Wade v R

1. [1]

   R A HULME J: William Wade (“the appellant”) was found guilty and thereby convicted of three counts of indecent assault upon a male person contrary to s 81 (since repealed) of the Crimes Act 1900 (NSW). The verdicts followed a judge-alone trial before his Honour Judge Arnott SC with judgment being delivered on 21 June 2017.

2. [2]

   The appellant was acquitted of an offence of committing an indecent act "with" MB, an offence contrary to s 81A (also repealed).

3. [3]

   The maximum penalty for an offence against s 81 of the Crimes Act was penal servitude for 5 years. The appellant was sentenced to fixed terms of imprisonment of 6 months for two of the offences and a term of 15 months with a non-parole period of 6 months for the third offence. The total effective sentence was one of 18 months with a non-parole period of 9 months commencing 3 November 2017.

4. [4]

   The appellant was sentenced on 3 November 2017 and granted bail pending the hearing of this appeal by the primary judge on 23 November 2017.

Grounds of appeal

1. [5]

   The appellant filed a Notice of Appeal on 22 December 2017 notifying five grounds of appeal. The second ground was withdrawn the week before the hearing of the appeal. The remaining grounds are as follows:

2. [6]

   Ordinarily a ground asserting an inadequacy of reasons raises a question of law but grounds 1 and 3 also require some detailed consideration of the evidence. Ground 4 raises a question of fact alone. Accordingly, for the purposes of s 5(1) of the Criminal Appeal Act 1912 (NSW) it is necessary for there to be leave to appeal. I have concluded that such leave should be granted.

Evidence at trial

1. [7]

   To provide a context for grounds 1 and 3 and in order to explain the disposition of ground 4 it is necessary to set out the evidence at trial in some detail.

2. [8]

   The appellant was the headmaster of the Marist Brothers School at Hamilton in 1976 (when it was alleged that the offence in the first count in the indictment occurred) and was the headmaster of the Marist Brothers School at Kogarah in 1980 (when it was alleged that the offences in counts three and four of the indictment occurred).

3. [9]

   Counts 1 and 2 in the indictment alleged offences contrary to ss 81 and 81A against MB and counts 3 and 4 alleged offences contrary to s 81 against TM. Each was a student at the schools at the relevant times. MB and TM did not know each other and there was evidence that they had never discussed their allegations.

4. [10]

   A document was tendered at the commencement of the evidence which listed some written admissions by the appellant pursuant to s 184 of the Evidence Act 1995 (NSW):

5. [11]

   MB was aged 54 at the time he gave his evidence. He said that he was a student at Marist Brothers Hamilton from Year 7 in 1975. He knew the appellant only by the name of Brother Christopher.

6. [12]

   He said in effect that he had little personal interaction with Brother Christopher. He saw him regularly at assembly and might sometimes see him walking around.

7. [13]

   As to the appellant’s reputation he said:

8. [14]

   MB gave a description of the location and layout of the principal’s office. He said he had never had to attend the principal’s office before the occasion in question. There was an occasion in 1976 when he was aged 13 or 14 when he felt very ill in the stomach. He put his hand up in class and told the teacher that he was unwell and told the teacher that he needed to go home or see someone. The teacher said that he should attend the office and see the ladies there to organise something.

9. [15]

   MB said that he went to the office and there were two administration ladies there. He told them that he felt ill. One of the women told him that he would have to see Brother Christopher. She knocked on the door, opened it and ushered him into the appellant’s office. The appellant was sitting behind his desk wearing his usual white robe.

10. [16]

    MB said that Brother Christopher said to him, “Come and sit on my knee, darling, and tell me all about it”. MB said that he was shocked and did not know what to think, adding “I’ve never been called darling by a male in my life”. He said he walked around the desk to the chair where the appellant gestured and sat him on his right knee.

11. [17]

    MB described in some detail how he sat on the appellant’s right knee with his back against or close to the appellant’s right chest area. He said the appellant then “slid his right hand under the elastic of my shorts, in my underwear, and took hold of my penis” (Count 1 – indecent assault). He said that while the appellant was “rubbing it and fondling it” the appellant put his left hand into his robe and while fondling MB’s penis the appellant started “playing with his own penis … his hand was moving up and down and it was bumping my left buttock” (Count 2 – act of indecency with MB).

12. [18]

    MB said that he was “just absolutely in shock and disgusted and still feeling really sick”. He said it was hard to say how long this went on for, “it was probably 20 seconds … seemed longer than it actually was”.

13. [19]

    MB said that he did not say anything and nor did the appellant. He was "feeling really ill and … was in shock". He crouched forward, raised himself off the appellant’s lap and moved forward which had the result that the appellant’s hand came out of his pants. He moved his body in that way, “because I didn’t want anything to do with it …I was sick and shocked and disgusted”. MB described the appellant as then appearing to be angry and he ushered MB out of the room so that arrangements could be made for his mother to come and pick him up.

