Casey v R

1. [1]

   HOEBEN CJ at CL: I agree with Adamson J and the orders she proposes. In particular I have read the evidence and made my own assessment of it.

2. [2]

   ADAMSON J: John Casey (the applicant) seeks leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against two convictions, after trial by jury, for sexual offences committed in the late 1980’s against two brothers, AB and JB.

The grounds of appeal

1. [3]

   If leave is granted, the applicant relies on the following grounds:

The procedural background

1. [4]

   Because of the matters raised by grounds 2 and 3, it is necessary to set out in summary form what occurred in a previous trial of the applicant.

2. [5]

   On 27 June 2016, the applicant was arraigned before English DCJ at Lismore on an indictment that charged 27 counts, 9 of which were in the alternative. The complainant for count 1 was DB. The complainants for all remaining counts were either AB (counts 2-8) or JB (counts 9-27). Each of the counts under s 61E(1) of the Crimes Act 1900 (NSW) was followed by an alternative count alleging an alternative offence under s 61E(1A). These counts were: 2 and 3; 4 and 5; 7 and 8; 9 and 10; 11 and 12; 13 and 14; 16 and 17; 19 and 20; 22 and 23; and 26 and 27. The reason for the alternative counts was that s 61E of the Crimes Act was amended with effect from 23 March 1986 and the evidence of the complainants was not sufficient to establish whether the offences occurred before or after that date. Thus, there were, in effect, only 22 substantive counts, since 10 of the counts were paired with alternative counts for this reason.

3. [6]

   On 4 July 2016, English DCJ purported to rule on the evidence of AL, which was to the effect that in 1978 or 1979 (seven or eight years prior to the charges concerning JB and AB) the applicant had massaged AL (who was then 12) and in the course of that massage, masturbated him to ejaculation. The first issue that arose was whether the Crown was entitled to rely on AL’s evidence in circumstances where his evidence had not been disclosed in accordance with the requirements for pre-trial disclosure in the Criminal Procedure Act 1986 (NSW). In her Honour’s reasons she set out the evidence which explained why AL’s statement had not been provided earlier. In about 2014 AL had contacted the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) and had also, in August 2015, contacted NSW Police. However, he had not been prepared to make a statement until June 2016. Ultimately a statement was taken from AL by police on 24 June 2016. The statement was provided to the Crown and the defence on that day.

4. [7]

   In her judgment, her Honour said, of present relevance:

5. [8]

   It is plain from the reasons that her Honour did not purport to apply s 97 of the Evidence Act 1995 (NSW). All her Honour did on 4 July 2016 was to permit the evidence to be adduced, notwithstanding the late disclosure. Thus the assumption made appears to have been that the evidence could only be adduced if it was held to be admissible under s 97 and was not excluded pursuant to s 101 of the Evidence Act.

6. [9]

   There was argument on 7 July 2016 about the admissibility of tendency evidence to be relied upon by the Crown, including the evidence of AL. The Crown relied on the similarity between the applicant’s conduct towards AL, JB and AB. The Crown who appeared in this Court adopted these submissions, in support of his arguments in relation to ground 3. The Crown’s submissions will be summarised when ground 3 is considered below.

7. [10]

   Notwithstanding the terms of the judgment on 4 July 2016, her Honour, in a judgment delivered on 8 July 2016, appeared to have considered that she had made a ruling pursuant to s 97 of the Evidence Act in respect of AL’s evidence in her judgment on 4 July 2016. Her Honour’s misapprehension was relied on in support of ground 3, although it was accepted by Mr Boulten SC, who appeared with Mr Lange and Mr Parkin for the applicant that whether the evidence of AL was admissible as tendency evidence was ultimately a matter for this Court.

8. [11]

   The jury was empanelled on 11 July 2016. On 14 and 15 July 2016 AB gave evidence and was cross-examined. JB gave evidence and was cross-examined on 15 July, 18 July and 19 July 2016. Her Honour summed up to the jury on Tuesday 9 August 2016. On Friday 12 August 2016, the jury returned verdicts of not guilty in respect of 16 of the counts and was unable to agree on the balance of 11 (the hung counts).

9. [12]

   The Crown proposed to retry the applicant on all 11 hung counts, 5 of which were alternative counts. By notice of motion filed on 7 August 2017, the applicant applied for a stay of all 11 of the hung counts. On 9 August 2017 the applicant was arraigned before Townsden DCJ on an indictment which consisted of 11 counts.

10. [13]

    On 13 August 2017, the Crown served a tendency notice pursuant to s 97 of the Evidence Act which identified evidence which had been given at the first trial by JB, AB and AL which was to be relied on in support of the tendency of the applicant to act in a particular way, namely:

11. [14]

    A similar notice was served by the Crown on 13 August 2017 pursuant to s 98(1) of the Evidence Act (the s 98 notice). The s 98 notice said of present relevance:

12. [15]

    These notices included references to evidence of charges on which the applicant had been acquitted. Subsequently the Crown withdrew its application to adduce evidence which was solely related to the allegations in respect of which the applicant had been acquitted.

13. [16]

    The applicant applied for an order that the complainants be compelled to give further evidence in accordance with s 306J of the Criminal Procedure Act. The forensic purpose of the application was to permit the applicant’s counsel to cross-examine the complainants about the matters in respect of which the jury in the 2016 trial had acquitted him. On 21 August 2017, his Honour refused the applicant’s application and gave reasons which included the following:

14. [17]

    On 21 August 2017 his Honour refused to stay the six counts (which had been counts 6, 18, 21, 22, 23 and 24 from the original indictment) which were not alternative counts. His Honour rejected the applicant’s submission that the verdicts of acquittal in the 2016 trial affected the complainant’s credibility such that the re-trial would be unfair and said:

15. [18]

    The applicant sought leave to appeal against the decision to refuse the stay but subsequently withdrew his application.

16. [19]

    On 23 August 2017, his Honour refused to allow the applicant to adduce evidence from AB pursuant to s 293 of the Criminal Procedure Act. The applicant also sought leave to appeal against this decision. His application was later withdrawn.

17. [20]

    On 24 August 2017, the issues of tendency and coincidence were argued afresh before Townsden DCJ, his Honour having determined, pursuant to s 130A of the Criminal Procedure Act that it was in the interests of justice for the Court not to be bound by any rulings made by English DCJ in relation to tendency and coincidence. His Honour allowed the evidence as tendency evidence but declined to admit it as coincidence evidence.

18. [21]

    In his judgment of 24 August 2017, his Honour noted the “significant difference” between the notices before him and the notices before English DCJ:

19. [22]

    On 29 August 2017 his Honour stayed the alternative counts (which had been 3, 5, 10, 17 and 20 on the original indictment and which were 1, 2, 4, 5 and 7 on the new indictment). The reason for the stay was that, in respect of each, the jury had acquitted the applicant on the first of the pair of counts (thereby indicating that it was not satisfied that the offence had occurred in the time period specified in the first of each pair) but had been unable to reach a verdict on the second of the pair (being the later time period). It is apparent from the following passage from the reasons for judgment that his Honour was concerned to protect the applicant from the potential jeopardy of being cross-examined in a second trial by reference to his own evidence in the first trial in respect of matters relating to counts of which he had been acquitted.

20. [23]

    His Honour was also concerned that, if the alternative counts to the counts in respect of which the applicant had been acquitted were allowed to proceed, this would tend to deprive him of the full benefit of those acquittals. His Honour said:

21. [24]

    The Crown appealed pursuant to s 5F of the Criminal Appeal Act against the decision to stay the alternative counts. This led, on 31 August 2017, to the vacation of the trial. His Honour gave a certificate pursuant to s 5F(3)(b) of the Criminal Appeal Act. The Crown appeal was subsequently withdrawn.

22. [25]

    On 31 July 2018 the applicant was arraigned before Huggett DCJ in the District Court on an indictment that charged the remaining six counts which had not been stayed by Townsden DCJ. The jury was empanelled on 1 August 2018. The Crown played an edited recording of the complainants’ evidence from the 2016 trial in reliance on s 306I of the Criminal Procedure Act. The complainants’ evidence in respect of all counts other than the six in the indictment had been removed before it was played to the jury. This involved substantial editing of the examination in chief and some editing of the cross-examination. Almost all references to the Royal Commission were also removed. The transcript for the retrial was prepared (and presumably the recording) in such a way as to make it appear seamless. The pages were numbered sequentially and there were no gaps to indicate that anything had been removed from it. It was prepared collaboratively by the Crown and the defence.

