R v BK

1. [1]

   JOHNSON J: By Notice of Appeal dated 26 April 2021, the Crown appeals under s.107 Crimes (Appeal and Review) Act 2001 against the acquittal at the Sydney District Court on 30 March 2021 of the Respondent, BK, upon an indictment charging offences under s.78N and s.78K Crimes Act 1900.

2. [2]

   The Respondent stood trial by way of a Judge-alone trial before Jeffreys DCJ upon an indictment charging the following offences, all of which were alleged to have been committed between 1 March 1985 and 25 April 1985 at Marrickville against the complainant, WO:

Nature of Crown Appeal Against Acquittal

1. [3]

   Section 107 Crimes (Appeal and Review) Act 2001 provides as follows:

2. [4]

   The present appeal falls within s.107(1)(b) being an appeal from an acquittal at a Judge-alone trial in the District Court.

3. [5]

   The right of appeal conferred by s.107(2) is confined to any ground that involves a question of law alone.

4. [6]

   In R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108, it was noted (at [74], [81]) that, although the formulation “a question of law alone” is more restrictive than the formulation “a question of law”, the use of the word “involves” in s.107 gives the legislation a wider application than if the legislature had restricted the section to grounds of appeal “on a question of law”. A “question of law” is also wider than an “error of law”: Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCCA 199 at [124].

5. [7]

   A ground of appeal that asserts error in the formulation or application of a legal proposition which is a distinct and separate step in the reasoning process will satisfy s.107(2): R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [27]. If the question of law can be stated and considered separately from the facts with which it may be connected, there is a “question of law alone”: R v XHR [2012] NSWCCA 247 at [23].

6. [8]

   In the event that error is established and the Court quashes the acquittal under s.107(5), the Court must consider whether to order a new trial under s.107(6). This requires consideration of whether it is in the interests of justice for a new trial to be ordered: R v PL (No. 2) [2012] NSWCCA 31 at [45]-[48]; R v BA [2021] NSWCCA 191 at [69]-[71].

Grounds of Appeal and Questions of Law

1. [9]

   The Crown relies upon the following grounds of appeal:

2. [10]

   The questions of law raised by these grounds of appeal are:

3. [11]

   Mr Anderson SC, who appears for the Respondent, accepts that the appeal is based upon a question of law alone and that the Crown is entitled to bring the matter before the Court. I am satisfied that the common position of the parties is correct and that the grounds of appeal involve questions of law alone.

4. [12]

   As will be seen, the areas of controversy in the appeal relate to the determination of the grounds of appeal and the exercise of the residual discretion if error is demonstrated.

The Evidence in the Trial

1. [13]

   Put shortly, the Crown alleged that the Respondent had committed three offences contrary to s.78N Crimes Act 1900, with alternative counts alleged under s.78K of that Act.

2. [14]

   The offences were alleged to have occurred in 1985. At this time, the Respondent was a teacher at St Patrick’s Marist Brothers College, Dundas and was the cadet master of the College’s cadet corps.

3. [15]

   The complainant, WO, who was then 12 years old, was a student at the College. He was taught by the Respondent and was also a founding member of the cadet corps at that time.

4. [16]

   The offences were alleged to have occurred on an occasion in the lead up to Anzac Day in 1985. The complainant gave evidence that the Respondent picked him up to drive him to training at Lancer’s Barracks at Parramatta. The complainant said that the Respondent drove him to a semi-detached house in Marrickville. The Respondent took the complainant into the lounge room of the house and showed the complainant a homosexual pornographic video. The Respondent was sitting on a cushion or beanbag and put the complainant’s penis in his mouth and fellated him (Counts 1/2).

5. [17]

   The complainant alleged that the Respondent then led him to a bedroom, where there was a rifle with an unusual scope and a lancer sword. The Respondent then led the complainant’s mouth to the Respondent’s penis and placed his penis into WO’s mouth and told him to suck it (Counts 3/4).

6. [18]

   The complainant alleged that the Respondent then placed the complainant’s penis in his mouth and fellated him (Counts 5/6).

7. [19]

   Thereafter, the Respondent and the complainant went to Lancer’s Barracks for cadet training.

8. [20]

   The Respondent gave evidence at the trial. He denied committing the offences. He said that he had never had the complainant in his car. The Respondent said that he did not recall the complainant “at all” (T107).

9. [21]

   The Respondent acknowledged that he possessed a sword and a rifle with an unusual scope, in the home of his parents at Marrickville. He said that, after the Anzac Day march, he had taken the complainant, together with 24 other cadets, through his parents’ home in Marrickville to show the cadets his collection of rifles and swords.

10. [22]

    The Respondent’s case was that it was because of this occasion that the complainant was able to describe his parents’ home in Marrickville, although the Respondent contended that the complainant was not accurate in his description of the home having beanbags or cushions.

11. [23]

    The Crown relied on tendency evidence in support of the Crown case by reference to a Statement of Agreed Facts under s.191 Evidence Act 1995 signed by the Respondent (Exhibit B). The trial Judge read out the contents of Exhibit B to the Respondent and asked whether he admitted the facts in the document, to which the Respondent replied in the affirmative (T6-8).

12. [24]

    That statement related to the conduct of the Respondent with two other boys, JW and PK, each of whom was 13 years old and in Year 7 in 1985. Both JW and PK attended St Patrick’s Marist Brothers College, Dundas. Both were taught by the Respondent and both were cadets in 1985 when the Respondent was a cadet master.

13. [25]

    The Statement of Agreed Facts stated that, towards the end of 1985, the Respondent had driven JW to a house at Marrickville where he showed JW his collection of rifles and swords. He then drove JW to a house in Chippendale, where he showed JW pornographic videos before performing fellatio on JW and directing JW to perform fellatio upon him. Similar conduct occurred two weeks later.

14. [26]

    Approximately one year later, the Respondent invited JW to watch pornographic videos and have sex. In the Chippendale house, JW watched pornographic videos. JW declined to perform fellatio on the Respondent, but agreed to masturbate the Respondent. After they masturbated each other, the Respondent performed fellatio on JW. Thereafter, JW continued to visit the Respondent. On these occasions, the Respondent would perform fellatio on JW.

15. [27]

    The Statement of Agreed Facts also indicated that, in the winter of 1986, the Respondent drove JW and PK to the house in Chippendale where they watched a pornographic video and then performed fellatio on each other. The last time that JW saw the Respondent was in 1987 when he and the Respondent performed mutual acts of fellatio. On this occasion, JW also engaged in anal intercourse with the Respondent.

16. [28]

    The Respondent did not dispute that he had a sexual interest in JW or PK at the relevant times. However, he maintained that he did not have any sexual interest in the complainant.

The Tendency Notice Relied Upon by the Crown at the Trial

1. [29]

   The Crown relied upon a Tendency Notice dated 17 February 2021 served for the purpose of s.97 Evidence Act 1995.

2. [30]

   The Tendency Notice was provided to the trial Judge prior to closing addresses (T164). As will be seen, there was some discussion with counsel concerning the Tendency Notice and its use in the trial (T164-166).

3. [31]

   The Tendency Notice stated as follows:

The Role of the Tendency Evidence During the Trial

1. [32]

   The trial took place between 23 and 26 March 2021, with verdicts and reasons being delivered on 30 March 2021. Having regard to submissions made at the hearing of the appeal, it is appropriate to refer to parts of the trial where the tendency evidence was referred to in evidence and addresses.

2. [33]

   In the course of the Crown opening address, reference was made to the tendency evidence by way of a summary of the matters contained in the document which became Exhibit B (T2-3). In a short opening address for the Respondent, trial counsel noted that, in circumstances where it was conceded that tendency evidence would be admitted at the trial, there was no opposition to the Crown relying upon tendency evidence with that material being condensed into an agreed facts document for that purpose (T3).

3. [34]

   As noted earlier, when the Statement of Agreed Facts (Exhibit B) was tendered without objection, the trial Judge read the document to the Respondent who agreed that he admitted the facts contained in the document (T6-8).

4. [35]

   The Crown called WO to give evidence (T21-71). The complainant gave evidence concerning the commission of the alleged offences by the Respondent at the Marrickville house (T30-34). The complainant said that he knew JW through cadets, but that he did not know PK (T44). WO said that he had never had discussions with JW concerning the Respondent (T44). Tendered in the Crown case, was a photograph of the College Cadet Unit in 1985 in which the Respondent, JW and WO all appear (Exhibit D).

5. [36]

   In cross-examination, WO said that he had heard rumours that the Respondent was a paedophile and that he had heard that the Respondent had assaulted JW, although he had never heard that from JW himself (T50-52). In cross-examination, it was put to the complainant that he had never been to the house at Marrickville alone with the Respondent and that the sexual acts alleged by the Respondent had not in fact taken place (T70).

6. [37]

   In re-examination concerning the rumours he had heard about the Respondent and JW, the complainant said that he had only heard JW’s name mentioned in this respect and that he did not hear any details or go seeking any details about it (T70). The complainant said that he had not told anyone about what the Respondent had done to him as he was ashamed of what had happened and did not want people to know (T70-71).

7. [38]

   In evidence-in-chief, the Respondent denied that the complainant had been in the Marrickville house on any occasion other than Anzac Day 1985 when he was present with other members of the cadet corps (T86). The Respondent denied committing any sexual act with the complainant (T88).

8. [39]

   In cross-examination, the Crown asked the Respondent concerning the tendency evidence in Exhibit B (T100-101):

9. [40]

   Later in cross-examination, the Crown asked the Respondent questions by reference to the account of the complainant and also the tendency evidence (T105-108):

10. [41]

    A little later, the Crown returned in cross-examination to aspects of the tendency evidence (T111-112):

11. [42]

    The Respondent was asked in cross-examination concerning the use of premises at Chippendale for sexual activity with JW. The Respondent stated that he borrowed the key to the Chippendale premises from an acquaintance, Robert Dunn (T113-114). The Respondent was asked in cross-examination (T114):

12. [43]

    Towards the end of the cross-examination, the Crown asked the Respondent (T116-117):

13. [44]

    Following the close of the defence case and before closing addresses, discussion took place concerning directions which arose in the circumstances of the trial. In the course of this discussion on the afternoon of 24 March 2021, it was indicated that the trial Judge was to be provided with the Tendency Notice (T152-153, 162-163).

