Gardiner v R

1. [1]

   ADAMSON JA: Leonard Gardiner (the applicant) seeks leave to appeal against his conviction for two offences: an offence contrary to s 66EA of the Crimes Act 1900 (NSW) of persistent sexual abuse of TR, a child, between 1 January 1964 and 18 March 1968 (count 1); and an act of buggery, contrary to s 79 of the Crimes Act, between 1 February 1966 and 31 December 1967 against PS (count 6). The other offences on the indictment, counts 2-5, were alternatives to count 1. At the time of the commission of the alleged offences, the applicant was a mathematics teacher at a school in Armidale, where TR and PS were boarding students.

2. [2]

   The applicant was convicted of counts 1 and 6 on 1 June 2021 following a trial by judge alone conducted by English DCJ (the trial judge).

3. [3]

   The trial judge imposed an aggregate sentence of 16 years’ imprisonment commencing on 1 June 2021 and expiring on 31 May 2037, with a non-parole period of 11 years commencing on 1 June 2021 and expiring on 31 May 2032. There is no application for leave to appeal against the sentence.

4. [4]

   The applicant seeks leave to appeal on the following grounds:

The indictment

1. [5]

   As referred to above, the indictment charged six counts. As counts 2-5 were an alternative to count 1 and the evidence led in support of counts 2-5 was relevant to count 1, it is convenient to reproduce the indictment in full:

The applicant’s application for a permanent stay

1. [6]

   By notice of motion filed on 15 February 2021, the applicant applied for a permanent stay of the proceedings, submitting that he could not have a fair trial because of inordinate delay.

2. [7]

   The applicant relied on affidavit evidence of his solicitor, Jessica Caligiore, as to his instructions (denying the charges and the allegations made in statements tendered by the Crown from tendency witnesses). Ms Caligiore deposed to the unavailability of the following witnesses who could not be located, had died or were presumed dead. Ms Caligiore’s evidence as to the witnesses, their role at the time and the evidence which it was expected that, had they been available, they could have given are summarised in the following table.

3. [8]

   Ms Caligiore also prepared a table of documents which had been sought pursuant to subpoenas issued at the applicant’s request. She set out the categories of documents which were not produced, the reason given for the non-production and the alleged significance for the applicant’s trial. 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.

4. [9]

   Mr Boulten SC, who appeared for the applicant in the Court below, submitted that, in light of the number of unavailable witnesses, neither evidentiary rulings, nor jury directions, nor warnings would be adequate to remedy the presumptive and actual prejudice to the applicant. He relied on Green (A Pseudonym) v The Queen [2017] VSCA 277 (Green) at [105] in which the Victorian Court of Appeal allowed an appeal against the trial judge’s refusal of a permanent stay of criminal proceedings and granted a permanent stay.

5. [10]

   The trial judge dismissed the application for a permanent stay. Her Honour set out the chronology of the alleged offending and the narrative as revealed by the evidence before her. Her Honour referred to each of the apparently unavailable witnesses and the role each played in the narrative, as well as to the documents which could not be accessed. The trial judge recited the relevant authorities and the submissions of each party.

6. [11]

   Her Honour addressed the jurisdiction to grant a permanent stay and the steps which were available by way of jury directions and warnings to ameliorate any prejudice arising from delay. She referred to the public interest (as a result of the Royal Commission into Institutionalised Child Sex Abuse (the Commission)) in sexual offences alleged to have been committed against children in institutions by people responsible for their care. The trial judge referred to the applicant’s mental state and said:

7. [12]

   The trial judge distinguished the applicant’s mental state from other decisions cited by counsel for the applicant in which the accused’s, or the complainant’s mental state was a “decisive additional factor” in granting a stay.

8. [13]

   The trial judge said, of the absence of documents:

9. [14]

   Her Honour noted the lack of challenge to the location of the applicant’s residence when he was living at the school near the headmaster’s residence. However, the trial judge accepted that the lack of records could be significant with respect to count 1 (and, in particular, counts 2 and 3, which were relied on in support of count 1) and foreshadowed giving a forensic disadvantage warning under s 165B of the Evidence Act 1995 (NSW).

10. [15]

    In addressing the prejudice occasioned by the unavailability of witnesses, the trial judge said:

11. [16]

    The trial judge quoted Maxwell J (in dissent in Morton v R [2020] VSCA 49; [2020] 281 A Crim R 307) who referred to “the counter balancing forensic advantage to the applicant flowing from the exclusion of complaint evidence”. Her Honour also addressed the issues of potential contamination, concoction and collusion (arising from witnesses speaking to each other in the course of, and following, the school reunion).

12. [17]

    The trial judge concluded:

Pre-trial matters

1. [18]

   On 24 June 2020, the prosecutor served a tendency notice as follows:

2. [19]

   On 10 May 2021, the applicant applied to be tried by judge alone. His application was opposed by the Crown. Following the hearing of argument, the trial judge delivered ex tempore reasons, acceding to the application. After delivery of reasons, Mr Boulten applied for certain identified evidence to be excluded. Submissions regarding these applications for pre-trial rulings occupied the rest of 10 May 2021 and 11 May 2021. At the commencement of 12 May 2021, the trial judge made rulings and delivered ex tempore reasons for those rulings.

3. [20]

   The rulings included the rejection of the following evidence:

   1. (1)

      evidence of four witnesses and the second statement of TR on the grounds that they were served late;

   2. (2)

      paragraph 39 of TR’s statement in which he deposed to having gone to the headmaster’s garden after one of the sexual assaults and been found by the headmaster’s wife, Mrs Cash, who took him inside and tried to comfort him (in circumstances where Mr and Mrs Cash had died);

   3. (3)

      evidence of TR that Jim Graham, a teacher at the school, had punished him for complaining about the applicant;

   4. (4)

      evidence of TR’s complaint to Mr Cash;

   5. (5)

      TR’s evidence of going to the sick bay to get away from the applicant (on the ground that no staff members of the sick bay had been identified by TR);

   6. (6)

      TR’s evidence that his school results dropped (as a consequence of the applicant’s conduct) to “failure across the board”;

   7. (7)

      TR’s evidence of the applicant visiting him at Ipswich Grammar School, pretending to be his uncle, taking him away from the school and sexually assaulting him;

   8. (8)

      TR’s evidence about the contents of a letter he wrote to the headmaster of the school in 1997 (which was rejected because the letter could not be produced);

   9. (9)

      evidence of KZ (a tendency witness) that he had complained to his brother and sister-in-law about the applicant sexually assaulting him (in circumstances where the brother and sister-in-law were not to be called);

   10. (10)

       evidence of John McIntyre, a boarder at the school, that he told Mr Cash that he had seen the applicant take TR to his room and that Henry Nicholson, another student, had also seen the applicant taking TR to his room; and

   11. (11)

       TR’s evidence of complaint that he told his wife what had happened a year or two after the birth of his first son (in circumstances where she was deceased).

4. [21]

   Over objection by the applicant, the trial judge ruled that the following evidence was admissible:

   1. (1)

      TR’s evidence that he began to demand that the applicant buy him a portable record player with an automatic charger;

   2. (2)

      TR’s evidence of the breakdown of his relationship with the applicant;

   3. (3)

      the evidence of AR, a student at the school, that the applicant had invited him to his room for private maths tuition and had purported to read his palm;

   4. (4)

      Mr McIntyre’s evidence that he saw the applicant lead TR towards his room, followed them and saw the applicant take TR into his room; and

   5. (5)

      the evidence of Graham Austin, a student at the school who started in 1964, that he remembered the applicant as his maths teacher; that TR was in his year and that he saw the applicant take TR to his room for maths tuition.

5. [22]

   The court adjourned to permit the parties to discuss how the trial would progress. The trial commenced after 2pm on 12 May 2021.

The trial

1. [23]

   At the commencement of the trial (after the luncheon adjournment on 12 May 2021), the prosecutor informed the trial judge that Mr Boulten had no objection to the Crown Case Statement being handed up and used instead of an oral opening. The Crown Case Statement, dated 1 September 2020, was not marked up to take account of the pre-trial rulings made by the trial judge on the morning of 12 May 2021 and therefore included references to parts of the Crown case which had been excluded as a consequence of the trial judge’s evidentiary rulings referred to above.

2. [24]

   The offences were alleged to have been committed at the school, where the applicant was a mathematics teacher, between 1964 and 1967. It is not necessary to summarise the whole of the evidence in the Crown case since there is no unreasonable verdict ground. The evidence will be referred to in so far as it is germane to the grounds of appeal.

3. [25]

   The Crown case was that the applicant lived on the school grounds and remained a teacher at the school until 1967.

4. [26]

   TR, the complainant for counts 1-5, was born in 1952. His adoptive parents moved to Papua and New Guinea (PNG) when he was very young. He was schooled in PNG until 1964 where he obtained a scholarship to study and board at the school. He was a boarder at the school between 1964 and 1967. The Crown case, based on TR’s evidence, was that TR had started at the school in Form 1 and that the applicant had not only taught him mathematics but also tutored him privately in mathematics in 1964 and in subsequent years.

5. [27]

   TR’s evidence was that the applicant had committed sexual offences against him that extended throughout the time he was at the school. TR said that the first offence was committed when the applicant was tutoring him privately in mathematics.