23. [26]

    On 14 August 2018 when the Crown case had closed, the trial judge directed a verdict of not guilty in respect of count 3. On 30 August 2018 the jury returned verdicts of guilty to counts 1 and 4 and not guilty to counts 2 and 5. The jury was unable to reach a verdict with respect to count 6. On 31 August 2018, her Honour gave a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. Later that day the jury returned a verdict of not guilty to count 6.

24. [27]

    The counts, particulars and the verdicts are summarised in the table below. Those of which the applicant was convicted are highlighted in bold:

25. [28]

    On 30 October 2018, the applicant was sentenced to a term of imprisonment commencing on 30 May 2018 for 4 years and 10 months with a non-parole period of 3 years. The non-parole period is due to expire on 29 May 2021 and the total term will expire on 29 March 2023. There is no application for leave to appeal against sentence.

26. [29]

    An outline of the Crown case is set out below. A more detailed account is necessary for a consideration of ground 4 of the appeal, which is based on the contention that the verdicts were unreasonable and cannot be supported having regard to the evidence. Such an account will be given when ground 4 is addressed.

27. [30]

    The applicant was the parish priest for the Catholic Church at the parish of Mallanganee. At that time, IB, the father of AB and JB, the two complainants, was the Anglican Minister for the area. A friendship developed between the two priests which led to the complainants visiting the applicant and, on occasion, staying overnight at the presbytery.

28. [31]

    The Crown alleged that, on one such occasion, the applicant washed AB in the shower and inserted his finger into AB’s anus (count 1).

29. [32]

    The Crown alleged that, on either the same or another such occasion, JB wet the bed. When he got out of the bed, the applicant grabbed him, took him into a bedroom and placed his penis in JB’s mouth (count 2). The applicant then pushed JB’s head back onto his penis when JB tried to pull away (count 3). JB moved his head away and the applicant ejaculated towards him (count 4). The applicant then told JB to kiss him, which was a reference to kissing his penis after he had ejaculated (count 5). Finally, the applicant then put his own mouth on JB’s penis (count 6).

30. [33]

    The Crown case substantially depended on the evidence of AB and JB. The Crown also relied on evidence of complaint from the complainants’ parents, IB and HB, and sister, TB, as well as a generalised complaint which had been made by JB to Heather, a volunteer with the Church of the Good Shepherd. The Crown also called Timothy O’Reilly, a school counsellor to whom AB said he had made a contemporaneous complaint. However, Mr O’Reilly denied any recollection of AB, or, indeed, any child making such a complaint. The Crown relied on the evidence on counts 2-6 (which concerned JB) as tendency evidence for count 1 (which concerned AB) and vice versa. The Crown also called AL who gave evidence that, 7 or 8 years prior to the alleged offending against AB and JB, when he was about 12, the applicant had massaged and masturbated him.

31. [34]

    The applicant denied the charges in his Electronic Record of Interview with Suspected Person (ERISP) and in his sworn evidence. He also called several character witnesses. As was evident from defence counsel’s cross-examination of the complainants, the applicant’s case was that their evidence was unreliable. Mr Boulten summed up defence counsel’s approach to the complainants as: “If you are not lying, you are mistaken.”

32. [35]

    Before the summing up, which was given in the course of 23 August 2018, defence counsel requested a Markuleski direction, the content and provenance of which will be addressed below, so-called after R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. There was no opposition to this request by either the Crown or the trial judge.

33. [36]

    The directions her Honour gave which were potentially relevant to ground 1 are as follows:

34. [37]

    Later in the summing up, the trial judge gave two further directions as follows:

35. [38]

    The trial judge also gave the following directions:

36. [39]

    Later in the summing up (at SU pages 41-42), defence counsel asked for a Markuleski direction to which the trial judge responded that she had “done that twice”. Her Honour said, “I said if you have a doubt about honesty then if [sic] you have a doubt about accuracy.” Defence counsel accepted what her Honour had said. After this request, however, her Honour also said:

37. [40]

    A further separate consideration direction was given (at SU pages 72-73):

38. [41]

    Her Honour also said (at SU, page 81):

39. [42]

    Her Honour added, towards the end of that part of her summing up which contained directions (at SU, page 85):

Ground 1: alleged miscarriage due to failure to give a Markuleski direction

1. [43]

   The applicant contended that the trial judge had failed to give a Markuleski direction to the jury and that the failure had occasioned a miscarriage of justice. In the present case, the trial judge did not refer to the interconnection of credibility issues in her directions to the jury. The applicant submitted that her Honour’s directions to the jury on its separate consideration of the charges were not sufficient to draw to the jury's attention the relevance of a doubt about one aspect of the complainant's evidence to its assessment of the complainant's credibility generally. JB’s credibility was a principal issue in the jury’s consideration of counts 2, 4, 5 and 6.

2. [44]

   Mr Boulten submitted that in dealing with the issue of dishonesty, her Honour failed to deal with the issue of unreliability, which was the other major factor affecting credibility. He contended, in particular, that the trial judge’s reminder to the jury that they could rely on tendency and complaint evidence in support of the Crown case created a degree of unfairness when it was not coupled with a direction that if they were not satisfied of the applicant’s guilt on a particular count, that could be taken into account in the applicant’s favour on the other counts.

3. [45]

   Although the applicant’s primary submission was that leave under rule 4 of the Criminal Appeal Rules did not apply as defence counsel had raised the need for the Markuleski direction, he contended, in the alternative, that leave ought be granted if the Court was satisfied that the applicant had lost a real chance of an acquittal having regard to the alleged error, in combination with other errors alleged in the further grounds.

4. [46]

   In order to address this ground it is necessary to identify the content and purpose of a Markuleski direction and whether the trial judge’s omission to give a complete direction in terms of the authority has resulted in a miscarriage of justice.

5. [47]

   In Markuleski Spigelman CJ considered the effect of Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 (Jones) in which the majority (Gaudron, McHugh and Gummow JJ) said at 453:

6. [48]

   Spigelman CJ expressed concern that Jones had, incorrectly, been interpreted as standing for the proposition that “in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant’s evidence”: [65]. His Honour emphasised the words highlighted in the passage above and considered that they required an appellate court to consider “all the facts of the case”: [66].

7. [49]

   The Markuleski direction includes a direction to the jury to assess the credibility and reliability of a complainant's evidence on all counts, having regard to any doubts the jury might experience in relation to the complainant’s credibility or reliability with respect to any one count. In Markuleski, Spigelman CJ set out the provenance of, the principles relating to, and the basis for, such a direction as follows:

8. [50]

   The unfairness which a Markuleski direction is designed to ameliorate was described in R v Ford [2006] QCA 142 at [124] by Keane JA, in a passage which was approved by this Court (Hoeben JA, Johnson and Button JJ agreeing) in DF v R [2012] NSWCCA 171; (2012) A Crim R 178 at [28]:

9. [51]

   When considering the content and purpose of a direction about the complainants’ credibility, it is important to bear in mind that a verdict of “not guilty” does not necessarily imply any “want of confidence” in the complainant but “may simply reflect a cautious approach to the discharge of a heavy responsibility”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ); see also [219]-[221] (Wood CJ at CL). Thus, it does not follow from an acquittal on one count that the jury did not find the complainant to be a reliable and accurate witness.

10. [52]

    The real question raised by ground 1 is whether the risk to the applicant identified in Markuleski ensued in the present case, which was accepted to be a case of “word against word” based on the evidence of a single complainant, JB, about a number of offences (counts 2, 4, 5 and 6) arising out of one episode of wrongdoing by a single accused. To answer this question it is relevant to ask whether there were aspects of the evidence which could have led a reasonable jury to acquit the applicant on counts 2, 5 and 6, and convict him on count 4. While the applicant has expressly alleged inconsistency of verdicts as a basis for ground 4, it is also relevant in respect of ground 1, for the reasons given above.