14. [20]

    After a phone call was made by one of the administration women to MB’s mother to arrange for her to come and pick him up, MB walked out of the school entrance and then walked some distance away because, he “just wanted to get away from the place”. He walked down the road in the direction from which he knew his mother would be approaching. She picked him up and took him to a doctor.

15. [21]

    MB said that he did not complain to his mother because:

16. [22]

    At the conclusion of his evidence in chief, MB said that he did not know anyone who attended the Marist Brothers High School in Kogarah. He had no idea who TM was and had never discussed what had happened to himself with TM.

17. [23]

    MB was cross-examined about his evidence of the appellant having the nickname "Chuck". He said it was the nickname he had for the whole time that MB was at the school. He maintained that he had been told that it derived from a fictional character of an "angry little murdering doll". This was something he had been told before he left the school. He was confronted with the proposition that the character was not created until 1988 (which was confirmed later in the evidence of the police officer in charge of the investigation):

18. [24]

    Much of the cross-examination was concerned with MB’s recollection of the location and layout of the appellant’s office. It was clear that his recollection was imperfect as to the location of doors and the internal layout. For example, MB had provided a sketch and given evidence that he had approached the appellant’s desk from the right hand side from his perspective but it was suggested that there was a return on that side of the desk which would have made that improbable. MB questioned the accuracy of the layout of the office that was put to him by way of diagrams and a photograph. It seems to have been the case that there was some remodelling and there appeared to be an issue, at least, in MB’s evidence, as to whether what was put to him as the correct layout and furnishing of the office was in fact the layout and furnishing at the time of the event in question.

19. [25]

    Obviously in anticipation of evidence to be given by a Mr John Di Gravio, MB was asked whether he had ever been to the appellant’s office on a previous occasion. MB denied having ever said anything to Mr Di Gravio that was inconsistent with his evidence that he had never been to the principal’s office before.

20. [26]

    MB was challenged as to his recollection of events after 40 years since they had occurred. He maintained that the words uttered by the appellant, particularly the word “darling” had stuck in his mind for that period of time. It was put to him, and he agreed, that he had said in his police statement in 2016 that, “they are his exact words, I’ve never forgotten them”. He said that that was not in respect of just the word, “darling” but the whole term: “come and sit on my knee, darling, and tell me all about it”.

21. [27]

    In re-examination, the Crown Prosecutor adduced evidence from MB to the effect that those words had stuck in his mind for 40 years. He had thought about them during the rest of his high school, after he had left school, and during his 20’s, 30’s, 40’s and 50’s. He had not thought during that period about aspects of the layout of the principal’s office. He was first asked to think about such things in July of 2016 when the police had asked him. He said:

22. [28]

    TM said he attended Marist Brothers High School at Kogarah and left at the end of 1980. Brother Christopher was the principal. TM did not see him very often; he saw him at "school assembly or something". He gave a description of the whereabouts of the principal's office. He said the only time that he could remember having to attend that office was on the occasion in question. At the end of his evidence in chief, however, he said there was an occasion when he had been disciplined with a leather strap by a teacher and it left a big welt on his wrist. He showed his mother and she took him to the principal's office. He could not remember any other occasion of going there.

23. [29]

    TM said there was a day in 1980 when he suffered a twisted testicle. It occurred when he was walking down some stairs. He was in agony from it. It was "the most pain I've ever had in my life to this day". He knew he had to go home; he had to see a doctor. He went to the principal's office. He told the secretary he needed the principal's permission for his mother to be called in order to take him home. He could not recall what the secretary said but as a result he went into the principal's office and the door was closed behind him. Brother Christopher was sitting at his desk. He was asked if he could describe the office and he said, "I don't have a great memory of the office, to be honest", but he believed the desk was in front of a window that overlooked the school.

24. [30]

    TM explained the problem and said he had excruciating pain in his testicle and wanted to go home. He said the appellant asked to see it; "he asked for me to pull my pants down". TM said he was embarrassed but he pulled his trousers down. The appellant then asked him to pull his underpants down. He did not want to but he complied. He was asked how he felt standing there with his pants down and he replied:

25. [31]

    The appellant got up from his seat and came around to kneel in front of TM. He then started playing with TM's penis and testicles (Count 3 – indecent assault). TM said that he was confused and frightened. He said that TM then said, "This will help you" or "This might help you" and he put TM's penis into his mouth (Count 4 – indecent assault). TM said that as he was looking down:

26. [32]

    He felt the appellant's whiskers "on like the sides of my legs and my testicles".

27. [33]

    The appellant had TM's penis in his mouth for about 30 seconds. As this occurred the appellant was rubbing himself; "he looked like he was playing with himself", "around his groin". TM then pushed him away. The appellant got up and went back to his desk. TM said that the appellant seemed angry; he just stormed off.

28. [34]

    TM pulled his underpants and pants up and left. He went and saw the secretary and said, "I need to call my mum". His mother came and picked him up from the front of the school.