6. [28]

   TR also gave evidence of four specific incidents (counts 2-5). TR said that the conduct, which comprised counts 2 and 3, occurred in 1964 in a weatherboard cottage, known as the “White House”, where he said the applicant was living at the time. TR said that counts 4 and 5 occurred in 1965 and 1966 respectively in the applicant’s room, which was located behind the headmaster’s lodge.

7. [29]

   The applicant denied that he had ever lived in the White House. His evidence was that, in the early part of 1964, he had lived with Brian Mattingley, the Deputy Headmaster, and that for the second part of 1964 he had lived with a local man, “Vic”, in a house near the school. The applicant said that he lived in a room on the second floor of the main school building between 1965 and 1967. The applicant denied ever indecently or sexually assaulting any schoolboy in the time he worked at the school.

8. [30]

   The applicant also disputed that he had taught TR in 1964 or that TR was in Form 1 in 1964. He contended that TR was in Grade 6 in 1964 and that he may have been taught by Ms Stevenson. The applicant said that he had only the vaguest memory of TR and denied ever tutoring him.

9. [31]

   TR’s evidence was that in 1964, while the applicant was his teacher, the applicant had invited him to come to the White House, where the applicant lived, for tutorials. The applicant was initially kind to TR, who was extremely isolated and miserable at the school.

10. [32]

    TR said that the first sexual incident occurred in the applicant’s accommodation when TR had fallen asleep after the applicant had given him a hot chocolate. When TR woke, the applicant’s hand was down his pants and was masturbating his penis (count 2).

11. [33]

    After this event, TR tried to avoid the applicant. However, soon afterwards, late one night during the winter of 1964, the applicant visited the dormitory in Dangar House where TR slept. The applicant woke him and took him back to his room in the White House and anally raped him (count 3).

12. [34]

    TR did not tell anyone what had happened. For the rest of 1964, the applicant made TR attend maths tutoring in the White House and regularly sexually assaulted him. This conduct continued for three years. Penile/anal intercourse took place at least once a week during school terms, both in the applicant’s room and in his car.

13. [35]

    In 1965 TR moved to Broughton House, where Mr Graham was the house master. Also in 1965, the applicant moved to a room on the upper level of Abbott House. He continued to teach TR mathematics and sexually assault him in his room in Abbott House.

14. [36]

    In 1965 TR wrote “LAG [the applicant’s initials] = BO [a reference to the applicant’s allegedly bad body odour]” on the blackboard in the classroom. The applicant entered while TR was still at the blackboard. TR said that the applicant struck him, in front of the class, with a steel-edged ruler. After school that afternoon, the applicant summoned TR to the applicant’s room where the applicant assaulted him by hitting him and inserting the handle of a hairbrush into TR’s anus (count 4).

15. [37]

    In 1966, when the applicant was still living in Abbott House, he assaulted TR by taking hold of his hair, pulling his arm behind his back and anally raping him (count 5).

16. [38]

    In 1967, TR left the school and moved to Ipswich Grammar School in Queensland.

17. [39]

    TR told no-one of the applicant’s conduct until 2019 when he became aware of a police investigation into the applicant’s conduct at the school. He then reported the applicant’s conduct to the police.

18. [40]

    The following matters had previously been part of the Crown case (and remained in the Crown Case Statement which was used as the opening) but it was common ground that these matters were no longer part of the Crown case by reason of the trial judge’s pre-trial rulings (set out above):

    1. (1)

       TR said that he had tried to report the abuse to the headmaster, Alan Cash, who did nothing, and to Mr Graham, who accused him of lying;

    2. (2)

       as a result of these complaints, TR was punished;

    3. (3)

       TR tried to make himself sick so that he could spend time in the sick bay, as the Matron would keep the applicant away. The Crown could not identify any other staff at the sick bay at the relevant time; and

    4. (4)

       after TR started at Ipswich Grammar School, the applicant came to visit him, pretending to be his uncle, and sexually assaulted him in the course of those visits.

19. [41]

    PS started at the school in 1965 (having undergone his primary education in Queensland). He was initially in Dangar House. He sat the School Certificate in 1968 and the Higher School Certificate in 1970. He was at the school for a total of six years.

20. [42]

    PS gave evidence of having been taught mathematics by the applicant in 1966 and 1967. PS was tutored by the applicant in mathematics outside school hours from about 1967, which PS regarded as “quite unusual” as he was “reasonably good at maths”. The tutoring took place in the applicant’s room behind the headmaster’s residence “on a quite high up floor … at least, the third floor”. The applicant’s room was “very small” and had a bed and a desk.

21. [43]

    PS said that, “initially, the tutoring was normal” but later the applicant mentioned to PS that he needed to measure his “body parts…to check for growth”. PS allowed the applicant to measure parts of his body. Over a period of three or four occasions, the applicant went from measuring PS’s fingers and hand, to his chest (following a request that PS take his shirt off), to his leg (following a request that he take his trousers off) and, eventually, to his penis (following a request that he remove his pants). PS complied with these requests because “[the applicant] was [his] teacher, [he] trusted him.”

22. [44]

    Subsequently, in 1967, the applicant asked PS to remove his clothes and lie down on his bed. The applicant showed PS a condom and asked him whether he knew what it was, to which PS replied that he had “no idea”. The applicant asked PS to roll over. The applicant then lay beside him and forced his penis into PS’s anus and had intercourse with him. PS said in evidence:

23. [45]

    PS’s next recollection was that he was running down the road in the school to the White House where he was residing as a boarder. He went straight to the bathroom and defecated.

24. [46]

    In 2000, PS went to an old scholars’ reunion dinner, which was attended by about 50 people. Each “old boy” stood up and spoke about his recollections of the school. PS, who had been drinking alcohol at the dinner, stood up and said that he was married, had children and also spoke about his employment. He also said, “I was fucked by Frankie Gardiner”. PS recalled people coming up to him afterwards but he could not identify them. Between a week and a couple of months after this event, two former students who had been present, Greg Cornelson and Greg Kosch, contacted him separately to express support. PS could not recall whether they spoke about the applicant.

25. [47]

    After the 2000 reunion, JT, another former student, said to PS, “I had a problem, but it was nothing as bad as you.”

26. [48]

    In 2013, PS was contacted by Peter Lawless, who had been in the same year as PS for at least part of his time at the school. Mr Lawless said that he remembered what PS had said at the reunion and asked if he wanted to contact the Commission. PS did contact the Commission but did not make a statement to, or give evidence at, the Commission. Although PS and Mr Lawless spoke several times about PS’s experience at the school, PS did not discuss the details of what actually happened when the applicant had anal intercourse with him.

27. [49]

    Subsequently, JT spoke with Rob Busby, a member of the “old boys” club of the school, who arranged a meeting with the school’s then principal, Murray Guest. The meeting took place in January 2014 and was attended by the principal, PS, JT, Mr Busby and another male. PS reported the incident to Mr Guest.

28. [50]

    In 2019, before the school reunion dinner, PS met TR, who had contacted him because he had heard from Mr Lawless that PS was making an allegation against the applicant. PS had not met TR before as they had not been in the same class at school. On 1 August 2019, PS and TR went to see Mr Guest. PS told Mr Guest about the incident but “not the detail.” Mr Guest informed them that he would say something at the reunion dinner on 3 August 2019. Mr Guest mentioned the allegations at the dinner, after which PS received some phone calls of support from others who had attended the dinner.

29. [51]

    JT was called as a tendency witness to establish that the applicant had a sexual interest in male children aged between 12 and 17 years; that he used his position as a teacher at an all-boys schools to gain access to male students; that he used his position as a teacher in an all-boys school to gain one-on-one access to the students by inviting them into his bedroom for private tutoring; and that he had a tendency to act on his sexual interest by looking at and touching the students’ penises under the guise of a special study about growth that required him to measure their penises.

30. [52]

    JT gave evidence that he had started high school at the school in 1965 as a boarder in Form 1 and had initially lived in Dangar House. He enjoyed sport and had lots of friends, including PS. In 1966, when he was in Form 2, he moved to Abbott House where he resided in dormitory 5, above the headmaster’s residence. Various staff, including the applicant, were housemasters and supervised the students.

31. [53]

    JT thought that the applicant, whom he knew as “Stinky”, had been a maths teacher, but he had not been taught by him. In late 1966 the applicant directed JT to go to the applicant’s room. JT, who was 14 years old at the time, did as he was told. When he arrived, the applicant told him to take his shorts and pants down. They were around his ankles. The applicant asked JT to sit on the bed, whereupon the applicant started playing with the end of JT’s penis with a pencil. JT felt confused. The applicant then said to him, “That's enough ... we’ll finish this research later on ...”.

32. [54]

    Mr Austin gave evidence that he first came to the school as a student in 1964. He remembered the applicant as his maths teacher. He recalled that TR was in his year. He saw the applicant take TR to his room for maths tuition and recalled that, when the applicant asked TR to go to his room, TR looked haunted, tired and distressed.

33. [55]

    KZ gave evidence that he had been taught by the applicant at Immanuel College in Adelaide in 1961 or 1962. When he was 16 or 17 years old, the applicant had visited his family's farm and indecently assaulted him. The applicant had visited on a subsequent occasion and had entered KZ’s bedroom at night. KZ had screamed. The applicant ran from his room and left the location in his car.