11. [53]

    The trial judge’s explanation for the verdicts in respect of counts 2, 4, 5 and 6 appears from the following passage in her Honour’s sentencing judgment:

12. [54]

    I consider that the trial judge’s explanation is sufficient to explain why the jury, properly directed, could have arrived at the verdicts in respect of counts 2, 4, 5 and 6 that it did. The observations made by Wood CJ at CL in Markuleski are apposite. His Honour said, after referring to the authorities, including Jones:

13. [55]

    The not guilty verdict for count 2 is explicable on the basis that the jury accepted the applicant’s evidence that he never wore pyjamas which raised a doubt as to the reliability of JB’s recollection of the acts that were said to constitute count 2. The guilty verdict for count 4 reflected the jury’s satisfaction beyond reasonable doubt that the applicant had ejaculated towards JB. The not guilty verdicts for counts 5 and 6 could reflect the jury’s concern arising from the sequence of events and the matters raised by the applicant’s counsel in closing address: that it would have been unlikely for the applicant, who had already satisfied himself sexually by ejaculating, to do the acts attributed to him by JB in the order which JB recalled them to have occurred. In a case such as the present, as Wood CJ at CL said in the passage extracted above, “the occurrence of different verdicts is entirely to be expected and is understandable”.

14. [56]

    It is relevant to ask: what, in these circumstances, would a Markuleski direction have added? Its purpose, as Spigelman CJ said in the seminal passage set out above, arose from the difficulty in appeals from convictions in sexual abuse cases where there was a single complainant on the basis that verdicts were said to be inconsistent. Although Mr Boulten contended that ground 1 was not dependent on any inconsistency between the verdicts, it is difficult to see what the further direction would have added to what her Honour said. It will be recalled that Spigelman CJ at [185] said that “it may appear obvious that a reasonable doubt about one aspect of a complainant’s evidence ought be taken into account when assessing the witness’s evidence on other matters”. Markuleski does not stand for the proposition that an accused accrues bonus points for each count for which he or she is acquitted which can be used to counter the prospect that he or she will be found guilty on other counts. In essence, the part of the Markuleski direction which Mr Boulten contended was missing was the part whereby a jury would be directed that, to borrow Spigelman CJ’s words from Markuleski:

15. [57]

    In my view, the directions to the jury were sufficient to indicate the importance of the credibility of the complainants to the jury’s deliberations. The jury’s verdicts showed that they were satisfied that, in relation to count 4, the evidence established the offence beyond reasonable doubt, but that they retained a reasonable doubt with respect to the other counts based on the same incident. Their doubts with respect to counts 2, 5 and 6 are explicable in the manner elucidated by the trial judge in the sentencing judgment.

16. [58]

    Further, it is significant that, in Markuleski itself, Spigelman CJ considered, at [195], that if the circumstance that the jury were not directed that any reasonable doubt with respect to the complainant’s evidence on any count ought be taken into account on the complainant’s evidence generally were the only inadequacy in the summing up, the appeal would not have been allowed. In my view, this is the only inadequacy (if it be such) in the summing up. I am not persuaded that its omission made, or had the potential to make, any difference to the jury’s deliberations. The present case is to be distinguished from RWC v R [2013] NSWCCA 58 where the trial judge made no reference to what Latham J (McClellan CJ at CL and I agreeing) described as “the interconnection of credibility issues” and failed to supplement the direction about considering the charges separately with a direction that the jury could take into account a doubt about one aspect of the complainant's evidence when assessing credibility generally.

17. [59]

    I do not accept Mr Boulten’s submission that, by referring specifically to the complainant’s honesty, the trial judge can be taken to have excluded the complainant’s accuracy or reliability. A fair reading of the directions given indicates that the jury was appropriately directed as to what use they could make of a situation where they were not satisfied beyond reasonable doubt of one or more of the counts in respect of JB. The verdicts returned are consistent with the jury having understood her Honour’s directions that they could return different verdicts in respect of counts derived from the same incident if they found the complainant’s evidence insufficiently reliable to establish a particular count beyond reasonable doubt.

18. [60]

    I accept Mr Boulten’s submissions that, while defence counsel could have done more to articulate his grievance about the direction, he endeavoured to raise the suggested omission with her Honour. Defence counsel took the point, although not in sufficiently precise terms to alert her Honour to the issue presently pressed. If leave under rule 4 is required, I am persuaded that this is an appropriate case to grant it. I am not, however, persuaded that ground 1 has been made out.

19. [61]

    Before leaving ground 1, it is important to emphasise the crucial role of trial counsel in assisting the judge in the summing up. While it appears to have been common ground that a Markuleski direction was appropriate, and her Honour considered she had given one, defence counsel was correct to suggest that it had not been given in quite the terms set out in Markuleski itself. Counsel ought not be deterred from raising such issues with trial judges, even those who consider they have dealt with a point, as part of the discharge of the important duties they owe to the court.

Ground 2: miscarriage of justice occasioned by alleged abuse of process

1. [62]

   The applicant relied on three matters in support of ground 2: first, that in both the 2016 and the 2018 trials the credibility of AB and JB was significant to the jury’s verdicts; second, that at the 2016 trial the applicant would, in accordance with Markuleski, have been entitled to have the jury take into account in his favour the acquittals on some counts in assessing the evidence in support of the remaining counts; and, thirdly, there was no difference between the complainants’ evidence in the 2016 trial and the 2018 trial since, as referred to above, the Crown played a recording of their evidence in reliance on s 306I of the Criminal Procedure Act.

2. [63]

   In support of ground 2, the applicant read an affidavit of Bryan Wrench sworn 1 July 2020, to which was annexed the transcript of the complainants’ evidence in the 2016 trial. The purpose of the tender was to demonstrate to this Court the differences between the evidence at the 2016 trial and the evidence at the 2018 trial and the alleged prejudice to the applicant in having the portions relating to the counts on which he was acquitted or the associated counts in respect of which the jury was hung excised from the consideration of the jury in the 2018 trial. The Crown accepted that the affidavit was relevant on this limited basis.

3. [64]

   Mr Boulten contended that the applicant was prejudiced in the 2018 trial because the jury was deprived of material which was highly germane to assessment of the complainants’ credibility, namely: the complainants had made several other allegations against the applicant; another jury had rejected those allegations; and the testing of the complainants in relation to the other allegations was excised from the recording which was played in the 2018 trial.

4. [65]

   The applicant accepted that, in the circumstances of the retrial in 2018, the Crown would not have been entitled to tender material which was relevant to the charges of which the applicant had been acquitted but complained that by “tendering a sanitised version of the complainants’ evidence, the jury was not provided with the complete picture”. The applicant contended that this expurgation effectively bolstered the complainants’ credibility by removing what another jury had found to be the unreliable parts (as evidenced by the not-guilty verdicts returned for those counts or the circumstance that the jury was hung in relation to those counts). Mr Boulten submitted in writing:

5. [66]

   Mr Boulten contended that there were two available methods to ameliorate the prejudice, each of which would have caused prejudice to the applicant. The first way would have been for the applicant to lead evidence of the acquittals. However, Mr Boulten submitted that this would have been unacceptable for three reasons. First, the jury would have also had to be told that the previous jury had been hung in respect of the remaining charges. Secondly, the evidence of there being other allegations would have been highly prejudicial to the applicant. Thirdly, the evidence would have had to have been led by someone other than the complainants, who were not compellable to give evidence on a retrial: s 306J of the Criminal Procedure Act.

6. [67]

   The second way would have been for the applicant to consent to the admission in the 2018 trial of the evidence of charges of which he had been acquitted following the 2016 trial. Mr Boulten contended that this course would have occasioned irremediable prejudice to the applicant because it would have led to the entirety of the complainants’ evidence in the 2016 trial being led in the 2018 trial. This would have bolstered the Crown case that the applicant had a tendency to act on his sexual interest in pubescent boys by sexually assaulting them and would also have meant that the evidence of other acts would have swamped the evidence of the charged acts, since the acquittals in the 2016 trial substantially outnumbered the remaining charges on the indictment for the 2018 trial.

7. [68]

   For these reasons, the applicant submitted that the 2018 trial constituted an abuse of process because the applicant could not have a fair trial in the circumstances outlined above.

8. [69]

   The Crown submitted that, although the fairness of the 2018 trial could be assessed in hindsight and was not to be adjudged merely from the standpoint of the refusal by Townsden DCJ of the stay of the remaining non-alternative charges, it was nonetheless relevant that the applicant had withdrawn his application for leave to appeal against the stay. It submitted that the applicant, as was his right, must be taken to have decided to see what would happen in the 2018 trial before he tested the point on appeal. The Crown submitted that the fact that Townsden DCJ had stayed the alternative counts conferred a substantial benefit on the applicant since he, in effect, obtained an acquittal for those counts in respect of which the jury had been hung. The Crown contended that this course was taken to ensure that the subsequent trial was fair and to avoid any prejudice arising to the applicant from a retrial.

