Gardiner v R

1. [1]

   MITCHELMORE JA: The applicant, Leonard Gardiner, is 88 years old. Between 1964 and 1968, he was employed as a maths teacher and assistant housemaster at The Armidale School (TAS) in Armidale, New South Wales.

2. [2]

   In April 2024, the applicant stood trial in the District Court, before Judge Flannery SC sitting with a jury, for offences involving two complainants, TR and PS, who were students at TAS during the period the applicant worked there. There were six counts on the indictment, counts 2 to 5 of which were alternatives to count 1:

   1. (1)

      Between 1 January 1964 and 18 March 1968, at Armidale and other places in the State of New South Wales, the applicant did maintain an unlawful sexual relationship with TR, a child under the age of 16 years, namely between 11 and 15 years of age, in which he engaged in the following two or more unlawful sexual acts:

   2. (2)

      Between 1 April 1964 and 1 September 1964, at Armidale in the State of New South Wales, the applicant did indecently assault TR, a male, contrary to s 81 of the Crimes Act.

   3. (3)

      Between 1 April 1964 and 1 September 1964, at Armidale in the State of New South Wales, the applicant did commit an act of buggery with TR, contrary to s 79 of the Crimes Act.

   4. (4)

      Between 1 January 1965 and 1 December 1966, at Armidale in the State of New South Wales, the applicant did indecently assault TR, a male, contrary to s 81 of the Crimes Act.

   5. (5)

      Between 1 September 1966 and 1 December 1966, at Armidale in the State of New South Wales, the applicant did commit an act of buggery with TR, contrary to s 79 of the Crimes Act.

   6. (6)

      Between 1 February 1966 and 31 December 1967, at Armidale in the State of New South Wales, the applicant did commit an act of buggery with PS, contrary to s 79 of the Crimes Act.

3. [3]

   The trial before Flannery SC DCJ was the applicant’s second trial. In April and May 2021, he was tried on the same six counts before English DCJ sitting alone. At the outset of the trial, her Honour heard an application by the applicant for a permanent stay, which she refused. On 1 June 2021, her Honour found the applicant guilty on count 1 and count 6.

4. [4]

   The applicant appealed against his conviction on grounds which included that English DCJ erred in refusing to grant the permanent stay, and denied the applicant procedural fairness. This Court dismissed the ground relating to the permanent stay but concluded that her Honour denied the applicant procedural fairness in a manner that was productive of a miscarriage of justice: Gardiner v R [2023] NSWCCA 89 (“Gardiner 2023”). The applicant’s convictions were quashed and a retrial was ordered.

5. [5]

   At the outset of the trial before Flannery SC DCJ, the applicant renewed his application for a permanent stay. On 18 April 2024, her Honour refused that application and the trial proceeded. On 6 May 2024, the jury returned verdicts of guilty on count 1 and count 6. On 2 September 2024, the applicant was sentenced to an aggregate term of imprisonment of 13 years and 6 months, with a non-parole period of 8 years and 6 months.

6. [6]

   The applicant sought leave to appeal against his convictions on two grounds, each of which required leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW):

7. [7]

   A short extension of time was required to bring the application for leave to appeal: the notice of intention to appeal expired on 10 September 2025 and the notice of appeal and applicant’s submissions were filed on 25 September 2025. The respondent did not make any submissions about the extension of time, which was of short duration and should be granted.

8. [8]

   In these reasons, I address ground 1, concluding that it should be dismissed. Justice Dhanji has addressed ground 2 in his Honour’s reasons, which I have had the advantage of reviewing in draft. For reasons I am able briefly to explain given the detail of his Honour’s reasons, I agree that the appeal should be allowed on that ground. It follows that the applicant’s convictions should be quashed. The matter should be remitted to the District Court.

Background to the grounds of appeal

1. [9]

   The two complainants, TR and PS, were students at TAS who boarded at the school. TR commenced at TAS in 1964 when he was 11 years old, and he remained at the school until 1967. PS commenced at TAS in 1965, when he was 12 years old, and remained at the school until 1967. Both TR and PS gave evidence in the first trial. In the second trial, recordings of their evidence in the first trial was played to the jury.

2. [10]

   TR gave evidence that he started as a boarder at TAS in 1964. He resided in Dangar House, which was the boarding house for students who were in the junior school and in the first year of high school (then known as “first form”). At that time, the school year was divided into three terms.

3. [11]

   TR’s evidence was that he started at TAS in first form and the applicant taught him mathematics that year. At some point in 1964, the applicant selected TR for additional maths tuition. TR’s best recollection was that the tutoring commenced either very late in the first term of 1964 or early in the second term (which began in late May or early June).

4. [12]

   TR described himself as a very lonely boy who was a long way from home with no adults or family in Australia. He gave evidence that the applicant was extremely nice to him.

5. [13]

   By count 1, the Crown alleged that the applicant maintained an unlawful sexual relationship with TR between 1 January 1964 and 18 March 1968. The Crown case on count 1 alleged a continuing sexual relationship over that period, and particularised specific instances of sexual acts that the applicant committed against TR. The particularised acts also formed the basis for the alternative counts on the indictment, being counts 2 to 5 inclusive.

6. [14]

   TR gave evidence that in 1964, the applicant was living in a room in a small cottage or weatherboard structure on the TAS campus, which was located behind a building known as “White House”. During the second term of 1964, when TR was in the applicant’s living quarters, the applicant made him a hot chocolate and TR fell asleep in a chair. When TR woke, he was lying on the applicant’s lap and the applicant’s hands were under TR’s pants, fondling his genitals.

7. [15]

   TR exited the room as soon as possible. Afterwards, he tried to avoid the applicant because he felt very uncomfortable but the applicant insisted on meeting with him. TR recalled that the applicant gave him what he described in his evidence as a “history lesson on mentoring in homosexual experiences between adult males and children”.

8. [16]

   TR’s evidence was that the second incident could have occurred anywhere between a few days and a couple of weeks after the first incident. He gave evidence that he was asleep in his dormitory at Dangar House when he was woken up by the applicant in the early hours of the morning. TR said that as he woke up, the applicant’s hands were down the front of his (TR’s) pyjamas. The applicant placed a pillow over TR’s face and told him to be quiet, and to get up and go with him.

9. [17]

   TR gave evidence that the applicant took him to his room in the cottage behind White House. Once there, the applicant pushed TR on to the bed with his face down, pulled down TR’s pyjama pants, rubbed Vaseline onto TR’s anus, and forced his penis into TR’s anus. The applicant held TR down and the intercourse continued until the applicant ejaculated. TR returned to his dormitory in Dangar House. He went into the ablutions area and found blood, semen and faeces on his pyjamas and legs. TR cleaned himself up as best he could and returned to his bed.

10. [18]

    TR gave evidence that from 1964 to 1967 inclusive, the applicant required him to attend his room for maths tutoring, and sexually assaulted TR through penile-anal sexual intercourse. According to TR, this happened frequently, once a week or more. The vast majority of the time the alleged assaults occurred in the applicant’s room, and occasionally in the applicant’s motor vehicle. TR described the applicant’s car at that time as a light blue, two-door Ford coupe.

11. [19]

    In 1965, when TR was 12 years old, he was allocated to accommodation in Broughton House. TR gave evidence that the applicant’s room in 1965 was in the main building on the TAS campus, where the headmaster and his family also had their living quarters. The door to the applicant’s room was off a stairway that led to the loft dormitory in that building, and was behind the headmaster’s living quarters. TR gave evidence that the applicant’s room, which overlooked the chapel, contained a bed, wardrobe, desk, armchair and chest of drawers.

12. [20]

    TR gave evidence that the applicant continued to require him to attend extra tuition, as an excuse for the applicant to engage in penile-anal intercourse with him. The abuse would happen during the “prep period” which was when students did their homework, or on the weekends. TR could not recall how many times, or on how many separate occasions, the applicant abused him. His evidence was that the assaults were regular and relentless.

13. [21]

    TR gave evidence about an occasion in 1965 when he wrote something on a blackboard in a weatherboard classroom that was meant to be a temporary classroom. The applicant was running late to teach the class, and TR wrote on the blackboard, “LAG = BO”. The initials “LAG” referred to the applicant and “BO” referred to body odour. According to TR and other witnesses who were students at TAS at the same time, the applicant’s nickname among the students was “Stinky” because he had strong body odour.

14. [22]

    The applicant came through the door of the classroom and saw TR at the blackboard. He became angry and “thrashed” TR in front of the class, using a wooden ruler that had a steel edge to it. TR gave evidence that later the same day, the applicant summoned TR to his room. He took hold of TR and held him down against the bed, so that TR could not breathe or scream. The applicant then pulled TR’s pants down and forced the handle of a hairbrush into TR’s anus.

15. [23]

    One afternoon in 1966, the applicant summoned TR to his room. The applicant took hold of TR’s arm and twisted it, forcing TR onto the bed. He then pulled down TR’s pants and, without using any lubricant but wearing a condom, forced his penis into TR’s anus and continued until he ejaculated. TR’s evidence was that this was very painful and he was crying. TR gave evidence that the applicant told him that it was TR’s fault that he (TR) was attractive, that TR was sexually inclined to be homosexual and would be for life, and that he would always be attractive to the applicant. TR did not recall leaving the room but he remembered being outside the headmaster’s living quarters in an area he described as the headmaster’s garden. TR believed that this incident happened in Spring because he recalled there were flowers in the headmaster’s garden.

16. [24]

    TR gave evidence that on a weekend in 1967, when the applicant wanted TR to go out with him, they had a quite heated argument in the vicinity of the school’s main front entrance. TR also remembered that the applicant gave him the answers to a maths exam because TR was doing so poorly. When TR obtained a perfect score on the exam, his maths teacher at the time accused him of cheating and required him to re-take the exam. TR denied cheating and refused to re-take the exam.

17. [25]

    At the end of 1967, TR transferred from TAS to a different school. He gave evidence that when he was at TAS, not a week went by during the school term when the applicant did not assault him.

18. [26]

    PS commenced as a boarding student at TAS in 1965, when he was 12 years old, and left TAS in 1970. PS gave evidence that in 1966 and 1967, the applicant was his maths teacher.

19. [27]

    PS recalled that in 1967, the applicant told him he needed further maths tuition outside of school hours. PS said that he attended the applicant’s room, which was in the main building at TAS, just behind the headmaster’s living quarters, on at least the third floor.

20. [28]

    PS gave evidence that initially the tutoring was normal. Then, the applicant said that he needed to measure PS’s body parts, to check for growth. This evolved over a number of occasions, and involved PS having to remove various items of clothing. Ultimately, the applicant asked PS to remove his pants so that the applicant could measure his penis.

21. [29]

    On another occasion in 1967 when he was in the applicant’s room, PS said that the applicant asked him to remove his clothing and lie on the bed. The applicant then undressed and sat beside him on the bed, producing a condom. He rolled PS over on to his left side and forced his penis into PS’s anus. PS had no idea what was going on and felt strange. His next recollection was of running down the road at TAS to White House, where he was residing at the time. PS did not return to maths tutoring after that time.

22. [30]

    In 2000, PS attended a school reunion. During the reunion, PS stood up and said to the other attendees, “I was fucked by Frankie Gardiner”.

23. [31]

    In addition to the evidence of TR and PS, the Crown relied on the evidence of a number of other persons who were at TAS at the same time as TR and PS:

    1. (1)

       RT was a student at TAS at the same time as TR. He gave evidence that he recalled the applicant having the nickname “Stinky”. He also recalled that on one occasion, on a weekend, the applicant approached him and told him to find TR, and to tell TR that the applicant wanted to see him in his (the applicant’s) office.

    2. (2)

       JM was a student at TAS from 1962 to 1967. TR was in a younger year. JM gave evidence that on a weekday in 1967, TR came to him and said words to the effect, “Can I talk to you? I’m having a problem. Mr Gardiner is doing things to me, and I’m frightened.” JM recalled that he asked TR what the applicant was doing and TR replied, “I don’t want to talk about it.” JM’s evidence was that TR “appeared frightened”. JM also gave evidence that later that same day, he saw the applicant holding TR by the upper arm and taking him up the stairs in the main building towards the applicant’s room.

    3. (3)

       GA was a student at TAS from 1964, when he was in first form, through to 1967. He gave evidence that he was in the same year as TR for each of those years. GA also gave evidence that he recalled an occasion when he was in the prep room and TR was called out to go and see the applicant.

    4. (4)

       AW was a student at TAS from 1963. He gave evidence that in 1965, he recalled seeing the applicant beat TR with a ruler after TR wrote something on the blackboard about the applicant, along the lines of “Gardiner is a stink bot”.

    5. (5)

       Robert Grant was a teacher at TAS from 1964 to 1967. He gave evidence concerning school policies, including that students did not need to obtain written permission before leaving school grounds if the student was accompanied by a teacher.

24. [32]

    The Crown relied on tendency evidence, alleging that the applicant had a tendency to have a sexual interest in male children and a tendency to use his position as a teacher to gain access to male students and act upon his interest. Apart from the evidence of TR and PS, the Crown relied on three witnesses as evidencing the alleged tendency.