29. [35]

    The Crown Prosecutor asked TM how he felt when he walked out of the appellant's office. He said:

30. [36]

    TM was taken by his mother to the nearest GP and that night he was taken to hospital where he was admitted. (Medical records confirmed that TM was an in-patient at St George Hospital with a presenting problem of "tortion of testes" from 22 to 24 September 1980 – Exhibit H.)

31. [37]

    TM said that he did not tell his mother what the appellant had done to him because:

32. [38]

    As to why he did not tell anyone else, he said:

33. [39]

    TM said that he did not want to go back to school because he "just felt that there was no one to look after me there" and he "didn't want it to happen again". He had a lot of sick days. He left Marist Brothers Kogarah at the end of the year and the following year went to a different school.

34. [40]

    TM reported the matter to the police in July 2015. Prior to that he spoke to someone at a "12 step meeting" who described being abused by a Marist Brother; "Brother Alex or something like that". He searched on the internet for that person and he came across stories about Brother Christopher. He then realised that the appellant was alive. He said he realised he should tell someone "because obviously there [was] a forum there that I could tell my story".

35. [41]

    TM said that he did not know anyone who had attended Marist Brothers High School at Hamilton in Newcastle. He did not know MB and had never discussed what had happened in the principal's office with a person called MB.

36. [42]

    In cross-examination, TM agreed that he had said in his statement of 16 July 2015, "I do struggle to remember the details of what happened". He explained that he was referring to "specific details". He agreed that he said in his statement that Brother Christopher had got up from his desk and came around to him before asking him to pull down his pants and underpants. He agreed this was different to the evidence he had given and that it was "one of the details that you struggle to remember". He denied the possibility that one of the details he struggled to remember was "who did this to you".

37. [43]

    TM agreed that he had commenced proceedings against the Marist Brothers and in that connection he had been assessed by a psychiatrist. He agreed that he had told the psychiatrist that he thought the abuse had occurred when he was in year 6 or year 7, but he agreed that it would not have been in year 6 because there was another principal for the junior school at that time.

38. [44]

    TM agreed that he had drawn a diagram of the principal's office at the request of the police and that he had "got the office wrong". The location of the door, the window and the desk were wrong.

39. [45]

    He was challenged as to the whereabouts of the principal's office. He thought it was on the first floor, not the ground floor. He had said in his evidence in chief that it overlooked the playground. When pressed in relation to this he said, "I don't remember the exact specifics, no". It was put to him that he was "not abused in Brother Christopher's office at all" but he said, "that's not true".

40. [46]

    TM denied looking up Brother Alex on the internet because he was trying to find something to trigger a memory about who had actually abused him.

41. [47]

    TM agreed that if a student was sick at school they did not see the principal to go home and that you could see your class master. He denied seeing his class master on the day that he had a twisted testicle.

42. [48]

    TM's evidence of taking a lot of sick days after the event was challenged. He maintained "I had a lot of sick days". He agreed that he had told the psychiatrist "something like" that the number of sick days increased from 2 to 22. He was shown some school records and agreed that they did not show an increase in the number of sick days he had taken after Brother Christopher had abused him. It was put that this was "because he didn't assault you" but he said that proposition was "not true".

43. [49]

    TM was cross-examined on the medical records from St George Hospital. They included someone having written "not distressed" and "no distress". He said that was not a word he would have used.

44. [50]

    He was also cross-examined about his evidence of feeling whiskers when oral sex was being performed on him. He said, "I could feel whiskers, I don't know whether they were shaven or not" and "I could feel something that was itchy, scratchy hair on the face". He did not know whether the appellant shaved every day.

45. [51]

    In re-examination, TM said that the details he struggled to recall included the layout of the principal's office but not whose office it was or the detail of how he was assaulted and who by and that it occurred on the day that he had a twisted testicle.

46. [52]

    After some further cross-examination and re-examination, a sequence of events was clarified. TM had attended some meetings regularly and he had spoken at a meeting of having been sexually abused when he was aged 13 by the headmaster of his school but he did not go into specifics. Subsequent to that he had seen a psychologist and disclosed that he had been sexually abused by the appellant. It was after that when he was told by a person that that person had been sexually abused by a Marist Brother, perhaps Brother Alex. It was after that when he had looked on the internet and had seen reference to the appellant. He then saw a lawyer who referred him to a psychiatrist for a report. Subsequent to that he made his statement to the police.

47. [53]

    Plain Clothes Senior Constable Daniel Green gave evidence that TM had reported his complaint to the police on 10 July 2015 and that MB had reported his matter in July 2016. Police had made inquiries about the doctor who MB had seen in 1976 and it was determined that the particular doctor had passed away in 2011 and no medical records had been retained. Senior Constable Green gave evidence that MB's mother was not capable of giving evidence because of a medical condition.