9. [70]

   In Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 272 A Crim R 69, Gageler J summarised the effect of the authorities on a permanent stay as follows:

10. [71]

    I am not persuaded that there was any irremediable prejudice to the applicant in having the 2018 trial proceed in the way in which it did. The advantage to the applicant in the evidence being expurgated was that the jury for the 2018 trial was not aware of the other incidents about which the complainants or DB (being the complainant in count 1 of the 2016 trial) had given evidence.

11. [72]

    Thus, there was a substantial amount of evidence which could otherwise have been adduced by the Crown as tendency evidence which was not adduced at all in the 2018 trial. This gave the applicant a significant forensic advantage.

12. [73]

    Further, defence counsel had cross-examined the complainants in the 2016 trial by impugning their credit generally. A relatively small portion of the cross-examination went to the specific details of the evidence they had given in support of the particular counts. The principal challenge made to JB about counts 2-6 was that the applicant never wore pyjamas. AB was hardly cross-examined about the evidence he had given relating to count 1. The effect of the editing of the complainants’ recorded evidence for the 2018 trial was therefore to exclude much of the context evidence surrounding counts 1-6. However, relatively little needed to be edited out of the cross-examination of the complainants by reason of the way defence counsel conducted the 2016 trial.

13. [74]

    The jury in the 2018 trial was not aware that a previous jury had not been satisfied that JB and AB’s evidence, in combination with the other evidence in the trial, established the numerous counts to the requisite standard. However, I am not persuaded that this disadvantaged the applicant. As Wood CJ at CL said at [221] in the passage extracted from Markuleski above, a finding of not guilty does not mean that the act alleged did not occur, or that the complainant’s evidence was rejected as a lie or as lacking in credibility. Thus, it is possible that the jury in the 2016 trial was satisfied, in respect of all of the counts, that the applicant was probably guilty, but was not satisfied beyond reasonable doubt that he was guilty of any of them. In respect of the counts where the jury was hung, there was plainly a disagreement about whether the Crown had established the commission of the offence to the requisite standard within the relevant time period.

14. [75]

    Further, while it may be accepted that the jury in the 2016 trial was able to use the circumstance that it was not satisfied of particular counts (which led to the return of verdicts of not guilty), there is no sound basis to permit a verdict of acquittal in one trial to be used forensically in a subsequent trial to the benefit of the accused. The reason for this is that a verdict of acquittal does not mean that the accused person did not in fact commit the offence, but merely that the Crown could not persuade a jury, unanimously, or with a single dissenter (in the case of a majority verdict), that the accused had committed the offence beyond reasonable doubt. Thus, in those circumstances, the presumption of innocence (which applies only in the context of criminal proceedings) has not been displaced and the accused person cannot be prosecuted again for the same offence.

15. [76]

    Further, the legislature authorises evidence of a complainant which has been recorded in the first trial to be played to the jury in any subsequent trial: s 306I of the Criminal Procedure Act. This authorisation shows that it was within the contemplation of the legislature that a different jury could convict an accused on the same evidence (as far as the complainant’s evidence is concerned) which resulted in the jury being hung on the relevant count in an earlier trial. While it is for the courts and not the legislature to determine whether a trial is fair, it is not for this Court to decide that an aspect of criminal procedure authorised by Parliament necessarily creates such unfairness that a trial ought be stayed. This issue need not be further addressed in the present case since, having reviewed the unexpurgated evidence of the complainants in the 2016 trial and the matters referred to above, I am not satisfied that the 2018 trial was not fair to the applicant or otherwise constituted an abuse of process. The exceptional remedy of a permanent stay of the remaining charges was not warranted in all the circumstances. The point raised by ground 2 warrants a grant of leave, although the ground has not been made out.

Ground 3: alleged error in admitting tendency evidence

1. [77]

   The applicant contended that the evidence of AL ought not to have been admitted and that English DCJ, in a pre-trial ruling given on 4 July 2016, had failed to apply s 97 of the Evidence Act. It is apparent from the narrative set out above that her Honour did not purport to rule on the admissibility of AL on 4 July 2016; rather, her Honour ruled that the Crown could rely on it, notwithstanding late disclosure, subject to a later determination of its admissibility. It does not appear that English DCJ made any such later determination.

2. [78]

   Nonetheless, Townsden DCJ considered the tendency issue afresh, there being a substantial difference in the tendency evidence relied upon in the 2016 trial and the tendency evidence to be relied on in the 2017 trial (which, as referred to above, was vacated and became the 2018 trial). Mr Boulten argued that the highlighted words “as previously decided” in Townsden DCJ’s judgment of 24 August 2017 were sufficient to indicate that his Honour had been influenced by the misapprehension that English DCJ had decided that AL’s evidence was admissible under ss 97 and 101 of the Evidence Act.

3. [79]

   Even if the applicant was deprived of a ruling on the evidence of AL by English DCJ (which I accept he was) and even if Townsden DCJ was influenced by the assumed ruling by English DCJ (which I do not accept), this would not alter the position which was accepted by Mr Boulten, which is that it is for this Court to determine the admissibility of the tendency evidence, having regard to ss 97 and 101 of the Evidence Act. So much has been authoritatively held in The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):

4. [80]

   The applicant contended that this case was on all fours with McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 (McPhillamy). In McPhillamy the appellant was convicted of 6 sexual offences alleged to have been committed in 1995-1996 against A, an 11-year-old altar boy under the appellant’s supervision on two Saturday nights before mass when the appellant followed him into the church’s public toilet. The Crown led tendency evidence from two men, B and C, who, in 1985, were about 13 years old and were boarding at the college where the appellant was assistant housemaster. They gave evidence that when they had become homesick they had sought out the appellant who had comforted them in his room before committing sexual acts on them. The Crown relied on B and C’s evidence to demonstrate the appellant’s sexual interest in young male teenagers who were under his supervision.

5. [81]

   The High Court allowed the appeal on the basis that, although the evidence was probative, it did not have substantial probative value. The Court said at [31]:

6. [82]

   Mr Boulten argued that all that was relied on by the Crown was a bare tendency to act on a sexual interest in young pubescent boys and that this, while relevant, was insufficient to establish the substantial probative value required for the evidence to be admissible. Mr Boulten accepted that AB, JB and AL were all of a similar age at the time of the alleged offending and that they fell within the “young pubescent” period, but submitted that the hallmarks of the alleged offending against AL were significantly different from the alleged offending against AB and JB.

7. [83]

   Mr Boulten contended that the features of the alleged assault against AL were that he was with a group of other boys for an overnight stay at a holiday house when the applicant singled him out during the day and masturbated him on a veranda when there was a risk that he would be discovered by the other boys. He submitted that JB and AB were both assaulted when each was alone with the applicant in the applicant’s home and, in the case of the assaults against JB, the other complainant was asleep.

8. [84]

   The Crown submitted, before English DCJ, Townsden DCJ and this Court, that the applicant’s conduct in the evidence sought to be admitted as tendency evidence was overwhelmingly similar although it was not required to be in order to be admissible under ss 97 and 101 of the Evidence Act. The Crown submitted that the evidence showed that the applicant had not only a particular state of mind – a sexual preference for pubescent boys – but that he had a tendency to act on it and his means of perpetrating these assaults was similar.

9. [85]

   I accept the Crown’s submission. In each case, the applicant used his position as a Catholic priest to befriend the pubescent boy and to engineer a situation where the boy, with another or others, stayed overnight in premises over which the applicant had control in that he was the only adult present. In each case, the applicant arranged to be alone with the boy prior to the sexual assault, although there was another boy (in the case of JB and AB) or other boys (in the case of AL) present in the vicinity who were either asleep or otherwise diverted. I am satisfied that these matters go beyond merely a tendency to have a sexual preference for pubescent boys (as in McPhillamy) and establish a tendency to act on his sexual preference by sexually assaulting pubescent boys in a materially similar way. These additional common features are sufficient to give the evidence substantial probative value and make it admissible under ss 97 and 101 of the Evidence Act: The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [58]. Accordingly, I am satisfied that the tendency evidence was admissible in the applicant’s 2018 trial. Ground 3 has not been made out.

Ground 4: alleged unreasonable verdict

1. [86]

   In addressing ground 4, that the convictions are unreasonable and cannot be supported by the evidence, the Court is required to ask itself the following question (which was stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 and followed in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13):

2. [87]

   In answering that question:

3. [88]

   In order to answer this question, the Court is obliged to undertake an independent assessment of the quality and sufficiency of the evidence. It is not, however, for this Court to form a view about the credibility of the complainants or any other witness. As the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 (Pell):

4. [89]

   As referred to above, for the purposes of addressing this ground, it is necessary to expand on the outline of the Crown case that appears earlier in these reasons. The following account, which is largely chronological, is drawn from evidence given in the Crown case and is not intended to constitute any findings of disputed fact.