34. [56]

    The applicant gave evidence that these incidents never occurred.

35. [57]

    The following evidence of discussions between TR, PS and others was elicited in the Crown case but was relied on by the defence and was summarised in the applicant’s submissions in this Court.

36. [58]

    Before any complaint to police was made about the applicant, Mr Lawless conducted his own investigation into the applicant and other teachers at the school. Further, TR, PS and other former students of the school (including JT and AR) discussed the applicant’s sexual abuse of students. They communicated by email. Further, there was a meeting in August 2019 which was attended by Mr Guest, TR and PS (referred to above). Subsequently, Mr Guest gave a speech at a 50-year reunion of students, where the applicant’s conduct towards both TR and PS was referred to.

37. [59]

    On 4 September 2019, Mr Guest wrote a letter to past students of the school in which he referred to PS and TR as victims. The letter (marked Exhibit 16) included the following paragraph:

38. [60]

    As referred to above, the applicant’s case at trial was that he had never given mathematics tutorials to either TR or PS in his room and that he had never touched either boy.

39. [61]

    Further, the defence case was that the evidence of TR, PS, JT and AR was contaminated (see the summary above).

40. [62]

    In summary, the primary judge accepted the evidence of the complainants and the tendency witnesses. She found each of the counts proved beyond reasonable doubt but returned verdicts only on counts 1 and 6 (as the verdict on count 1 made it unnecessary for verdicts to be returned on counts 2, 3, 4 and 5). Although the reasons were not given ex tempore, they bear some of the hallmarks of reasons delivered in that way in that they are discursive and, at times, repetitive.

41. [63]

    In these circumstances, rather than summarise the reasons by reference to topics or grounds, I propose to extract from the reasons the particular parts which are the subject of grounds of appeal, in the order in which they appear in the judgment. There are no headings in the judgment but I have added them below to indicate, in general terms, the structure of the judgment, in so far as it can be discerned from its contents.

42. [64]

    The trial judge gave herself a tendency direction (which is raised with respect to ground 3(a)) which said, in part:

43. [65]

    The trial judge continued in the following paragraph (which is relevant to ground 4):

44. [66]

    The trial judge gave herself a forensic disadvantage direction (which is relevant with respect to ground 7) as follows:

45. [67]

    It was common ground that the forensic disadvantage direction was not precisely in the terms of the direction which the parties agreed ought be given. Mr Game SC, who appeared with Mr Barrow on behalf of the applicant, accepted that it was not necessary for the trial judge to reproduce verbatim the whole of the agreed direction but contended that the balance of the reasons indicated that the trial judge had not appreciated the extent of the forensic disadvantage (which was principally relevant to ground 1).

46. [68]

    The trial judge set out the various counts concerning TR (counts 1-5) and summarised the Crown case on these counts. At the conclusion of this summary, the trial judge said:

47. [69]

    In the course of the summary of the defence case, the trial judge said:

48. [70]

    After summarising the respective cases of the prosecution and the applicant, the trial judge summarised the evidence on count 6. The trial judge also referred to the contact between PS and others about the alleged offences, including Mr Lawless, who was not called as a prosecution witness.

49. [71]

    As count 1 was a composite count, the trial judge first addressed the evidence (adduced by the Crown and the applicant) in respect of each of counts 2, 3, 4 and 5.

50. [72]

    The trial judge then addressed the evidence of PS and assessed his credibility. Her Honour said:

51. [73]

    The trial judge also said, of PS’s evidence:

52. [74]

    The trial judge then assessed the credibility of TR. Her Honour said:

53. [75]

    The trial judge made findings about Mr Austin’s credibility as follows:

54. [76]

    The trial judge returned to an assessment of the credibility of TR, when addressing count 2, in the following passage:

55. [77]

    Immediately after this passage, the trial judge said:

56. [78]

    The trial judge concluded, with respect to count 2:

57. [79]

    The trial judge addressed TR’s evidence with respect to count 3 and said, as follows:

58. [80]

    The trial judge said:

59. [81]

    When addressing count 4, the trial judge said:

60. [82]

    When addressing count 5, the trial judge described the applicant’s demeanour in part as follows:

61. [83]

    The trial judge, when considering count 5, said of TR:

62. [84]

    The trial judge, when still addressing count 5, referred to the similarity between counts 5 (concerning TR) and 6 (concerning PS), as follows:

63. [85]

    The trial judge, immediately after the passage set out above, said:

64. [86]

    The trial judge said, in respect of count 1:

65. [87]

    The trial judge referred to the tendency evidence as follows:

66. [88]

    The trial judge referred to the evidence of KZ and said, as follows:

67. [89]

    The trial judge returned to the subject of the applicant’s credibility in the following passage:

68. [90]

    The trial judge addressed whether the applicant had visited KZ at the family farm and TR at Ipswich Grammar School and said:

Consideration

1. [91]

   As is apparent from the grounds of appeal, there is no ground that the reasons are inadequate. Rather, it is contended that the reasons reveal several errors.

2. [92]

   In a trial by judge alone, the trial judge is obliged to give reasons: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]-[98] and [101]. The requirement is imposed by statute and by the common law. The accused’s right to reasons carries with it a right to appeal on the basis of error in the reasons, which will usually constitute a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming) at [27].

3. [93]

   Section 133 of the Criminal Procedure Act 1986 (NSW) provides:

4. [94]

   The common law obligation on judges to give reasons is broader than the requirements of s 133(2) of the Criminal Procedure Act. In Fleming, the High Court said of s 33 of the Criminal Procedure Act (the statutory predecessor to s 133) at [28]:

5. [95]

   The standard required of trial judges conducting criminal trials by judge alone was addressed in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, where Nettle J said at [132]:

6. [96]

   The trial judge’s obligation to give reasons constitutes a fundamental difference between a trial by judge alone and a trial by jury. Not only are juries not required to give reasons, but it is also a criminal offence for a juror to disclose information about jury deliberations or how a juror came to a particular opinion (s 68B of the Jury Act 1977 (NSW)) or to solicit information from a juror about such matters (s 68A of the Jury Act). A jury is not generally asked to articulate the basis of its verdict: R v Isaacs (1997) 41 NSWLR 374 at 379-380 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); cf. Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [28]-[45] (Kiefel CJ, Keane and Nettle JJ).

7. [97]

   The distinction between the two modes of trial also has consequences for sentencing. Following a conviction after a trial by jury, a sentencing judge is required to find the facts on the evidence, consistently with the jury’s verdict: Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29. A sentencing judge ought not speculate on what findings the jury would or could have made on the basis of the evidence: Fuller v R [2022] NSWCCA 203 at [9]-[13] (myself) and [105]-[106] (N Adams J). By contrast, in a trial by judge alone, the trial judge’s findings in the reasons for verdict form the basis for the reasons for sentence (together with any further evidence adduced on sentence).

8. [98]

   The obligations on the judge to give reasons, in accordance with s 133 of the Criminal Procedure Act and the requirements of the common law, are often too onerous to be discharged by what may, effectively, be a single draft. Unlike sentencing judgments, which are often given ex tempore, reasons in trials by judge alone require the preparation of well-ordered, comprehensive reasons. This task can rarely be satisfactorily accomplished in an ex tempore fashion, which is apt to result in error. Where reasons are deficient or show error, the convictions may be overturned and a re-trial ordered, with the attendant cost, in terms of money, stress, emotion and time.

9. [99]

   Mr Game submitted that there was no principle of “due deference” to the reasons and that they ought be read as meaning what they said and not given a beneficial construction with any assumption that the trial judge was correctly applying the law. While I accept that there is no such principle, it is important to read reasons fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47] (Johnson J, Price and Lonergan JJ agreeing). They “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

10. [100]

    This Court makes allowance, when considering applications for leave to appeal against sentence, for infelicities of language which are the result of ex tempore judgments given in busy lists. However, it is not appropriate for such latitude to be given when assessing the reasons of trial judges following criminal trials, including in cases such as the present when the trial judge was sitting in a rural location and was subject to the demands of a country list.

11. [101]

    In support of ground 1, Mr Game submitted that there was presumptive prejudice arising from extreme delay, given the time between the alleged offending and, first, PS’s complaint to police (57 years); second, TR’s complaint to police (51 years); and, third, the trial (between 53 and 57 years). The applicant, who was born in 1937 was, at the time of trial, 83 years old.

12. [102]

    Mr Game relied on the substance of the applicant’s case (as outlined in Ms Caligiore’s affidavit of 15 February 2021): that he had never tutored TR or PS, that neither had ever visited his residential premises and that he had never sexually or indecently assaulted either of them. The applicant made similar denials regarding the tendency witnesses, JT, KZ and AR. He also denied ever having asked Mr Taylor to find TR or bring him to his room and denied that TR and Mr Taylor were in Year 8 in 1965.

13. [103]

    Mr Game, in written submissions, substantially reiterated the submissions made by Mr Boulten on behalf of the applicant before the trial judge on the application for a permanent stay and summarised the evidence adduced by the applicant in support (which has been referred to above in the table and narrative). He contended that a permanent stay ought to have been granted on a similar basis to the stays granted in Green and Pound v The Queen [2019] VSCA 279; (2019) 280 A Crim R 109 (Pound) at [16]-[19].