14. [45]

    The trial was adjourned to 26 March 2021 for the purpose of closing addresses. At the commencement of proceedings on that day, the following discussion took place with respect to the Tendency Notice which had been provided to the trial Judge (T164-166):

15. [46]

    The Crown then made a closing address (T167-177). During the course of the Crown closing address, the following submissions were made concerning the use of tendency evidence arising from the conduct of the Respondent towards JW and PK (T175-176):

16. [47]

    Soon after, the Crown addressed a further aspect relating to the tendency evidence concerning JW and PK (T176-177):

17. [48]

    The closing address on behalf of the Respondent at trial focused upon the evidence of the complainant and the Respondent (T179-185). Trial counsel for the Respondent touched briefly and generally on the tendency evidence (T185):

18. [49]

    No submissions were addressed, by trial counsel for the Respondent, to the tendency evidence of JW and PK or in response to the detailed Crown submissions which had touched upon these issues.

19. [50]

    It is against this background, arising from this relatively short Judge-alone trial, that his Honour moved to give reasons for returning verdicts for the purpose of s.133 Criminal Procedure Act 1986.

Judgment of the Trial Judge

1. [51]

   After the closing addresses on 26 March 2021, his Honour reserved his decision and adjourned the trial to 30 March 2021.

2. [52]

   His Honour gave judgment on 30 March 2021. Given the grounds of appeal, it is appropriate to set out parts of the judgment, which occupied some 49 pages.

3. [53]

   After recounting the counts in the indictment and noting certain general directions applicable to a criminal trial, his Honour set out the elements of the offences with which the Respondent was charged (pages 1-4). Thereafter, the trial Judge recorded a number of directions which included:

4. [54]

   His Honour then said (page 7):

5. [55]

   The trial Judge then addressed the question of delay in complaint (page 7):

6. [56]

   His Honour then addressed the tendency issue, apparently reading from the Tendency Notice of 17 February 2021 (see [31] above) and the Statement of Agreed Facts (Exhibit B) for this purpose (pages 7-10):

7. [57]

   His Honour then said (page 10):

8. [58]

   Earlier in the judgment, his Honour said (page 5):

9. [59]

   His Honour directed himself concerning delay in WO’s complaint (including the impact of delay on the credibility of the complainant and the relevance of forensic disadvantage to the Respondent) (pages 7, 11-15).

10. [60]

    Before embarking upon consideration of the evidence of the complainant, the trial Judge said (page 14):

11. [61]

    The trial Judge gave himself a direction in accordance with R v Jovanovic (1997) 42 NSWLR 520 (page 16):

12. [62]

    The trial Judge then referred to the evidence of the Respondent in which he denied committing the alleged offences against the complainant (pages 17-18). Immediately thereafter, his Honour said (pages 18-19):

13. [63]

    His Honour then summarised the evidence of the complainant (pages 19-27). His Honour then recited the contents of the Statement of Agreed Facts document (Exhibit B) concerning the Respondent’s admitted conduct with respect to JW and PK (pages 27-29).

14. [64]

    The trial Judge concluded the summary of the Crown case with a reference to evidence concerning the arrest of the Respondent on 23 December 2019 and a conversation which took place with police in that respect (page 29):

15. [65]

    His Honour then summarised the evidence of the Respondent in the defence case (pages 29-40). The trial Judge then summarised the evidence of Owen McInnes, a friend of the Respondent, who shared his interest in military paraphernalia, with the evidence of Mr McInnes relating to certain items of that type in the Respondent’s house (pages 40-44).

16. [66]

    His Honour then referred to the Crown closing address (pages 44-47). In the course of that summary, the trial Judge said (pages 46-47):

17. [67]

    The trial Judge then summarised the defence closing address (pages 47-48). No reference was made to any submission made by trial defence counsel concerning the tendency evidence.

18. [68]

    Immediately after the summary of the defence closing address, his Honour expressed his conclusion in the following terms (page 48):

19. [69]

    His Honour then returned verdicts of not guilty on each of the six counts contained in the indictment.

Some General Observations Concerning the Grounds of Appeal

1. [70]

   At the hearing of the appeal, both the Crown (T16, 22 October 2021) and Mr Anderson SC (T24), accepted that the grounds of appeal were, in effect, two sides of the same coin.

2. [71]

   There is some overlap between the submissions concerning the two grounds. As the submissions addressed the grounds separately, it is appropriate to consider each ground separately, whilst noting that common features will be observed in the submissions of the parties.

3. [72]

   In effect:

Ground 1 – Failure to Take Tendency Evidence into Account in Assessing the Respondent’s Evidence

1. [73]

   The Crown submitted that the first ground of appeal involves a question of law, namely whether a Judge trying criminal proceedings without a jury is required to take into account tendency evidence that has been admitted in the Crown case, when determining whether there is a reasonable possibility that an accused person’s evidence is true and whether the guilt of the accused person has been established beyond reasonable doubt (T3, 22 October 2021). As the question can be considered separately from the facts with which it is connected, it was submitted that the question constitutes a “question of law alone”.

2. [74]

   It was submitted that the trial Judge summarised the tendency evidence and stated accurately the principles that applied to consideration of that evidence. However, the trial Judge did not make any findings about the tendency evidence and did not indicate at any point in the judgment that he had, in fact, taken the tendency evidence into account in determining that there was a reasonable possibility that the Respondent’s evidence was true. In this way, the trial Judge had failed to take the tendency evidence into account in determining whether the guilt of the Respondent had been proved beyond reasonable doubt.

3. [75]

   In these circumstances, it was submitted that this Court should infer that the tendency evidence was not taken into account when finding that there was a reasonable possibility that the Respondent’s evidence was true: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [131].

4. [76]

   The Crown submitted that the question whether there was a reasonable possibility that the Respondent’s evidence was true could not be determined by considering the Respondent’s evidence in isolation. Reliance was placed upon The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] in support of a submission that, in a case involving direct evidence, the evidence of any witness (including the Respondent) should not be considered separately in a “hermetically sealed compartment”. Rather, the Crown submitted that the evidence of an accused person must be assessed in the context of all the other evidence in the trial including the tendency evidence adduced in the Crown case.

5. [77]

   It was submitted that the tendency evidence was important evidence in the Crown case in this trial, and was required to be taken into account by the trial Judge in determining whether there was a reasonable possibility that the Respondent’s evidence was true, as part of the process of determining whether the guilt of the Respondent had been established beyond reasonable doubt.

6. [78]

   The Crown noted that, to be admitted, the tendency evidence had to have “significant probative value” and the evidence was required to substantially outweigh any danger of unfair prejudice: ss.97 and 101 Evidence Act 1995. At trial, the Respondent did not contend that the evidence did not satisfy either of these thresholds.

7. [79]

   The Crown submitted that the tendency evidence in the present case was capable of demonstrating that, at the time of the alleged offences:

8. [80]

   The Crown noted that the Respondent did not dispute that he had a sexual interest in JW and PK, although he denied that he had a sexual interest in the complainant at the time. In circumstances where the occurrence of the alleged offences was in issue, it was submitted that the tendency evidence was highly relevant to an assessment of the Respondent’s assertion that his association with the complainant was an innocent one: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [28], [40] and [162].

9. [81]

   The Crown submitted that the Respondent’s admitted sexual interest in two boys under his authority, and his preparedness to act on that interest at the time of the alleged offences, was an important matter that needed to be taken into account by the trial Judge in assessing the Respondent’s evidence that he did not commit the alleged offences against the complainant.

10. [82]

    In making this submission, the Crown did not contend that the trial Judge was required to find the Respondent guilty of the alleged offences. Rather, the Crown’s contention was that the trial Judge was obliged to take the evidence into account in assessing whether there was a reasonable possibility that the Respondent’s evidence was true, as part of determining whether the guilt of the Respondent had been proved beyond reasonable doubt. As his Honour did not take the tendency evidence into account on this question, the Crown submitted that error is established as asserted in the first ground of appeal.

11. [83]

    Whilst accepting that the appeal is based on a question of law alone, Mr Anderson SC submitted that neither ground of appeal had been made out.

12. [84]

    It was submitted for the Respondent that the trial Judge was alive to the significance of the tendency evidence in the trial with reference being made to it in the judgment of the District Court.

13. [85]

    In considering this ground of appeal, it was submitted that the Court should read the reasons of the trial Judge fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47]. It was submitted that a judgment may comply with the obligation to give reasons where it appears “expressly or by implication” that relevant principles were taken into account by the trial Judge: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]. In many cases, the question whether there has been compliance with the duty to give reasons will raise questions of degree: AK v Western Australia at [84]. Reliance was placed upon Sheppard v Blakey and Ors [2001] WASCA 309 at [25] where it was said that the failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered.

14. [86]

    Senior Counsel for the Respondent noted that, whilst it is certainly the case that in reaching his ultimate conclusion, the trial Judge did not specifically address the role of the tendency evidence in Exhibit B and what role it played in his Honour’s assessment of the complainant’s evidence, it was submitted that, given the extensive and repeated references to the evidence within the judgment, the inference should be drawn that the trial Judge must have taken that evidence into account.

15. [87]

    Insofar as the tendency evidence had been led by the Crown in order to bolster the credibility of the complainant, it was submitted that the trial Judge made clear that he accepted the complainant was credible in the critical paragraph concluding the judgment (see [68] above). In this way, it was submitted that the inference should be drawn that the trial Judge had regard to the tendency evidence in not making an adverse finding concerning the credibility of the complainant.