5. [90]

   The Crown case comprised evidence of the two complainants, AB and JB; tendency evidence given by AL; and complaint evidence given by IB, the complainants’ father; HB, the complainants’ mother; TB, the complainants’ sister and Heather, a volunteer with the Church of the Good Shepherd. The Crown also called Timothy O’Reilly, the school counsellor to whom AB said he reported the abuse, who did not recall any such complaint having been made.

6. [91]

   As referred to above, an expurgated version of AB’s evidence in the 2016 trial was played to the jury in the 2018 trial. Except where otherwise stated, the matters set out below derive from AB’s evidence.

7. [92]

   AB was 42 at the time of giving evidence in 2016, having been born in 1974. He had an older brother (OB), an older sister and a younger brother, JB. AB’s father, IB, became an Anglican minister. The family moved from North Queensland to New South Wales so that IB could complete his training. There were various further moves, including to Gosford. AB recalled JB being hit by a car at around this time when the family lived in Gosford. AB was not aware and did not accept that JB had deliberately put himself in the car’s path.

8. [93]

   In about 1984 the family moved from Gosford to Bonalbo, a town west of Lismore. By that stage, OB had left home and AB was in his last year of primary school. AB identified two photographs which were taken in 1985 and 1986 at the Bonalbo Public School. AB had special needs and was being tutored by a woman who lived in the town. AB recalled JB being bitten by cattle dogs at Bonalbo. He did not recall JB taking pills.

9. [94]

   When AB was about 9, his mother introduced him to the applicant at the local fair where he was selling tickets which entitled holders to a toy. It was an agreed fact that the Bonalbo show was held on 11 and 12 April 1986. AB was particularly taken by a white seal, which was one of the stuffed toys on display. AB learned that the applicant was the Catholic priest at the neighbouring town of Mallanganee. AB and JB helped the applicant sell tickets. AB recalled that his mother was cross with him and JB for helping the applicant sell tickets because she considered that it encouraged gambling.

10. [95]

    Subsequently, the applicant visited AB’s family home and he, JB and their father visited the applicant’s home. On at least one occasion AB and JB stayed overnight at the applicant’s house. There was a pool in the backyard where, at dusk, AB and JB swam and were joined by the applicant. All three were wearing Speedos. The applicant was “a bit touchy feely” and touched AB’s inner leg and inner thigh with his hands. When AB asked the applicant about the toys from the stall at the fairground, including the white seal, the applicant offered to show him a white seal among the toys which were in a shed. After AB had seen the toys, he and the applicant returned to the pool where JB had been throughout.

11. [96]

    After the swim they went back to the house and the applicant suggested that they get out of their wet clothes and have a shower. AB took off his costume and wrapped a towel around him while he was waiting for JB to have a shower, which was over a bath tub. When JB got out of the shower, AB got into the shower. While he was under the shower, the applicant got into the shower and washed him down without soap by placing his hands on AB’s chest and back. The applicant, who was fully clothed and standing on the bathroom floor behind him, placed his hand between AB’s legs and inserted his finger into his anus which caused AB to say “Ouch” from the pain. The applicant then told him to get out of the shower. AB dried himself and then had dinner before going to the applicant’s room. AB was not sure how old he was at that time but he could have been 9 or 10. AB and JB were with the applicant in his room, lying on the bed. AB felt “[p]robably a little bit strange, but [he] was there for [his] brother, then”.

12. [97]

    The following day, AB and JB’s father picked them up from the applicant’s house. The applicant hugged AB when he left and winked at him.

13. [98]

    At about this time, AB and JB fell out and fought like “cats and dogs”. According to TB, the relationship between AB and JB was poor from the time they were at Bonalbo. According to HB, when the family moved to Bonalbo AB and JB were “like twins to begin with and then something just happened and they parted”. JB became “clingy” to her whereas in the past “you couldn’t separate” JB and AB.

14. [99]

    The family moved from Bonalbo to Coraki. According to TB, she, Wendy (who boarded with the family) and AB were in her bedroom in the family home in Coraki playing with her collection of stuffed toys. At one point, she threw a white seal at AB, who put his hands up and refused to catch it. AB then picked it up and pulled at it roughly. TB told him to grow up and asked him to leave her bedroom.

15. [100]

    AB did not tell anyone what had happened until he was in year 7 or 8 at Trinity College, a high school in Lismore. He went to see the school counsellor because he was being teased because he was thought to have problems with dyslexia which required him to wear blue-tinted glasses and write on yellow paper. When the counsellor asked him what else was going on he told the counsellor that he had been sexually molested by the applicant, whom he identified by name and said was a Catholic priest. AB got the impression that the counsellor did not want to talk about that matter because he ignored the report and quickly moved onto the topic of dyslexia.

16. [101]

    Mr O’Reilly, who was employed as the sole counsellor at Trinity College Lismore when AB was there, had no recollection of ever meeting AB or having been told that he had been sexually assaulted. His records of the relevant period could not be retrieved. In 1987, he did not make notes of every contact with a student. He said that if he had been told such a thing, he would have recalled it and would have acted on it by referring it to the principal. Mr O’Reilly accepted that when he had given evidence previously (in the 2016 trial) he had said that he would have consulted the student about what the student wanted to do and had not said that he would have referred it to the principal.

17. [102]

    AB and JB remained emotionally distant from each other and did not speak, even at family events. AB became aware that their father, IB, had made a complaint to the authorities about the applicant’s conduct towards AB and JB. AB had not discussed the details of what the applicant did to him with JB or either of his parents. When IB told AB that JB had suggested that the applicant had sexually assaulted not only JB but also AB, AB had denied it.

18. [103]

    When AB was 21 or 22, he told his first wife that he had been sexually assaulted when he was younger. At about this time, JB told AB that he had been protecting him from the applicant, to which AB responded, “Well, how do you know I didn’t get hurt?”. Until that time, AB was not aware that JB had been assaulted by the applicant and AB had not told JB that he had been assaulted. AB said that his latest falling out with JB happened as a result of the discussion they had when AB was married to his first wife “when it all came back out again”.

19. [104]

    AB and his first wife divorced when AB was 30. When he was in his thirties he married again. A friend of AB’s second wife told her that she was dating JB and that JB had told her that he had been raped by the applicant. AB confided in her that both he and JB had been raped by the applicant.

20. [105]

    According to TB, in late 2014, AB told TB and her husband, “Everything [JB] has been saying is correct. I have been abused by [the applicant]”.

21. [106]

    In late 2014, AB was watching television when he saw that the applicant had presided over the funeral of Phil Hughes, a well-known cricketer. It was the first time he had seen him since the family left Bonalbo. It had “stirred [him] up” because he did not like seeing the applicant “still out there, still, you know, glorified”. This was what motivated him to tell his father for the first time, after having denied to his father that he had suffered abuse. During the broadcast, AB rang his father and told him for the first time what had happened. According to IB, when AB rang him, AB said, “I don’t want him to get away with it”.

22. [107]

    Detective Banfield contacted AB in February 2015 and asked him to give a statement about the applicant. He was reluctant but thought, “I’ve had it in the back of my head, I wasn’t keen for the police to investigate and it’s all come back. I think I may as well, not that I’m happy about it but I guess it’s got to be done”.

23. [108]

    Subsequently, on 17 May 2015, AB reported the matter to police, knowing that JB had already made at least one statement to police about the applicant’s conduct. On more than one occasion, AB failed to attend pre-arranged meetings with police at Port Macquarie police station because he was reluctant to make a statement. AB felt that JB, IB and other members of his family were putting pressure on him to make the statement. Eventually, he made a statement to police in more than one session. When it was put to AB that he was not certain of what had happened when he made the statement, he said that he “was very certain of some of the things”. AB explained that it had taken him a few occasions to complete the statement because he could not go on as it was “too much”.

24. [109]

    According to AB’s mother, HB, AB rang her “several years ago” (before her evidence was given in August 2018) and told her that he had spoken to a detective. Although he did not mention the applicant, HB “had an idea then”. Not long afterwards, AB told her that he “just couldn’t let it go any longer” and that he had to “tell the truth that [the applicant] had abused him”.