14. [104]

    He submitted that the trial judge erred “by failing to recognise that the combined weight of the prejudice occasioned to the appellant by the extreme delay went [to] the very heart of his right to a fair trial.” Mr Game also submitted that her Honour had posed the incorrect test when she concluded (as set out in the extract from the reasons above) that the prejudice to the applicant was not outweighed by the public interest in having the charges tried.

15. [105]

    The correct approach where an applicant challenges a conviction on the ground that the proceeding ought to have been permanently stayed was articulated by Beech-Jones CJ at CL in Macri v R [2022] NSWCCA 177 at [4]-[5]. In order to make out ground 1, the applicant must show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error: see Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago) at 31 (Mason CJ); [1989] HCA 46.

16. [106]

    In DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63, Allsop P summarised the errors which would fall into this category, at [78], as follows:

17. [107]

    The community has a substantial public interest in bringing those charged with serious criminal offences to trial. Thus, fairness to the accused, while an important consideration, is not the only relevant factor: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (Dupas) at [37].

18. [108]

    The High Court in Dupas went on to state that the following passage in the reasons of Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon) (which concerned pre-trial publicity) at 605-606 can be regarded as authoritative:

19. [109]

    Similar considerations determine the question of whether a permanent stay should be granted in the case of inordinate delay as those considered in Glennon in the context of pre-trial publicity. For a permanent stay to be appropriate on the ground of delay, the delay must render the trial necessarily unfair so that any conviction would bring the administration of justice into disrepute: Jago at 34.

20. [110]

    The means to ameliorate the effects of delay include directions and warnings to the jury (or to the judge in a judge-alone trial). For example, s 165B of the Evidence Act provides that a judge in criminal proceedings where there is a jury must, in certain circumstances, if satisfied that the defendant has suffered a “significant forensic disadvantage” as a consequence of delay, inform the jury of the nature of the disadvantage and the need to take it into account when considering the evidence. Section 165B was inserted into the Evidence Act in 2001 and later amended in 2007 to refine the directions authorised by the High Court in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 to ameliorate the prejudice occasioned by delay: see, generally, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551–553 (McHugh J); [1996] HCA 25.

21. [111]

    The factors which may constitute “significant forensic disadvantage” include the unavailability of a potential witness or piece of evidence: s 165B(7).

22. [112]

    It was common ground that, in accordance with the passage extracted from Glennon above, this Court, when considering whether the convictions ought be set aside on appeal on ground 1, was required to address how the trial was actually conducted, including the warnings the trial judge gave to herself.

23. [113]

    In support of ground 1, Mr Game submitted that the trial judge had made two distinct errors: first, that it was not open to the trial judge to regard the prejudice as not compromising the fairness of the applicant’s trial in a material way; and, second, that the trial judge erred because she applied an incorrect test, namely, whether the prejudice to the applicant was outweighed by the public interest in bringing him to trial.

24. [114]

    As to the first alleged error, for the reasons the trial judge gave, I am not persuaded that it was not open to her Honour to refuse a permanent stay. The applicant, though elderly, was still of sound mind. The assaults were not witnessed, which lessened the importance of the unavailability of witnesses. The objective documentary evidence established that the applicant was teaching and residing at the school when the complainants and the tendency witnesses were students. It could not be assumed that documents which have been lost or destroyed or witnesses who have died or could not be located would have favoured the applicant’s case.

25. [115]

    It is not uncommon for relevant material to be unavailable at the time of trial. Documents and other evidence may be lost or irretrievable, witnesses may forget relevant matters or become unavailable to give evidence because they become incompetent, cannot be located or die. That a tribunal of fact must determine issues of fact upon a subset of the once available evidence does not make the trial unfair: The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31]. The lack of material evidence is a particular feature in cases of child sex abuse since it is not uncommon for victims of such offences to report such offences years, if not decades, after their alleged occurrence.

26. [116]

    I am not persuaded that the convictions ought to be set aside on the ground that the forensic disadvantage to the applicant by reason of the delay could not be sufficiently ameliorated to provide him with a fair trial according to law.

27. [117]

    Green and Pound are very different cases from the present. In Green, the Victorian Court of Appeal (Priest, Kaye and Coghlan JJA) quashed the convictions on the ground that the appellant had not had a fair trial, not only because of delay but also because of the mental condition of the complainant, which affected her memory in a substantial way. The Court, at [105]-[106], found that the problems with the complainant’s capacity to remember and her suggestibility meant that the delay (of some fifty years) created an insuperable forensic disadvantage which directions from the trial judge could not remedy. The Court described the case as “exceptional” (at [106]) because of the prejudicial effect on the appellant of the delay and the complainant’s mental state.

28. [118]

    In Pound, the appellant was found unfit to be tried. Accordingly, the charges against him (which alleged sexual abuse offences between 1964 and 1968) had to be heard by way of special hearing. The trial judge refused his application for a permanent stay of the special hearing. The Victorian Court of Appeal (Emerton JA, Whelan and Priest JJA agreeing) allowed the appeal and stayed the special hearing because the combination of the appellant’s mental condition; the fact that, when interviewed, his responses had been “disjointed” and “rambling”; his diagnosis of dementia; and the lengthy delay meant that the special hearing would be “unacceptably unfair” (at [114]).

29. [119]

    In the present case, there was no evidence that either of the complainants or the applicant suffered any mental deficiency which would affect their capacity to give evidence or, in the applicant’s case, instruct his counsel. The delay, though lengthy, was not such as to give rise to an irremediable forensic disadvantage or to make the applicant’s trial other than fair.

30. [120]

    The second alleged error relies on the extracted statement from the trial judge’s conclusion, which compares the relative weights of the prejudice to the applicant with the public interest in bringing the applicant to trial (extracted in [17] above). The applicant submitted that this test was erroneous since it did not accord with authority.

31. [121]

    While this proposition might be accepted if one were to have regard only to the sentence which expresses a conclusion about the relative weight of the considerations, the primary judge’s reasons are lengthy and contain a detailed summary and analysis of authority.

32. [122]

    The correct test (whether the delay renders the trial necessarily unfair so that, notwithstanding directions which could be given to ameliorate prejudice, any conviction would bring the administration of justice into disrepute) was identified in the judgment (extracted at [15] and [17] above). The test was plainly applied and formed the basis for her Honour’s ultimate conclusion. That her Honour expressed matters in different ways throughout a lengthy judgment which was delivered orally (though not ex tempore) does not, of itself, reveal error.

33. [123]

    For these reasons, I am not persuaded that ground 1 has been made out.

34. [124]

    These two grounds will be considered in sequence because Mr Game contended that they were related as they each involved an assessment of the applicant’s credibility.

35. [125]

    In closing address, Mr Boulten said:

36. [126]

    The trial judge’s reasons regarding the applicant’s credibility are extracted above. The portions particularly relied upon in support of ground 2 are as follows:

37. [127]

    Mr Game contrasted the trial judge’s credibility findings with respect to TR with those with respect to the applicant. He contended that it was plain from her Honour’s reasons that she took into account the applicant’s demeanour not only in the witness box but also in the dock. Mr Game also relied on the circumstance that although the applicant’s evidence was completed within a single day (20 May 2021), the pre-trial argument and the trial continued over a total of 11 days: 31 March 2021 (application for a permanent stay); 10-11 May 2021 (application for trial by judge alone and evidentiary rulings); 12-14 May, 17-20 May and 24-25 May 2021 (the trial proper). Thus, the trial judge had ample opportunity to observe the applicant in the dock, but limited opportunity to observe him in the witness box. The importance of this opportunity is evident from her Honour’s statement that she had the opportunity to observe the accused in the dock and the witness box “as I have done over many days”.

38. [128]

    Mr Game contended that the reasons were insufficient to indicate to the applicant what part of his demeanour was being referred to since the trial judge failed to identify any particular gestures or other matters which formed the basis for her impression that he was playing a role. He submitted that, had her Honour confined her assessment to the applicant’s evidence, the assessment might not be able to be impugned. However, since it did not appear to be so confined, he submitted that the applicant had been denied procedural fairness by his attention not having been drawn to the aspect of his demeanour in the dock which was germane to her Honour’s assessment.

39. [129]

    In addition, Mr Game submitted that it was erroneous for the trial judge to place so much weight on demeanour when the offences were alleged to have occurred over 50 years previously.

40. [130]

    The Crown submitted that it could reasonably be inferred that the trial judge, when making credit findings with respect to the applicant based on his demeanour, was referring to the matter raised by Mr Boulten in address about the applicant crying “too”. The Crown contended that there was no denial of procedural fairness for the trial judge to take into account a matter squarely raised by the applicant’s trial counsel in his closing address.

41. [131]

    Further, the Crown submitted that, although the trial judge had referred to having had the opportunity to observe the applicant in the dock and in the witness box, a fair reading of her reasons indicated that it was the applicant’s evidence (necessarily, in the witness box) which was the basis for the demeanour-based credit findings in respect of him.

42. [132]

    In Hodgson v R [2022] NSWCCA 72, this Court (Leeming JA, Rothman and Hamill JJ agreeing) summarised the relevant principles about taking into account demeanour (in the witness box).