25. [33]

    KZ gave evidence that the applicant was a teacher at the school in South Australia that KZ attended as a boarder from 1961. KZ recalled that the applicant would read students’ palms, and on one occasion he read KZ’s palm. KZ gave evidence that in 1963, the applicant visited his family’s farm and stayed overnight, sleeping in the same room as KZ. That night, the applicant got into KZ’s bed and rubbed KZ’s genitals, which aroused KZ. The applicant continued rubbing KZ’s genitals until he ejaculated. The applicant then went back to his own bed.

26. [34]

    JT commenced as a boarding student at TAS in first form in 1965, residing in Dangar House. In 1966, he returned in second form and resided in Dormitory 5, which was the dormitory located in the main building above the headmaster’s residence. The applicant’s room was on the first landing of the stairs on the way to that dormitory. JT gave evidence that on one occasion in 1966, the applicant instructed JT to go to his room. The applicant asked him to take off his shorts and pants and sit back on the bed. The applicant had a pen or a pencil in his hand, and he used it to touch JT’s genitals. He then said, “That’s enough” and JT left the room. JT did not return to the room after that. He left TAS in 1970.

27. [35]

    AR commenced at TAS in 1964 when he was in first form. The applicant was his maths teacher. AR gave evidence that on one occasion, the applicant asked him to attend his room for the applicant to read AR’s palm. AR attended the room but he left quickly because it was not a pleasant experience.

28. [36]

    The applicant gave evidence at the trial. He agreed that he taught at the school that KZ attended in South Australia, but he denied reading anybody’s palm (there was another teacher at the school who did palm readings), and he denied visiting the farm of KZ’s family on any occasion. He denied indecently assaulting KZ, giving evidence that by 1963, when KZ alleged the indecent assault occurred, he was working in Perth.

29. [37]

    The applicant commenced at TAS in 1964, teaching maths and science to senior students. He denied owning a motor vehicle of any kind at that time, or ever owning a Ford coupe or driving TR in such a car.

30. [38]

    The applicant gave evidence that he never taught the primary school students at TAS, and that a single teacher, Mary Stevenson, was responsible for teaching them. The applicant also said that he did not have any duties at Dangar House, where boarders in primary school and first form resided.

31. [39]

    The applicant gave evidence that for the first few months after he started at TAS, he lived in Mr Mattingly’s house, which was a red brick building called Wakefield House and was located behind White House. The applicant denied living in a weatherboard cottage at any time when at TAS. He also denied inviting students, including TR, to Wakefield House.

32. [40]

    The applicant denied ever giving TR a hot chocolate in 1964 and he denied sexually touching TR or dragging him from the dormitory and having anal intercourse with him. The applicant gave evidence that between Easter 1964 and the beginning of 1965, he lived off the school campus, in a house owned by a Victor Johnson. Mr Johnson was the manager of a fruit and vegetable shop downtown where the applicant regularly shopped.

33. [41]

    Following his return to the TAS campus in 1965, the applicant moved into a room on the first floor of the building that included the headmaster’s lodgings, where he remained until mid-December 1967. In addition to teaching, the applicant assumed house duties for boys who resided in the dormitory within that building. The applicant recalled that his room contained a bed, wardrobe, chest of drawers and a dressing table. It did not have a desk or armchair, and the applicant would do his work outside of the classroom in the staff room. The applicant denied that there was a headmaster’s garden at TAS between 1964 and 1967, or any garden with flowers during that period.

34. [42]

    The applicant denied ever conducting maths tuition, and he denied ever having students in his room, including PS and TR. The applicant denied ever sexually abusing any boy at TAS. He did not remember PS, and he had only a vague recollection of TR.

35. [43]

    The applicant denied ever disciplining TR with a steel-edged ruler, and he specifically denied doing so in response to seeing TR writing uncomplimentary things about him on a blackboard. The applicant also denied owning a hairbrush, giving evidence that he did not use a hairbrush when he worked at TAS and instead used a comb. He denied that he had sex with TR in his room once or twice a week from early in 1964 until TR left TAS at the end of 1967.

Ground 1: the trial judge erred in refusing to grant a permanent stay

1. [44]

   By notice of motion filed on 15 April 2024, the applicant sought a permanent stay of the indictment. As noted above, the applicant made the same application in the first trial, which was refused. In Gardiner 2023, in dismissing the ground of appeal from this refusal, Adamson JA (Button and McNaughton JJ agreeing) applied the standard of appellate review in House v The King (1936) 55 CLR 499; [1936] HCA 40. Her Honour concluded that Judge English had applied the correct test and that it was open to her Honour to refuse the application: Gardiner 2023 at [123].

2. [45]

   It was common ground on this appeal that following GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 (“GLJ”), the applicable standard of appellate review of a decision to refuse to grant a permanent stay is the correctness standard: Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 (“Koschier”) at [33] (Bell CJ, Harrison CJ at CL and Chen J agreeing). An appeal is by way of rehearing and the appellate court is required to decide the case for itself, with limited deference to the reasons of the trial judge where he or she has enjoyed a significant advantage in the making of findings of fact or the drawing of inferences: Koschier at [35]-[36]. Nonetheless, it is open to an appellate court to endorse some or all of the primary judge’s reasoning and adopt unchallenged intermediate findings of fact when it agrees with that reasoning or those findings: Koschier at [42].

3. [46]

   Koschier concerned an interlocutory appeal from a decision to refuse a permanent stay, pursuant to s 5F of the Criminal Appeal Act. In Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177 (“Macri”) at [136], N Adams J observed that “the relevant test to apply when complaint is made of the failure to grant a stay in an appeal against conviction is less clear” (emphasis in original). Decided at a time when the House v The King standard of appellate review still applied, her Honour reviewed the authorities and concluded that an applicant needed to establish both a House v The King error and a miscarriage of justice within s 6(1) of the Criminal Appeal Act: at [161].

4. [47]

   As her Honour observed, the requirement that House v The King error be established derived from what was characterised at that time as the discretionary nature of the decision to grant a permanent stay, and the fact that the majority of appeals against such decisions were brought at the interlocutory stage: at [137]. However, the decisions of the High Court in Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (“Dupas”) and The Queen v Glennon (1992) 173 CLR 592 at 605-606; [1992] HCA 16 (“Glennon”) established that when a complaint is made in a conviction appeal, “an appellate court is not simply looking for House error, it is assessing whether the accused received a fair trial by examination of what actually happened at the trial”: Macri at [137]. Her Honour referred to Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330, in which this Court (Beazley P, Schmidt and Button JJ) stated:

5. [48]

   In the present appeal, the respondent submitted that the need to establish the second limb that N Adams J identified in Macri survived the decision in GLJ. As the respondent submitted in writing, so much is consistent with the need to show that any error within the second limb of s 6(1) of the Criminal Appeal Act was material in accordance with Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (“Brawn”), which will, in turn, require consideration of the impact of the error on the trial which was had. However, as the respondent also acknowledged in its written submissions, it may be anticipated given the nature of the error that an incorrect refusal to grant a permanent stay would, as a matter of logic, typically result in a miscarriage of justice.

6. [49]

   The applicant submitted to the trial judge that a permanent stay was warranted on the following grounds:

   1. (1)

      The trial would be productive of injustice and incurable unfairness in circumstances where the allegations related to events between 1964 and 1967.

   2. (2)

      The unacceptable delay had resulted in the loss of documents and the unavailability of witnesses to the extent that the applicant’s trial would be unacceptably unfair and oppressive.

   3. (3)

      The applicant was 86 years old at the time of the trial and suffering from age-related deficits in his cognitive functioning, so as to be hindered in his capacity to give evidence about events that occurred 60 years ago, adding to the unfairness of the burden he faced in meeting the allegations.

   4. (4)

      The trial would be unfairly oppressive and burdensome on the applicant.

7. [50]

   Although oppression was raised in the last of those grounds, senior counsel for the applicant on the appeal emphasised that the focus of the ground of appeal against the refusal to grant a permanent stay was the unfairness arising from the age of the allegations, the delay and consequential unavailability of witness and documentary evidence, and the age and mental infirmity of the applicant himself. As the applicant submitted, if this Court were to conclude that a permanent stay should have been granted on those bases, having regard to what occurred at the trial, it would logically follow that the trial that occurred in the face of that conclusion involved a material miscarriage of justice in the sense recognised in Brawn.

8. [51]

   The applicant emphasised that the passage of time between the alleged offending, the making of the allegation, and the trial meant that significant potentially exculpatory evidence was not available. The focus of the applicant’s submissions in this regard were counts 1 to 5 on the indictment concerning TR. In two affidavits of Ms Caligiore, the applicant’s previous solicitor, respectively sworn 15 February 2021 and 24 February 2021, Ms Caligiore identified particular individuals who may have been able to give such evidence and who had died or were presumed deceased by the time of the trial. An Agreed Facts document, marked as Ex Y in the trial, identified the missing witnesses as follows:

   1. (1)

      Alan Cash (deceased), the headmaster of TAS in the period 1964-1967, and his wife, Maris Cash (deceased), who lived on the TAS campus during the period;

   2. (2)

      both of TR’s adoptive parents (deceased);

   3. (3)

      Brian Mattingley (deceased), who was a teacher at TAS between 1939 and 1979 and was relevantly the senior house master between 1964 and 1967 and lived on the TAS campus;

   4. (4)

      a number of teachers at TAS during the relevant period, including Desmond Lyle ‘Jim’ Graham (deceased), Geoff Bell (deceased), Alan Cane (deceased), Mary Stevenson (deceased or could not be located), W A Jennings (deceased or could not be located), Peter Steward (deceased or could not be located), and Reverend T H D Kitley (deceased), who was the school chaplain;

   5. (5)

      J Holmes (deceased or could not be located), who was dismissed from TAS in 1964 as a result of sexual assault allegations made by TAS students;

   6. (6)

      the three matrons of the TAS sick rooms during the relevant period, Sister P J Smith (1961-1966), Sister B Rossiter (1967-1969) and Sister D Batchelor (1967) (each of whom was deceased or could not be located); and

   7. (7)

      Mike Page (deceased or could not be located).

9. [52]

   None of the missing witnesses was an eyewitness to any of the alleged conduct. Nonetheless, a number of the former teachers, and Mrs Cash, were said to have been potentially capable of giving evidence as to all of the following or a combination of one or more thereof:

   1. (1)

      the lack of contemporaneous complaints by staff or students at TAS about the applicant;

   2. (2)

      for those living in close proximity to the applicant, in particular Mr Mattingley (in 1964) and Mr and Mrs Cash (between 1965 and 1968), the unlikelihood of students visiting the applicant’s room without their noticing;

   3. (3)

      the applicant did not tutor or provide extra tuition to any students at any time, and did not have a separate office on the campus (in particular Mr Mattingley and Mr Cane, who was head of the maths department);

   4. (4)

      the applicant resigned and left TAS on amicable terms, which would have been best known to Mr Cash as the headmaster, Mr Mattingley as the applicant’s direct supervisor, and Mr Steward, who took over as house master and was said by PS to have told the students that the applicant was dismissed because students had made complaints of sexual assault;

   5. (5)

      another teacher at TAS, Mr Holmes, had been dismissed from the school in 1964 due to similar complaints; and

   6. (6)

      school rules prohibiting students from entering teachers’ private rooms and governing tutoring arrangements.

10. [53]

    In the trial judge’s reasons for judgment on the stay application at [15], her Honour usefully summarised the issues that the applicant contended were affected by the unavailability of witnesses and documents, namely:

    1. (1)

       whether TR was in sixth class or first form when he commenced at TAS in 1964, the significance of which was that the applicant would not have taught (or tutored) TR if he was in sixth class;

    2. (2)

       whether the applicant was an assistant house master at Dangar House in 1964;

    3. (3)

       where the applicant lived in 1964, the significance of which was that on TR’s evidence, the applicant had tutored him in his room in a weatherboard cottage near White House, and it was here that counts 2 and 3 were allegedly committed, whereas on the applicant’s evidence he had lived in a brick building on campus until Easter 1964, when he moved off campus and shared a house on a street close to a park until the beginning of 1965;

    4. (4)

       whether the applicant owned a light blue Ford coupe in 1964, in circumstances where TR alleged that the applicant had sexually assaulted him in a car of this type in 1964 and the applicant said he did not own a car at any time when he was employed at TAS;

    5. (5)

       the circumstances in which the applicant left TAS, with JM giving evidence that he told the headmaster, Mr Cash, about his concerns about seeing the applicant taking TR towards his room, and Mr Cash saying in response that he would handle it but swore JM to secrecy and the applicant was gone from the school the following morning, whereas the applicant said he left the school at the end of 1967 to take up employment elsewhere; and

    6. (6)

       the rules of the school, including whether the teacher’s rooms were out of bounds, the arrangements for tutoring and where tutoring occurred, and whether students needed permission to leave the school premises.

11. [54]

    In addition to the above, TR in his police statement specifically referred to a number of the witnesses who were not available:

    1. (1)

       TR claimed to have made a complaint to Mr Cash about the applicant, in response to which Mr Cash took no action. He also said that his mother had visited TAS from Papua New Guinea in 1967, and complained to Mr Cash about what the applicant had done to her son.

    2. (2)

       TR said that Mrs Cash found him hiding in the headmaster’s garden after an assault by the applicant and was sympathetic to him because she suspected the applicant was sexually assaulting him.

    3. (3)

       TR said that Mr Graham was witness to complaints TR had made about the applicant and took no steps to help him, instead punishing him for telling lies about the applicant, first by calling him to his office and caning him and then humiliating him in front of other students.