25. [110]

    As referred to above, an expurgated version of JB’s evidence in the 2016 trial was played to the jury in the 2018 trial. Except where otherwise stated, the matters set out below derive from JB’s evidence.

26. [111]

    JB, who was born in 1975, was the youngest of four children. When the family lived in Gosford, OB repeatedly sexually assaulted JB. These assaults included oral and anal intercourse without consent. The last occasion of anal intercourse without consent had occurred when JB had his head in the toilet and bled as a result. Another man was present who did not do anything to JB. JB did not tell anyone because OB had prohibited it. As a result of these incidents JB attempted suicide by walking in front of a car in Gosford “to stop the pain”. He was with AB at the time. Following JB’s suicide attempt, OB stopped assaulting JB. As far as JB could recall, OB left the family home when they were still living in Gosford.

27. [112]

    When the family moved from Gosford to Bonalbo in 1985, AB, JB and TB went to the local school. JB was able to identify himself in the school photographs at Bonalbo primary school for 1985 and 1986.

28. [113]

    The applicant befriended JB’s mother and father and visited their home. AB and JB would also go to the applicant’s home and would sometimes stay overnight. There was an in-ground pool at the applicant’s home in which JB, AB and the applicant would swim. When JB and AB stayed at the applicant’s house, the boys would sleep in one bedroom and the applicant would sleep in the other bedroom.

29. [114]

    On one occasion when JB was staying overnight at the applicant’s house, he wet the bed. He got up, possibly to find somewhere to wash the sheets, and encountered the applicant, who was wearing pyjamas. He took him into another bedroom and sat down beside JB and played with JB’s hair. He asked him, “Is it your dad that messes with you?” to which JB responded, “No, it’s my brother, [OB]”. The applicant said that it was “okay” because JB was “made for it”. The applicant said that JB was “made for it” a number of times and told him that AB was not. JB described his feelings at the time as follows: “I was scared, I felt like garbage and I, I was only little, man.”

30. [115]

    JB noticed that the applicant’s penis became erect and came through the fly in his pyjama pants. The applicant told JB that it would make him feel better to kiss it and then grabbed JB’s head while he was playing with him in his groin. The applicant put his penis in JB’s mouth. JB was crying and choking. Every time JB would try to move his head back, the applicant would push it down. At this point, JB got an erection, to which the applicant responded, “You like it, you see, you are made for it”. The applicant told him to be quiet or the applicant would wake AB and repeated that AB was not “made for it” the way JB was. JB said that the applicant was holding JB’s penis as well as his own and the applicant “finished himself” and “then ejaculated”. After the applicant had ejaculated, he told JB to kiss his penis. JB complied. Then the applicant wanted to put JB’s penis in his mouth. JB did not say anything although he wanted to. The applicant said that he would wake AB. JB did not want the applicant to hurt AB. The applicant then put his mouth around JB’s penis and JB kept moving. He then stopped and JB wanted to be sick and asked the applicant for some water but the applicant told him that it would “make it taste bad”.

31. [116]

    While the family was living in Bonalbo, JB started smoking tobacco and marijuana from about the age of 11. He also engaged in self-harm, including burning and cutting himself, throughout and after his schooling. JB agreed that marijuana can affect short term memory. On one occasion when JB was living in Bonalbo he had taken as many tablets as he could “to put an end to the misery” but had not been taken to the hospital because his father was embarrassed by what had happened. JB said he had once been mauled by dogs in Bonalbo but had enjoyed it because “it was pain”. JB said that he still hurts himself if he gets “too upset”.

32. [117]

    The next time JB saw the applicant or OB after the assaults was when TB was married by the applicant. JB’s recollection of the event was poor as he got stoned on marijuana at the wedding reception. According to TB, the applicant had not attended her wedding. He had, however, presided over a friend’s wedding.

33. [118]

    When JB was aged between 18 and 20 he lived in Sydney. When he was 18, he had told his girlfriend, Belinda, that he had been “messed with” as a child. Belinda was not called as a witness. JB and Belinda associated with a Christian church group, as a result of which JB disclosed part of what had happened to him, including to Heather, who was a member of the congregation. Heather advised JB to see a therapist who practised regressive therapy. Accordingly to Heather, JB and Belinda attended the Church of the Good Shepherd in West Ryde between about 1995 and 1997. JB would speak to Heather about what was troubling him and made “reference to past abuse”, which was the reason she referred JB to a counsellor in the Ryde area.

34. [119]

    According to JB, in the second or third session, the therapist ended the session in what JB considered to be an abrupt manner when he was feeling “raw and exposed” which caused him to cease seeing her. JB told the therapist not just about OB but also about what the applicant had done to him. He was not hypnotised by the therapist and at no stage did he lose consciousness during any of the sessions.

35. [120]

    When JB told IB that he had been sexually abused by OB and the applicant, his father’s reaction was to say that the regression therapy had probably made him make it up and “it always ends up with the family being blamed”. JB said that at that stage he was not aware that the applicant had already sexually assaulted AB. Subsequently IB told JB that AB had denied that anything had happened to him. IB urged JB to “think of the family” and not to “embarrass the family”. His father subsequently told him that he thought that OB had been “messed with by a Scout leader”.

36. [121]

    By the time JB moved to Sydney to live, OB lived south of Sydney with his wife and children. JB confronted OB about what he had done to him. JB also spoke to the Department of Community Services (DOCS) because he wanted to report OB and have OB’s children taken away from his care. After he had confronted OB, JB told his father that both OB and “his [father’s] mate, the priest Casey” had abused him when he was a child.

37. [122]

    Subsequently, JB also told Bianca, his first wife, what the applicant had done to him. Bianca was not called to give evidence. JB and Bianca subsequently divorced.

38. [123]

    According to IB, JB told him that he and AB had been molested by the applicant in about 2005, when IB was living in Casino. IB felt a mixture of anger, sadness and disbelief and rang AB to ask him about it. AB said, “I don’t want to go there, I don’t want to talk about it”. IB contacted the Lismore Diocese of the Catholic Church and told them that he had just found out that his two sons had been abused by a Catholic priest. IB did not give the details of the abuse because he had never obtained them. IB told JB that nothing would come of the allegations unless AB was prepared to speak up too.

39. [124]

    HB’s recollection was that when she and her husband lived in Uralla, they were in the car with JB, who was then 21 or 22. JB told them “out of the blue” in an angry voice that he had been assaulted by the applicant. This was the first time HB had been told of this. HB said that she dismissed this remark and asked AB, who denied it. Some time later, when IB and HB separated, AB’s name was also mentioned by JB in this context.

40. [125]

    When JB was in his thirties, he spoke to AB about what had happened to him as a child. JB felt that the applicant was the reason he did not have a good relationship with AB. According to TB, JB told her for the first time that he had been sexually abused by the applicant in 2007, when JB became a father.

41. [126]

    In about 2012, JB was counselled twice a week by Paul Johnson, a psychologist, for depression following a work-related accident which had occurred in 2008. Subsequently he saw another counsellor through an organisation which provided services for victims of crime. JB retained lawyers to sue the Catholic Church as a result of the applicant’s conduct because he wanted the applicant to pay for what he had done to him and “wanted him to feel like I feel”. JB confirmed that he also wanted to sue OB and lay a criminal complaint against him.

42. [127]

    On 17 February 2015 Detective Banfield rang JB as part of her investigation. JB told her that AB was “in denial” and that they had not had a good relationship as brothers “because the abuse totally fucked us up”. Two days later she called him again and told him that AB would give a statement. JB was relieved because he had been worried that he would be “hung out to dry” if AB did not provide a statement. JB did not speak with AB about it.

43. [128]

    On 18 March 2015, JB went to Lismore police station and began to make a statement to Detective Banfield. The statement, which was prepared over three or four occasions over the period of a fortnight, was ultimately completed on 8 April 2015.

44. [129]

    In 1978, the applicant became the priest at St Patrick’s Church at Ingham in Queensland. AL, who was then about 12, was a student at the Cardinal Gilroy College at Ingham, which was affiliated with St Patrick’s Church. In the summer of 1978/1979, the applicant drove AL, together with boys from two Italian families who lived in the area, to Stone River to swim at a place known as Venables Crossing. AL recalled that the applicant drove a small Gemini car. When the group went to Venables Crossing, the boys would remove their outer clothing and swim in their underpants. They would jump into the water from the applicant’s shoulders.

45. [130]

    The applicant also took the boys to Forrest Beach which was a small beachside town of about 50 people.