16. [88]

    It was submitted that it would create a counsel of perfection to conclude that the absence of a specific reference to the tendency evidence, when reaching the ultimate conclusion, meant that the trial Judge failed to take the evidence into account. It was submitted for the Respondent that it was implicit from the totality of the judgment that the tendency evidence was considered. Ultimately the Crown case failed, not because the complainant was not credible, but because his Honour held that there was a “reasonable possibility that the accused’s evidence is true”.

17. [89]

    Whilst accepting the Crown’s reliance upon the principles in The Queen v Hillier (see [76] above), it was submitted that the trial Judge had assessed the evidence of the Respondent together with the other evidence including the tendency evidence.

18. [90]

    In circumstances where the judgment is replete with references to the tendency evidence, it was submitted that it is implicit that the trial Judge’s ultimate conclusion had regard to the tendency evidence in reaching the verdicts of acquittal. It was submitted that it was implausible that his Honour would refer to the tendency evidence in detail and then proceed to disregard it in reaching verdicts.

19. [91]

    As the Respondent did not give an alternative version of events, but simply denied that the offences occurred, it was submitted that there was little more that needed to be said in terms of reasons as to the use which the trial Judge made of the tendency evidence in reaching verdicts.

20. [92]

    The Respondent submitted that the first ground of appeal should be rejected.

21. [93]

    The first ground of appeal contends that the trial Judge erred in failing to take into account the tendency evidence adduced in the Crown case in determining whether there was a reasonable possibility that the evidence of the Respondent was true, as part of the process of deciding whether the Crown had proved the guilt of the Respondent beyond reasonable doubt.

22. [94]

    It is undoubtedly the case that the trial Judge referred to directions of law applicable to tendency evidence with a summary being provided, as well, of the tendency evidence itself. The fundamental difficulty is that the trial Judge did not indicate what use, if any, was made of the tendency evidence in reaching the conclusion that the Respondent should be acquitted on all counts.

23. [95]

    In considering the first ground of appeal, it is necessary to consider the issues in this trial more broadly.

24. [96]

    The Respondent was standing trial for charges which alleged serious sexual offences said to have been committed by him in 1985 at the time when he was a school teacher and cadet master at a College. Putting aside for a moment, the tendency evidence, the Crown case was dependent upon the evidence of the complainant who was to give evidence of events said to have occurred many years prior to the trial.

25. [97]

    Trials for what have been described as historical child sexual abuse offences have become more common in recent decades, and even more so as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse which issued its final report in 2017. The law with respect to tendency evidence has been amended as a result of the work of that Royal Commission: BRC v R [2020] NSWCCA 176 at [87]-[89]; ss.94(5), 97A Evidence Act 1995; s.161A Criminal Procedure Act 1986.

26. [98]

    This was an unusual trial in that the tendency evidence was not disputed and was before the trial Judge in the form of a Statement of Agreed Facts under s.191 Evidence Act 1995. That body of unchallenged evidence stood to be considered in the context of a trial for charges arising from events in 1985, where the Crown case was otherwise dependent entirely upon the evidence of the complainant.

27. [99]

    In these circumstances, the tendency evidence was of great importance in the trial and it was necessary for the trial Judge to have proper regard to that evidence in the process of reaching verdicts at the Judge-alone trial. As is apparent from the extracts of the evidence and the Crown closing address referred to earlier (at [35]-[49]), there was an interweaving of persons and events in 1985, involving the Respondent’s sexual acts with JW and PK and the sexual acts alleged by WO to have taken place in a similar setting and in the same period.

28. [100]

    Clearly, more was required than a bare recital of the tendency evidence itself combined with general directions concerning the use of tendency evidence. The Crown had addressed the trial Judge concerning the importance of the tendency evidence and its role in the trial and, if the trial Judge was to have regard to that evidence properly in reaching verdicts, it was necessary for that evidence to be considered, with an assessment of its role in the trial, which, in this case, was critical and central to the determination of the guilt of the Respondent.

29. [101]

    It is correct that this Court must read fairly the entire judgment of the trial Judge in considering this ground of appeal. It is also correct that a trial Judge is not required to address every issue in the trial and to make findings concerning that evidence in the process of reaching verdicts. However, the tendency evidence in this case was of such importance that it was essential that the trial Judge do far more than merely recite the existence of the evidence in the trial. If his Honour was to take it into account, as opposed to merely acknowledge its existence, it was essential that there be some examination or analysis of the role of the tendency evidence in reaching verdicts.

30. [102]

    An important part of the obligation to give reasons under s.133 Criminal Procedure Act 1986 at a Judge-alone trial is to allow the community, the parties and this Court to understand the basis upon which the verdicts were reached. This is of particular importance in maintaining the confidence of the community in the system of Judge-alone trials, which operates in circumstances where members of the community are not involved directly by way of jury service.

31. [103]

    In Hughes v The Queen, Kiefel CJ, Bell, Keane and Edelman JJ said at [40] (footnote omitted):

32. [104]

    In Khorami v R; R v Khorami [2021] NSWCCA 228, this Court considered the role of tendency evidence in a trial where it was accepted by the defence that the evidence could be used for tendency purposes. The Court said at [202]-[203]:

33. [105]

    It is relevant, as well, to keep in mind the nature of the tendency evidence itself in this trial. This was not a trial where the tendency evidence was based upon sexual activity with teenage boys in an entirely different context to that relevant to the trial, such as the family of a next door neighbour as opposed to boys who were students or cadets at the school where the accused person was employed.

34. [106]

    Here, the tendency evidence involved admitted acts by the Respondent in 1985 in which he engaged in sexual activity with two boys at the same school as the complainant, and where there were significant similarities between the acts described in the tendency evidence committed against JW and PK. It was not suggested at the trial that the complainant in this trial had, in some way, spoken to JW or PK so as to acquire knowledge of what those persons said that the Respondent did to them (see [36]-[37], [47] above). Accordingly, the tendency evidence was powerful and had substantial work to do in the context of this trial.

35. [107]

    The Crown’s Tendency Notice asserted that the Respondent had a tendency to have a particular state of mind, being a sexual interest in males aged between 12 and 15 years, with the tendency being demonstrated by the admitted acts of the Respondent towards JW and PK (see [31] above). The trial Judge accepted, prior to closing addresses, that the tendency evidence could be used in this way (see [45] above).

36. [108]

    In cross-examination at the trial, the Respondent admitted that he had a sexual interest in JW and PK in 1985 and 1986, but he denied that he had a sexual interest in the complainant (T106-107 at [40] above). It is clear that the issue in the trial involved undisputed evidence that the Respondent displayed a tendency to have sexual interest in boys aged 12 to 15 years in 1985 which he acted on with respect to JW and PK, but with him denying that he had such a sexual interest in the complainant.

37. [109]

    I do not consider that there was any requirement on the part of the Crown to put some other proposition to the Respondent in cross-examination for the purpose of giving full effect to the tendency evidence in the Crown closing address. The issue had been raised in the Tendency Notice and in cross-examination of the Respondent, and was available to be relied upon by the Crown in the manner utilised in the Crown closing address.

38. [110]

    There were, in truth, some striking similarities between what was alleged by JW and PK in the undisputed tendency evidence and in the contested account given by the complainant with respect to the alleged offences committed against him by the Respondent.

39. [111]

    All of this emphasises the necessity for the trial Judge, if the tendency evidence was in truth taken into account, to say something in the judgment concerning the approach taken by his Honour to these critical and central considerations in this trial. That did not happen.

40. [112]

    Although this Court should be cautious before concluding that a trial Judge failed to take into account a category of evidence in reaching a verdict, I am satisfied that this is the appropriate conclusion in this case. Reading fully and fairly the entirety of his Honour’s judgment does not assist the Respondent. There is an absence of any assessment or analysis of the tendency evidence when that was, in truth, an indispensable requirement for a verdict and judgment according to law in this trial.

41. [113]

    The complainant, the community and this Court are left with no realistic indication that the trial Judge had proper regard to this critical evidence before reaching a verdict, which was expressed in a few lines at the conclusion of the judgment (see [68] above).

42. [114]

    I would uphold the first ground of appeal.

Ground 2 – The Trial Judge Erred in Failing to Record his Findings with Respect to the Tendency Evidence

1. [115]

   The second ground of appeal is expressed as an alternative to the first ground.

2. [116]

   As I would uphold the first ground of appeal, it is not strictly necessary to determine the second ground of appeal. However, in the event that my conclusion with respect to the first ground of appeal is wrong, I will proceed to consider the second ground of appeal.

3. [117]

   In support of this ground of appeal, the Crown submitted that a trial Judge’s reasons for verdict under s.133(2) must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached: Hopgood v R at [47]. The reasoning process undertaken by the trial Judge should be exposed: Fleming v The Queen at [28].

4. [118]

   Whilst it is not necessary for a trial Judge to refer to every piece of evidence led in the proceedings, the Crown submitted that it is essential to expose the reasoning on a point critical to the contest between the parties: Toohey v R [2020] NSWCCA 166 at [204]-[208].

5. [119]

   The Crown submitted that s.133(2) is a “legal imperative” and, for this reason, a failure to comply with that provision will constitute a wrong decision on a question of law: Fleming v The Queen at [27].

6. [120]

   The Crown submissions in support of the second ground of appeal are similar to those concerning the first ground, although addressed for a different purpose. It was submitted that, as the premise of the admission of tendency evidence is that the evidence is capable of having a significant impact upon the resolution of the issues in the trial, the factual findings of a trial Judge concerning tendency evidence will be critical to the contest between the parties. For this reason, it was submitted that s.133(2) requires that a trial Judge record his or her factual findings in respect of tendency evidence admitted in the Crown case.

7. [121]

   The Crown submitted that the tendency evidence contained in Exhibit B was an important part of the Crown case. In the Crown closing address at trial, it was submitted that the tendency evidence demonstrated that the Respondent had a tendency to sexually assault young male cadet students between 12 and 15 years of age, to exploit his position of authority for sexual gratification and to perform acts of fellatio on young boys and to make them perform fellatio upon him for his own sexual gratification (see [46]-[47] above).