    4. (4)

       TR alleged that Mr Bell, who was the swimming coach, had attempted to “interfere” with TR, and touch his penis, in the pool change rooms. TR told the applicant, leading to a falling out between Mr Bell and the applicant.

    5. (5)

       TR said that he regularly attended the sick bay to escape the applicant, and that one matron knew that the applicant had sexually assaulted him and attended to physical injuries he sustained. Additionally, when the applicant attended the sick bay in an attempt to see TR, he was seen off by the matron.

    6. (6)

       TR said that when he left TAS, he went to Ipswich Grammar School, and that he confided to the then-headmaster, Basil Heath, about the sexual assaults that the applicant perpetrated. According to TR, Mr Heath informed Mr Cash and/or the police.

12. [55]

    The applicant noted in his submissions on the stay application that, following the rejection of the stay application before the first trial judge, her Honour had not admitted the above parts of TR’s statement, on the basis that the probative value of the evidence was outweighed by the risk of unfair prejudice in circumstances where the persons to whom the evidence related could not be called to give evidence at the trial. Although this evidence had been objected to by the applicant, its exclusion meant that the forensic contest needed to be had in a restricted forum, in which the applicant was not able to demonstrate TR’s reliability by reference to these incidents, which the applicant submitted were entirely false. As the applicant’s senior counsel at trial put the matter, “we’re actually having a forensic dispute based on quite artificial boundaries where we can’t go”, in circumstances where such issues could have been addressed through witnesses had the trial been held 20 or more years ago. A direction under s 165B of the Evidence Act 1995 (NSW) would necessarily be circumscribed by the state of the evidence before the jury, and would not in any way touch on what he submitted were major issues that could have affected an assessment of TR’s reliability, truthfulness and credibility.

13. [56]

    Ms Caligiore’s affidavit of 15 February 2021 also identified documents that the applicant had subpoenaed but which had not been produced. Ms Susannah Warrick, the Company Secretary and head of Compliance and Risk at TAS, affirmed an affidavit in relation to the subpoena served on the school, giving evidence that she was unable to say whether or not documents (or, where some documents responsive to a category had been located, further documents) may once have existed and were destroyed. As Adamson JA observed in Gardiner 2023 at [8], the documents not produced included “…maps of the school detailing the location of particular buildings; school policies and procedures; the teaching timetable for the applicant; and documents relating to Mr Holmes, including complaints and disciplinary action against him as well as the school’s reasons for dismissing him”.

14. [57]

    In relation to the applicant’s state of health, an affidavit of his current solicitor, Michael Blair, affirmed 1 April 2024, included a report dated 29 February 2024 prepared by Dr F Roldan, following a neuropsychological assessment that he conducted with the applicant. Dr Roldan expressed the opinion that the applicant was “likely to have been a person of premorbid or inherent high-average to superior ability”. While he still exhibited areas of functioning at that level, the applicant also exhibited other areas of functioning that were impaired relative to his premorbid or inherent ability.

15. [58]

    Of particular concern to Dr Roldan were the applicant’s relative impairment with regards to perceptual reasoning and processing speed, areas of working memory and immediate and delayed recall of verbal material. Additionally, Dr Raldon referred to the applicant’s scores on a number of measures of executive or frontal lobe functioning, “scores which point to impairment (relative to estimates of premorbid or inherent functioning) in aspects of executive abilities such as mental flexibility, concept formation and multitasking”. Dr Roldan concluded:

16. [59]

    Relying on this report, the applicant submitted that what was of significance was how he would be seen to function, noting that he was a very smart man at one stage but his functioning was not what it used to be.

17. [60]

    The applicant’s senior counsel accepted in oral argument that if the trial judge formed the view that there was substance in the arguments regarding TR’s allegations, there was less of an issue in relation to PS. In such circumstances, the appropriate course would be to grant a permanent stay of counts 1 to 5 and not permit the Crown to rely on TR’s evidence as tendency evidence in support of count 6.

18. [61]

    The trial judge accepted that the delay was “extreme”, and that the presumptive prejudice arising from the extreme delay was “very real”: at [47], [51]. Her Honour noted that as a result of the delay, there were no records available from TAS to assist the applicant: to rebut TR’s allegations about the school’s policies and procedures; to determine what year TR was in when he commenced at TAS; to ascertain the applicant’s teaching timetable and where he lived during the years he taught at the school, or any warnings given to or disciplinary action taken against the applicant; or in relation to Mr Holmes: at [51]. There were also no records from the car registration authority to confirm the applicant’s account that he did not have a car in 1964: at [52].

19. [62]

    Further, the delay resulted in the court not having evidence that would likely cast significant doubt on TR’s credibility, noting that the credibility and reliability of his evidence, and that of PS, were fundamental to the success of the prosecution case: at [53]-[54]. Her Honour referred at [55] to the evidence excluded from TR’s police statement and recognised at [56] that it was the death of witnesses such as Mr and Mrs Cash, Mr Graham and Mr Heath which had put the applicant in the position of having to make the choice as to whether to object to this evidence.

20. [63]

    Her Honour accepted, by reference to Morton (a pseudonym) v R [2020] VSCA 49; 281 A Crim R 307 at [145], that this “invidious” forensic choice was a factor to be taken into account: at [57]. Her Honour also accepted that although much of the unavailable evidence was within the category of “loss of opportunity to obtain evidence” and thus involved speculation that its absence would cause the applicant prejudice, from the applicant’s perspective the unavailability of a large number of witnesses had deprived him of an important means of defending himself: at [58].

21. [64]

    Additionally, while acknowledging that standing trial and funding one’s own defence is part of what happens to an accused, her Honour considered that it was of some significance that the applicant had to do these things in his 80s: at [61]. Her Honour accepted that the applicant was suffering some cognitive decline, although she did not consider his decline to be such that his capacity to effectively take part in the trial was significantly impaired: at [59]. There was no evidence before her Honour as to the possibility that there was something about the applicant’s presentation which caused prejudice and which may be the result of his declining cognitive abilities, noting that the previous trial judge had taken the applicant’s demeanour into account in a manner that was adverse to him: at [60]. Nonetheless, her Honour accepted the applicant’s submission that any direction that could be given on that topic would create more prejudice to the applicant than if it was not given: at [60].

22. [65]

    The trial judge accepted that the Crown case was quite strong, with some corroborative evidence in terms of other students entering the applicant’s living quarters and, in TR’s case, evidence from JM about a conversation in 1967 which had the flavour of a contemporaneous complaint combined with JM later seeing the applicant take TR to his room: at [62]. However, the Crown’s reliance on tendency evidence brought into sharp focus the difficulties with the applicant’s ability to defend himself due to the extreme delay: at [63]. Her Honour agreed that the jury could be given a s 165B direction, which would go some way to addressing the prejudice caused by the absence of records. Her Honour accepted that it was not possible for the jury to be directed about the matters that, in the applicant’s submission, would have thrown significant doubt on the credibility and reliability of TR’s evidence but considered this to be of some but not critical significance: at [64]. Her Honour concluded at [65]:

23. [66]

    The applicant did not contend that the trial judge had proceeded on any misapprehension as to the principles to apply when considering an application for a permanent stay of a criminal prosecution. In La Rocca v R [2023] NSWCCA 45; 306 A Crim R 301 at [34], Bell CJ (Davies and N Adams JJ agreeing) summarised those principles, describing them as uncontroversial:

24. [67]

    In Dupas at [37], the Court observed that fairness to an accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed. A further consideration “is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial”, a permanent stay being tantamount to a continuing immunity from prosecution.

25. [68]

    As the applicant acknowledged, the allegations against him were serious. The substantial public interest in disposing of those allegations on their merits cannot be gainsaid.

26. [69]

    However, the applicant submitted, the delay in his case was productive of not merely presumptive but actual prejudice, with the combination of circumstances and choices leaving him to give evidence denying the incidents without evidence that could have corroborated his denials, and without evidence that would likely have cast doubt on the credibility of TR’s evidence. The applicant emphasised in this respect the unavailability of school and other records that could more directly have addressed central issues in the trial, including whether TR started at TAS in year six or first form, where the applicant was living in winter of 1964, and whether the applicant owned a vehicle when he was at TAS.

27. [70]

    The applicant submitted that far from ameliorating such prejudice, the trial judge’s comprehensive direction under s 165B of the Evidence Act highlighted the extent of the unfairness and injustice to which he was exposed. The resulting prejudice was not remedied by her Honour directing the jury to give the prosecution case “most careful scrutiny” and was, to a significant extent, incurable.

28. [71]

    As Adamson JA observed in Gardiner 2023 at [115], it is not uncommon for relevant material to be unavailable at the time of trial, and the fact that “a tribunal of fact must determine issues of fact upon a subset of the once available evidence does not make the trial unfair”, citing The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31]. However, there is no question that the delay in the present case was, as the trial judge described it, “extreme”. Her Honour’s s 165B direction encapsulated the range of difficulties that the delay had on the ability of the applicant to defend himself, both in terms of “testing the prosecution evidence and also by bringing forward evidence in his own case which could lead to a reasonable doubt about his guilt”. As her Honour identified in the direction, those difficulties included:

    1. (1)

       the possibility of distortion in human recollection, including “the witness’ capacity to remember events that occurred nearly 60 years ago, including the specifics of conversations”;

    2. (2)

       the applicant’s limited capacity to check the evidence of the complainants and other Crown witnesses against independent sources so as to verify or disprove it, by reason not only of the passage of time but also the associated inability of the witnesses to recall precise details of the circumstances surrounding the incidents of which they gave evidence; and

    3. (3)

       the inability of the applicant to find witnesses or items of evidence “that might have either contradicted the complainants, or supported his case, or both”.

29. [72]

    As the trial judge observed to the jury, the latter was “a particularly pertinent aspect of the extremely long delay here”. Her Honour provided the jury with a non-exhaustive list of sources from which the applicant had lost the opportunity to bring forward evidence by reason of the delay. As I noted above, the unavailability of certain witnesses, records, and kinds of records, was the subject of agreed facts in the trial. The list her Honour provided in her summing up was as follows:

30. [73]

    As the trial judge’s s 165B direction made clear, this was a case in which the applicant had lost the opportunity of obtaining evidence from a wide range of sources. The point of the direction was to neutralise the resulting prejudice, highlighting for the jury the extent of the opportunity that the applicant had lost as a result of the passage of time, and the corresponding need to scrutinise the prosecution case in the manner for which the applicant contended.

31. [74]

    Her Honour’s direction in this regard reflected the submissions advanced on behalf of the applicant in closing. Senior counsel for the applicant at trial had emphasised the impact of the passage of time on witness evidence, as well as the absence of records, as part and parcel of the forensic disadvantage under which he was operating in the trial. As senior counsel submitted at the outset of his closing address:

32. [75]

    Senior counsel’s closing picked up on the features of the witness’ evidence that her Honour ultimately identified in her s 165B direction as arising from the delay. For example, senior counsel emphasised that TR did not make any allegations until 55 years after the event. By the time he said anything, TR had been made aware of allegations that PS had made in 2000, and both he and PS met and/or had conversations with each other and a number of other individuals before giving evidence. Senior counsel submitted that the jury should be very careful before accepting anything that TR or PS said as being their own independent ideas and memories “because they have both had extensive communications that were likely to influence them”.

33. [76]

    In addition to identifying difficulties at this more general level, the applicant was able, at least to some extent, to test the accounts given by TR and PS in relation to the counts on the indictment. In relation to count 2, for example, senior counsel emphasised a number of difficulties with TR’s claim that the applicant was his maths teacher in 1964, including:

    1. (1)

       the absence of any school records suggesting that this was the case;

    2. (2)

       the evidence that suggested that TR was in sixth class in 1964 rather than high school, in particular the evidence of AW, who said that he and TR were in the same year at TAS and that he was in sixth class in 1964 (with which TR initially agreed in his evidence); and

    3. (3)

       the absence of any connection on the part of the applicant to Dangar House at any time, with only one witness giving evidence to the contrary.

34. [77]

    The available documentary record supported that AW was in sixth class in 1964, with the school magazine for 1963 recording him as having won a prize for fifth class. Senior counsel submitted to the jury that in so far as both TR and AW later said that they were in first form in 1964, they did so on the basis of reconstruction and not from recollection.

35. [78]

    Additionally, senior counsel pointed to issues with TR’s recollection of the circumstances surrounding count 2, in particular that it occurred in a weatherboard cottage (AW having given evidence that the building in which the applicant lived at that time might not have been weatherboard and might have been brick, as the applicant contended), and that on TR’s evidence it occurred in winter of 1964 (the applicant having given evidence that he had moved off campus around Easter of that year). Senior counsel emphasised the evidence of Mr Grant, who remembered the applicant living off campus in 1964, and noted that Mr Grant “is a totally independent, sound source of knowledge on nearly everything”. Senior counsel also submitted that the applicant’s evidence that he lived with a man named Vic during the winter of 1964 was consistent with the electoral roll records for 1963 and 1977 which indicated that a Victor Johnson lived at an address at the western end of the park immediately outside the gates of TAS.