46. [131]

    The group also visited an old timber house at Forrest Beach which was for the use of the Sisters of Mercy. AL recalled that he went with the applicant and two or three of the Italian boys to stay in the house for two nights. The applicant picked up the boys from their homes on the way to Forrest Beach. There was another beach, Cassidy’s Beach, where AL recalled that the applicant had carved a black Mary into a she-oak tree. In cross-examination AL accepted that it might have been a crucifix which had been carved into the tree and that he might have seen the she-oak on another occasion other than the one on which the applicant had assaulted him.

47. [132]

    One day, they went for a walk to Cassidy’s Beach, which was not far from the house. When they returned to the house, the boys all showered together. AL noticed that the applicant was standing in the vicinity of the shower, looking in at the boys and talking with them. AL’s recollection was that the boys were wearing their underpants in the shower.

48. [133]

    Later that day, when the other boys were not in the same room as AL, the applicant approached him and offered to give him a massage. He massaged AL’s back while AL was lying on a bed. When AL turned over, the applicant pulled down his underpants, which were jockettes with a leopard print, and masturbated him until he ejaculated. AL said that when this happened he “was just frozen” and “just felt really dirty and really confused” and “very humiliated”. AL did not tell any of the other boys about what had happened.

49. [134]

    The first person AL told about the incident was Dr Loyola McLean, a psychiatrist from whom he obtained treatment from 1997 until 2005. He consulted her because, although he was still functioning, he was suffering from anxiety and depression and did not understand why. He saw her on at least 300 occasions between 1997 and 2005 for “other life issues” which were “interrelated” to what had happened with the applicant.

50. [135]

    AL did not tell anyone else until 2014 when he contacted the Royal Commission to report what had happened. As far as he could recall, the name of the person who assaulted him was Paul Casey. At about that time, AL told his partner that he had been sexually assaulted by the applicant when he was 12 years old and the circumstances of the assault although he did not go into “exact details”.

51. [136]

    In July 2015, AL returned to Ingham, where he had last been in 1982, to see his father, who was dying. AL saw something in the local newspaper which caused him to contact police at Lismore when he returned home to Victoria three or four weeks later.

52. [137]

    It took some time for AL to decide to give a statement to police. However, he had prepared a draft statement with a lawyer in Melbourne as he intended to make a claim against the Catholic Church. He signed the statement as a statutory declaration and provided it to the police at Lismore. Police converted the statutory declaration into a police statement and sent it back to him for signing. In neither of those statements had AL described the type of underpants he had been wearing at the time of the alleged assault. In cross-examination in the 2018 trial, AL accepted that he had given evidence at the 2016 trial that he had been wearing shorts at the time of the assault and that there had been no reference to shorts in either of his statements.

53. [138]

    In August or September 2015, AL told Detective Banfield at Lismore Police Station that he had been sexually assaulted by the applicant but that he did not want to make a complaint. In October 2015, AL gave evidence to the Royal Commission in a 45-minute hearing which was, in substance, the same as his evidence in chief at the 2018 trial.

54. [139]

    AL had never met either JB or AB. By the time AL gave evidence in the 2018 trial, his claim against the Catholic Church had been finalised by a payment of money.

55. [140]

    The applicant was interviewed by police on 9 July 2015. His ERISP was played in the Crown case. He denied each of the allegations.

56. [141]

    The applicant was born in 1948. He was the Catholic priest for the Mallanganee parish from 1981 to 1988. There were six churches in this area where he would hold services. There was only a small population in the area which left the applicant with spare time to “exercise another one of [his] talents … sculpture”.

57. [142]

    He would also run a “Lucky Stand” at the town fairs to raise money to keep the parish viable. People would buy tickets and, if they had a lucky ticket, would win a prize. The applicant would buy toys wholesale from a store in Brisbane. The prizes ranged from large soft toys to trinkets. In between fairs, he would keep the soft toys in plastic bags in one of the two sheds at the presbytery (he would use the other one for his sculpture) or in the closed-in veranda. The applicant converted a water tank into a swimming pool by putting it into the ground and installing a motor filter and chlorinating the water. He also constructed a “sculpture wall”. He decorated the tank with mosaics, including one of two doves which was a copy of a mosaic from Ravenna.

58. [143]

    The applicant recalled that there was an Anglican priest (IB) in the area who asked him to look after his sons “some times”. He recalled that one of IB’s parishioners had complained about the boys helping him with the Lucky Stand because it tended to promote gambling, which was not permitted in the Anglican church, which was unable to raise money using any games of chance. The applicant looked after “their kids at least once or twice when they had, had something away”. He denied that he had any recollection of either AB or JB although he did remember that he “appreciated the trust that they [JB and AB’s parents] had in me and the relationship that we had developed in asking me to look after their kids for a weekend”. The applicant recalled that the boys were in primary school at Bonalbo Public School. He accepted that if they had come in summer they would have gone swimming in his pool.

59. [144]

    The applicant denied that he had asked the boys to get undressed and said:

60. [145]

    When AB’s allegations were put to him, the applicant said:

61. [146]

    When JB’s allegations were put to him, the applicant said:

62. [147]

    When the details of the assault alleged by JB were put to him, the applicant said that he was not even sure that he had pyjama pants.

63. [148]

    The applicant gave evidence, denying the allegations made by AB, JB and AL. He also called a number of character witnesses. He maintained that what he had said in his ERISP was true.

64. [149]

    The applicant said that he had no memory of AL. He recalled going to stay at a timber house at Forrest Beach with a group of boys and going swimming there. He denied that he had ever carved a black Mary into a tree but said that he had carved a crucifix into a she-oak in the Forrest Beach area. He was cross-examined about there being a line which was not to be crossed and said:

65. [150]

    The applicant denied AB and JB’s evidence of the assaults. He recalled that one of IB’s sons had sat on his knee at the Bonalbo show. He accepted that it was probable that one of the soft toys at his stall at the show was a white seal. Although the applicant said that he did not recall swimming with AB and JB, he did recall that they had come to stay. He said:

66. [151]

    Defence counsel asked about this in re-examination. The exchange was as follows:

67. [152]

    The applicant gave detailed evidence about his practice of not wearing pyjamas as follows:

68. [153]

    The applicant called a number of character witnesses, including David Brunsdon, who was a friend of the applicant’s youngest brother. Mr Brunsdon was 10 or 11 when he met the applicant. The applicant had not shown any sexual interest in Mr Brunsdon at that, or any other, age. Similar evidence was given by Walter Firth who, at the age of 10, spent a lot of time with the applicant because his home life was disrupted and Brian Grant, who met the applicant when he was still a schoolboy.

69. [154]

    Mr Boulten accepted that the following passage from defence counsel’s closing submission adequately summarised the defence case as to JB’s credibility:

70. [155]

    Defence counsel also challenged the sequence of counts 2, 5 and 6 and suggested that it was implausible, as follows:

71. [156]

    This point formed part of her Honour’s hypothesis as to how the verdicts had been arrived at, which is extracted below from the sentencing judgment.

72. [157]

    In his final address, defence counsel also sought to impugn the credibility and reliability of AB as follows:

73. [158]

    Defence counsel challenged AL’s credibility and referred in his final address to the circumstance that he was giving evidence about something that was said to have happened 40 years previously and that his recollection was incorrect (he referred to AL’s evidence about the black Mary carving, which AL accepted might have been a crucifix; and AL’s recollection that the applicant drove a Gemini but the applicant never drove a Gemini) and inconsistent (AL had referred to underpants in the 2018 trial and shorts in the 2016 trial). Defence counsel also relied on the substantial treatment AL had had in the form of 300 consultations between 1998 and 2005. Defence counsel also relied on the alleged implausibility of AL’s account and said:

74. [159]

    The applicant contended that there were at least three possibilities that the jury could have taken into account and which were required to be excluded beyond reasonable doubt: that one or both of the complainants was either lying or exaggerating; that the evidence was not the genuine memory of each complainant; or that one or more of the witnesses was dishonest. Further, the applicant contended that the failure to give the Markuleski direction meant that the jury’s verdicts were not entitled to the significant weight they would be, had the correct direction been given.

75. [160]

    The applicant submitted that the jury’s verdicts on counts 1 and 4 were unreasonable for at least the following three reasons: first, the insufficiency of the evidence adduced by the Crown; secondly, because they were inconsistent with the acquittals on counts 2, 5 and 6; and, thirdly, because they were inconsistent with the acquittals in the 2016 trial. The alleged inconsistency between an acquittal on counts 2, 5 and 6 and the conviction on count 4 has already been the subject of consideration in respect of ground 1.