48. [54]

    Mr John Di Gravio gave evidence of conversations he had with MB at a reunion on 16 April 2016 and subsequently by telephone over the ensuing two months. He said that MB mentioned Brother Christopher "as a side reference" in the last of the conversations. MB said that whenever he was in trouble and was sent to Brother Christopher, Brother Christopher would send him off to Brother Dominic for punishment. Mr Di Gravio said that there was a lot of information conveyed by MB in a number of late night telephone conversations and "for some reason Christopher was in there". He conceded he "may not have heard properly". It was "a vague recollection at best". When it was suggested by the Crown Prosecutor that he was mistaken he said:

49. [55]

    In subsequent questioning by senior counsel for the appellant (Mr Brady SC) he reiterated the possibility that he was mistaken but said he had "tried to do the best I can remembering".

50. [56]

    The appellant was aged 81 at the time of the trial. He said he became a member of the Marist Brothers in 1954. He began teaching at Hamilton in 1969 and became the principal in 1971. He became the principal at Kogarah in 1977.

51. [57]

    He had prepared a plan showing the principal's office at Hamilton (Exhibit 1). There were two women who worked in the secretaries’ office outside the principal's office. They were both deceased.

52. [58]

    The appellant said that there was not a well-established procedure at Hamilton when students became sick; sometimes they might be attended to by their roll teacher and sometimes by the year master. Typically, a sick student would not come to the principal but he could not exclude that a student might.

53. [59]

    There were about 950 students at Hamilton. The appellant did not remember MB from 1976. In about 30 years he had been the principal of in excess of 10,000 students and he did not remember them all. He could not exclude the possibility that MB had come to him saying that he wanted to go home sick. He said, "it would be a possibility that he saw the secretaries and … that they brought him in".

54. [60]

    A photograph of the principal's office in the 1976 yearbook was tendered (Exhibit 5). It showed a return on the side of the desk (the side MB said he was asked to walk around).

55. [61]

    Broad details of the allegations of MB were put to the appellant and he denied them.

56. [62]

    The appellant was then asked about Marist Brothers High School at Kogarah. There were three women who occupied the secretarial office near the principal's office, one of whom may not have worked full-time. The two whom he was certain worked full-time were since deceased.

57. [63]

    The appellant described the principal's office as being a flight of steps down from the playground (contrary to TM's evidence that it was on the first floor overlooking a playground).

58. [64]

    There were about 1300 students at Kogarah. The appellant did not remember TM.

59. [65]

    The procedure at Kogarah if a child became sick was "better established". Year masters or the roll teacher would usually take care of such matters and the principal would "not necessarily" see the student. The appellant did not know whether TM came to see him in order to go home sick. He said, "I can't exclude it … because it would have been possible, in some circumstances, for my attention to be drawn to a sick student".

60. [66]

    Broad details of the incident alleged by TM were put to the appellant and he denied them.

61. [67]

    The appellant said that he left Kogarah at the end of 1980 and was transferred to North Sydney. He was there for a year during a transitional phase working with the principal-elect, Mr Grahame Smollett. Mr Smollett had been on the teaching staff at Kogarah.

62. [68]

    The appellant concluded his evidence in chief by saying his practice when at Kogarah was to shave every day.

63. [69]

    In cross-examination the appellant conceded that he was mistaken about some things. They included aspects of the layout of the area of the administration area at Hamilton he had drawn on a diagram (Exhibit 1). He agreed that it was not easy to remember such details, even when he had sat in the principal's office for more than a year. He agreed that he could not even be sure what the desk looked like.

64. [70]

    The appellant maintained his evidence of shaving every day but accepted that he could not say whether he missed any parts on any given day, or whether his razor was sharp every day. In re-examination he said that he "always had a very light beard".

65. [71]

    The allegations of each complainant were put to him and he denied them. He denied having a sexual interest in them.

66. [72]

    The appellant said in response to a question asked by the judge that he did not know if he had a nickname when he was at Hamilton. His Honour also asked whether he was starting to go slightly bald on top when he was at Kogarah and he said that although he really did not know, "it's certainly possible".

67. [73]

    Mr Grahame Smollett was a lay teacher at Kogarah while the appellant was the principal. He gave evidence of the procedure for when a boy became sick during the day; he said that it would be a matter handled by teachers and year masters.

68. [74]

    Mr Smollett said that the appellant was always immaculately dressed; he was clean shaven and his hair was always neat and tidy.

69. [75]

    In cross-examination he was fairly insistent that boys would not go directly to the principal in relation to matters of illness. He said, "I know the practices, policies and procedures of schools. I know how they operate, and I have a conscientious belief that that (a student taking himself off to the headmaster's office) is not the way a boy would operate, if he was feeling sick".

70. [76]

    Mr Smollett also maintained that the appellant "had a reasonably full head of hair, but it was possibly beginning to recede a little". In re-examination he said he should have used the word "thinning" rather than "receding".

71. [77]

    Dr Donald Thomson gave expert evidence that was based upon his specialised knowledge of memory. He gave evidence of various ways in which a person's memory may be unreliable with reference to a variety of literature on the subject. He included in his report that it has been well documented that a consequence of delay in recalling an experience is that recall becomes unreliable.