43. [133]

    Thus, her Honour was entitled to take into account the way in which the various witnesses, including the applicant, gave their evidence.

44. [134]

    A trial judge’s obligation to raise with a party a matter, adverse to that party, arising from the demeanour or conduct of that party or of a witness called by that party, is part of the duty to accord procedural fairness. As with other matters of fairness, it is not necessary to raise a matter which is clearly in issue. Thus, a trial judge is not obliged to alert a witness to the possibility that the witness’s evidence will not be accepted, when there is other evidence in the trial contrary to that witness’s evidence. However, when the trial judge proposes to take into account a matter for which there may be an answer and which the party affected is unlikely to appreciate will be taken into account adversely, it is incumbent on the judge to raise it with that party, so that the party has an opportunity to be heard.

45. [135]

    In Higgins v R [2020] NSWCCA 149, the Crown, in closing submissions in a judge-alone trial, submitted that the applicant had sworn when he stumbled as he left the witness box and that this reflected adversely on his credit as he had given evidence that he did not use bad language. The trial judge confirmed that she had heard the applicant say, “Shit”. This was disputed by the applicant whose instructions to his legal representatives was that he had said, “Shish.” The applicant unsuccessfully applied for the trial judge to recuse herself. Ultimately, the trial judge in the conviction judgment confirmed that she would disregard this matter as it would not be fair to the applicant to take it into account.

46. [136]

    The applicant raised it in this Court as a ground in his appeal against conviction. The ground was not made out because the trial judge had expressly disregarded it. However, this Court said (Payne JA, Rothman J agreeing), of present relevance:

47. [137]

    The general principle is that the tribunal of fact (in this case, the trial judge) is to decide the case solely on the basis of the evidence. Nevertheless, it has been accepted that it would be unreal to expect a tribunal of fact to exclude from consideration the demeanour of witnesses in the well of the court. If a matter is to be taken into account which is not evidence (such as demeanour in the dock or the well of the court), then procedural fairness requires the trial judge to draw it to the attention of the parties in a timely manner so that the party affected can have an opportunity to address that matter. This is particularly so as the attention of counsel is usually, and necessarily, on the witness box and the bench and not on the behaviour of the accused person in the dock. By contrast, the trial judge can see the whole court and is in a good position to see the accused in the dock and make observations as to the person’s demeanour.

48. [138]

    A trial judge’s observation as to the matter observed (if there is a possibility of its being significant) ought be disclosed to the parties as soon as the relevant observation has been made so that the party affected can obtain instructions and respond to the suggestion.

49. [139]

    In Minagall v Ayres [1966] SASR 151 a Special Magistrate dismissed a drunk driving charge. He said, in his reasons for judgment:

50. [140]

    The magistrate had made no reference to these observations in the course of the hearing, thereby depriving the parties (and in particular the prosecution) from investigating this matter. On appeal, Hogarth J ordered a re-trial on the basis that the magistrate had taken into account the defendant’s conduct while he was sitting in the body of the court “out of range of vision of both his own and opposing counsel” (at 154). An appeal to the Full Court of the South Australian Supreme Court was dismissed. However, in a joint judgment, Napier CJ and Travers J said, at 156:

51. [141]

    In Jobst v Inglis (1986) 41 SASR 399, a claim for damages for whip-lash injury, the trial judge informed the parties after the close of evidence that his observations of the plaintiff in court did not correspond with his observations of the plaintiff on film and invited them to address him. The Full Court of the South Australian Supreme Court set aside the judgment, finding that the trial judge ought to have raised the matter earlier to permit the plaintiff’s counsel to recall the plaintiff to answer the alleged inconsistency.

52. [142]

    These decisions were addressed by Kirby P in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (GIO v Bailey) at 312-315 and approved at 317. His Honour considered the consequences of the use of matter that has not been disclosed to the parties and concluded that Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (Stead) required that a new trial be ordered if the matter would “possibly have made a difference” (Stead at 145).

53. [143]

    In Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11, the High Court (Heydon, Crennan and Bell JJ) considered GIO v Bailey in the context of a claim relating to a work-related injury, where it was alleged that a party had deliberately withheld the truth of how the accident had occurred. Their Honours said:

54. [144]

    In the present case, the trial judge’s reasons do not disclose what it was about the applicant’s conduct in the dock (or the witness box) which led her Honour to consider that he was “playing a role”. I am not persuaded by the Crown’s submission that it ought be inferred that the trial judge was referring to the applicant’s crying (which, according to Mr Game’s instructions, occurred once during the trial and is not recorded in the transcript), which was raised by Mr Boulten in address. Although this is a possible construction, the trial judge’s reasons are insufficiently specific to persuade me that this was what, or all, she was referring to. Nor am I persuaded that the trial judge’s reasons ought be read as being confined to a consideration of the applicant’s evidence. Fairly read, I consider that the reasons indicate that the applicant’s behaviour in the dock (over a period of 11 days) affected her Honour’s assessment of his evidence which, as referred to above, was completed within a single day.

55. [145]

    In these circumstances, there has been a denial of procedural fairness to the applicant. His credibility has been found wanting, in part because of an unspecified matter of which he was not given fair notice. I am persuaded that ground 2 has been made out and that the applicant is, accordingly, entitled to have his conviction quashed, unless the proviso applies (addressed below).

56. [146]

    Ground 5 arises from TR’s evidence about where the conduct that comprised counts 2 and 3 occurred. TR gave evidence that the incidents giving rise to Count 2 (the act of indecency which began while TR was asleep) and Count 3 (the late-night anal rape) took place in 1964 in “a small cottage or weatherboard structure behind white house” where three or four masters lived. TR said that the applicant gave him maths tuition in his room at that location. In cross-examination, TR was asked about the room in which he said the first two incidents had occurred, to which he responded that there was a desk, a bed and a chair there. It was suggested to TR that he had never been “in that particular part of that house at all”. TR insisted that he had. The cross-examination, which took place on Thursday 13 May 2021, continued:

57. [147]

    The applicant’s evidence was that, when he came to the school in 1964, he initially lived in Mr Mattingley’s house, which was in a red brick house behind the White House. The applicant identified the residence from photographs which were shown to him: the top photograph in Exhibit 22 and the bottom photograph in Exhibit 6. He also identified the headmaster’s residence as the bottom photograph in Exhibit 22. The applicant subsequently lived in a room on a higher floor of that building. He denied that he had ever been in the weatherboard house (which was where TR said that the conduct which comprised counts 2 and 3 had occurred).

58. [148]

    On Thursday 20 May 2021, the applicant gave evidence in chief that on the previous Sunday (16 May 2021) he had visited the school for the first time since mid-December 1967.

59. [149]

    The applicant said in his evidence in chief that there was “wasn’t a lot of room” in Mr Mattingley’s house. When asked to describe his room in that house, the applicant said:

60. [150]

    The following exchange also took place in the applicant’s evidence in chief:

61. [151]

    In cross-examination, the applicant denied the proposition put by the prosecutor that he had lived in the small weatherboard cottage. The applicant was shown the photograph which TR indicated was where the applicant lived and where the conduct which comprised counts 2 and 3 occurred (Exhibit B). The applicant denied that he had ever lived in, or been into, that house.

62. [152]

    The applicant was not cross-examined about what Mr Boulten had put to TR about there being no doors in the house where the applicant lived (presumably because TR had no recollection about doors in the weatherboard house). No submissions were made by the Crown about the issue of doors, or no doors. Nor did the Crown seek to make anything of the proposition put by Mr Boulten to TR that the place where the applicant was living had no doors.

63. [153]

    The trial judge’s reasons (which are also set out above) are, relevantly:

64. [154]

    There are several difficulties with the trial judge’s conclusion that the alleged discrepancy between what Mr Boulten put to TR and the applicant’s evidence “cast[s] doubt on the evidence of the [applicant]”. First, the proposition that there were no doors was put in relation to where the applicant was living at the time (1964) and was not specific as to the residence. In particular, it did not relate to the weatherboard cottage since the applicant’s case was that he had not been inside that cottage. Secondly, the applicant’s evidence was that he had not been inside the weatherboard cottage (at least until the inspection in May 2021 which took place after TR’s cross-examination was complete). Thirdly, the applicant’s evidence was that he had returned to the school for an inspection the weekend prior to his giving his evidence. Fourthly, and perhaps most significantly, this point was neither raised by the Crown in address, nor by the trial judge at any time prior to her Honour making the finding set out above.

65. [155]

    In R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46 (Abdallah), this Court (Sheller JA, Dowd and Kirby JJ agreeing) considered the question of what use a tribunal of fact (in the criminal context, usually a jury) can make of apparent discrepancies between what an accused says and what is put in cross-examination of prosecution witnesses by an accused’s counsel.

66. [156]

    In Abdallah, there was a difference between the accused’s counsel’s opening statement to the jury and his evidence. Sheller JA (with whom Dowd and Kirby JJ agreed) said (at [24]) that, in that situation and also where the accused’s counsel has failed to cross-examine the complainant on aspects of the defence case:

67. [157]

    The need for a trial judge to raise a matter such as this will depend on the circumstances. If the Crown has relied on the circumstance to seek to impugn the accused’s credibility, the trial judge will usually be obliged to draw the jury’s attention to other possible explanations for the inconsistency. If the trial judge, after consultation with the parties, considers there to be a real risk that the jury will draw inferences against the accused (such as that his or her story has changed) from any such discrepancy, then the trial judge would generally be obliged, as part of the obligation to ensure that the accused has a fair trial, to adopt a similar approach.