8. [122]

   The Crown had submitted further at trial (see [46]-[47] above):

9. [123]

   The Crown noted that the trial Judge observed that the Respondent’s conduct, as described in Exhibit B, was not in dispute. The Crown noted the further directions which the trial Judge gave himself (page 9 of his Honour’s reasons at [56] above). Whilst observing that the tendency evidence “is not enough by itself”, the trial Judge did not thereafter explain what use, if any, had been made of the tendency evidence in reaching verdicts at the trial.

10. [124]

    The trial Judge concluded that he was unable to exclude the reasonable possibility that the Respondent’s evidence was true. However, as the trial Judge’s directions relating to tendency evidence illustrate, the Crown submitted that there are at least three potential pathways to this conclusion that were open to his Honour:

11. [125]

    The Crown submitted that it is not possible to determine from the trial Judge’s reasons which of these pathways the trial Judge followed. The reasons simply record the trial Judge’s bare conclusion that he was unable to exclude the reasonable possibility that the Respondent’s evidence was true. The trial Judge did not state any findings that were taken into account in reaching this conclusion.

12. [126]

    The Crown made clear that, as with the first ground of appeal, it was not contended that the trial Judge was obliged to find the Respondent guilty of each offence. Rather, the Crown’s contention was that s.133(2) required the trial Judge to record his findings as to his use (or non-use) of the tendency evidence that had been admitted in the Crown case.

13. [127]

    The Crown noted that the first ground of appeal was based upon the submission that the trial Judge followed pathway (c) in [124] above and thus fell into error. If, however, the Court rejected the first ground of appeal, the Crown submitted that the absence of reasons left this Court in a position where it is unable to determine whether the trial Judge erred in his consideration of the tendency evidence, so that there had been a failure to comply with s.133(2) with this failure constituting legal error: Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [14].

14. [128]

    In these circumstances, the Crown submitted that the second ground of appeal should be upheld.

15. [129]

    Senior Counsel for the Respondent submitted that the question whether there has been a departure by the trial Judge from the requirement to provide reasons for judgment, including both principles of law and findings of fact, will depend, at least in part, upon the nature of the jurisdiction and the issues in the case at hand: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56].

16. [130]

    In this case, it was acknowledged that the tendency evidence was of crucial significance to the Crown case and that, in the operative paragraph of his Honour’s reasons (see [68] above), the tendency evidence was not addressed.

17. [131]

    It was submitted, however, that the failure to address the evidence is not necessarily fatal to the validity of the judgment: DL v The Queen at [33].

18. [132]

    It was submitted that the trial Judge had referred extensively and repeatedly to the tendency evidence so that it cannot be said that his Honour’s judgment did not address the issue in the judgment. Once again, it was submitted that the Court should read the reasons of the trial Judge fairly and as a whole: Hopgood v R at [47].

19. [133]

    It was accepted that, whilst it would have been ideal for his Honour to have expressly made a finding with respect to the tendency evidence in the judgment, the absence of that statement is not an error in circumstances where the balance of the judgment made his Honour’s reasoning clear.

20. [134]

    It was submitted that the second ground of appeal should be rejected.

21. [135]

    If, contrary to the conclusion I have reached concerning the first ground of appeal, it is accepted that the trial Judge took into account the tendency evidence in reaching the verdicts, a question then arises as to whether error of law is demonstrated under the second ground of appeal, which contends that his Honour failed to record his findings with respect to the tendency evidence.

22. [136]

    The obligations of a trial Judge to give reasons for reaching a verdict at a Judge-alone trial under s.133 Criminal Procedure Act 1986 have been identified clearly in a number of decisions. Section 133(2) constitutes a legal imperative and failure to comply with that provision will constitute a wrong decision on a question of law: Fleming v The Queen at [27].

23. [137]

    Section 133(2) is not satisfied merely by a bare statement of the principles of law that the Judge has applied, and a recital of the findings of fact that the Judge has made. There must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached: Fleming v The Queen at [28]; R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [149]; Wade v R [2018] NSWCCA 85 at [103]. Whilst it is not necessary for a trial Judge to refer to every piece of evidence led in the proceedings, it is essential to expose the reasoning on a point critical to the contest between the parties: Toohey v R at [204]-[208].

24. [138]

    A purpose of the requirement to give reasons is to enable the accused person to understand why there has been a conviction, or the prosecution to understand why there has been an acquittal and to enable “close appellate scrutiny of the trial judge”: AK v Western Australia at [108]; Toohey v R at [203]. Provisions such as s.133 replace the peculiar discipline of a jury trial with the safeguard of the discipline of giving reasons which is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts: AK v Western Australia at [208].

25. [139]

    The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality to the judicial function of a public explanation of reasons for final decisions has long been recognised: Wainohu v State of New South Wales at [54]-[58]. In Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106, reference was made to the rationale underlying the judicial function and the duty to give reasons (at [59]-[65]):

26. [140]

    It is to be observed, as well, that the trial Judge did not deliver an ex tempore judgment immediately after the conclusion of the trial. His Honour reserved for a number of days to consider his verdicts and delivered judgment following that consideration. Accordingly, the allowance made by this Court, when considering an appeal from an ex tempore judgment, has no application to this appeal: R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at [34]-[35].

27. [141]

    When considering the first ground of appeal, the central significance of the tendency evidence in this trial was emphasised. For the trial Judge to discharge the duty to give reasons under s.133(2) Criminal Procedure Act 1986 in this trial, it was necessary that his Honour explain how the tendency evidence was used (upon the assumption that it was used) in reaching a verdict at the trial. The duty to give reasons could not be discharged in this case by the bare recital of the tendency evidence itself combined with other directions.

28. [142]

    In truth, there is a large gap in the reasoning of the trial Judge which cannot be filled by a benevolent construction of the reasons or by attempting to draw inferences as to what his Honour took into account.

29. [143]

    The conclusion of the trial Judge appears, in reality, to be a conclusion reached by reference only to the evidence of the complainant and the evidence of the Respondent. It is the type of reasoning which a Court may utilise in the type of “word against word” case that is more common in historical sexual offence prosecutions.

30. [144]

    However, this trial was far removed from that class of case. Here, there was undisputed evidence disclosing conduct on the part of the Respondent directed to other boys of a similar age to the complainant, which occurred at about the same time when those boys and the complainant were students and cadets at the same College at which the Respondent then worked. This body of evidence demanded consideration and assessment for the trial Judge to discharge his duty in giving reasons, as required by law, for verdicts reached at the trial.

31. [145]

    If I am wrong in my conclusion with respect to the first ground of appeal, I am well satisfied that the second ground of appeal has been made good. The tendency evidence was not a peripheral aspect of the trial. In DL v The Queen, Kiefel CJ, Keane and Edleman JJ said at [33] (footnotes omitted):

32. [146]

    By reference to the types of evidence referred to by the plurality in DL v The Queen, it is clear that the tendency evidence in the present trial was a most important body of evidence, which required assessment as a necessary step to the final conclusion in the trial, so that a failure to undertake such a reasoning process is indicative of error of law.

33. [147]

    In the event that the first ground of appeal did not succeed, I would uphold the alternative ground contained in the second ground of appeal.

The Residual Discretion

1. [148]

   In the event that the Court found error, the Crown submitted that an order should be made quashing the acquittals and ordering a new trial of the Respondent. With respect to the interests of justice test, the Crown submitted that the offences were very serious and there is a strong public interest in having the guilt or otherwise of the Respondent correctly determined in accordance with the law. There had been no delay in the commencement of the appeal and the Crown did not contribute to the errors alleged.

2. [149]

   The Crown informed the Court that the evidence of the complainant had been video recorded from the trial so that it would be available to be played at a retrial. The Crown acknowledged that s.306B Criminal Procedure Act 1986 did not apply to an appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001, so that there would not be an automatic capacity for the video recording of the evidence of the complainant to be played at a future trial.

3. [150]

   That said, the Crown noted that the video-recorded evidence of the complainant would be able to be admitted in any retrial with the consent of the Respondent.

4. [151]

   The Crown submitted that it would be open to the Court to proceed upon the basis that a new trial would take the form of a Judge-alone trial, given that the Crown would consent to that course (T34, 22 October 2021) and that Senior Counsel for the Respondent had noted that the Respondent would seek a Judge-alone trial if a new trial was ordered by the Court (T31, 22 October 2021).

5. [152]

   In the event that the Court found error, Senior Counsel for the Respondent submitted that the Court should decline to order a new trial in the circumstances of this case.

6. [153]

   It was submitted that the interests of justice test to be applied under s.107 Crimes (Appeal and Review) Act 2001 was analogous to the interests of justice test applied by this Court under s.8(1) Criminal Appeal Act 1912. In that regard, reliance was placed upon the principles summarised in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649].

7. [154]

   It was submitted that this was a case relating to events which are now 36 years old and that any new trial of the Respondent would not likely take place until 2023. The further lapse of time, it was submitted, was relevant to the exercise of discretion in this case.

8. [155]

   Senior Counsel for the Respondent conceded that there is a strong Crown case in this matter (T30, 22 October 2021). He acknowledged that there is a public interest in the due prosecution and conviction for crimes alleged to have been committed. However, it was submitted that in the particular circumstances of this case, a new trial should not be ordered. It was noted that, by late 2022 or early 2023, the complainant would be 51 years old and the Respondent would be 66 years of age.

9. [156]

   Reliance was placed by the Respondent upon the affidavit of Lisa de Luca affirmed 18 October 2021 with respect to the exercise of the residual discretion. That affidavit revealed that the Respondent suffers from Marie-Charcot Tooth Syndrome, a progressive neurological disease akin to multiple sclerosis. The Respondent has been under treatment for that condition for some years, although the most recent medical evidence which accompanied the affidavit of Ms de Luca dated from February 2020.

10. [157]

    It was submitted for the Respondent that the Court should dismiss the appeal.