36. [79]

    As to count 3, which involved the applicant taking TR from a dormitory to his rooms behind White House and anally raping him, senior counsel sought to undermine TR’s credibility by reference to a late disclosure he made to lawyers with the Office of the Director of Public Prosecutions, shortly before he gave evidence in the first trial. TR said on that occasion, for the first time, that the incident took place within two days either side of a full moon, initially telling lawyers that the full moon in question was in August 1964 before saying it was July 1964, having looked up historical lunar records on Google. Senior counsel submitted:

37. [80]

    Senior counsel carried the submission about TR’s credibility through to his address on counts 4 and 5. He emphasised again that there was no documentary support for the claim that the applicant was TR’s maths teacher in either 1965 or 1966, which left the jury to rely “upon the say so of people who are talking about things that happened 50 or 60 years ago”. As the applicant was by this time living in the main building at TAS, senior counsel pointed to the evidence showing that it was on a stairway going up to a dormitory housing some 20 boarders along with a couple of prefects or monitors, and that a back door to Mr Cash’s living quarters was just 2-3 metres from the applicant’s door. As to count 4, for example, senior counsel submitted:

38. [81]

    In addition to giving the jury the s 165B direction, the trial judge summarised senior counsel’s closing address in her Honour’s summing up. In so doing, her Honour again called attention to the submissions about the effect of the delay on the state of the evidence, and the associated difficulties the applicant submitted that the jury should have in being satisfied beyond reasonable doubt about the extremely serious offences that the applicant was accused of committing.

39. [82]

    In support of the application for the permanent stay, the applicant also relied on his age and the unchallenged opinion of Dr Roldan, to which I have referred above at [57]. He submitted that even if his evidence at trial was not affected by age-related cognitive impairments, the fact that he was 86 years old would have been very obvious to the jury, including because he was wearing a hearing loop that caused feedback and noise, and appeared to have affected the volume of his voice. The applicant submitted that the applicant’s age would have adversely impacted the jury’s assessment of the reliability of his evidence about events of 60 years ago.

40. [83]

    The only particular part of the transcript to which the applicant called attention in his submissions was at the start of the third day of his evidence, when senior counsel raised the following matter:

41. [84]

    As the respondent submitted, no such request was subsequently made, and no issue arose during the balance of the cross-examination. The applicant did not draw the Court’s attention to any part of his evidence where he appeared less than lucid. To the contrary, and including after the above exchange, the applicant responded to the questions asked of him in a manner that demonstrated his understanding of what was being asked without any confusion on his part, or otherwise clarifying what was being asked before answering. Having carefully reviewed the transcript and parts of the recording of the applicant’s evidence (for the purposes of ground 2), I am not satisfied that any decline in his executive functioning jeopardised the overall fairness of the trial by depriving him of the opportunity to give effective or beneficial evidence.

42. [85]

    The final aspect of the appeal on the refusal of a permanent stay was the unfairness that the applicant was alleged to have suffered at trial because of the manner in which the Crown prosecutor cross-examined him, putting various witnesses’ evidence to him for his comment. The applicant submitted that the manner of cross-examination was relevant to ground 1 in so far as it gave the appearance that the evidence in the case was all one way. The applicant’s responses were, he submitted, wrongly portrayed by the Crown prosecutor as the only evidence of an alternative possibility without also highlighting the large body of evidence which could have supported the applicant’s case and which was unavailable and could not be considered, through no fault of the applicant.

43. [86]

    The manner in which the Crown prosecutor cross-examined the applicant is the subject of ground 2, by which the applicant contended that the Crown prosecutor’s approach gave rise to a miscarriage of justice. Although I have concluded that ground 2 is made out, I do not consider that the prosecutor’s erroneous approach confirmed that a permanent stay should have been granted, as the applicant submitted.

44. [87]

    Having regard to the way in which the trial was conducted, the evidence and arguments that remained available to the applicant, and the directions that the trial judge gave the jury, I am not satisfied that the present case was one that warranted the extraordinary remedy of a permanent stay notwithstanding the extreme nature of the delay and the presumptive prejudice that arose therefrom. As I have explained above, the applicant was in a position to identify for the jury the potential relevance of unavailable witnesses and evidence, and to run a case in which the evidence on which the Crown relied could be meaningfully challenged. These were matters which could appropriately be weighed by the jury in determining whether it was satisfied of the applicant’s guilt to the criminal standard. The trial judge was correct to so conclude. Accordingly, although I would grant leave to appeal on ground 1, I would dismiss the ground.

Ground 2: a miscarriage of justice was occasioned by the Crown prosecutor’s cross-examination of the applicant

1. [88]

   The detailed manner in which Dhanji J has addressed this ground enables me to state my reasons briefly. I agree with his Honour’s comprehensive analysis of the cross-examination of the applicant and the numerous vices that it disclosed.

2. [89]

   As his Honour observes at [231], the more egregious breaches in the cross-examination were isolated while the less egregious breaches were an almost constant feature. Of particular concern was the Crown prosecutor:

   1. (1)

      repeatedly putting to the applicant the evidence of a witness on a particular issue, and sometimes the evidence of more than one witness,

   2. (2)

      asking the applicant, in effect, to confirm that he heard or recalled the evidence, and then

   3. (3)

      putting one or two questions to the applicant to which his answer could only be a denial or confirmation of his denial. These latter questions were often to the effect of “but you deny that” or “but you disagree with that”. On occasion these questions commenced with the words “of course”.

3. [90]

   Annexure B to the applicant’s submissions identified, by reference to the transcript of the District Court proceedings, some twenty instances of the Crown prosecutor adopting this approach, which Dhanji J has examined. Four of the six parts of the transcript that the applicant submitted the Court should listen to, after the respondent made the audio of the cross-examination available and tendered it, involved this repeated form of questioning. In one of those passages, the respondent on the appeal accepted that the Crown prosecutor adopted a tone of ridicule, to which the applicant’s senior counsel at trial objected.

4. [91]

   Senior counsel for the respondent on the appeal variously described the Crown prosecutor’s approach in putting the evidence of other witnesses to the applicant as repetitive, cumbersome and inelegant, but submitted that it did not rise to the level of miscarriage. He accepted it was unnecessary but submitted that it was not done with any particular design and was not inherently prejudicial. The form of the question that came at the end of such recitations was also not of itself objectionable.

5. [92]

   Like Dhanji J, I have listened to the parts of the audio that the applicant submitted should be listened to. I agree with his Honour that the respondent did not establish a basis for listening to more than that. Nonetheless, undertaking the exercise of listening to the portions the applicant identified resulted in my listening to parts of the cross-examination that exceeded those passages. Of what I listened to, the tone of the questioning was not of itself of concern, and supported the respondent’s submissions both as to tone and the absence of any design on the part of the Crown prosecutor in terms of the method of questioning he adopted. Further, as Dhanji J has pointed out in relation to questions concerning the witness AW (see [171]-[172] below), the Crown prosecutor’s cross-examination of the applicant was not wholly to the Crown’s forensic advantage, as the applicant’s counsel obtained the opportunity to require the Crown prosecutor to put additional evidence of AW to the applicant.

6. [93]

   That the approach may not have been by design, or that other cases involved far more egregious conduct on the part of Crown prosecutors, as the respondent submitted, does not engage squarely with the issue on ground 2. What is in issue on this ground is the effect of the cross-examination, viewed as a whole, in the particular circumstances of this case.

7. [94]

   In assessing the cross-examination in this regard, I am very mindful that the applicant had the benefit at trial of highly experienced senior counsel. The absence of more extensive objection (noting that objection was ultimately taken to the manner of questioning that is of most concern) has caused me the most difficulty in resolving this ground, mindful as I am of the authorities that Dhanji J has canvassed. Having carefully assessed the cross-examination, and given significant weight to the absence of more extensive objection, I have reached the same conclusion as Dhanji J.

8. [95]

   The conduct the subject of the charges was alleged to have taken place some 60 years before the trial. As the trial judge observed in the direction her Honour gave the jury pursuant to s 165B of the Evidence Act, the extreme delay adversely impacted the applicant’s ability to defend himself, in terms of testing the prosecution evidence and bringing forward evidence in his own case. The matters identified in the s 165B direction exemplified the difficulties associated with delay in this case, including its impact upon the recall of witnesses who were available, and the absence of witnesses and documents which limited the applicant’s ability to contradict the prosecution’s evidence or otherwise support his account. The circumstances called for a cross-examination that was alive to those difficulties and the risks they created in terms of the jury engaging in impermissible forms of reasoning, in particular reversing the onus of proof.

9. [96]

   The repetition of significant parts of the evidence in the prosecution case — of the complainants and tendency witnesses, and witnesses who corroborated aspects of their accounts — and asking the applicant to agree that such evidence was given, downplayed the extent and potential significance of the unavailability of other witnesses and documents. The questions following each recitation, to the effect of “but you deny that” or “but you disagree with that”, even if neutral in tone, left hanging what was inherent in the preceding, at times extensive, repetition of prosecution evidence. I agree with Dhanji J that the cross-examination unfairly created the impression that the prosecution case was unanswerable or that the applicant otherwise bore an onus to negate the prosecution evidence, focusing as it did on the absence of explanation from the applicant in circumstances where the passage of time had rendered so much unavailable.

10. [97]

    Considering the cross-examination as a whole, including the more egregious breaches on the part of the Crown prosecutor which were fewer in number, the Crown prosecutor’s cross-examination of the applicant was productive of unfairness that “could realistically have affected the reasoning of the jury to their verdicts”: Brawn at [10]. I would uphold ground 2. For the reasons given by Dhanji J, the matter should be remitted to the District Court.

Conclusion

1. [98]

   I agree with the orders proposed by Dhanji J.

2. [99]

   DHANJI J: I have read Mitchelmore JA’s reasons in relation to ground 1. I agree for the reasons her Honour gives that Ground 1 must be dismissed. I gratefully adopt her Honour’s recitation of the background to the appeal for the purposes of my reasons in relation to ground 2 of the proposed appeal.

Ground 2 – a miscarriage of justice was occasioned by the Crown prosecutor’s cross-examination of the applicant

1. [100]

   The applicant gave evidence and was cross-examined for some hours. The applicant, by this ground, does not submit that any particular question, or any single response in that cross-examination resulted in a miscarriage of justice. Rather, it is submitted that the cumulative effect of impermissible questions occasioned a “miscarriage” within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW). That is, the questioning departed from proper standards so as to constitute an irregularity, the effect of which was material, and thereby a miscarriage. This will occur where the “irregularity could realistically have affected the reasoning of the jury to a verdict of guilty”: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [10]; see also MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [89].

2. [101]

   Having regard to the manner in which the ground is framed it is necessary to have regard to the cross-examination in its entirety. Whether the cross-examination viewed wholistically resulted in a miscarriage of justice involves a question of degree: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 (“Libke”) at [2] (Gleeson CJ). As Gageler J put it in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [112], referring to the reasons of Deane J in Jago v District Court (NSW) (1989) 168 CLR 23 at 57; [1989] HCA 46, “[f]airness … is a standard not a rule”.

3. [102]

   It will, in due course, also be necessary to have regard to the extent to which objection was taken during the trial and the significance, or otherwise, of the absence of any application to discharge the jury. Before doing so, however, it is necessary to determine the extent to which regard should be had to the sound recording of the cross-examination provided by the respondent on the appeal.

4. [103]

   In response to the applicant’s submissions the respondent provided the sound recordings of 30 April and 1 May 2024 and submitted that the Court should listen to the entirety of the prosecutor’s cross-examination of the applicant before accepting the applicant’s ground to be established. In response the applicant provided a list setting out limited passages to which the applicant submitted it was necessary for us to listen. With respect to these passages the applicant submitted that listening was necessary in order to understand matters not evident from the transcript alone, in particular, the manner and tone adopted by the prosecutor at certain stages of the cross-examination.

5. [104]

   Despite the applicant having isolated relevant parts of the cross-examination where it was said the transcript alone was insufficient, at the hearing the applicant submitted that if the respondent required the Court to listen to the entirety of the cross-examination we were obliged to do so.

6. [105]

   After reserving our decision, the Court sought further submissions from the respondent on the issue of whether the Court should listen to the entirety of the cross-examination, to which the applicant was given a right to reply. The Court’s request for further submissions was informed by the limited submissions it had received on the issue prior to and at the hearing, and the length of the cross-examination we were asked to listen to which is close to three hours in total.

7. [106]

   The respondent maintained its submission that the Court should listen to the whole recording. The applicant submitted that listening to the selected parts of the cross-examination he had previously identified together with the transcript of the whole of the cross-examination was sufficient for him to establish a miscarriage.

8. [107]

   The principles are clear. The Court, in exercising the appellate function under s 6(1) of the Criminal Appeal Act may listen to the recording provided that the Court is satisfied that that there is a “‘real forensic purpose’ for doing so”: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 (“ZT”) at [18], referring to Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Further, “the appellate court can expect the parties to identify whether there is a real forensic purpose for the appellate court” to itself listen to or watch an electronic exhibit or exhibits: ZT at [20]. In the event that a persuasive reason is established I accept that the Court should listen to the recording. The identification by the applicant of passages where it is submitted the manner and tone of the questioning, not discernible from the page, supports his complaint under ground 2, is a sufficient identification of a forensic purpose. I have, accordingly, listened to those parts of the evidence.

9. [108]

   The primary submission made on behalf of the respondent in support of the contention we should listen to the entirety of the cross-examination was that the tone of the impugned passages could not be assessed in isolation from the tone and manner generally adopted. I accept that the degree to which the prosecutor departed from his “usual” manner may have affected the impact of the impugned passages, but as a general proposition, I do not accept that it could impact the boundaries of what is or is not acceptable. For example, unacceptable cross-examination could not become acceptable because the prosecutor was generally very close to the line throughout the whole of the cross-examination.