76. [161]

    Mr Boulten relied on the fact that many of the persons to whom the complainants said that they reported the complaints had not been called, which left the complainants’ evidence that they had complained substantially uncorroborated. He also relied on the significant delay in complaint and the fact that, for a significant period, AB had denied that the applicant had done anything untoward with him. Nonetheless, Mr Boulten accepted that delay in complaint and difficulty in reporting details of an incident of that nature were “common features” of such cases which might neutralise the effect of delay.

77. [162]

    Mr Boulten contended that a troubling aspect of the single conviction in respect of the counts relating to JB was that each of the counts related to a single incident, the whole mechanics of which could not have taken longer than half an hour. He submitted that the temporal connection between the counts on which the applicant was acquitted (2, 5 and 6) and the count on which he was convicted (4) was so intertwined that the jury was not entitled to put to one side the acquittals for those counts. Mr Boulten also submitted that if this Court were satisfied that ground 4 had been made out with respect to the applicant’s conviction on count 4, this would also necessarily affect whether the jury’s verdict in respect of count 1 ought stand. He submitted that if the applicant’s conviction for count 4 were quashed by this Court, then he ought also be acquitted of count 1 since it would be unfair to put the applicant up for retrial.

78. [163]

    I note that Mr Boulten ultimately accepted, in his oral submissions, that this Court could not take into account evidence which was admitted in the 2016 trial on the question whether the verdicts following the 2018 trial were unreasonable. He conceded that the 2016 trial was relevant to ground 2 but not to ground 4 because, in assessing the reasonableness of the jury’s verdicts, this Court was confined to the evidence adduced in the 2018 trial.

79. [164]

    The jury had the advantage of seeing AB, JB, AL and the applicant give evidence and was, accordingly, in a position to make a judgment about their credit. As referred to above, the defence case at trial was that the complainants were lying or mistaken about the matters the subject of their evidence. It follows from the jury’s verdicts on counts 1 and 4 that the jury found AB and JB to be reliable and credible witnesses in relation to the conduct the subject of those counts. This Court is obliged to address this ground on that basis: Pell, at [39]. I note that the applicant confirmed in submissions in reply that he did not ask the Court to view the recordings of the complainants’ evidence.

80. [165]

    Although the Crown was not entitled to ask an accused, “why would the complainant lie?” (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2), it was an obvious question for the jury to ask themselves, having regard to the way the defence case was put. It was open to the jury to exclude the hypothesis that either or both of the complainants (or AL) was lying. The only basis for the suggestion that they were was that they wanted to bring civil claims against the Catholic Church and that they thought it might assist them to obtain compensation. There was significant evidence that it was highly traumatic for the complainants to give their evidence, which the jury might have considered would tell against them doing it for any reason other than that they believed it to be true.

81. [166]

    The alternative hypothesis put by the defence, which the Crown was required to exclude, was that the complainants were mistaken about what had occurred. This required the jury to analyse the reliability of the complainants’ evidence for internal consistency and consistency with other acts or events, including those which occurred subsequently.

82. [167]

    It was open to the jury to find that AB was an honest, credible witness and to believe that he had only been prompted to disclose what had happened to him to his father and to the police because he had been so outraged by seeing the applicant preside over Phil Hughes’ funeral. The jury might also have regarded IB’s evidence (that when he asked AB whether he had been abused by the applicant, as JB had claimed he had been, AB said, “I don’t want to go there, I don’t want to talk about it”) as corroborative of the proposition that something serious had happened to AB but that he did not want to talk about it. The jury might also have been aware, as is this Court, and as was accepted by Mr Boulten, that delay in complaint, sometimes of several decades is a “common feature” of such cases.

83. [168]

    There were aspects of the evidence which the jury might have regarded as supporting AB and JB’s credibility. First, the applicant could not identify any reason why either AB or JB would bear him any animus. His evidence was that he was pleased to have them to stay and told his priest friends how proud he was that IB had trusted him sufficiently to allow his sons to stay with him. The applicant’s own evidence supported AB’s evidence in material respects: he described the soft toys which he stored in plastic bags in his shed in his ERISP and also the swimming pool. Also in his ERISP he said that he did not recall “any traumatic incident” and indeed, that he “[didn’t] remember anything happening during that period of time”.

84. [169]

    Secondly, AB’s extreme, spontaneous and uncharacteristic reaction to having the seal toy thrown at him in his sister’s room at Coraki might have been regarded by the jury as supporting the proposition that, because the white seal was associated with the applicant, he had suffered trauma at the hands of the applicant. The probative value of TB’s evidence of this event was not affected by the circumstance that AB did not give evidence of its occurrence. Although the jury was not privy to the evidence relating to the counts associated with the seal toy which were on the indictment for the 2016 trial (in respect of which either the applicant was acquitted or the charges were stayed by Townsden DCJ), the jury can be taken to have appreciated from AB’s evidence (which on this topic was partially corroborated by the applicant) that he had seen the seal toy at the applicant’s house where the offence the subject of count 1 was committed.

85. [170]

    Further, the relatively sudden deterioration in the relationship between AB and JB when they were living at Bonalbo at the time of the assaults might also have been regarded by the jury as corroborative of them both having suffered some trauma at the time.

86. [171]

    Although Mr O’Reilly was unable to recall any complaint of molestation having been made to him, AB’s recollection of the encounter was detailed. His account included the reason why he saw the counsellor (because other children were picking on him because he had to wear blue-tinted glasses and write on yellow paper), how the topic came up (the counsellor asked him what else was going on) and the physical location of the counsellor’s office within the school grounds. Mr O’Reilly’s evidence, by contrast, was vague. He did not keep records and such records which had been kept were not available. Further, it was open to the jury to reason that Mr O’Reilly had an interest in not recalling the report since, if one had been made, he had done nothing about it and could, accordingly, have been criticised. As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, the classic exposition of credibility, “motive is one aspect of probability” (at 431).

87. [172]

    The jury might also have considered the fact that AB could not give his statement in one session but had to attend the police station on several occasions to be consistent with the recollection of what occurred being traumatic.

88. [173]

    Further, the jury was entitled to accept AL’s evidence of the applicant’s tendency and reason that, together with other evidence, the hypothesis that AB (or JB) had fabricated their accounts or been mistaken in their recollections could be excluded beyond reasonable doubt. The majority in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40]:

89. [174]

    For the reasons given above in relation to ground 1, I consider the verdicts for the counts relating to JB to be consistent on the basis set out by her Honour in the sentencing judgment. The applicant gave detailed evidence about his aversion to pyjamas which dated from his time in Rome which the jury may well have accepted, and led to the jury not being satisfied of count 2. It is also understandable that the jury may have retained a doubt about counts 5 and 6 because they were said to have occurred after the applicant had ejaculated. Further, the jury might have regarded JB’s overall recollection as less reliable than AB’s because he had been significantly disturbed by what OB had done to him. JB had also been subject to regressive therapy, which the jury might have considered compromised his recollection. Nonetheless, the jury indicated, by its verdict on count 4, that it accepted JB’s evidence on that count. By both of the guilty verdicts the jury indicated that they did not believe the applicant on highly significant matters, although in relation to the counts concerning JB (2, 4, 5 and 6) they may well have accepted his evidence that he did not wear pyjamas.

90. [175]

    Having read the transcripts and the exhibits in the 2018 trial, I confirm that I do not entertain a doubt about the applicant’s guilt, much less one that the jury might not have been able to resolve, having regard to its advantage of seeing and hearing the witnesses. I am not persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. In my view, it was open to the jury to convict the applicant on counts 1 and 4. For the reasons given above, I am not persuaded that the verdicts of guilty on counts 1 and 4 were unreasonable.

Proposed orders

1. [176]

   For the reasons given above, I propose the following orders:

   1. (1)

      If leave be required to rely on ground 1, grant leave under rule 4 of the Criminal Appeal Rules in respect of that ground.

   2. (2)

      Grant leave to appeal on grounds 1, 2, 3 and 4.

   3. (3)

      Dismiss the appeal.

2. [177]

   BELLEW J: I have had the advantage of reading, in draft, the judgment of Adamson J. I agree with her Honour’s conclusions in respect of grounds 1, 2 and 3. In respect of ground 4, I have undertaken my own assessment of the evidence and I agree with her Honour’s conclusion in respect of that ground.

3. [178]

   I agree with the orders proposed by Adamson J.