11. [158]

    The principles to be applied by the Court with respect to the exercise of discretion under s.107(5) Crimes (Appeal and Review) Act 2001 were summarised by Bellew J (Hoeben CJ at CL and Davies J agreeing) in R v Lazarus at [153]-[168]. As Bellew J stated in R v Lazarus at [157], a balancing exercise is required which involves assessing each individual factor and ascribing the appropriate weight to it, with the balancing exercise varying according to the circumstances of the particular case.

12. [159]

    The passage of time since 1985 is relevant to the balancing exercise to be undertaken by the Court. However, a trial took place in March 2021 at which evidence was given by the complainant and the Respondent, all of which is available for the purpose of a new trial. Although any further period of time that would pass before any new trial is not desirable, I do not consider this delay constitutes a significant factor weighing against the ordering of a new trial.

13. [160]

    The health of the Respondent is also a relevant consideration. It does not appear from the transcript of the trial in March 2021 that the Respondent’s health presented any difficulty to him giving evidence or otherwise in the conduct of the trial. The medical evidence referred to in the affidavit of Ms de Luca is relevant. However, there is no evidence of any deterioration in the condition in more recent times, although it may be taken that the progressive condition will have an ongoing adverse effect on the Respondent’s health over time.

14. [161]

    As was conceded appropriately by Senior Counsel for the Respondent, the Crown has a strong case. Apart from the evidence of the complainant, there is the undisputed tendency evidence which has been explained in detail earlier in this judgment. The public interest in the prosecution of serious offences, and the determination of the guilt or otherwise of an accused person by a Court after a trial conducted according to law, is an important factor in the balancing exercise in this case.

15. [162]

    This aspect is emphasised further by the clear deficiency in the trial conducted earlier this year which has given rise to error as found in this judgment. There is a community expectation that a trial for offences of this type will be heard and determined according to law, and on the merits of the case itself, and I regret to say that this has not occurred in the present case.

16. [163]

    It is the case that the video recording of the evidence of the complainant cannot be used automatically at any new trial. If it be the case that the Respondent does not consent to the tender of the video recording of the complainant’s evidence at a new trial, then a question will arise as to whether the complainant would give evidence once again at a trial. At present, it is speculative to consider whether this issue will arise. Even if it does arise, it seems to me that this is a matter for the Director of Public Prosecutions to consider, in the exercise of prosecutorial discretion, as to whether a new trial is sought. At the present time, this aspect does not operate in any material way in the balancing exercise.

17. [164]

    Insofar as delay is relevant to the balancing exercise, the further delay before a new trial is not likely to give rise to further difficulties itself. The expectation would be that the new trial would be conducted along similar lines to the trial which proceeded in March 2021, at least by the parties.

18. [165]

    I am satisfied that the interests of justice point firmly in favour of an order for a new trial in this case. Although it may be the case that any new trial will be a Judge-alone trial, the order of the Court should be confined to an order for a new trial.

Conclusion and Orders

1. [166]

   For reasons explained in this judgment, I would uphold the first ground of appeal. In the event that the first ground of appeal was rejected, I would uphold the alternative ground contained in the second ground of appeal.

2. [167]

   By whichever route is taken, I would uphold the appeal by the Crown under s.107 Crimes (Appeal and Review) Act 2001.

3. [168]

   I am satisfied that it is in the interests of justice to order a new trial of the Respondent.

4. [169]

   I propose the following orders:

5. [170]

   ROTHMAN J: I have had the advantage of reading in draft the learned and carefully crafted reasons for judgment of Johnson J. I have also had the advantage of reading in draft the detailed, reasoned analysis of Hamill J. As a consequence of their Honour’s thorough reasons, I can be relatively brief.

6. [171]

   These reasons adopt the description of the evidence, including the recitation of the Agreed Facts in the other reasons published by my learned colleagues. If there be any repetition of that in these reasons it is only for the purposes of emphasis and to the extent necessary to reflect the path to reaching my conclusion.

7. [172]

   There are two related grounds of appeal. Each relied on a failure by the sentencing judge in relation to tendency evidence. One alleges a failure to use the tendency evidence in assessing the evidence of the respondent, and the assessment that there was a reasonable possibility it was true; the other, that the reasons of the trial judge were inadequate in that the reasons did not record the findings as to the tendency.

8. [173]

   As has been explained in both of the other judgments now published, this was a judge alone trial. Unlike juries, a judge in such circumstances is required to publish reasons for the verdict. Further, unlike jury verdicts, except when directed, there is a right of appeal from an acquittal arising from the judge alone trial.

9. [174]

   The right of appeal must be on a ground that involves a question of law. Not every error of law that may be subject to appeal would allow or require the quashing of a verdict. The reasons for judgment of Johnson J refer to the residual discretion and the capacity of the Court, as a matter of discretion, not to quash the verdict.

10. [175]

    However, as a matter of law, not discretion, some grounds of appeal will not permit the quashing of the verdict. In order for the Crown appeal to succeed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), the ground of appeal involving a question of law alone must involve an error that has caused the verdict to miscarry or was material to the verdict.

11. [176]

    In the content of administrative law, the High Court has said:

12. [177]

    It is necessary first to deal with the provisions relating to tendency evidence. Given that the required notice was provided by the Crown, the evidence of tendency was admitted because it was seen to have “significant probative value” either alone or with other evidence. [2] Its use was to prove that, in this case, the respondent had a tendency to act in a particular way. If it did not possess significant probative value, it would have been impermissible for the judge to have admitted it.

13. [178]

    As explained by Johnson J, in this case the tendency notice informed the accused and the District Court that the Crown relied on prior instances in which the respondent had homosexual intercourse with two victims aged between 10 and 18 years to prove that the respondent had a tendency:

14. [179]

    The trial occurred over four days – it was not a long trial. The verdict with reasons was delivered seven days after the conclusion of the trial. The tendency evidence was adduced in a statement of Agreed Facts.

15. [180]

    The major evidentiary contest was whether the respondent committed the offences against the complainant. The tendency evidence was an important aspect of the Crown case and, as summarised by Johnson J, formed part of the Crown opening and the Crown address. Those passages are recited at length in the reasons of Johnson J.

16. [181]

    The respondent’s counsel in addresses described the tendency evidence as prejudicial, although not unfairly so. Counsel submitted that guilt must be established on the evidence of the events with which the respondent was charged. Counsel addressed at length how the Court should consider the evidence of the complainant and of the respondent, each of whom gave evidence to the relevantly opposite effect of the other.

17. [182]

    As recited by Johnson J in his reasons for judgment, the trial judge gave himself a “Tendency Direction”, part of which was to the following effect:

18. [183]

    His Honour then refers to the evidence of the tendency provoking distaste and the necessity for him to be “careful to avoid any emotional response or prejudice distracting him from a calm and objective assessment.” [4] Reference is then made to the evidence implicating him in this offence being confined to the evidence of the complainant and the absence of any independent evidence.

19. [184]

    The judgment to verdict then proceeds to give warnings to which his Honour was required to pay heed and which his Honour was required to express, relating to delays and the prejudice that such delay may have caused the respondent. As his Honour expressed, [5] such delay may adversely affect memory or, as mentioned during the appeal proceedings, [6] cause persons to merge events. That which is honestly thought to have occurred in one place and time may, in truth, have occurred elsewhere or at another time. It is not to the point that a complainant has not had put to him or her in cross-examination that the offence was perpetrated by another person or at another time or at another place, because an innocent accused would be wholly unable to provide such instructions and the rule in Browne v Dunn [7] does not apply to a criminal accused in those circumstances at least.

20. [185]

    Given that the respondent’s evidence was that he was not involved in any misconduct with the complainant, how could counsel for the accused at trial ever, within his duty, put any circumstances of another person being so involved or suggesting it. Counsel could not possibly obtain instructions of that kind from his client and, if it were suggested, it would embrace acceptance that an assault occurred when, in the respondent’s knowledge of his case, it had not.

21. [186]

    As stated in each of the reasons in this judgment, the tendency evidence was agreed. The assaults on JW and PK by the respondent were accepted by the respondent, both by the inclusion of these facts in the Agreed Facts and also when answering questions in evidence. In his reasons, [8] Johnson J suggests that the circumstance that the tendency evidence was undisputed is a factor, together with reliance otherwise only on the evidence of the complainant, that makes the tendency evidence “of great importance”.

22. [187]

    Many sexual assault cases depend solely on the evidence of the complainant. In such a case, tendency evidence, if there be any, is the only other material that renders the complainant’s allegation against an accused a likely occurrence. In other cases, there may be complaint evidence or independent material as to presence and opportunity, or scientific evidence. Then, in many cases, the accused does not give evidence.

23. [188]

    Nevertheless, the circumstance that the prior assaults on JW and PK and the sexual interest in them were agreed by the respondent does not render the tendency evidence more important. The judicial process operates on the basis that past events, once determined in a particular trial at the requisite standard of proof, are then treated as certain in that trial, even when that standard requires only that the probability of it occurring is greater than it not occurring. In Malec v JC Hutton, the High Court said:

24. [189]

    To the same effect were the comments of the plurality, when they said:

25. [190]

    Further, where an accused fails to agree or to accept earlier assaults or a sexual attraction to victims thereof, if the Court were, in the trial in which the tendency is sought to be proved, to find, to the requisite standard, that the earlier assaults and/or the particular sexual attraction occurred and/or existed, the accused’s dispute on those issues in the latter trial becomes an extremely important aspect of the accused’s credibility. In that sense, at least, disputed tendency evidence may be more important than an agreed tendency because of its effect on the credit of the accused. In the circumstances of this trial and the tendency evidence, not only did the respondent not dispute the earlier assaults, which he could have done if he so chose, but he had pleaded guilty in the proceedings for the earlier assaults.

26. [191]

    In this case, the similarity in the features of offending in the cases of PK and JW are sufficient to connect that tendency evidence with the offences allegedly committed against the complainant. This then gives the tendency evidence, being conduct in relation to other victims, “significant probative value” and permits its admission into evidence in this case to support the likelihood of the allegation being true. [11]

27. [192]

    As Johnson J has pointed out, given that otherwise the evidence against the respondent was confined to the testimony of the complainant, this renders the tendency evidence important. It is the only other evidence that makes the allegations likely.