10. [109]

    As it happens, I have listened to parts of the recording beyond those isolated by the applicant, for no other reason than the difficulty of isolating the identified parts when playing them on a computer. Those additional parts have provided something of a sample. Of course I do not know how representative a sample that was (and nor did the Court receive more refined assistance such as by providing a reference to what could properly be considered a representative sample). In the circumstances, all I can safely say is that the applicant did not suggest that his case was assisted by listening to those parts of the questioning not isolated by him, and the absence of such a submission is consistent with what I heard.

11. [110]

    The respondent relied on the fact that submissions were made by the applicant with respect to the propriety of passages of the cross-examination beyond those passages we were asked by the applicant to listen to. That is undoubtedly correct, however the applicant did not suggest that there was anything that could be perceived by listening to those parts of the recording that would assist his submission. The respondent does not need to meet a case that has not been brought. Nor is it necessary for the Court to listen to hours of evidence for respondent to do so.

12. [111]

    The respondent submitted that, by listening to the whole of the cross-examination, we would be assisted in determining whether particular pauses in the questioning in the passages we were asked to listen to by the applicant were, as the applicant contends, done for rhetorical effect. It was submitted that listening to the whole recording would establish that the prosecutor paused on other occasions in the cross-examination such that no inference as to the purpose of him doing so in the impugned passages could be drawn. That logic is questionable. The prosecutor may have had a tendency to pause, or alternatively he may have commonly employed what he regarded as an effective rhetorical technique. The pauses may be attributable to a mixture of both. This problem, however, is more one for the applicant. While, as pointed out by the applicant, several long pauses were discernible in the passages isolated by him and to which I have listened, I am quite unable to determine anything untoward in those pauses in the cross-examination. If anything, the impression I gained is that the pauses gave the applicant time to compose himself between questions. That this is very much a matter of impression brings home the point that drawing anything from the pauses, in this case at least, is in the realms of speculation.

13. [112]

    The respondent also submitted that it was necessary to listen to the whole recording to assess the significance of the absence of objections, a matter the applicant, necessarily, sought to downplay. It was submitted that “the Court should not give less weight to the absence of objections without listening to [the whole of] the recording to consider whether the absence of objections reflects defence being put in an invidious forensic position, as the applicant contends, or whether it reflects a reasonable assessment by [the applicant’s senior counsel] that the cross-examination was not unfair”. Again, the logic of the submission is difficult to follow. The extent of the objections made, and the absence of any application for discharge of the jury, are evident from the transcript. Those matters are relevant to the assessment of the ground and will be considered in accordance with orthodox principles.

14. [113]

    The final submission made by the respondent was that listening to the entirety of the recording in this case would not necessarily result in the Court having to do so in other cases. That may be right. It does not, however, bear on the question of whether there is a real forensic purpose for listening to the whole of the recording in this case. The forensic purposes for listening to the whole recording identified by the respondent were “not persuasive in the circumstances” of this case: ZT at [20]. As a result I declined to do so.

15. [114]

    It is necessary then to consider the various passages relied on by the applicant said to give rise to prejudice. Where I have listened to a particular part of the questioning I will provide any relevant insight achieved by that process. Before doing so, however, given the issue in play, it is helpful to set out some general observations as to the role of a Crown prosecutor.

16. [115]

    There is an asymmetry in the process that leads to an accused being put on trial for a criminal offence. The State, which brings the charge, will almost always have significantly greater resources at its disposal and will, prior to, and potentially after charge, utilise what can be extensive investigatory powers that are not available to an accused. Significant features of the trial process which address the imbalance are the onus and standard of proof, the duty of disclosure, and, not unrelated to the duty of disclosure, the obligations beyond those that apply generally to barristers and solicitor advocates that are placed on those who prosecute on behalf of the Crown. This ground is concerned with this last matter.

17. [116]

    The principles, long regarded as “well settled” were summarised by Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42:

18. [117]

    In Libke, Hayne J said, at [71]-[72]:

19. [118]

    It is not possible to lay down rules capable of mechanical application setting the limits of proper cross-examination, including cross-examination of an accused on behalf of the Crown. What is permissible by way of questioning is, at least to some extent, governed by s 41 of the Evidence Act 1995 (NSW) which provides:

20. [119]

    Whether a question asked of a witness is contrary to s 41 is a matter which calls for a judgment to be made. That judgment, necessarily affected by questions of degree, is informed by the principles developed in the cases predating the Evidence Act. I am inclined to the view that questioning which falls foul of what is permissible based on those principles will inevitably amount to a breach of s 41, by being, for example “unduly … oppressive”, or put in a “manner or tone” that is “inappropriate”. Whether or not s 41 is the exclusive test for the limits of what (and in what manner) questions in cross-examination may be put, recourse to established common law principles is required.

21. [120]

    What can be said with respect to s 41 is that relevant conditions and characteristics of the witness must be considered in making the determination. That has potential significance here, given the applicant’s age and the evidence on the stay application as to his capacity. Also significant is that a duty is imposed on the court to disallow an improper question or inform the witness that it need not be answered independently of any objection, albeit any answer to an improper question is nonetheless admissible: s 41(6). The result at least is similar to the general approach to the admissibility of evidence under the Evidence Act, whereby in the absence of objection to a question, the evidence given in response is admissible: see Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89.

22. [121]

    Whether it be through the prism of s 41 or more generally, there can be no doubt that particular constraints apply to the conduct of a Crown prosecutor. Those principles have been discussed above. There is a difficulty, however, in translating general principles into inflexible rules as was made clear by the in Roulston [1976] 2 NZLR 644 at 654 where the Supreme Court of New Zealand said:

23. [122]

    This passage has been referred to with approval in this Court on numerous occasions: see Glenn v R [2020] NSWCCA 308 at [198]; Rugari v R [2001] NSWCCA 64; 122 A Crim R 1 at [47].

24. [123]

    In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 (“Hughes”) at [266]-[275] this Court (Beazley P, Schmidt and Button JJ) provided a helpful summary of the principles which apply to the conduct of Crown prosecutors:

25. [124]

    It is against the principles as developed in the case law that various passages in the cross-examination the subject of criticism by the appellant are to be examined. It is necessary to say something more as to these principles in the context of particular features of the cross-examination which took place here.

26. [125]

    A significant aspect of the complaint on appeal is that, in the course of cross-examination the applicant was repeatedly taken to, and reminded of, evidence given by prosecution witnesses. Doing so is not inherently wrong. Questions which, by reference to the evidence given by a prosecution witness on the subject, simply direct the accused to a particular allegation or subject matter for the purposes of obtaining their evidence on a subject will generally be unobjectionable. Particularly in cases where there are multiple allegations, it will commonly be necessary to orient the witness as to the subject matter of the question: Hughes at [277].

27. [126]

    Questions which refer to the evidence of a prosecution witness, however, fall into a number of categories. At the most extreme are questions which take the accused to the evidence of a prosecution witness and ask the accused why, or whether they know of any reason why, the witness is lying. Such questions are impermissible. They tend to invert the onus of proof: Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 (“Palmer”). Further, whether a prosecution witness is lying will generally not be a matter in the accused’s knowledge. Beyond those matters, a question of this type is unfair in its effect: see Charles (a pseudonym) v R [2022] VSCA 166 (“Charles”) at [34]-[39]. The applicant in the present matter was not asked why a prosecution witness was lying, or if he knew of any reason why the witness might lie.

28. [127]

    While the applicant was not asked if a prosecution witness was lying, he was asked on occasion if, with respect to particular evidence given by a witness, he was saying the witness was “wrong”. On one occasion he was asked if his evidence was that both of two prosecution witnesses were wrong. On other occasions he was asked to acknowledge particular evidence given by a prosecution witness and asked what he said about that evidence. Given the issues joined, that form of question was the equivalent of asking whether he said evidence given by a particular witness was wrong, but in non-leading form.

29. [128]

    Asking whether particular evidence given by a prosecution witness is wrong does not have the explicit vice of reversing the onus of proof. Nor does it seek an answer that is not within the witness’s knowledge. The parties took different positions as to whether it was objectionable, each referring to authority. Analysis of the authorities to which we were referred however, establishes that the courts have drawn a line between questions which require the witness to address what is in the mind of another witness, typically by putting a question to the effect of “so you say X is lying?” and questions which ask whether what another witness has said is true, the former being impermissible, the latter not: R v Booty (Court of Criminal Appeal (NSW), 19 December 1994, unrep) (“Booty”); Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232 (“Gonzales”) at [147], [149]; JG v R [2014] NSWCCA 138 (“JG”) at [418] (Hall J); R v Buckley (2004) 10 VR 215; [2004] VSCA 185 at [15]; ZBJ v The King (No 2) [2025] NSWCCA 187 (“ZBJ”) at [261]-[263]; see also R v Davis [2007] VSCA 276 (“Davis”); Charles; R v Foley (1998) 105 A Crim R 1 at 8.

30. [129]

    Questions which ask whether the evidence of another witness is wrong fall between the two categories demarcated above. In Gonzales, Giles JA appeared to regard, at least in the circumstances of that case, such a question as functionally equivalent to asking if the evidence of the prosecution witness was true. His Honour, having discussed the authorities said, at [151]:

31. [130]

    The respondent relied on the above, and subsequent cases citing Gonzales with approval (JG, ZBJ), to submit that it is permissible to ask whether the evidence of a prosecution witness is right or wrong. Closer analysis of the authorities is required before accepting this as a general proposition.

32. [131]

    In North Australian Territory Company v Goldsborough Mort & Co [1893] 2 Ch 381 at 385, Lord Esher said, in relation to certain evidence taken on commission:

33. [132]

    In R v Praturlon (Court of Criminal Appeal (NSW), 29 November 1985, unrep) (“Praturlon”), Street CJ (with whom O’Brien CJ of Cr D, and Slattery CJ at CL agreed) set out the above passage and stated the “principle is, I repeat, elementary and is fundamental to the fair and proper conduct of a cross-examination”. The Chief Justice had earlier observed:

34. [133]

    The actual cross-examination in Praturlon, as set out in the judgment, did not expressly ask whether another witness was lying or even whether their evidence was wrong. It only went so far as putting that the three prosecution witnesses had given evidence of a disputed fact on oath and then asking another witness what they said about that evidence. This was described as questioning “so as in effect to invite a witness to express an opinion as to whether other witnesses are telling the truth”, and for that reason to be impermissible. While impermissible, and warranting “strong condemnation”, the questions in Praturlon did not occasion a miscarriage of justice as a result of the manner in which the witness (not the accused) was able to deal with the questions.

35. [134]

    In Booty, Grove J (with whom Abadee and Simpson JJ agreed) said:

36. [135]

    Insofar as his Honour approved of questions which ask an accused whether they know of any reason why another witness should have a motive to give evidence against them, it is doubtful this remains good law. It involves a reversal of the onus of proof and is thus contrary to the subsequent High Court authority in Palmer: see Gonzales at [148]. Insofar as the subsequent authorities in this Court of JG and ZBJ accepted this proposition, citing R v Leak [1969] SASR 172, they should, in my respectful view, be treated with caution.

37. [136]

    What remains good law from Booty, consistent with Praturlon and North Australian Territory Company v Goldsborough Mort & Co is that it is impermissible to “to put to one witness that his evidence is to the contrary to that of others and thus impliedly invite comment on the reasons for contradiction”. As is clear, the vice is in the effect of the question. That is, it is not necessarily impermissible to ask whether the evidence of another witness is wrong. What is not permitted is to do so in such a way as to “impliedly invite comment” as to why that witness is wrong. Thus understood, there is no necessary conflict between Booty and what was said by Giles JA in Gonzales at [151], noting in particular Giles JA’s extensive discussion of the authorities included both Praturlon and Booty. Nor is there any conflict in this regard with the later authorities of JG and ZBJ.

38. [137]

    It follows that the permissibility of asking an accused if a prosecution witness is wrong is not determined by any precise and inflexible rule. What is required is an examination of the effect of the particular question or questions, in the context of the questioning generally and the evidence in the trial, viewed against the applicable principles. On occasion a question as to whether a prosecution witness is wrong may be desirable to obtain clarity with respect to an issue.

39. [138]

    That said, my own view is that putting a question asking whether a prosecution witness’s evidence is wrong will usually be unnecessary and will commonly be fraught with risk, given the potential implication (even if unintended) that the accused should not be believed should they be unable to explain why the particular prosecution witness has given false evidence. The accused can more easily be asked a question directly as to the facts, rather than as to what another witness says about the facts. Indeed, this begs the question as to why a prosecutor would choose, as the prosecutor did here, to put a question in a less direct form by inviting the accused to comment on whether the evidence of another witness was wrong. To me it seems the only rational answer is that the questioner perceives a forensic advantage. The advantage is that the question leaves hanging why it would be that the prosecution witness’s evidence is wrong, as Grove J suggested in Booty. This is in a context where the evidence of an accused will generally serve their own interest in a way that the evidence of a complainant (typically) does not. In this context, such a question is very likely to imply that, absent the accused being able to provide an explanation as to why the particular witness is wrong, that witness’s evidence should be preferred. That being the case, such questions are likely to carry, implicitly, the same vice as prohibited questions as to whether or why a complainant is lying.