68. [158]

    In the present case, the “conflict” which the trial judge found was not, on proper analysis, a conflict about the weatherboard house (which the applicant denied visiting). Mr Boulten’s proposition about the lack of doors would appear to relate to Mr Mattingley’s brick residence and not to the weatherboard house. If there was a conflict it would appear to be between Mr Boulten putting to TR that there were no doors and the applicant’s evidence that there may have been a door in the house where he was living in 1964. The applicant’s evidence that he had never been in the weatherboard house was not undermined by his evidence of the inspection since his evidence about the weatherboard house related to the time at which he was a teacher at the school.

69. [159]

    Of the various possibilities available, one would appear to be that the applicant instructed Mr Boulten that his room in Mr Mattingley’s residence had no door but that after he had visited the residence, he realised that it was possible that it did have one and gave evidence to that effect. Another available inference is that Mr Boulten, or his instructing solicitor, may have misunderstood the instructions they had received from the applicant about whether there was a door. Neither of these possibilities is capable of affecting the applicant’s credibility in any material way, particularly as TR could not say one way or the other whether there was a door to the room in which the conduct the subject of counts 2 and 3 occurred. Had the present case been conducted as a trial by jury, it would not have fallen into the category addressed in Abdallah where the trial judge would have to alert the jury to different explanations, since it was a matter of so little moment: see the discussion in Hofer v R [2019] NSWCCA 244 at [120]-[132] (Fagan J, Fullerton J agreeing). [1] Indeed, Mr Game’s description of this matter as “a completely insignificant evidentiary point” is, in my view, apt.

70. [160]

    As her Honour must be taken to have been considering finding that the applicant’s credibility was damaged by the alleged discrepancy between his cross-examination of TR and the applicant’s evidence, her Honour, as the tribunal of fact in a judge-alone trial, was obliged to raise this matter with the parties. It may be that the Crown would have said that it did not rely on any such discrepancy and Mr Boulten could have provided an explanation for the cross-examination of TR. By failing to raise the matter with Mr Boulten and then using it to make an adverse credit finding against the applicant, the trial judge denied the applicant procedural fairness. Accordingly ground 5 has been made out.

71. [161]

    The Crown submitted that it was significant that the trial judge qualified her finding with the words “in that regard”, which the Crown contended were sufficient to quarantine the finding to the question whether or not there was a door to his room in his residence in 1964. The Crown contended that this was not sufficient to cast doubt on the significant adverse credit findings in respect of the applicant. In the alternative, the Crown submitted that, if the finding was found to be erroneous and significant, it could only affect counts 2 and 3 (which, on its case, occurred in the disputed residence before the applicant moved to the building where the headmaster lived, where the conduct which comprised the subsequent counts was said to have occurred). On this basis, the Crown submitted that the conviction on count 1 would still stand since it required only two separate offences (on this scenario, counts 4 and 5) and that the consequence would be that the applicant would have to be re-sentenced (excising the conduct which comprised counts 2 and 3).

72. [162]

    I do not accept this submission. I consider that the trial judge’s assessment of the applicant’s credibility was flawed on the basis of ground 5 (as well as ground 2) and that it would, accordingly, not be appropriate to quarantine the finding and limit its effect to counts 2 and 3.

73. [163]

    It is necessary to address the proviso in s 6(1) of the Criminal Appeal Act which empowers this Court to dismiss an appeal even if a ground is made out “if it considers that no substantial miscarriage of justice has actually occurred”. In this context, it is necessary to consider whether the matter which the trial judge took into account arising from the applicant’s conduct in the dock (ground 2) and the subject matter of ground 5 could possibly have made any difference.

74. [164]

    Mr Game submitted that the proviso could not apply in relation to the procedural fairness grounds (grounds 2 and 5) because of the centrality of the credit finding against the applicant. The Crown relied on the proviso in respect of all grounds of appeal other than the first (relating to the permanent stay).

75. [165]

    To establish a miscarriage of justice for the purposes of the third limb of s 6(1) of the Criminal Appeal Act, an applicant is required to establish error, which “had the meaningful potential or tendency to have affected the result of the trial”: Hofer v The Queen at [118] (Gageler J); see also [41] (Kiefel CJ, Keane and Gleeson JJ); Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing) and BQ v R [2023] NSWCA 34 at [241] (Davies and McNaughton JJ and R A Hulme AJ).

76. [166]

    The High Court in Stead (Mason, Wilson, Brennan, Deane and Dawson JJ) said, at 145:

77. [167]

    The assessment of the credibility of the applicant was central to the trial judge’s determination of his guilt. His evidence was required to be taken into account, together with all the other evidence, which included the evidence of the complainants and the tendency witnesses. I regard the trial judge’s error alleged in ground 2 as having deprived the applicant of procedural fairness in a material way. Although the evidence in support of each count was strong, the trial judge unfairly deprived the applicant of the opportunity of responding to her observations of his demeanour in the dock.

78. [168]

    While the Crown case was apparently very strong, if there was a reasonable possibility that the applicant’s denials were true, he was entitled to be acquitted. Credibility is usually not a divisible concept and, if credibility is impugned in one respect, it is difficult to conclude that it made no difference to the ultimate assessment. Therefore, anything of significance which affected the applicant’s credibility, such as observations of his conduct in the dock (ground 2), or a material misapprehension by the trial judge as to the gravamen of particular cross-examination by the applicant’s counsel (ground 5), neither of which was brought to the parties’ attention, was material to the outcome. In these circumstances, it is not appropriate to apply the proviso. For reasons which are set out later, a re-trial ought be ordered.

79. [169]

    Mr Game sought to address counts 3, 4 and 9 together since they raise tendency and coincidence reasoning and contamination of the evidence of the complainants, TR and PS, and the tendency witnesses, JT, KZ and AR.

80. [170]

    Mr Game accepted that JT’s evidence was capable of supporting the conclusion that the applicant had the tendency alleged in paragraphs 2(a)-(g) of the tendency notice. He also accepted that Mr Austin’s evidence was capable of supporting the conclusion that TR had private tuition with the applicant in the applicant’s room and that TR’s demeanour when going to the room was negative (haunted, tired and distressed).

81. [171]

    However, Mr Game submitted that neither JT nor Mr Austin was capable of “corroborating” TR’s evidence of the counts and that the trial judge was in error in so finding. He relied on the following passages:

82. [172]

    The word “corroboration” has both a legal and a common meaning. When used in its legal meaning, it refers to independent evidence which tends to inculpate the accused in the crime charged or a lesser crime. Its common meaning is merely as a synonym for “support”.

83. [173]

    The meaning of “corroboration”, in its legal sense, was authoritatively stated by the High Court in Doney v The Queen (1990) 171 CLR 207 at 211; [1990] HCA 51. The Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

84. [174]

    The importance of corroboration, used with its legal meaning, has diminished since the abolition of the requirement for corroboration in respect of classes of witnesses (historically, children) or particular evidence: s 164 of the Evidence Act. However, decisions from the period when corroboration was required remain useful to illustrate the type of evidence which will amount to corroboration.

85. [175]

    In Eade v The King (1924) 34 CLR 154; [1924] HCA 9 (Eade), the then applicable provision, s 418 of the Crimes Act, entitled children to give unsworn evidence: s 418(1). Section 418(2) then provided:

86. [176]

    The Crown case in Eade v The King was that the appellant had asked the complainant, a five-year old girl, and another child to buy pies for him and bring them to his house. When the complainant brought the pies to the house, the appellant assaulted her. The complainant immediately complained of having been sexually assaulted. When the appellant was confronted with the allegation that he had indecently assaulted the girl, he denied asking her to buy the pies or that she had ever entered his house.

87. [177]

    Evidence of the complainant’s contemporaneous complaints was held not to amount to corroboration because it was not independent, although it tended to confirm her credibility and, therefore, to support the prosecution case: 157 (Knox CJ, Gavan-Duffy and Starke JJ). However, the appellant’s false denials were held to amount to corroboration (as later confirmed in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63). In addition, evidence adduced by the Crown from other witnesses that the complainant had purchased the pies, visited the appellant’s house and entered the house with his consent and that the pies were found in his house near the couch as described by the complainant was also found to be corroborative. As can be seen from Eade, the determination of whether particular evidence amounts to corroboration can only be made in the context of the issues in the trial.

88. [178]

    Further, it is well established that tendency evidence can be corroborative: Reg v Kilbourne [1973] AC 729 at 749, 751 and 758 and BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 at 285 (Brennan J), 291 (Toohey J), 297-298 (Gaudron J), 304 (McHugh J) and 323-325 (Kirby J).

89. [179]

    Applying these principles in the present case, the evidence of the applicant’s conduct in measuring and touching JT’s penis corroborated PS’s account of such conduct because it was independent and tended to support the Crown case.