72. [78]

    According to Dr Thomson's evidence, one form of false memory occurs when an event or person has similar features or characteristics as a previously experienced event or person and, because of the resemblance, is falsely recognised or identified.

73. [79]

    Another form of false memory was said to be attributable to "source confusion"; an observer recalls an event or incident they had previously experienced or identifies a person as the person they had previously seen, but wrongly attributes the place or the time of that event or person. This was referred to as "transference". An example pertinent to this case was that a person thinking back to their experience at school might remember the principal because he was the prominent person in the school and might attribute to him events or actions that were done there, but were not carried out by the principal.

74. [80]

    A third form of false memory occurs when a particular event has never been experienced or a particular individual never seen, but because of suggestive influences, the "rememberer" comes to believe he or she has experienced that particular event or observed that particular person.

75. [81]

    Dr Thomson also referred to "hindsight bias", being the reconstruction of past events in light of present knowledge and beliefs.

76. [82]

    Dr Thomson was asked about the ability of an adult to recall a statement said to have been made by the accused: "Come and sit on my knee, darling, and tell me what it's all about" (from the evidence of MB). He said that research had shown that the capacity to recall verbatim is extremely poor, even over some small number of years; "What we tend to recall is the gist of it".

77. [83]

    Dr Thomson was also asked about MB's evidence of the appellant being known to students by the nickname "Chuck", which counsel said was supposed to have derived from a fictional character which was not created until 1988. Dr Thomson said this "shows the reconstructive nature of how one constructs things, taking into account a present knowledge, a present experience and reinterpreting past experiences".

78. [84]

    Dr Thomson generally agreed in cross-examination with suggestions to the effect that the ability of a person who is now an adult to recall an event that occurred well in the past when they were a child was affected by a number of variables; for example, whether the event was unique; whether the person was personally involved in the event; whether they had an emotional reaction to it; and whether there were more senses involved than just sight.

79. [85]

    Dr Thomson also agreed that personal characteristics had an influence on the capacity for accurate recall; different people had different abilities with memory.

80. [86]

    He agreed that he could not predict if and when an individual's memory had been affected by the factors he had outlined in his evidence and that all he could do was point out those that may affect memory. The mere passage of time did not mean that a person could not recall something accurately, but Dr Thomson added that "research has shown that it is highly probable that it could".

Ground 1 – miscarriage of justice as a result of failure to give any, or any adequate, reasons as to treatment of the evidence of the appellant

1. [87]

   In written submissions it was said that it might be assumed that the trial judge rejected the evidence of the appellant. However, nowhere did he state that to be the case. More importantly, at no point did his Honour say why he rejected the appellant's evidence, or how he treated that evidence in the light of the applicable legal context. It was submitted that this amounted to an error of law having regard to the fact that there was an obligation upon the judge pursuant to s 133 of the Criminal Procedure Act 1986 (NSW) to give reasons.

2. [88]

   The written submissions then referred to the terms of the legislation and to some case law which will be discussed below.

3. [89]

   It was submitted that while it might be surmised that the judge rejected the appellant's evidence, the reasons do not permit this Court to see whether his Honour's treatment of the evidence of the appellant was tainted by error and nor do they permit the appellant to know why he was convicted.

4. [90]

   It was also submitted that the correct approach was for the judge to first have regard to whether the evidence of the appellant was accepted. If so, there would be an acquittal. If the evidence was not accepted, regard should then have been had to whether the evidence nonetheless gave rise to a reasonable doubt. Again, the result would be acquittal. If the evidence was rejected, it should then have been put to one side (with reasons for doing so provided) and an evaluation of the strength of the prosecution case begun.

5. [91]

   In oral submissions it was again acknowledged that there was an inference that the judge rejected the appellant's evidence but it was submitted that, without any express statement made to that effect, there was also the possibility that he "perhaps unconsciously simply subjectively, notionally, set the appellant's evidence aside in terms of the appellant's credibility and reliability and dealt only with the complainant's evidence" (T3.31). It was submitted that it was possible the judge made "a serious error in not addressing the appellant's evidence in the way that he had directed himself he had to" (T5.15; similarly at T7.5). It was accepted that elaborate reasoning dealing with every factual dispute was unnecessary but that there had to be at least short reasons as to what led the judge to disbelieve the appellant's evidence (e.g. T4.10).

6. [92]

   Senior counsel for the appellant (Mr Neil SC) relied upon Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at 263 [30] for the proposition that there was error in a failure to demonstrate, either expressly or by implication, that a relevant principle of law had been applied. When pressed as to what "principle" he was referring to he responded, "the principle of adequate reasons" (T8.13).

7. [93]

   In written submissions, the Crown submitted that, although the judge did not make an express finding in respect of the appellant's credibility, the reasons when read as a whole make clear that the evidence of the appellant was rejected.