40. [139]

    Before leaving this issue I pause to note the view has been expressed that simply asking if the evidence of a prosecution witness is true may be problematic. In Davis, Coldrey AJA said, at [38]:

41. [140]

    As discussed above, however, current and consistent authority in this Court, including at least ZBJ, JG, Gonzalez and Booty, is clear that a witness, including an accused, can be asked if what another witness has said is true. These authorities were not challenged and I would not depart from them.

42. [141]

    Beyond the prosecutor asking the witness if particular evidence was wrong, as noted above, the applicant complains that the applicant was repeatedly asked questions which repeated the detail of evidence given by a prosecution witness.

43. [142]

    The respondent submitted that, as acknowledged above, referring to the evidence of a prosecution witness is not inherently wrong. As the respondent also pointed out, in the present case, the technique was first used when the applicant was asked questions in examination-in-chief. The respondent relied on this as demonstrating the absence of any problem in the prosecutor adopting a similar approach. It is convenient to deal with this submission by first considering the examination-in-chief where the applicant was taken to the evidence of prosecution witnesses that he then contradicted.

44. [143]

    In the remainder of these reasons, where questioning is reproduced I have included underlining to indicate the repetition of prosecution evidence and have used italics for otherwise, at least arguably, problematic aspects of a question.

45. [144]

    There was evidence in the Crown case of the applicant having read the palms of students. In examination-in-chief the following evidence was given:

46. [145]

    While the questions reminded the jury of particular evidence given by prosecution witnesses, what was done was far from inept or unhelpful to the applicant. The applicant’s counsel was faced with the difficult reality that, contrary to his instructions, two separate witnesses had given evidence of the applicant reading their palms. The technique engaged above sought to deal with this damaging fact by having the witness (the applicant) deny the evidence of the first witness. The questions that followed established (or at least sought to establish) the reasons why that witness was wrong. Following those questions, he was asked about the second witness. Given what had already been said, it followed that that second witness must also have been wrong. Further, the applicant’s counsel went on to elicit answers that explained that there was another teacher who did read palms. This provided a basis on which both witnesses might have been mistaken in their evidence. Faced with difficult evidence, it was a skilful series of questions.

47. [146]

    At another point in the examination-in-chief the applicant was taken to the evidence of KZ to the effect that the applicant had visited him on a farm in South Australia and was asked if that evidence was correct. The applicant said it was not correct. That answer was given after a series of questions which established (if accepted) that the applicant had not travelled to South Australia by any means. Again, the question was put to demonstrate that, given the preceding evidence of the applicant, KZ must have been wrong in his evidence (a problem counsel was going to have to confront sooner or later).

48. [147]

    Notably, while the applicant was directed to parts of the evidence as discussed above, this did not involve any sexual activity, substantially reducing any downside. That was not the case, however, with respect to the evidence-in-chief dealing with the first allegation of TR. The following evidence was given:

49. [148]

    These questions, on their face, involved a detailed repetition of a damaging allegation. Senior counsel’s reason for doing so is, however, readily apparent. On the applicant’s case, he never lived in a weatherboard cottage on the school grounds. There may have been some substance to his case in this regard. The evidence given by the applicant immediately before the evidence set out above involved the applicant being taken to photographs of the weatherboard cottage and his emphatic denial that he had ever lived there. Importantly, there was evidence of emails between TR and others in which participants sought to gain clarity as to the various school buildings including the particular cottage. Counsel was ultimately able to address the jury:

50. [149]

    The technique employed in the examination-in-chief was, in essence, to place the complainant’s certainty as to the allegation, including its detail, next to his certainty with respect to where he said it occurred. By establishing that the apparent certainty with respect to the complainant’s memory of the building was unjustified, it followed, on the applicant’s case, that TR’s purportedly clear recollection of the allegation, in all its detail, could not be relied upon. This was, again a sound forensic approach.

51. [150]

    There were other occasions on which questions asked in chief referred to evidence given by a prosecution witness. These were generally in the nature of references which conveniently directed the applicant to the subject of the question and do not require further examination here.

52. [151]

    The manner in which questions were asked in chief were all justified by a legitimate forensic purpose. The questions asked in chief can provide no justification for any relaxation of what was to be expected of the cross-examiner.

53. [152]

    The applicant’s cross-examination commenced shortly after morning tea on 30 April 2024 and continued until shortly before morning tea the next day and occupies approximately 60 pages of transcript. It is not possible in a judgment to convey a precise sense of the impression gained from reading the entirety of that transcript. In an attempt to convey some impression of the complaints and their cumulative effect it is necessary to set out significant portions of the questioning. This has been done in the order in which the issues arose. It will be necessary in due course to return to some of the principles discussed above and their application to the particular questioning in this case.

54. [153]

    The first subject raised by the prosecutor in cross-examination related to a former teacher called Mr Holmes. There was evidence in the Crown case that, as a result of the departure of Mr Holmes, the applicant took over housemaster duties at Dangar House. It was the Crown case that he then took advantage of that position to sexually abuse TR. The time at which Mr Holmes left the school was, consequently, relevant to the opportunity that the applicant had to commit offences against TR at the time at which TR said the offences occurred based on his academic year. The departure of Mr Holmes was not relevant to the Crown case beyond that issue. Against this background, the applicant complains about his cross-examination on this subject. The very first questions put in cross-examination (which were identified by the applicant as a passage to which we should listen) were as follows:

55. [154]

    On its face this appears to have been an inauspicious start to the cross-examination of the applicant. There was no issue as to the identity of Mr Holmes and consequently no need to ask what his first name was. While there had been reference in pre-trial argument to Mr Holmes having had the nickname “Homo Holmes” there had, up until this point, been no reference to this in the trial. Given this, it may have been thought by the questioner that the first question asked in cross-examination would be effective in having the jury sit up and take notice. This was likely correct. That interest was likely maintained by the further questions probing the relationship between the applicant and Mr Holmes and what the applicant knew of the reasons for his departure.

56. [155]

    Following the questions set out above, the applicant was questioned as to his own role, and in particular, him taking over as housemaster at Dangar House on Mr Holmes’ departure. This was directly relevant to the allegations against the applicant. After a short time, however, the prosecutor returned to the subject of the reason for Mr Holmes’ departure. Questions were asked about whether anyone else had told the applicant about why Mr Holmes left. It is not clear what purpose this served as the applicant had already given evidence he had been told the reason for Mr Holmes departure by Peter Steward (often referred to in transcript as Mr Stewart) in 1964. The questioning on the subject culminated with the following, to which I have also listened:

57. [156]

    The point of the penultimate question above (“did it ring alarm bells …”) was, perhaps, to suggest the applicant may have been concerned due to a consciousness as to his own offending. The evidence appeared to leave hanging the suggestion of some connection between the applicant, what he was accused of, and another teacher at the school whose actions were so well known he had earned the moniker “Homo”. Given that the relevance of Mr Holmes to the prosecution case was limited to his date of departure the questioning had an unfairly prejudicial flavour.

58. [157]

    The extent of any prejudice was, however, limited. The reason for Mr Holmes’ departure (though not what the applicant knew about it) was relevant to the applicant’s case. That relevance, discussed below, explains the absence of any objection by the applicant’s counsel to the line of questioning.

59. [158]

    The applicant, in his evidence-in-chief, was asked “what happened” to Mr Holmes, he responded:

60. [159]

    The reference to abuse was not directly responsive to the question. In the context of the way in which the applicant intended to put his case, his volunteering of the reason for Mr Holmes’ departure is explicable. The applicant had cross-examined prosecution witnesses on their interactions leading to the complaints to the police. As part of the evidence relied on in this regard the applicant tendered an email from PL to TR and PS sent on 26 July 2019 in which there was reference discussions between former students in relation to their recollections of the “general atmosphere” at TAS which included bullying, “boys being fondled (by Holmes and ‘Pommie’ Steward)” and the applicant’s use of a steel edged ruler. I note “Pommie Steward” appears to be the person referred to in the transcript as Peter or Mr Stewart.

61. [160]

    The relevance of this seemingly prejudicial material is to be understood in the light of the difficulty of the task faced by senior counsel representing the applicant. There were multiple complainants, each of whom alleged sexual wrongdoing by the applicant while at the school. To have any prospect of being acquitted, it was necessary for the applicant to confront this problem. Counsel did so on the basis that, as put in his closing address, the allegations “emerged in a background of hostility towards [the applicant], as a result of the perception he was a perpetrator; sympathy and support for [PS] and [TR]; and antagonism towards the school, which had apparently been the source of so much grief for teenage boys back in the 1960s” (emphasis added). Counsel, in the course of his address, supported the submission by reference to evidence, such as TR’s communication, made before TR had raised any allegation against the applicant, that his memory of TAS was of a Dickensian institution staffed by various forms of anti-social teachers, including “paedophiles”. Counsel in his address stressed the use of the plural. Counsel relied on this together with evidence of communication between prosecution witnesses to provide an explanation for the existence of multiple allegations, in essence attempting to meet the tendency case against him in this way. It can thus be seen that the evidence of “Homo Holmes” was relied on as providing some explanation as to why the innocent accused came to be faced, 60 years on, with multiple allegations of sexual misconduct against students at TAS.

62. [161]

    Whatever the basis or bases on which the questions were asked, there was method in defence counsel allowing the Crown prosecutor to sally forth. This was, clearly, not a case where the use made of particular evidence in a closing address was an attempt to deal with unwelcome evidence or an unintended event. As observed above, the tactical course had been charted well before the applicant gave evidence. While the questioning as to the applicant’s knowledge of, and connection with, Mr Holmes was not relevant to any purpose, the applicant was able to fend those questions off. There was a forensic advantage to the applicant giving emphasis to the presence of a child abusing teacher at the school in the context of his case. Viewed objectively, there was a rational forensic decision to allow the questioning to take place as it did: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [17].

63. [162]

    The applicant also submitted that the prejudice to him in the questioning on the topic of Mr Holmes included the manner and tone in which the questions were asked. I have listened to the identified portions. The questions during the first passage set out above were, on occasion, asked forcefully. Senior counsel for the applicant described the tone as “menacing”. It is not clear to me that it was, although the term does not lend itself to precise classification. There is nothing improper in asking a question forcefully. It is commonplace for a cross-examiner to raise their voice to give emphasis to a question. A Crown prosecutor is not denied these tools when cross-examining an accused. That is not to say a cross-examiner can act without restraint in their use of volume or tone.

64. [163]

    In the context of the actual questions asked, the volume and tone adopted in this passage added force to the questions. The manner of questioning appeared to me to be an unsubtle attempt to place pressure on the applicant to consider the truthfulness or otherwise of his responses. The rise in the applicant’s voice and the prosecutor’s response, “Don’t get angry with me”, suggest the applicant felt under pressure.

65. [164]

    The volume and tone revealed by the recording of the second passage was more innocuous. Most questions were asked in a measured way. On occasion questions were asked more rapidly with a corresponding increase in pitch. Arguably, the increase in pitch conveyed a lack of acceptance of the answers being given, but if that was the effect it was relatively subtle. Particularly given the absence of any objection or comment, I do not find it concerning or unfair.

66. [165]

    Having regard to my conclusions as to the forensic basis on which the applicant’s counsel did not object to the questions, and the absence of any objection based on the manner of questioning, there was, in my view, no unfairness in the cross-examination on the subject of “Homo Holmes”.

67. [166]

    Following the “Homo Holmes” cross-examination, the applicant was asked a serious of unobjectionable questions about his ownership of or access to a car. He denied having ownership or access to a car while at TAS. His evidence was tested with questions as to how he moved around. Immediately following a further denial, the following questions were asked:

68. [167]

    The questions, up to and including the reference to “A white Wolseley”, were framed such that the evidence they elicited was not relevant. There was nothing probative of any fact in issue in the applicant’s recollection of particular evidence given in the trial. Nor can the questions be justified as preparatory to taking the witness to a topic. The witness had already denied having had access to a car in the relevant period. When a question which was actually directed to the events was finally asked, “Well, I’ve got to put it to you …” the applicant simply repeated his earlier denial. In the light of the earlier denial the question did not have to be put, and particularly did not need to be put in the compound manner, containing a number of propositions, in which it was done. The effect of the questioning was to simply repeat evidence in the Crown case. The repetition had the effect of reminding the jury that there were multiple witnesses who contradicted the applicant’s evidence on the subject.

69. [168]

    Complaint was made on the appeal in relation to a number of occasions on which the applicant was asked questions which required him to give evidence of a fact in issue, not directly, but by commenting on the truth or otherwise of another witness’s evidence. The applicant relied on the following question:

70. [169]

    Trial counsel intervened before the question was answered. While there was repetition of the word “false”, it appears to be in a context of the questioner trying to recall the form of the question asked in chief. The applicant had given the evidence suggested, as set out above (at [147]). There was nothing improper in this question.

71. [170]

    Some time later the applicant was asked and confirmed that he denied having lived in a weatherboard cottage. Having been asked, and given his evidence on the topic, the following exchange took place:

72. [171]

    The applicant’s counsel objected, not on the basis of the present complaint, but on the basis that the witness should be taken to the whole of AW’s evidence on the topic. The prosecutor then read questions and answers from the evidence-in-chief of AW that formed the basis of the summary of his evidence in the question set out above. The trial judge intervened, stating “Mr Crown, I think you need to read, or at least refer to the parts in cross-examination where [AW] was not quite as certain about the weatherboard”. Evidence of AW was then read in which he said, with respect to the building, “… it could – it could have been a brick building. I don’t recall exactly. I know it was – it was a building detached from the White House”. In the next answer read, AW said there were two buildings, one brick and one weatherboard and the applicant could have lived in either.