90. [180]

    Mr Game further submitted that the trial judge was not using the evidence of JT as tendency evidence and relied on Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206 (Elomar) in support of his submission. In Elomar, Bathurst CJ drew the distinction between evidence (in that case, that Cheikho had attended a particular camp) that tended to prove that the accused had a particular state of mind (support for violent jihad) and evidence used to advance tendency reasoning: that because an accused acted in a particular way or had a particular state of mind on another occasion, he had a tendency to act in that way with that state of mind on other occasions, and that he acted in that way with that state of mind on the occasion of the charged conduct. If I have understood this argument correctly, I reject it. JT’s evidence of the applicant’s conduct in measuring his penis and touching it is evidence which is classically relied on in support of tendency reasoning.

91. [181]

    JT’s evidence that the applicant invited him to his room is also capable of being corroborative of TR’s evidence in the context of the other evidence given by JT because it tended to show that, if the applicant had the opportunity to commit indecent assault on a boy in his room, he would take that opportunity.

92. [182]

    Mr Austin’s evidence was not tendency evidence but it tended to support TR’s account of having been called away by the applicant and taken to his room and amounted to corroboration. Mr Austin’s observation of TR’s demeanour also tended to support TR’s evidence that he only went to the applicant’s room reluctantly (after the first time) because he knew what to expect when he arrived there.

93. [183]

    For these reasons, I am not persuaded that ground 3(a) has been made out.

94. [184]

    Before turning to the submissions, it is important to identify the context of the Crown’s submissions as to how the tendency evidence ought be used (as confirmed in the Crown’s submissions in this Court).

95. [185]

    In closing, the Crown submitted:

96. [186]

    Following the short adjournment which was taken at the end of the Crown’s closing submissions, the following exchange took place:

97. [187]

    In this Court, the Crown submitted that the effect of this concession was that, as far as TR and PS were concerned, the only part of their evidence which could be relied on for tendency was the evidence in support of the separate counts on the indictment (counts 2-6) and not the general evidence of the relationship to which TR, in particular, referred. This qualification did not apply to the evidence of JT or KZ.

98. [188]

    Mr Game particularly relied on the following passage from the trial judge’s reasons (which is extracted in sequence in the summary of her Honour’s reasons above):

99. [189]

    Mr Game argued that the trial judge failed to indicate either:

    1. (1)

       that when it came to the offences allegedly committed against TR, that her Honour relied upon her acceptance (beyond reasonable doubt) of the evidence of PS as establishing the asserted tendency; or

    2. (2)

       that when it came to the offences allegedly committed against PS, that her Honour relied upon her acceptance of the evidence of TR as establishing the asserted tendency.

100. [190]

     Mr Game submitted that it was erroneous for the trial judge to use the evidence of, say, TR, in respect of a particular count as tendency evidence in support of count 6 in respect of PS, without first finding that the count against TR sought to be used in that way had been proved beyond reasonable doubt. He contended that the only way the evidence of the counts could be cross-admissible was if the trial judge started with one count and found that count established beyond reasonable doubt without reference to the other counts. If such a finding was made, Mr Game submitted that the trial judge could proceed “crab-like” to the other counts. He contended that the error was apparent from the trial judge’s reference to the tendency evidence “remov[ing] any reasonable doubt … that might have subsisted when the complainant’s evidence was regarded in isolation.” Mr Game made reference to Brennan J’s statement in Perry v The Queen (1982) 150 CLR 580 at 612; [1982] HCA 75 (which his Honour cited again in Sutton v The Queen (1984) 152 CLR 528 at 551; [1984] HCA 5):

101. [191]

     Mr Game also relied on Kanbut v R [2022] NSWCCA 259 (Kanbut), a case in which the alleged tendency corresponded with every particular alleged against the applicant in relation to both complainants. This Court found that because the tendency notice was misleading, there was an error which had been productive of a miscarriage of justice, and set aside the conviction. I do not regard Kanbut as assisting the applicant’s argument in the present case. The tendency notice in the present case was in an orthodox form and did not have any of the defects of the tendency notice in Kanbut.

102. [192]

     One of the difficulties with Mr Game’s submission is that, if accepted, it would deprive tendency evidence of the forensic force which long-standing authority has established that it has. Suppose ten children said that each had been sexually assaulted in similar circumstances by a particular accused and the accused was charged with all ten counts on a single indictment. On Mr Game’s argument, the evidence of one child could not be used as tendency evidence in respect of the charges concerning any of the other children if none of the children’s evidence, by itself, could prove the charge beyond reasonable doubt. If the accused’s indictment contained only five counts and the remainder were relied on as tendency evidence, the remainder would not need to be proved beyond reasonable doubt to be used as tendency evidence (in accordance with The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer) – see the discussion below) but none of the evidence of any of the five counts could be used in support of the other counts unless it established the accused’s guilt beyond reasonable doubt.

103. [193]

     This Court addressed this question in JS v R [2022] NSWCCA 145 (JS), where the applicant challenged the trial judge’s direction to the jury regarding tendency evidence. There were three pieces of evidence which were relied on as tendency evidence: an uncharged act (where the applicant touched the victim’s penis) and the two charges of sexual intercourse with a child.

104. [194]

     The applicant’s argument in JS (which was in similar terms to Mr Game’s argument in the present appeal) was set out in Basten JA’s reasons at [35] as follows:

105. [195]

     Justice Basten referred to Bauer in which the High Court confirmed that a jury ought not be directed that uncharged acts which were relied on for a tendency purpose needed to be proved beyond reasonable doubt. His Honour explained why it did not follow from this that charged acts needed to be proved beyond reasonable doubt before they could be relied on as tendency evidence. His Honour, accordingly, rejected the applicant’s argument and concluded as follows:

106. [196]

     Further, as Basten JA noted in JS, s 161A of the Criminal Procedure Act is to the same effect as the conclusion to which his Honour came. Section 161A provides:

107. [197]

     Section 161A commenced on 1 March 2021 and, accordingly, applied in the present case as the trial commenced after that date. The purpose of its insertion is evident from the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 2020) at pp 3815:

108. [198]

     Although this provision was not referred to in the course of the trial, the approach taken by the trial judge, in so far as her Honour did not require that each charge be proved beyond reasonable doubt before it could be used for a tendency purpose, conformed to the requirements of s 161A of the Criminal Procedure Act and was in accordance with the decision of this Court in JS. For these reasons, ground 3(b) has not been made out.

109. [199]

     The trial judge referred to coincidence at several points of her Honour’s reasons. The first reference is as follows:

110. [200]

     Other references are set out above. In substance, the trial judge purported to exclude coincidence when referring to the similarities between accounts of the complainants and the tendency witnesses.

111. [201]

     Mr Game submitted that it was erroneous for the trial judge to refer to coincidence at all, in circumstances where the Crown did not rely on coincidence reasoning, had served no coincidence notice and s 98 of the Evidence Act prohibited coincidence reasoning where the pre-conditions for its use had not been satisfied. He also relied on s 95 which prohibits the use of evidence which is otherwise relevant for a purpose within Part 3.6. Thus evidence which is admissible as tendency evidence cannot be used in aid of coincidence reasoning unless it is also admissible for that purpose.

112. [202]

     The Crown sought to defend the trial judge’s references to coincidence as being merely use of a common English word to reason about factual matters. Further, it submitted that the trial judge was not using coincidence reasoning but rather was taking care to ensure that, in order to be cross-admissible, there had to be a degree of similarity that did not arise coincidentally. The Crown also submitted that, given the delay in prosecution and the disadvantage suffered by the applicant and his arguments regarding contamination and collaboration, the trial judge appeared to retain a concern (expressed in her reasons for the findings of guilt) that any tendency evidence have real force before it could be used in support of tendency reasoning.

113. [203]

     The trial judge’s reasons demonstrate that she engaged in coincidence reasoning (because two people say the same thing, it is likely to be true because it is unlikely that they would be saying the same thing as a consequence of coincidence) with respect to evidence which was inadmissible for that purpose. Further, as Mr Game submitted, she denied the parties (and, relevantly, the applicant) procedural fairness by not warning them of her intention to use the evidence in that way. Had she done so, it could reasonably be expected that the Crown would have informed her that it did not rely on the evidence for that purpose and that to use it for such a purpose would be a legal error.

114. [204]

     It is not to the point that, where there is no issue about the identity of the alleged offender, tendency and coincidence reasoning may be related. In Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 (Saoud), Basten JA identified certain “basic propositions which are not in doubt” (at [37]), which included the following, at [43]:

115. [205]

     In Saoud, the prosecution had served tendency and coincidence notices pursuant to s 97 (tendency) and s 98 (coincidence) of the Evidence Act. However, in the present case, the prosecution had served a tendency notice but not a coincidence notice. In these circumstances, it was an error for the trial judge to engage in coincidence reasoning as a basis for accepting the credibility of the complainants and the tendency witnesses, since such reasoning was, in the absence of notice or leave, prohibited by s 95 of the Evidence Act.

116. [206]

     For these reasons, ground 4 has been made out. As I have already found that, as a result of the matters which were the subject of grounds 2 and 5, the convictions ought be quashed there is no utility in considering the application of the proviso with respect to ground 4.

117. [207]

     At the trial, Mr Boulten submitted that the contact between the various witnesses had contaminated their actual recollection of events, rendering their evidence of what had occurred unreliable.

