the time.

Grounds of appeal

1. [23]

   The applicant complained about the following remarks in the trial judge’s summing-up to the jury. Her Honour said this:

2. [24]

   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.

3. [25]

   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.

4. [26]

   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.

5. [27]

   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.

6. [28]

   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.

7. [29]

   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.

8. [30]

   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.

9. [31]

   Significantly, after the passage criticised by the applicant (set out at [23] above) the trial judge said this:

10. [32]

    The Liberato direction given by the trial judge was in these terms:

11. [33]

    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.

12. [34]

    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.

13. [35]

    The four passages identified by the applicant were these:

14. [36]

    At the end of the summing up the applicant’s counsel sought a re-direction which was given in the following terms:

15. [37]

    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:

16. [38]

    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.

17. [39]

    The applicant submitted that impliedly the jury could not take account of the following possibilities:

18. [40]

    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.

19. [41]

    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.

20. [42]

    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.

21. [43]

    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.

22. [44]

    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.

23. [45]

    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.

24. [46]

    The transcript relevantly reads (at T 397):

25. [47]

    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.

26. [48]

    The debate concluded by the following exchanges:

27. [49]

    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).

28. [50]

    In his opening address Mr James said this:

29. [51]

    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.

30. [52]

    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.

31. [53]

    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.

32. [54]

    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.

33. [55]

    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.

34. [56]

    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.

35. [57]

    The joint judgment of Gummow, Kirby and Callinan JJ said:

36. [58]

    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.

37. [59]

    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].

38. [60]

    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:

39. [61]

    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].

40. [62]

    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]:

41. [63]

    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.

42. [64]

    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:

43. [65]

    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”.

44. [66]

    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.

45. [67]

    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”.

46. [68]

    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.

47. [69]

    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.

48. [70]

    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.

49. [71]

    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.

50. [72]

    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.

51. [73]

    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.

52. [74]

    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.

53. [75]

    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.

54. [76]

    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.

55. [77]

    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):

56. [78]

    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].

57. [79]

    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.

58. [80]

    In SKA v Regina [2012] NSWCCA 205 Adams J (with whom Hislop J agreed) said:

59. [81]

    In Popovich Adamson J said:

60. [82]

    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.

61. [83]

    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.

62. [84]

    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.

63. [85]

    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.

64. [86]

    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.

65. [87]

    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.

66. [88]

    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.

67. [89]

    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.

68. [90]

    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:

69. [91]

    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.

70. [92]

    The second group of matters concerns the complainant’s behaviour in relation to the church and the applicant subsequent to the events complained of.

71. [93]

    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.

72. [94]

    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.

73. [95]

    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.

74. [96]

    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.

75. [97]

    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.

76. [98]

    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.

77. [99]

    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.

78. [100]

    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.

79. [101]

    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.

80. [102]

    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.

81. [103]

    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.

82. [104]

    For those reasons the following orders were made:

83. [105]

    BELLEW J: I agree with Davies J.