73. [172]

    In relation to the questions relating to the weatherboard house, it can be seen that the applicant’s counsel sought, and it seems obtained, a forensic advantage as a result of the prosecutor’s questions based on the evidence of Crown witnesses. The prosecutor was required by defence counsel’s intervention to refer to evidence which cast doubt on the evidence of one of the witnesses whose evidence on the subject the prosecutor had repeated. While AW was only one of three witnesses whose evidence had been repeated, on the applicant’s case it impacted all the evidence. That was on the basis of the applicant’s ultimate submission that the evidence of the ex-TAS students suffered from contamination as a result of communication between them. Whatever might be said about the conduct of the prosecutor, the legitimate forensic approach taken by the applicant’s counsel had the result that this questioning was not unfair to the applicant.

74. [173]

    The applicant was asked questions and denied that there was a flower garden in a particular area which was relevant to the detail of one of TR’s allegations. The applicant having already denied the existence of such a garden, the prosecutor asked:

75. [174]

    While the question was withdrawn that does not have significant bearing on the complaint which is primarily as to the question. The question above was asked before the jury and, for no legitimate forensic purpose, put before them the evidence of TR on the topic. In isolation it is, however, of little moment.

76. [175]

    Shortly after, the following exchange took place relevant to the allegation that the applicant assaulted TR with a ruler with a metal edge, which was, on TR’s evidence the precursor to a violent sexual assault:

77. [176]

    Asking whether TR’s evidence was wrong, immediately after obtaining the applicant’s denial, was apt to suggest that the applicant should not be accepted due to the conflict, at least in the absence of an explanation as to why TR was wrong. Further, the questions had the effect of repeating the evidence of prosecution witnesses in circumstances where this was not necessary for the purpose of obtaining the applicant’s evidence on the topic. Additionally, the questioning had the applicant separately deny the evidence of two different witnesses.

78. [177]

    I pause to note that I have listened to the evidence set out above, together with some preceding and following evidence, in accordance with the applicant’s submission. Questions prior to the extract above, in which the applicant was invited to deny that PS and JT never entered his room, were slow, deliberate and forceful. That is not of itself objectionable. When the prosecutor said (as extracted above), “No, I’m only putting to you what your counsel put to you … I’m just repeating his question to you”, the cross-examiner’s voice was raised, and might be described as evincing a degree of anger or frustration. While a personal reaction is arguably inconsistent with a prosecutor’s obligations, a degree of frustration and even anger in the course of a long cross-examination may be inevitable. In this case it did not appear to have any real impact on the applicant. It was not such as to raise an objection. I do not find anything in the tone of these questions was such as to make them improper.

79. [178]

    Shortly after the evidence set out above, the following evidence was given and to which I have listened:

80. [179]

    The prosecutor again asked questions that repeated the evidence of his witness. It was put to the applicant that he “would disagree with that”. To stress the reasoning the prosecutor said in the next question, “Because you say, your evidence is ‘oooh’, I didn’t live there”. The presence of the “oooh”, while not in the transcript, was agreed by the parties and is obvious on listening. It was said in a higher pitch. The respondent on the appeal accepted the tone was “problematic”. Having regard to what can be heard, and to the objection, I accept that was in the form of ridicule. It was not a proper manner for a Crown prosecutor to question a witness. The use of ridicule was, however, isolated to this occasion where it was corrected in front of the jury.

81. [180]

    The objection based on the ridiculing of the applicant’s evidence having been upheld, the prosecutor continued his examination of the applicant as to the alleged incident in the weatherboard cottage. Almost every question that followed, while not directly quoting evidence, contained a reference to the evidence TR had given on the subject. Typical of the method adopted was a question in the form: “He said that you mentioned the birds and the bees. Did you do that?”, or “And you provided sex education. That’s what he says”, prompting a denial from the applicant.

82. [181]

    After the morning tea break the questioning on the subject continued:

83. [182]

    As can be seen objection was taken to what I would characterise as an egregious mischaracterisation of the witness’s evidence. But apart from the mischaracterisation, to frame the question in terms of “you don’t know what [a prosecution witness] is speaking about when he gave evidence”, goes beyond eliciting the witness’s evidence by confirming that the applicant denies evidence given by a prosecution witness. It suggests that the witness should know what the prosecution witness was referring to, and provide an explanation. This was a subtle form of the “why would he lie” question and was impermissible. Beyond this, the questions needlessly repeated the evidence in the prosecution case.

84. [183]

    I have also listened to this part of the evidence and a short exchange following dealing with the objection in accordance with the submission of the applicant. I did not detect anything in the tone of the questioning, as opposed to the questions themselves, which might be considered inherently problematic. There were some lengthy pauses, a matter referred to in the applicant’s oral submissions. There is, however, nothing to suggest that such pauses worked to the disadvantage of the applicant. One matter that became apparent from listening to the recording was that there was no verbal indication that the words that appear in quotations in the transcript were in fact direct quotes. It is apparent from the tender of the recording the proceedings were sound recorded with the result that it is unlikely any visual cue would have been available to the transcriber.

85. [184]

    Several questions later the cross-examiner turned to the incident where the applicant was alleged to have taken TR from the Dangar House dormitory and had penile anal intercourse with him before turning to more general questioning as to the applicant’s use of Vaseline. It is difficult to convey the problematic nature of this part of the cross-examination without setting out a large portion of it:

86. [185]

    In the above questioning, not only was the evidence of TR unnecessarily repeated, the applicant was also asked, following the repeating of TR’s evidence, questions in the form “Of course, you say …” and “That’s his evidence and you still adhere to your evidence …”. These questions had the effect of deriding the applicant’s evidence, a matter discussed further, below.

87. [186]

    Following the above questioning the prosecutor immediately went on to refer to the evidence of another prosecution witness (JM) as to the applicant’s hairstyle, on the basis that it was, as put to the applicant, “some evidence you may well have had a hairbrush?”. This question was objected to and disallowed. In ruling, the trial judge said, “You can put to him that he had a hairbrush”. This was put, and denied, following which the prosecutor, despite the trial judge’s ruling, reminded the applicant (and the jury) that a further prosecution witness (RT) gave an assessment of the applicant’s hairstyle at the time, with which the applicant disagreed.

88. [187]

    A similar approach was adopted to the “blackboard incident”:

89. [188]

    As can be seen, TR’s evidence, rather than the events it concerned, was the subject of many of the questions. Further, putting to the applicant TR’s version, and then asking a question along the lines, “But your evidence is it never happened”, again tended to deride the applicant’s account. Immediately following these questions, the applicant was confronted with evidence given by AW which was similar to that given by TR. The following questions and answers were then given:

90. [189]

    Putting to the applicant that not only was TR wrong about the event, AW was also wrong, carried with it the strong suggestion that the applicant could not be believed based on the conflict between his evidence and that of two prosecution witnesses.

91. [190]

    Following this, the applicant was immediately confronted with the evidence of another witness, GA, placing TR in the applicant’s maths class in 1965 or 1966. Having acknowledged GA’s evidence, the following exchange occurred:

92. [191]

    The answer was not directly responsive, reflecting an attempt by the applicant to meet the questioning which put the evidence of multiple witnesses to him. It should also be observed that the question “but you disagree” again tended to deride the applicant’s response.

93. [192]

    Shortly after this the prosecutor put the allegation of the applicant having used the handle of a hairbrush to anally penetrate TR. Yet again, however, it was put in a series of questions, each of which contained a reference to TR’s evidence such as “he says” or “so this is what [TR] said to the court”. These questions concluded with:

94. [193]

    Not only did this question make reference to TR’s evidence, it was framed in terms of TR’s subjective experience of the alleged event which it was not possible for the applicant to address beyond his blanket denial.

95. [194]

    The next question again referred to the evidence of TR, quoting his evidence that “I believe it was springtime. Flowers were out”.

96. [195]

    Shortly after the prosecutor put to the applicant that he owned a Ford Coupe at some stage. When this question was objected to on the basis that the applicant had already been questioned about this, the prosecutor said it was a “prelude to another incident” and was permitted to ask the question. The following evidence was then given:

97. [196]

    Not only did this question repeat TR’s evidence, the reference to that evidence was prefaced with “But you heard …”. The sting in the question, and similar questions using this technique, was the implication that the denial could not be correct because it was contrary to the evidence of TR.

98. [197]

    The very next questions were as follows:

99. [198]

    As can be seen, rather than a direct question putting that the applicant had taken TR out of class, the prosecutor repeated the evidence of two other students that he had called TR to come and see him.

100. [199]

     The prosecutor then moved to another topic and asked the following questions:

101. [200]

     The lengthy extract above occupies close to one and a half pages of transcript, nearly all of which is the repetition of evidence in the prosecution case leading to the last question set out above, the first to elicit relevant evidence on the topic.

102. [201]

     The cross-examination continued with the prosecutor putting to the applicant JT’s evidence that he went to the applicant’s room where the applicant touched his penis, purportedly to measure it for the purpose of study. Typical of the rest of the cross-examination, after putting the evidence the applicant was asked, “That was his evidence. Now that happened didn’t it?”.

103. [202]

     The prosecutor then introduced a different topic:

104. [203]

     While objection was taken, it was limited to asking questions on the explicit premise that the prosecution case was accepted. It did not extend to the method that had, by this point, been extensively employed, of asking questions by repeating the prosecution evidence.

105. [204]

     The cross-examination continued the next day. A number of questions were asked which incorporated a proposition that TR had given particular evidence. Having denied twisting TR’s arm and pushing him down on the bed, the prosecutor put to the applicant, “Of course, then you would have to disagree with the proposition that [TR] said happened, that you pulled his pants down, and you used a condom without lubricant, and you put your penis in his anus. You disagree with that?”. A series of questions followed in a similar form. That is, the applicant was asked, not whether something occurred (which the prosecutor was entitled to put in a leading form), but rather questions in the form of proposition 1 – this is the evidence TR gave; proposition 2 – you disagree with that.

106. [205]

     The prosecutor shortly turned to a conflict in the evidence as to whether TR was, as he claimed in his evidence, in fourth form in 1967 when he undertook the school certificate, or whether, as the applicant said, this was not the case. The prosecutor approached this by putting to the applicant that TR had given evidence he was in fourth form in 1967, and then putting to him GA’s evidence that he was in the same year as TR and sat for the school certificate in 1967. The following exchange took place:

107. [206]

     While the question was withdrawn as a result of the objection, it was the question, not the potential answer, that carried the sting. Further, as is clear, this was far from the first time the applicant was confronted with the evidence of other witnesses, including the evidence of multiple witnesses being put to him on an issue.

108. [207]

     Despite the trial judge having adopted the proposition that cross-examination was not an occasion for “canvassing everybody’s evidence” and directing the prosecutor he could “put [his] case”, the prosecutor on turning to the evidence of PS asked the following questions:

109. [208]

     The objection was upheld. The applicant’s complaint on appeal is that, by this point, many questions had been asked in the same impermissible form. Further, despite the previous two rulings the next questions and answers were:

110. [209]

     A number of questions were then asked in which the prosecutor, in unobjectionable form, put to the applicant the allegations against him based on the evidence of PS. He then indicated that he was going to “return to the evidence of [KZ]”, flagging for the witness the subject matter of the next questions. The prosecutor immediately followed, “I’ve asked you some questions about [KZ], but I haven’t put his evidence to you. I want to find out your response.” The words “I want to find out your response” were unnecessary. While these words had a tendency to inappropriately insert the prosecutor into the proceedings in a personal capacity, a stray remark in isolation in the context of lengthy questioning will often be of no consequence. That appears to be the case here, noting it was not the subject of specific complaint.

111. [210]

     The prosecution case in relation to the allegations made by KZ were put to the applicant. Again, on a number of occasions, the allegation was put and words such as “but you deny that, do you?” were added. Having put the allegations and received denials, the prosecutor went further, intertwining the KZ and TR allegations:

112. [211]

     To repeat to the applicant the evidence of two prosecution witnesses in relation to separate incidents, and then ask, “you deny, of course, doing anything, any sexual impropriety in 1964 with either [KZ] or [TR]” carried with it the implication that the applicant’s denial lacked credibility based on the presence of two separate allegations. The effect of the question was thus to engage improbability reasoning, or as it is termed in the Evidence Act, coincidence reasoning (noting that the evidence of the allegations were cross-admissible on a tendency basis only). This should not have been done.

113. [212]

     The applicant was then questioned as to how he spent his holidays. The applicant’s evidence was that some of the time was spent working due to the particular demands of the time as a result of a system change to secondary schooling (the Wyndham Scheme). The following evidence was given:

114. [213]

     The cross-examination concluded shortly after this exchange with the prosecutor putting to the applicant that he identified TR, PS, and KZ as children he could “sexually predate upon”, that he had the tendency asserted by the prosecution, and that he acted on that tendency. I have also listened to the exchange set out above, in accordance with the applicant’s submission. The questions are asked reasonably quickly. There is some elevation of volume during parts of the question adding some force to the question. There is, in my view, nothing in the manner in which the questions were asked which would, of itself, attract scrutiny. As to the questions themselves, however, at the least, as the respondent acknowledged, playing on the use by the applicant of the word “‘dedicated’ as a flourish to finish off was florid and unnecessary”. As the respondent submitted, however, the absence of any objection or complaint is a strong indication that in the atmosphere of the trial the exchange was not so “inherently problematic” so as to cause unfairness.