28. [193]

    Before further analysing the learned trial judge’s reasons, I need to comment on a matter relating to the conduct at trial of the respondent’s then counsel. It is said that counsel for the respondent at trial focused on the evidence of the complainant and respondent as to the allegations in the charges and only briefly touched on the tendency evidence. [12]

29. [194]

    It would be surprising if it were otherwise. The exchange with the respondent’s counsel on the ability of the Crown to rely on the general tendency has been recited by Johnson J. The Crown, on the respondent’s concession, were entitled to rely on the evidence of assaults on JW and PK to submit that a general tendency existed.

30. [195]

    The existence of the general tendency was, more or less, conceded. The submission of the respondent was that the tendency is of limited assistance to the Crown but the submission was carefully crafted to avoid a formal concession. In all the circumstances of this case, the existence of the tendency is almost irrefragable.

31. [196]

    On my analysis of the verdict judgment, the learned trial judge treated the existence of the tendency as proved. The tendency to have a sexual interest in males aged between 12 and 15 does not prove, but renders more likely, that the respondent had an interest in the complainant.

32. [197]

    The evidence proves a tendency, it does not prove that the respondent had a sexual interest in every male between 12 and 15. Nor does it prove that the respondent had a sexual interest in every cadet of that age; nor that the respondent acted on such an interest, if he had one in relation to a particular boy. In particular, the tendency, while rendering more likely the respondent’s sexual interest in the complainant, does not prove that sexual interest, nor the alleged assaults.

33. [198]

    As noted by Johnson J, [13] the trial judge said:

34. [199]

    My reading of that passage is that the trial judge was there saying that there were two types of evidence “implicating the accused”: the evidence of tendency relied on by the Crown; and, the evidence of the complainant. His Honour then dealt with the evidence of the respondent, clearly following the directions he had given himself as to how to determine guilt on the particular charge, bearing in mind the tendency.

35. [200]

    It is, in my view, inconceivable that this experienced judge, having dealt at length with the tendency and how it could be used, and summarising it at length, then ignored it. Rather, in my reading of the entire judgment, his Honour has set out the directions and then followed them, accepting the directions he gave. That reading of the judgment is consistent with the transcript discussion and the comments of his Honour, although care must be taken in relying on discussions in transcript.

36. [201]

    In other words, on my reading of the judgment, his Honour, having acknowledged that the tendency evidence relied upon by the Crown “implicated the accused”, then embarked upon determining whether there was a reasonable possibility that the respondent was telling the truth, notwithstanding the existence of the tendency and that there was nothing in the evidence of the complainant that led the judge to think the complainant was lying, untruthful or unreliable. His Honour found there was such a possibility and entered a verdict of not guilty.

37. [202]

    There can be no challenge to that conclusion in circumstances where the factfinder is not satisfied, beyond reasonable doubt, of the allegations of the complainant. Where the factfinder has concluded that there is a reasonable possibility that the respondent’s denials of the allegations are true, the judge has not been satisfied of the respondent’s guilt to the requisite standard.

38. [203]

    There are two grounds of appeal. They are related and, to some extent at least, intertwined. The first is that no consideration of the tendency evidence was given in forming the conclusion that there was a reasonable possibility that the respondent was being truthful. Plainly, the trial judge, on my analysis, considered the tendency evidence in determining guilt, including the reasonable possibility of the respondent’s version.

39. [204]

    The existence of the tendency does not require a verdict of guilty. The approach of the trial judge and the directions he gave himself were correct.

40. [205]

    Having accepted the tendency as evidence implicating the respondent, the trial judge evaluated the evidence of the complainant and the respondent and reached his conclusion. As earlier stated, he followed his own directions fully and there is no complaint about the approach in his directions. The first ground of appeal, in my view, fails.

41. [206]

    The second ground of appeal complains that the trial judge did not record his findings with respect to the tendency evidence. This ground of appeal, in effect and wording, relies on the provisions of s 133 of the Criminal Procedure Act 1986 (NSW). The provision is in the following terms:

42. [207]

    The requirement in s 133(2) of the Criminal Procedure Act is for a judge to include the principles of law and the findings of fact. This requires the judge to explain the reasoning process he has adopted and how the facts fit the applicable legal principles.

43. [208]

    While it does not require the express lengthy repetition of trite principles, such as the necessity to prove guilt beyond reasonable doubt or that the Crown shoulders the burden, it does require the trial judge to record expressly or by necessary implication that which is taken into account and the manner it is treated. [14] The recording of such matters is a legal imperative. [15]

44. [209]

    When dealing with the reasons for the verdict one must be mindful of the oft-repeated constraint that the Court should not be concerned with “looseness of language” nor “unhappy phrasing”. Nor should the reasons be “construed minutely and finely with an eye keenly attuned to the perceptions of error.” [16]

45. [210]

    While the foregoing comments were made in the context of judicial review, the principle has been applied in relation to appeals to much the same effect. The Crown submits that there were three paths by which his Honour could have reached the conclusion as to the reasonable possibility that the respondent was truthful and accurate. Before referring to those paths, it is necessary to deal a little more fully with the reasons in Fleming. [17]

46. [211]

    In Fleming, the High Court made clear that the failure to comply with the legal imperative in s 133(2) of the Criminal Procedure Act, as a consequence of its status as a legal imperative, would be an error of law. Further again, given the requirement to include in the judgment the principles of law and findings of fact, two requirements arise: first, any warning must not only be recorded but must be taken into account; [18] and, secondly, because the findings of fact must be recorded, the judge is required not only to state the warning and to state that the warning has been heeded, but, also, to disclose the reasons why, if it were the situation, the warning has or has not been given effect. [19]

47. [212]

    However, in Fleming, the High Court was dealing with a judgment of this Court, on appeal from a judge-alone trial, resulting in a conviction, and the appeal to this Court was governed by ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). This appeal is governed by the provision of s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), which, relevantly, allows the Attorney General or Director of Public Prosecutions to appeal against an acquittal in a judge-alone trial, but confines the appeal to any “ground that involves a question of law alone”. [20] Thus, the comments of the High Court on the operation of s 6 of the Criminal Appeal Act do not apply in this appeal. Section 6 is confined to appeals from convictions on indictment.

48. [213]

    I return to the Crown submission on the possible paths his Honour could have adopted in reaching his conclusion. The first path submitted by the Crown in this appeal was that his Honour did not find the tendency proved. I have earlier explained that I do not accept this as a reading of the whole of his Honour’s judgment.

49. [214]

    The second path is that his Honour found that the respondent did not act on those tendencies. His Honour could have found that he was not satisfied that the respondent did act on those tendencies, or not be persuaded that the tendencies overcame the reasonable doubt raised by the respondent’s testimony. They are two ways of describing the same effect.

50. [215]

    The third path suggested by the Crown, namely that the assessment of the reasonable possibility that the respondent was truthful and accurate without considering the tendency, is, for the reasons earlier given, rejected.

51. [216]

    Thus, it is the second path that has not yet been the subject of discussion. The trial judge directed himself in the following relevant terms:

52. [217]

    The first paragraph in the foregoing extract, particularly the reference to “the accused’s tendency” in the last sentence of that paragraph, reinforces that his Honour was of the view that the Crown had established the tendency, although the second paragraph reverts to a general statement of the law.

53. [218]

    However, it is that direction that his Honour then proceeded to follow. He summarised the tendency evidence at length, stated that the tendency evidence, together with the complainant’s testimony, was the evidence implicating the respondent and then, following the direction just recited, based his conclusion “upon the evidence relevant to each of the charges… [including] the tendency alleged by the Crown.” [22]

54. [219]

    As explained by Hamill J, [23] the circumstance that the trial judge did not form the view that the complainant was lying or unreliable is not inconsistent with the inability to be satisfied of the truth of the allegations beyond reasonable doubt. In the trial judge’s opinion, each of the complainant and respondent were truthful and reliable. In those circumstances, where the notice could not allege that the respondent had a sexual interest in all males of that age, the question arises as to how it would be used.

55. [220]

    The tendency makes the alleged conduct of the respondent more likely, but it does not foreclose the reasonable possibility that the respondent’s denials were true and accurate. Whether his Honour was satisfied of that is a matter for his Honour to evaluate on the basis of the evidence that his Honour saw and heard.

56. [221]

    In my view, reading the reasons for verdict as a whole, the path his Honour undertook was to fashion his reasons in a manner that precisely followed the directions he recorded. In those circumstances, the reasons disclose his Honour’s path, record all the findings of fact and principles of law and state how those principles applied to the facts found and gave rise to the verdict. In other words, if one looks at the judgment as a whole, one is not left without an understanding of how his Honour arrived at his result. I understand why some may have a different view and it would have been preferable for his Honour to have expressed the foregoing more clearly, but I would also reject ground 2 of the appeal.

57. [222]

    Given the other judgments on this appeal, it is appropriate, notwithstanding the view I have formed on the grounds of appeal, to express a view on the residual discretion. It is sufficient to state that, were it necessary to come to such an exercise, I would not order a retrial; nor quash the acquittal. I would do so for the reasons given by Hamill J for that course.

58. [223]

    I agree with the orders proposed by Hamill J.

59. [224]

    HAMILL J: I have had the benefit of reading the judgment in draft circulated by Johnson J. I am grateful to his Honour for his careful analysis of the evidence and issues that arise in this appeal by the Director of Public Prosecutions under s 107 of the Crimes (Appeal and Review) Act 2001 (“CARA”). This analysis relieves me of the need to revisit those matters in any detail. I agree with a great deal of what the presiding Judge has written but I am unable to agree with his Honour’s proposed disposition of the appeal which would involve quashing the respondent’s acquittal and putting him to trial for a second time more than 35 years after the events giving rise to the allegations. While I agree there are deficiencies in the reasons provided by the primary Judge, it is ultimately clear that the evidence given by the respondent created a reasonable doubt in the judge’s mind, even though he found the complainant to be a creditworthy witness.