8. [94]

   It was submitted that it was possible to discern from the reasons whether the judge's treatment of the evidence of the appellant was tainted by error. The judge had appropriately directed himself that if the appellant's evidence was believed, or might be true, then there should be acquittals and if it was not believed he should put the evidence to one side and consider whether, upon the basis of the evidence that was accepted, the Crown had proved guilt beyond reasonable doubt.

9. [95]

   The Crown submitted that it was not necessary for the judge to say why he did not accept the appellant's evidence. The essence of his evidence was a denial of the offences: the appellant did not recall either complainant but he denied assaulting any student in the manner they alleged.

10. [96]

    The Crown referred to "sub-issues" in the evidence that were said by the appellant to cast doubt upon the credibility and reliability of the complainants. It was submitted that the judge appropriately addressed each of these issues when considering the credibility and reliability of the complainants. He also considered and rejected the suggestion that the complainants were mistaken that the perpetrator of the indecent assaults was the appellant rather than someone else. Comprehensive reasons were given for the finding that both complainants were credible and reliable.

11. [97]

    In summary, it was the Crown's submission that it is clear that the judge rejected the appellant's denial of the offences; he gave extensive reasons for his findings accepting the complainants' evidence beyond reasonable doubt; and the issues raised in the trial were not such that it was necessary for the judge to provide reasons for his rejection of the appellant's evidence.

12. [98]

    By reference to the terms of s 6(1) of the Criminal Appeal Act, the Crown submitted in the alternative that any error this Court might find as to inadequate reasons would not amount to a miscarriage of justice and, further in the alternative, if there be found such a miscarriage, it would not amount to a substantial miscarriage of justice.

13. [99]

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

14. [100]

    This provision is in the same terms as its predecessor, s 33 of the same Act, which was considered by the High Court of Australia in Fleming v The Queen.

15. [101]

    The "finding" referred to in s 133(1) is a reference to the ultimate guilt or otherwise of the accused: Fleming v The Queen at 262 [25].

16. [102]

    The requirements of s 133(2) and (3) are "legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law … and may also mean that justice has miscarried" within the second and third limbs of s 6(1) of the Criminal Appeal Act: Fleming v The Queen at 262 [27].

17. [103]

    It was also said in Fleming v The Queen (at 263 [28]) that the requirements of s 33(2) (and hence s 133(2)) are not:

18. [104]

    There was a further point of construction of the former s 33(2), now s 133(2), noted in Fleming v The Queen (at 263 [30]) of significance to the present case:

19. [105]

    Counsel for the appellant referred to AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 in which comparable statutory provisions were considered. It was submitted that "Gummow and Hayne JJ considered that the question of adequacy of reasons is one of compliance with the mandatory provisions of the legislation" and a footnote to this referred to their Honours' judgment at [56] and [58]. Reference was also made to the judgment of Heydon J (also in the majority) who observed (at [84]) that compliance with the relevant statutory provision (identical to s 133(2)) is one of degree but went on (in [85]) to say that the trial judge's failure to comply with the provision was "almost as complete a failure as could be imagined". Reference was also made to Heydon J saying (at [108]) that the value of reasons was not just to inform the parties as to why there has been a conviction or an acquittal but also to offer close appellate scrutiny of the trial judge which creates "an essential discipline".

20. [106]

    Reference was also made to R v MPW (Court of Criminal Appeal (NSW), McInerney, Dunford and Simpson JJ, 14 December 1995, unrep). In that case a failure to state that the good character of an accused had been taken into account was found to comprise a failure to satisfy the statutory obligation in the then s 33(2). Dunford J (with whom McInerney and Simpson JJ agreed) said that the trial judge may have taken the accused's good character into account but "he did not say so and we cannot be sure that he did; in particular, we cannot be sure that he took it into account on both issues" (namely, on the question of guilt and on the question of the credibility of the accused's sworn evidence). There was a failure to comply with s 33(2) so that the trial miscarried.

21. [107]

    Earlier in the judgment of Dunford J there was reference to Wood J (as his Honour then was) having said in R v O'Brien (Court of Criminal Appeal (NSW), 5 November 1993, unrep):

22. [108]

    These remarks were quoted with apparent approval by Levine J (Carruthers and Bruce JJ agreeing) in R v Visser (Court of Criminal Appeal (NSW), 29 September 1994, unrep).

23. [109]

    It should be observed that what was said about s 33(3) not requiring any express mention of a warning has been overtaken by the statement in Fleming v The Queen at 263-4 [32] that such warnings derive from principles of law which are expressly required by s 33(2) to be included in the judgment.

24. [110]

    Stated simply, the issue for the trial judge to determine was whether the Crown had proved the guilt of the appellant beyond reasonable doubt.