115. [214]

     It is necessary to consider all of the problematic parts of the cross-examination set out above together, and in the context of the entirety of the questioning, to determine if the cumulative effect of what was done was such as to create an unfair trial. In determining this question, it is necessary to say something more about the various techniques employed and the significance to be placed on the absence of any objection to much of the questioning, or any application to discharge the jury.

116. [215]

     As can be seen from the various extracts set out above, many questions asked by the prosecutor simply repeated, verbatim, evidence given by a prosecution witness. The prosecutor regularly went far beyond simply taking the witness to the particular subject matter. It will be recalled that the sixth principle referred to in Hughes (at [271]) was that “a Crown prosecutor should especially eschew advocates’ tricks”. Their Honours also said, at [279]:

117. [216]

     Many questions did exactly this. They had no legitimate purpose. They should not have been asked.

118. [217]

     For the reasons discussed above, the questions in this form, while relatively few, implied that the applicant should not be believed, at least if he was unable to explain the conflict between his evidence and that of the prosecution witness. These questions should not have been asked.

119. [218]

     This type of “but you heard …” a witness give particular evidence question, while asked only once (“But you heard [TR] give evidence that you drove him out to a place called Wollomombi - W-O-L-L-O-M-O-M-B-I - where you sexually assaulted him on a dirt track in the bush”) went even further. The clear implication was that the applicant’s evidence, given what had been said by the prosecution witness, could not be right.

120. [219]

     Again, while a question in this form was asked only once, the question, as discussed above, had the effect of inviting the applicant to explain why a witness had given particular evidence and had a consequent tendency to reverse the onus of proof.

121. [220]

     A particular technique repeatedly deployed was to not only put a question which repeated the evidence of a prosecution witness or of prosecution witnesses, but to then put to the applicant words to the effect of “but you deny that”. This, as discussed above, and in particular having regard to the repeated manner in which it was done, had a tendency to deride the applicant’s denial.

122. [221]

     The technique, as the applicant submitted, was reminiscent of the response of Mandy Rice-Davies when, in the trial of Stephen Ward arising from the English scandal that came to be called the Profumo Affair, it was put to her that Lord Astor denied having had an affair with her. She responded, “Well he would, wouldn’t he?”. It remains a well-known, and oft repeated, response to dismiss a denial of wrongdoing on the basis the denial is self-interested. It had the effect of making her evidence more credible despite her status when compared with that of the witness she contradicted, a matter of some significance having regard to the time, the society and the individuals involved. The effectiveness of the response is reflected in its endurance in the public memory. In the present matter, repeatedly putting the evidence of a prosecution witness to the applicant followed by words to the effect of “But you deny that”, highlighted his responses as self-interested: see Robinson v The Queen (1991) 180 CLR 531 and the discussion of that case in Booty. The repeated use of this type of question suggested the applicant’s evidence was, due to his self-interest, of less value and in my view, as deployed here, amounted to an advocate’s trick.

123. [222]

     As set out above, on a number of occasions, the evidence of not just one witness but multiple witnesses on a subject was put to the applicant. This, in effect and as noted above, put a coincidence case to the applicant. The extent of the unfairness was tempered to some extent by the fact that the applicant’s case sought to address the multiple allegations on the basis the complaints against the applicant had not arisen independently – that is, the existence of multiple complaints against the applicant was not coincidental, not because the complaints were true, but because they were the result of contamination in a context where there had been sexual abuse of students at the school by others. Nonetheless, while this was the applicant’s case, it was not one he was able to put directly from the witness box. That is, it was not open to him to give evidence that the witnesses had put their heads together. Confronting the applicant with multiple accounts carried the implication that those witnesses, rather than the applicant, must be telling the truth. To combine that with questions like, “but you deny that” particularly denigrated the applicant’s response, an unfairness added to by the inability of the applicant to put his case on the issue.

124. [223]

     Ordinarily a party is bound by the conduct of their counsel: Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 (“Hamilton”) at [54]; Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [9]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [48]. However, the prosecution also has a responsibility of ensuring its case is presented properly and with fairness to the accused: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20. This responsibility was breached. It is necessary to determine the effect of that breach.

125. [224]

     Ultimately, this Court is engaged in a fact-finding exercise, the question being, has the applicant established that the irregular conduct of the prosecutor impacted the fairness of his trial in the sense that it could realistically have affected the reasoning of the jury to a verdict of guilty. If not for the limited objections taken to the questioning, and the corresponding absence of any application to discharge the jury, I would have had no hesitation in upholding the ground. While there were, on occasion, objections to the questions, those objections for the most part were not on the basis of the irregularities discussed above. While at points issue was taken with the prosecutor canvassing the evidence of prosecution witnesses, the conduct continued without further complaint.

126. [225]

     In Libke, Hayne J said, at [76]-[77]:

127. [226]

     In the same case, Gleeson CJ urged caution, stating, at [2]:

128. [227]

     In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 (“De Silva”), Kiefel CJ, Bell, Gageler and Gordon JJ at [35], observed that the “… failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice”, though their Honours went on to say that the “absence of an application for a direction may, however, tend against finding that that risk was present”. See also Hamilton at [54] where Kiefel CJ, Keane and Steward JJ referred to this passage from De Silva with approval. While these observations were in the context of the absence of a request for directions the principle is the same. The absence of more complete objection, or an application to discharge the jury, is “a strong indication that, in the atmosphere of the appellant’s trial, there was no appreciable risk” of unfairness to the applicant: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56] (also in the context of directions).

129. [228]

     The extent of the objections should be looked at in the context of the issues in the trial as they developed. Senior counsel for the applicant opened to the jury after the Crown opening. He made it clear that the applicant would give evidence denying the various allegations. Reference was made to other evidence it was anticipated would be in conflict with the applicant’s, such as whether the applicant had a car. Importantly, reference was made to PS making a complaint at a school reunion and the “old boys network kick[ing] in”. It was foreshadowed that there would be a lot of evidence about who was saying what about the applicant, when they were saying it, and how that may have shaped the evidence being heard many years after the event. There was cross-examination of the Crown witnesses as foreshadowed. The applicant’s response to the presence of multiple allegations, and multiple witnesses giving versions supportive of each other, was thus known by the time the applicant was giving evidence. That ameliorated the damage to some extent.

130. [229]

     Also relevant to the exercise is how it was managed by the applicant. In Libke, while agreeing with Hayne J, Heydon J provided a lengthy analysis of the proper limits of cross-examination. While deprecating the cross-examination in that case, Heydon J concluded that the trial was not rendered unfair. Significant in reaching this conclusion was a finding that despite the improprieties in the cross-examination the applicant had been able to “get his version of events” across, which in the context of Libke was synonymous with having been able to answer the contrary propositions put in cross-examination. A significant distinction to be made in this case is that, when confronted with the evidence of multiple witnesses, not by way of question, but by way of statement, the applicant was not able to answer what was inherent in what had been put. He could not deny that the witnesses had made the various statements. Nor was it for him to put forward theories as to why the evidence may have amassed against him from multiple witnesses in the way in which it did. That was reserved to his counsel, to some extent in cross-examination, but primarily in his closing address. The impression created, however, was that the case was unanswerable. That impression was created unfairly.

131. [230]

     Similarly, the applicant, sitting in the witness box while significant tranches of evidence in the Crown case were read, could not effectively respond. There was nothing he could do to resist the unfair impact of this conduct.

132. [231]

     I have given significant weight to the absence of more extensive objection. Assessing the effect of the questioning, without the first-hand benefit of being present at the trial, having regard to the limited objections, is an exercise that I have not found easy. I was taken aback when reading the cross-examination for the first time. Analysing it, as I have done above, has only added to my sense that it was unfair. I am unable to see any advantage to the applicant in allowing the cross-examination to take place as it did. No matter how effective the applicant’s closing address was, there was the real prospect it was undermined by the negative impression of the applicant likely to have been formed as a result of the prosecutor’s cross-examination. While the more egregious breaches were isolated, the less egregious breaches were an almost constant feature. Regrettable as it is, in the context of the age of the matter, and this being a second appeal to this Court, I am not able to put to one side what appears to me the clearest inference to be drawn. While no single question of itself resulted in a “miscarriage of justice” for the purposes of s 6 of the Criminal Appeal Act, the cumulative effect of the questioning, engaging as it did, a combination of vices, did. That is to say the cross-examination of the applicant was unfair in the sense that it “could realistically have affected the reasoning of the jury” to their verdicts; Brawn at [10].

133. [232]

     Since writing the above I have read the reasons of Mitchelmore JA in relation to this ground. I agree with her Honour’s observations with respect to the relationship between the delay in this case and the unfairness of the cross-examination.

The proviso

1. [233]

   The respondent accepted that, if ground 2 was established, the proviso to s 6 of the Criminal Appeal Act could not be applied. That is because, in a context where the applicant’s credit was central to the contest, and where his evidence was unfairly undermined, it is not possible to attach weight to the verdicts of the jury. In this context it is not possible to conclude that there has not been a substantial miscarriage of justice.

Retrial?

1. [234]

   A question remains as to whether this Court should order a retrial. The applicant, in written submissions, submitted that the appropriate order, in the event that ground 2 was established, would be to quash the convictions and remit the matter for retrial. At the hearing it was submitted that having regard to matters raised in the context of ground 1 the Court would not order a retrial. Despite the age of the matter, and of the applicant, and what is known of his health and cognitive abilities (at least as at the time of the various reports available to this Court), I am of the view, having regard to the seriousness of the matters and the existence of what appears to be a strong case, the matter should be remitted to the District Court.

2. [235]

   I propose the following orders:

   1. (1)

      Extend time for the applicant to file the application for leave to appeal to 25 September 2025.

   2. (2)

      Leave to appeal granted.

   3. (3)

      Appeal allowed.

   4. (4)

      Quash the convictions of the appellant.

   5. (5)

      There be a new trial of the appellant.

   6. (6)

      Stand the proceedings into the Arraignment List in the District Court on 28 April 2026.

3. [236]

   COLEMAN J:

4. [237]

   I have had the advantage of reading the reasons of Mitchelmore JA in draft with respect to ground 1. I agree with her Honour, for the reasons she gives, that ground 1 has not been made out.

5. [238]

   I have also had the advantage of reading the reasons of Dhanji J in draft. I am grateful for his Honour’s comprehensive review of the evidence and the relevant authorities. I have also read Mitchelmore JA’s additional comments on ground 2, with which I agree.

6. [239]

   Like their Honours, I have listened to the passages of the cross-examination of the applicant identified by the applicant as those the Court should listen to. In tracking through the transcript and the passages referred to in the parties’ submissions, I have listened to a significantly greater part of the cross-examination than just those parts identified by the applicant as relevant to be heard.

7. [240]

   For the reasons given by Dhanji J at [107]-[113], I consider it was unnecessary to listen to the whole of the cross-examination. Whilst the question of whether the cross-examination was unfair so as to give rise to a miscarriage of justice is to be determined by a consideration of the cross-examination as a whole, that does not of itself mean that the Court could only decide whether this ground was made out by listening to the whole of the cross-examination. The applicant identified parts of the cross-examination which contributed to the unfairness by the manner in which the questions were asked, and other parts which contributed to the unfairness by the form of the questions asked. It was only the passages identified where it was submitted that the manner, or “tone”, of the questioning contributed to the cross-examination being unfair that it was necessary to listen to them being asked and answered. The other identified parts of the cross-examination which were said to contribute to the unfairness by reason of the form of the questions can be assessed by reference to the transcript without listening to them. The unfairness of the cross-examination as a whole can then be assessed.

8. [241]

   I agree, for the reasons given by Dhanji J, that there was no persuasive forensic purpose identified by the respondent as to why the Court should listen to the whole of the cross-examination, stretching over several hours. However, because I have listened to much more of the cross-examination than the applicant identified, in so far as the respondent submitted that in assessing the unfairness of the cross-examination it is relevant to consider the tone of it as a whole, I consider I have listened to a significant sample of the overall way in which the cross-examination was conducted, both as to manner and tone and am able to assess its fairness. I have also read the transcript of the whole of the cross-examination.

9. [242]

   I agree with the conclusion of Dhanji J, for the reasons his Honour gives, that considered overall, the cross-examination was unfair. Like each of Mitchelmore JA and Dhanji J, I was troubled by the absence of further objection by the applicant’s senior counsel at trial. I too have given that fact significant weight in considering whether the unfairness amounted to a miscarriage of justice in the sense that it “could realistically have affected the reasoning of the jury” to their verdicts; Brawn at [10]. For the reasons given by Dhanji J, I have concluded that it did.

10. [243]

    I am fortified in this conclusion by the additional reasons of Mitchelmore JA at [95]-[96] (with which I agree) referring to the unfairness in way the cross-examination was conducted in the context of the significant time that has passed since the events the subject of the charges and the prosecution.

11. [244]

    For the reasons given by Dhanji J, I agree that the matter should be remitted to the District Court.

12. [245]

    I agree with the orders proposed by Dhanji J.