60. [225]

    I have concluded, notwithstanding the error identified by Johnson J, that the acquittal should be affirmed pursuant to s 107(5) of CARA. These are my reasons for that conclusion.

61. [226]

    Johnson J has set out in detail and with clarity the case that each party presented at the trial. I refer the reader to his Honour’s judgment. Other than where it is necessary to expose my reasoning and conclusions, I will not repeat the details of the individual allegations, the evidence given by the complainant himself, or the circumstantial tendency case presented in support of the prosecution case.

62. [227]

    In respect of the six individual counts on the indictment, the prosecution relied on the evidence of the complainant. The details of the offences are set out by the presiding Judge at [13] – [22]. Those details are important in light of the tendency case that the prosecution presented at the trial. There were, as Johnson J demonstrates, significant similarities in respect of a number of matters such as the age of the complainants, the circumstances and location of the alleged offending, the timing of the offending, the relationship between the respondent and the three complainants, and the nature of the acts alleged against him. The complainant was cross-examined and maintained his account of each of the sexual assaults committed on him by the respondent.

63. [228]

    The Prosecution also relied on other items of evidence confirming aspects of the complainant account. For example, there were photographs proving the complainant was a student at the school and that the respondent was his cadet master at relevant times (Exhibits C, D and E). There was also evidence that the respondent, when arrested on 23 December 2019 (34 years after the alleged offences), denied knowing the complainant (Ex F). An investigating police officer recorded the following conversation, the details of which were agreed:

64. [229]

    The respondent gave evidence denying each of the specific allegations made in the indictment. He denied any indecent or sexual impropriety against the complainant and said he did not have a sexual interest in the complainant at any time. Like the complainant, he was cross-examined but remained steadfast in his denials of the allegations. He tendered evidence concerning his residence at the relevant time (Exhibits 2-4).

65. [230]

    While the case was a typical one of word against word, in terms of the precise allegations, the prosecution was also able to rely on evidence said to support a tendency in the respondent to commit such offences, to have a sexual interest in children of the complainant’s age and to abuse his position as a teacher and cadet master at the school.

66. [231]

    The tendency evidence upon which the prosecution relied came in the form of a statement of agreed facts (Exhibit B) and the respondent confirmed that he admitted those facts on the advice of his counsel. [24] Exhibit B was in the following terms:

67. [232]

    While it was not in evidence, the Judge received the tendency notice that the Prosecutor filed in advance of the trial in accordance with s 97 of the Evidence Act 1995. The final form of the tendency notice was provided to the Judge before the closing addresses and there was a discussion of its terms. The notice, produced in the appeal as an annexure to an affidavit read by the respondent, framed the tendency “sought to be proved” in the following way:

68. [233]

    In evidence, the respondent admitted that he had sexually assaulted the two other boys, that he had a sexual interest in those boys, that he owned homosexual pornographic videos and showed them to the other two victims. However, he denied having a sexual interest in the complainant, watching pornographic videos with him or sexually assaulting him.

69. [234]

    The respondent was not asked whether he had the kind of general and particular tendencies and state of mind alleged in the tendency notice. The Prosecutor did not put to him that he had such tendencies. In particular, it was not put to the respondent that he had a generalised “sexual interest in males aged between 12 and 15” and a tendency to act upon that sexual interest.

70. [235]

    The relevant evidence is extracted by Johnson J at [40]-[43], but it is appropriate to set it out again:

71. [236]

    The respondent again denied having a sexual interest in the complainant later in the cross-examination:

72. [237]

    The cross-examination of the respondent concluded as follows:

The competing submissions at trial

1. [238]

   The submissions of the parties on the tendency issue are set out at length by Johnson J at [46]-[48]. [28] I will not set them out again. In a nutshell:

The relevance of the tendency evidence in the present case

1. [239]

   The process of reasoning that applies in a case where the prosecution relies on tendency evidence was described by Simpson J, as her Honour then was, in Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323. Her Honour said at [253]:

2. [240]

   At [360] her Honour explained:

3. [241]

   In IMM v R (2016) 257 CLR 300; [2016] HCA 14 at [104], Gageler J explained the process of reasoning and cited what Simpson J had said in Elomar v R:

4. [242]

   In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 the majority of the High Court discussed the two matters relevant to an assessment of the probative value of tendency evidence:

5. [243]

   In the present case, the prosecution sought to prove the respondent had the tendencies set out in the tendency notice by establishing that he had abused two other teenage boys in a similar way, and in similar circumstances, at around the same time of his life. The accused admitted, and had pleaded guilty many years earlier, that he had conducted himself as alleged with those two other boys. Not only did the evidence establish the fact of two earlier victims of a similar age, there was a “underlying unity” or “pattern of conduct” common to the two admitted incidents (or series of offences) and the charged offences.

6. [244]

   Having established the underlying facts, that is the abuse of the two other children, the prosecution invited the Judge to infer that the respondent had a tendency to act on his sexual interest in male children of this age and, thus, was more likely to have committed the charged offences against WO.

7. [245]

   There can be little doubt that the tendency evidence had the capacity to, and did, make the prosecution case stronger. The Director is correct to submit that the tendency evidence was very important and that the trial Judge was required to explain how he had taken the evidence into account and whether he had drawn the inference that the accused had relevant tendencies that went beyond the two school boys he admitted to having sexually assaulted.

Judge Jeffreys’ reasons concerning the tendency evidence

1. [246]

   Again, Johnson J has set out the salient parts of the Judgment and I will not set out the relevant parts in full. It will be necessary to refer to them in more detail in the context of addressing the particular grounds of appeal.

2. [247]

   In short, the trial Judge provided himself with directions as to how the tendency evidence could be used to support the prosecution case and set out the evidence itself (that is the statement of agreed facts) in detail. He noted that the evidence of the tendency witnesses was not in dispute.

3. [248]

   However, as the Director submitted, the trial Judge did not return to the tendency evidence during his analysis of the evidence of the complainant and the respondent, or when articulating his findings as to the credibility of those witnesses. It is that failure that gives rise to both grounds of appeal raised by the Director.

The grounds of appeal

1. [249]

   The grounds of appeal are related or are, as it has been put by others, “two sides of the same coin”. [31] However, the focus and import of the grounds are very different. The first ground asserts that the Judge failed to take into account the tendency evidence, while the second ground pleads that his Honour’s reasons were deficient. As the Director submitted, if the reasons were inadequate it may lead to a conclusion that the Judge failed to take the tendency evidence into account, or it might mean that his Honour took the evidence into account but failed to explain how.

Ground 1: the trial judge erred in failing to take into account tendency evidence adduced in the Crown case in determining whether there was reasonable possibility that the accused’s evidence was true

1. [250]

   Ground 1 asserts that Judge Jeffreys erred in failing to take the tendency evidence into account in determining whether “there was a reasonable possibility that the accused’s evidence is true”. This ground, unlike the second ground, is somewhat divorced from the “question of law” framed in the notice of appeal, namely “whether his Honour erred in failing to comply with s. 133 Criminal Procedure Act” (that is, the duty to provide adequate reasons in a judge alone trial). Nevertheless, no point was taken in this regard and the ground should be dealt with on its merit. Further, as I have said, the two grounds are related and the failure to provide reasons may give rise to an inference that the evidence was not taken into account.

2. [251]

   Another matter that is worthy of preliminary comment is that the framing of the ground is calculated to have the Court focus on one part of his Honour’s reasons, albeit that counsel for Director acknowledged that the reasons must be read fairly and as a whole. The ground, by the specificity of its drafting, could be taken to suggest (implicitly) that Judge Jeffreys might have taken account of the tendency evidence in some other way but failed to consider it when reaching the conclusion that the respondent’s evidence raised a reasonable doubt because it might possibly be true.

3. [252]

   With respect to Johnson J, who has reached the contrary view, I do not accept the submissions under this ground and would reject ground 1.

4. [253]

   In the course of his judgment, the trial Judge delivered himself of the directions and warnings required in a case where reliance is placed on tendency evidence. There is no suggestion that that these directions were inadequate or erroneous, unbalanced, or unfair. His Honour directed himself:

5. [254]

   Judge Jeffreys set out the detail of the evidence contained in the statement of facts:

6. [255]

   His Honour observed that there was no issue that the conduct relating to JW and PK occurred and explained the tendency case as it was put by the Prosecutor and in the tendency notice:

7. [256]

   His Honour also emphasised the care that needed to be taken in drawing the inference the prosecution asked him to draw (that the respondent had the tendencies alleged), directed himself in an orthodox way as to the use of circumstantial evidence and the drawing of inferences, and warned himself against reasoning in an emotive or prejudiced way.

8. [257]

   The trial Judge set out the submissions of the Prosecutor at some length including the submission concerning the similarities and common features between the allegations of JW and PK and the allegations of the complainant.

9. [258]

   His Honour concluded by making the critical findings about the evidence of the complainant and the reasonable doubt raised in his mind by the evidence of the respondent:

10. [259]

    In written submissions on the second ground, the Director submitted that there were three possible explanations for these crucial findings and, specifically, that there was a “reasonable possibility that the accused evidence was true”. To paraphrase, those possibilities were:

    1. (1)

       His Honour was not satisfied, or did not draw the inference, that the respondent had the tendencies alleged.

    2. (2)

       His Honour found the respondent had those tendencies, but was not satisfied to the requisite standard, that he acted upon them (that is, “there was a reasonable possibility that the respondent’s evidence” (denying that he had a sexual interest in the complainant was true”)).

    3. (3)

       The trial Judge “assessed the respondent’s evidence without taking into account the tendency evidence at all”.

11. [260]

    To succeed on the first ground of appeal, the Director must establish that the third possibility is the correct one. I do not accept that it is.