25. [111]

    The case sought to be made by Mr Brady SC for the appellant in his closing address had three major components:

26. [112]

    The judgment of the trial judge was structured as follows:

27. [113]

    The judge adequately and correctly complied with the requirement to set out the legal principles he was required to apply, the first of the two imperatives of s 133(2). There is no criticism of the judgment in that respect. The principles included the most fundamental direction given in a criminal trial; that the Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. This included, unsurprisingly, the concomitant concepts that the accused was presumed to be innocent and that even if his Honour felt that he was probably guilty he was required to return a verdict of not guilty if he held a reasonable doubt about his guilt.

28. [114]

    At the beginning of his summary of the evidence of the appellant his Honour said:

29. [115]

    Having regard to all of the above matters that were included in the judgment, it is abundantly clear that the judge:

30. [116]

    The submissions for the appellant included that "it might be assumed that the trial judge rejected the evidence of the appellant". In my view, there is no other inference reasonably available. The possibility that he referred to the appellant's evidence and to the relevant legal principles and then disregarded them entirely is implausible.

31. [117]

    The appellant's evidence has been summarised above. In short, he did not dispute that each of MB and TM may have seen him in his office for the reasons they claimed. However, he denied committing the offences.

32. [118]

    The bulk of the appellant's evidence was concerned with peripheral matters such as his employment as a teacher and as a school principal with the Marist Brothers; the location and layout of his office at the schools at Hamilton and Kogarah; and, in relation to the complaint by TM, whether he had whiskers.

33. [119]

    The judge clearly accepted the defence case, largely based upon the appellant's evidence as to those peripheral matters. He discussed his assessment of the evidence of the complainants in the light of errors in their accounts of the location and layout of the appellant's office. He discussed TM's evidence in the light of an acceptance of the evidence that the appellant shaved on a daily basis.

34. [120]

    In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused's version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his "not guilty" responses when arraigned at the commencement of the trial.

35. [121]

    In AK v Western Australia, to which counsel for the appellant referred, the failure of the trial judge to provide reasons was vastly different. It was so obviously a failure that it was not an issue for debate in the High Court; it was common ground that the trial judge had not complied with the equivalent statutory provision and the only question was whether the Western Australian Court of Criminal Appeal was in error in dismissing the appeal by applying the proviso. (The majority in the High Court held that there was a substantial miscarriage of justice and the appeal was upheld.)

36. [122]

    The case was concerned with an issue of identification of the offender of alleged offences of indecent dealing with a child where the complainant had no doubt that AK was the offender. However, her evidence did not clearly exclude the possibility that another male who was present might also have been responsible for the offences. The trial judge stated his conclusion that he "thought that the complainant was generally a thoughtful and truthful witness as to the events about which she had spoken". He noted some concessions she made in cross-examination and the absence of any prompt complaint. Aside from this he simply stated that each of the offences had been proved beyond reasonable doubt.

37. [123]

    AK v Western Australia provides an extreme example of a failure to give reasons. But, as Heydon J observed, it is a question of degree. The examples his Honour provided (at 467 [84]) indicate that the question whether there has been a departure from the statutory imperative will depend, at least in part, upon the nature of the evidence and the issues in the case at hand.

38. [124]

    Returning to the present case, the trial judge discussed the evidence of the complainants in detail, including the various criticisms made of it. He expressed reasons why he was satisfied of the appellant's guilt beyond reasonable doubt notwithstanding such criticisms which were based in part upon the appellant's evidence which he clearly accepted.

39. [125]

    The only thing left unsaid by the judge was that he rejected the evidence the appellant gave that the allegations by the complainants were untrue. However, that he was of that view is obvious enough (and he said so in his judgment on sentence).

40. [126]

    There was no inadequacy of reasons generally. There was also no failure to comply with the legal imperatives of s 133(2); the judgment included the principles of law applied by the judge and it also included the findings of fact on which he relied.

41. [127]

    This ground must be rejected.

Ground 3 – miscarriage of justice by failure to give any, or adequate, reasons as to treatment of the evidence of Dr Donald Thomson

1. [128]

   Dr Thomson was the expert psychologist who gave evidence as to memory (see above at [77]-[86]).

2. [129]

   In written submissions it was acknowledged that the judge had referred to the evidence of Dr Thomson and referred to some of its content. However, it was submitted that, "Nowhere is it suggested that the evidence of Dr Thomson was rejected, either as to the general theory involved, or in its application to the matter before the court".

3. [130]

   It was submitted that acceptance that the evidence of Dr Thomson might be correct as it related to the facts of the case should have left the judge with a doubt about the appellant's guilt. It was also submitted that the failure to give reasons as to what might be taken to be a rejection of the possibilities raised by the evidence of Dr Thomson amounted to a miscarriage of justice.

4. [131]

   In oral submissions it was said that there is no suggestion in the judgment that the evidence of Dr Thomson was rejected; in fact there is an implication that it was accepted (T8.23). It was also said that the evidence of Dr Thomson had the capacity to support the appellant's denials that he committed the acts complained of (T8.40).