118. [208]

     As is evident from the reasons, the trial judge rejected this submission. Her Honour said, of present relevance (to ground 9):

119. [209]

     The trial judge referred to the circumstance that both PS and JT described the applicant on different occasions touching their penises with a pencil or a pen and said:

120. [210]

     Of PS’s evidence generally, the trial judge said:

121. [211]

     The trial judge said, of the credibility of Mr Austin, who gave evidence about TR being tutored by the applicant:

122. [212]

     When referring to the fact that both TR (Count 5) and PS (Count 6) referred to the applicant using a condom, the trial judge said:

123. [213]

     The applicant submitted that the trial judge’s references to “not being persuaded” and her Honour’s used of the words, “I would have expected” reveal that the trial judge regarded the applicant as bearing an onus to establish that the extensive and undenied contact between the prosecution witnesses had contaminated their recollections of events. The applicant submitted that, as the applicant bore no such onus, the correct approach was for the trial judge to have regard to the evidence of prior communications between relevant prosecution witnesses and to determine whether that evidence, by itself or in combination with other evidence, gave rise to a reasonable doubt about the applicant’s guilt.

124. [214]

     I am not persuaded that the words used by the trial judge indicated that her Honour reversed the onus of proof. The applicant had raised the issue of contamination of witnesses by eliciting from prosecution witnesses evidence of contact between the complainants and tendency witnesses. Mr Boulten had also, at trial, referred to the fact that the prosecution had not called Mr Lawless (who was the originator of much of the contact) as a witness. Thus, the Crown was required to answer that evidence in order to discharge its onus of proving the counts beyond reasonable doubt. However, the trial judge was entitled to say that she was not persuaded by Mr Boulten’s submissions. Further, when addressing the factual questions, her Honour was entitled to test the evidence by considering what the situation would have been likely to have been, had the evidence been concocted or contaminated. While it might have been preferable for the trial judge to find that the Crown had excluded the possibility that the evidence of the complainants and tendency witnesses was unreliable on the grounds of concoction or contamination, it was not necessary for the trial judge to express her conclusions in that way.

125. [215]

     Further, for the reasons given above, the reasons are to be read as a whole. While there may be some infelicities of language in the reasons, they are not such as to indicate that the trial judge reversed the onus of proof. I am not satisfied that ground 9 has been made out.

126. [216]

     As referred to above, the trial judge, in a pre-trial ruling, excluded TR’s evidence of the applicant visiting him at Ipswich Grammar School, pretending to be his uncle, taking him away from the school and sexually assaulting him.

127. [217]

     The portion of the Crown Case statement which reflected this aspect of the Crown case (based on TR’s statements) included the following:

128. [218]

     The only mention of Ipswich Grammar School in TR's evidence in chief was that he moved to that school in 1968. In cross-examination, TR, in a non-responsive answer, said that the applicant had “chased [him] across the border to another school”. There was no other reference to Ipswich in TR’s evidence.

129. [219]

     In his evidence in chief, the appellant denied ever visiting TR at the Ipswich Grammar School, ever going to Ipswich or ever even knowing that TR was in Ipswich. The applicant rejected as “absurd” the suggestion that he had visited TR in Ipswich. The applicant also gave evidence that in 1968 he was working in Whyalla (a town in South Australia) “pretty well every day there” and that he never visited Queensland in 1968. The Crown, presumably mindful of the evidentiary ruling, did not cross-examine the applicant on this evidence.

130. [220]

     The Crown made no mention of the issue in closing address. In address, Mr Boulten referred to the applicant’s capacity to travel but only in the context of KZ’s evidence, which was that the applicant had twice visited him in South Australia, first in 1963 and again in 1964. Mr Boulten made lengthy submissions about the improbability of these visits having occurred.

131. [221]

     Notwithstanding the trial judge’s pre-trial ruling (which the parties abided by in their evidence and submissions), her Honour referred to Ipswich in the reasons in the following passages:

132. [222]

     Mr Game submitted that the trial judge’s mistaken use of this evidence to fortify her conclusion that TR was reliable (and, consequently, the applicant was not), occasioned a miscarriage of justice.

133. [223]

     The Crown submitted that all that the trial judge was doing was referring to the respective cases of the parties. Further, the Crown submitted that it was significant that the trial judge made no finding of what, if anything, had occurred in Ipswich. It contended that the ultimate finding was that TR’s evidence that the applicant “chased him across the border” did not lead her Honour to doubt TR’s reliability.

134. [224]

     The trial judge’s reference to the allegation in the Crown case (which had been excluded by her ruling) was erroneous. The importance she placed on whether the applicant could have gone to Ipswich to see TR was misplaced in light of her ruling. It can be inferred that Mr Boulten only asked the applicant about Ipswich, with a view to impugning TR’s credibility with respect to the statement that the applicant had chased him across the border. That Mr Boulten did not make anything of this in address was understandable, given its insignificance.

135. [225]

     A judge may be privy to items of putative evidence which are excluded or aspects of a Crown case which are no longer pressed. In a trial by jury, the judge and the parties are alert to ensuring that nothing which is inadmissible or not part of a party’s case comes before the jury. When these boundaries are broken, an order for the discharge of the jury may follow. It is important when judges sit as the tribunal of fact and law in criminal trials, as they do in judge-alone trials, to ensure that the strict demarcation between what has been admitted and what has been excluded is maintained.

136. [226]

     Although it is not necessary to form a conclusion about this matter, the reasons in this case tend to indicate that the trial judge delivered her reasons ex tempore, albeit some days after final submissions. Indeed, Mr Game observed in oral submissions that some of the order of the reasons replicated the Crown’s closing submissions. Because the Crown Case statement stood as the Crown opening (and was not marked up to take account of the rulings), the trial judge may have momentarily forgotten, when she referred to the applicant visiting TR in Ipswich, that it was no longer part of the Crown case. The trial judge’s references to Ipswich in the passages extracted above was, as Mr Game described it, a “blemish” on the judgment. Because of the view to which I have come that the convictions must be quashed, it is not necessary to come to a view about the effect of this error or whether it caused a miscarriage of justice as is alleged in ground 6.

137. [227]

     The applicant relied on the requirement in s 133(3) of the Criminal Procedure Act that a judge in a judge alone trial is required to set out the relevant principles of law to be applied and to take into account any warning which would be given to a jury.

138. [228]

     In Fleming, Gleeson CJ and McHugh, Gummow, Kirby and Callinan JJ said of this requirement:

139. [229]

     The applicant submitted that because the trial judge had not given a complete direction covering all the matters in respect of which the applicant suffered a forensic disadvantage, she had not complied with s 33(3) and, as referred to in Fleming, had not taken the warning into account.

140. [230]

     While the trial judge did not give the direction in the precise terms of the authorised direction, a fair reading of her Honour's judgment as a whole shows that her Honour abided by the direction.

141. [231]

     Further, the applicant’s submission does not take adequate account of the qualification in Fleming at [30] where their Honours said:

142. [232]

     In this case, the judgment clearly shows expressly and by implication that the principle was applied. There has accordingly been no error of law or miscarriage of justice.

143. [233]

     In support of this ground, Mr Game made much of the structure of the judgment. He contended that the lack of reference to the applicant’s evidence or credibility in relation to the counts before the trial judge recorded her findings of guilt was a powerful indication that her Honour did not consider all of the evidence (including that of the applicant) before reaching a finding of the applicant’s guilt of each count.

144. [234]

     The passages extracted from the trial judge’s reasons in the summary of the reasons set out above demonstrate that the reasons were discursive and repetitive in parts. This may have been explained by the circumstances in which they were, or may have been, produced (as to which, see above). I am not satisfied that, just because the trial judge set out her findings as to the applicant’s credibility after the findings of guilt, her Honour did not consider the applicant’s evidence together with the whole of the evidence adduced in the trial, before coming to a conclusion about the applicant’s guilt of particular counts. Reasons are the result of thought, consideration and decision-making and are not designed to replicate the thought processes which led to the conclusions expressed in them.

145. [235]

     For these reasons, I am not satisfied that ground 8 has been made out.

Whether a re-trial ought be ordered

1. [236]

   This Court has a discretion when quashing a conviction either to order a re-trial or to order the acquittal of the applicant, but not to order neither: The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35 at [83] (Kiefel CJ and Keane J).

2. [237]

   As referred to above, I am satisfied that the convictions ought be quashed on the basis of grounds 2 and 5. Mr Game submitted that no order for a re-trial ought be made because of the length of time since the commission of the alleged offences and the consequential loss of evidence and unavailability of witnesses, the applicant’s age (he will be 86 in a few months) and the time he has already spent in custody (since 1 June 2021).

3. [238]

   I reject this submission. Although the applicant is elderly, he is still of sound mind. The offences with which he has been charged are very serious. The Crown case was apparently strong. It would not be in the interests of justice for this Court to order an acquittal (this being the only alternative to an order for a re-trial) in such circumstances.

Proposed orders

1. [239]

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

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the convictions in respect of counts 1 and 6.

   4. (4)

      Order that there be a new trial of the applicant.

   5. (5)

      List the matter in the District Court arraignments list on 28 April 2023.

2. [240]

   BUTTON J: I agree with Adamson JA.

3. [241]

   McNAUGHTON J: I agree with Adamson JA.