12. [261]

    It is inconceivable that Judge Jeffreys simply disregarded, or failed to consider “at all”, the tendency evidence in coming to the conclusion that the respondent’s denial raised a reasonable doubt about his guilt. I am unable to accept the suggestion that the trial Judge placed the respondent’s evidence in an “hermetically sealed compartment” [32] whereby he disregarded the other evidence in the case, including the tendency evidence, in making the ultimate and critical findings. To have done so would have been to ignore the directions of law he had set out earlier in the judgment. His Honour set out earlier in the judgment the evidence upon which the prosecution relied, the fact that it was not in dispute, and the process of reasoning by which the tendency evidence could be used as circumstantial evidence in support of the prosecution case and, thus, in undermining the credibility of respondent’s denials. His Honour had obviously not forgotten that there was undisputed evidence led in support a tendency case. There is no sensible explanation as to why or how the Judge would have failed to consider the tendency evidence “at all” in making his assessment of the respondent’s denials. A fair reading of the reasons as a whole does not allow for this interpretation.

13. [262]

    I would reject the first ground of appeal.

Ground 2: that the trial judge erred in failing to record his findings with respect to that tendency evidence

1. [263]

   There is more merit in the Director’s second ground and I have found it difficult to resolve. On the one hand, the fundamental reason the trial Judge found the respondent not guilty is plain from the reasons for judgment. On the other hand, the approach the trial Judge took to the tendency evidence in reaching the ultimate conclusion is unclear and not exposed in the judgment. The question whether, in those circumstances, the reasons were adequate is one upon which minds may differ. I have concluded that Johnson J is correct in his conclusion that the second ground is made out. To explain why, it is necessary to re-state the essence of the Director’s complaint and consider the case law on the extent and content of the duty of a Judge sitting alone to provide reasons for their verdicts.

2. [264]

   As I have already said at [259], the Director submitted that there were three possibilities in terms of the Judge’s approach to the tendency evidence. The precise way this was put in written submissions was as follows:

3. [265]

   I have rejected the third possibility – that the Judge failed to take the tendency evidence into account in assessing the respondent’s evidence “at all” – in dealing with the Director’s first ground of appeal. I accept the Director’s submission that there were at least two other “pathways” to a conclusion that it was possible that the respondent’s denials were true. The question that arises under this ground is whether the duty of the Judge to provide adequate reasons encompassed a requirement that Judge Jeffreys spell out which of those two pathways he took to reach that ultimate conclusion.

4. [266]

   The duty to give reasons for a verdict in a trial by judge alone arises from s 133(2) and (3) of the Criminal Procedure Act:

5. [267]

   In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (“Fleming”) the High Court considered the predecessor provision (in what was then s 33 of the Criminal Procedure Act). The current provision is in relevantly identical terms to that considered by the High Court. Fleming concerned an appeal against conviction and the High Court noted that s 6 of the Criminal Appeal Act 1912 had now to be seen “through the prism of s 33”. [33] There are obvious differences in the terms of the provision in s 6(1) of the Criminal Appeal Act (relating to appeals against convictions whether following a trial by judge alone or by jury) and those in s 107(5) of CARA (relating to an acquittal following a judge alone trial). Those differences may be significant to the outcome of the present appeal. However, they do not diminish the importance of the principles stated in Fleming concerning the duty of a trial Judge sitting without a jury to provide adequate reasons for their verdict or verdicts. At [24]-[31], their Honours enumerated eight propositions concerning the operation of the provisions and the duty to give reasons. The fifth proposition stated by the High Court is important to the disposition of the ground of appeal currently under consideration:

6. [268]

   In AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 the third member of the majority, writing separately, reiterated at [108] one of the matters lying at the heart of the decision in Fleming:

7. [269]

   They also observed at 467 [84]:

8. [270]

   It has been held that there is no proscriptive standard, and the adequacy of reasons given in a judge-alone trial will be a question of degree, [37] and dependent on the individual circumstances of the case. [38]

9. [271]

   Wade v R [2018] NSWCCA 85 was a case where the appellant complained the Judge did not take certain expert evidence into account in making a finding as to the accuracy and reliability of the two complainants’ evidence. [39] RA Hulme J at [99]-[104] restated the general principles articulated in Fleming, before concluding at [120]:

10. [272]

    To similar effect are the following observations in Thornton v R [2017] NSWCCA 86 at [158]-[165]:

11. [273]

    In Thornton v R, Ward JA concluded at [165]:

12. [274]

    Campbell J agreed with Ward JA with N Adams at [226] said she was “not satisfied that the trial judge’s reasons were inadequate.” In Thornton, there were a number of significant evidentiary issues explained by Ward JA which were not linked to the issue of credibility of the complainant in the trial Judge’s judgment. Even so, it was held the reasons were sufficient because the issue, whether the complainant’s evidence established the offences beyond reasonable doubt, was simple.

13. [275]

    The present case was essentially a credibility case, or a “word against word” case. It is arguable that it was sufficient for the trial Judge to say “little more” than he did. That seems to accord with approach taken by this Court in both Thornton v R and Wade v R, each of which were cases involving appeals against convictions. While Judge Jeffreys found nothing to diminish the credibility of the complainant’s account, he could not reject the respondent’s denials beyond reasonable doubt. To put it another way, there was a reasonable possibility that the respondent’s denials were true. As the High Court in Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 made clear “the judge’s acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as [the accused’s] guilt”. [40]

14. [276]

    However, with some reticence, I am persuaded that the Director is correct and that more needed to be said by the trial Judge in the present case. Because of the evidence of admitted predatory sexual conduct towards two other school boys at around the same time, the reliance on the tendency said to be established by that evidence, and the favourable finding concerning the complainant’s credibility, the trial Judge needed to explain how he dealt with the tendency evidence. As the Director submitted, the pathway to a reasonable doubt must have involved the trial Judge either (1) not drawing the inference that the respondent had the tendencies alleged or, (2) finding that he had some or all of those tendencies but that he did not act on them as alleged by the complainant in this case. The reasons for judgment should have indicated transparently the pathway his Honour took, or have provided some explanation as to the approach taken to the tendency evidence. The situation is analogous to that described by Basten JA in Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]:

15. [277]

    For those reasons, I am satisfied that the Director has established ground 2.

Appropriate orders

1. [278]

   Section 107 of the CARA is set out in full by Johnson J at [3]. The section falls within Division 3 of Part 8 of the CARA. The section does not provide any automatic consequence flowing from the appellant (either the Director or the Attorney General) establishing an error of law in the judgment leading to an acquittal. [41] Rather, sub-ss (5) and (6) provide respectively that this Court “may affirm or quash the acquittal” and “may order a re-trial”.

2. [279]

   The provision may be contrasted with sub-ss 6(1) and 6(2) of the Criminal Appeal Act 1912 which provide for the determination of appeals against conviction. Where any of the “three limbs” of error are established “the court shall allow the appeal” unless “it considers that no substantial miscarriage of justice has actually occurred.” [42] If the appeal is allowed, the Court is to quash the conviction and enter a verdict of acquittal (s 6(2)) unless it orders a re-trial under s 8.

3. [280]

   It may be that in most cases where an error of law is established, the power in s 107(5) to “affirm or quash the acquittal” would result in the verdict being quashed. The question would then become whether a re-trial should be ordered under s 107(6). However, in contrast to s 6 of the Criminal Appeal Act, the section does not mandate that the appeal be allowed and the [acquittal] be quashed. It has been said that s 107 represents a “partial abrogation” of a “fundamental principle of our criminal law”, that is the principle of double jeopardy and the prohibition on successive prosecutions for the same offence. [43] In the circumstances of the present case, in view of the ground that I would uphold, the question of whether the verdict of not guilty should be quashed is a live one.

4. [281]

   The discretion in s 107(6) whether to order a new trial is “unconstrained by specific wording (cf. s 104 of the Crimes (Appeal and Review) Act)”: R v BA [2021] NSWCCA 191 at [69] (Adamson J). I agree with Adamson J that the suggestion in R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [150]-[168] that the discretion in s 107 “ought be read with the qualifications in s 104” is contrary to the terms and structure of the statute. Section 104 falls in a different division (Division 1) and is, on its own terms, confined to the issue of “determining under this Division whether it is in the interests of justice” to order a re-trial (my emphasis). Even so, some of the matters referred to in s 104 will also be relevant to the “unconstrained” discretion in s 107.

5. [282]

   In R v BA Brereton JA said at [31]:

6. [283]

   His Honour also observed at [32]:

7. [284]

   In Lazarus v R [2017] NSWCCA 279; (2017) 270 A Crim R 378 Bellew J remarked at [157]:

8. [285]

   In the present case, the “public interest in the due prosecution of offenders” is, as the Director submitted, a weighty consideration in favour of quashing the acquittal and ordering a retrial. Also favouring such an order is the concession of senior counsel that the case against the respondent was a strong one. [44]

9. [286]

   On the other hand, the offences were allegedly committed more than 35 years ago. Evidence tendered on the appeal shows that, since he was acquitted, the respondent has moved interstate and suffers from a neurological disease similar to multiple sclerosis. Clearly, his health is deteriorating, and he is attempting to move on with his life. Those matters are entitled to some weight but would not outweigh the public interest in the respondent being tried according to law for the very serious offences.

10. [287]

    In my assessment, the critical factor in the exercise of the discretion is that the trial Judge, having heard the two critical witnesses give evidence and with the knowledge that the respondent had committed similar offences against two other school boys, was left with a reasonable doubt as to the respondent’s guilt. While his Honour failed adequately to expose the approach he took to the tendency evidence, and while this constituted a legal error, his finding on the critical issue was quite clear:

11. [288]

    In the light of that finding, and the nature of the error established, it would be wrong to put the respondent to trial again. The appropriate order is to affirm the verdict of not guilty.

12. [289]

    Accordingly, the orders I would make are these:

    1. (1)

       Pursuant to s 107(5) of the Crimes (Appeal and Review) Act 2001 (NSW), affirm the acquittal of the respondent entered by Judge Jeffreys in the District Court on 30 March 2021.