5. [132]

   For the Crown it was submitted that this ground could not be sustained as the judge dealt with the evidence of Dr Thomson at length. He had specific regard to a number of matters raised by the psychologist that might have a bearing upon the reliability of the complainants' evidence as to both the question of whether they had been assaulted as they alleged and also on the question of whether the appellant was the perpetrator.

6. [133]

   It is clear that the judge accepted the opinions of Dr Thomson as to various matters that might adversely affect the reliability of the evidence of the complainants. He summarised the psychologist’s evidence in some detail while stating that he was not canvassing it all (Jdgmt pp 17-20). He included reference to it when summarising the submissions that had been made in the closing addresses by the Crown Prosecutor (Jdgmt pp 27.3 and 29.4) and by Mr Brady SC for the appellant (Jdgmt pp 35.9 and 36.3). Further, and importantly, his Honour made reference to it when later explaining why he accepted the evidence of the complainants.

7. [134]

   It was not suggested that anything raised by senior counsel for the appellant in his closing address was not taken into account by the judge. I have read and re-read the transcript of his address alongside his Honour's reasons for judgment and can understand why no such complaint was made.

8. [135]

   Dr Thomson's evidence was concerned with the quality of a person's memory after such a substantial period of time had elapsed. The reasons provided by the judge as to why he accepted that each complainant had been assaulted as they alleged, and why he accepted that the appellant was the perpetrator, provide many examples of his Honour's mindfulness of this issue. It will suffice to mention just some examples. Some involve specific reference to Dr Thomson while others are indicative of him having his evidence in mind.

9. [136]

   TM's account of the location of where the assault occurred was not consistent with the location of the principal's office and this was said to suggest that he was assaulted by someone else. However, the judge accepted TM's evidence that he had only been to the principal's office on one other occasion. It was not located near the office of any other teacher. Further, TM remembered the door through which the appellant's secretary showed him through to the appellant. The judge's consideration of this issue is indicative of him having in mind the concept of transference about which Dr Thomson had given evidence.

10. [137]

    The judge had regard to the possibility of TM having unconsciously reconstructed the number of sick days he had off after being assaulted but gave reasons for accepting his evidence nonetheless. This was another concept about which Dr Thomson had spoken.

11. [138]

    The judge accepted a submission by the Crown "that the itchy, scratchy feel of the accused's whiskers does not exclude him from being the offender" and that "what TM was describing was the course [sic] … texture of a man he could feel to his sensitive areas contrasted to the soft face of a woman". This was a matter that had been raised by Mr Brady SC with reference to Dr Thomson's evidence.

12. [139]

    Further, the judge said:

13. [140]

    In the course of explaining why he accepted the evidence of MB, the judge referred to his evidence of the appellant having said, "Come and sit on my knee, darling, and tell me all about it". MB was asked what he thought when the appellant made this statement and he replied, "I just was shocked and I didn’t know what to think, I’ve never been called darling by a male in my life". Dr Thomson's evidence included that, "research has shown that capacity to recall verbatim is extremely poor even over some small number of years" and that, "What we tend to recall is the gist of it". The judge said:

14. [141]

    The reasons given by the judge for accepting that it was the appellant, as opposed to some other adult at the school, who assaulted MB are indicative of his Honour again being mindful of the concept of "transference". For example, he referred to the issue about MB possibly having confused the appellant's office with someone else's office. He particularly referred to MB having described, accurately, the appellant having two secretaries who sat outside on either side of the door to the appellant's office with one of them being "behind the other or something and that the woman in front was the one who spoke to me". The judge referred to a photograph (Exhibit 6) which showed two secretaries on either side of the door, one being seated further back than the other.

15. [142]

    The judge also referred to the event described by MB as "a unique event with the person who was not just one of the many teachers at the school but the principal of the school".

16. [143]

    As to the reference in MB's evidence that the appellant was referred to as "Chucky" and his apparently mistaken description of the appellant's desk, his Honour said:

17. [144]

    It is abundantly clear that in his assessment of the accuracy and reliability of the evidence of the two complainants the trial judge took into account the evidence of Dr Thomson. Sometimes he made specific reference to it but at other times his reasoning amply disclosed that he was mindful of the various difficulties Dr Thomson described of a person being able to accurately and reliably recount an event that occurred in the distant past.

18. [145]

    There is no merit in the appellant's assertion that the judge failed to give any, or adequate, reasons as to his treatment of the evidence of Dr Thomson. He was mindful of it and applied it to his consideration of the evidence of the two critical witnesses.

19. [146]

    It is rather telling that when senior counsel for the appellant was invited during the course of the hearing of the appeal to indicate what evidence of Dr Thomson the judge had failed to take into account an immediate response could not be provided. (Nothing was said in the written submissions as to evidence the judge should have, but failed, to refer to.) At the conclusion of the hearing, senior counsel returned to the question and indicated that he had nothing further to say.

20. [147]

    There was no failure by the judge to give adequate reasons as to his treatment of the evidence of Dr Thomson. This ground must be rejected.

Ground 4 – the verdicts are unreasonable and cannot be supported having regard to the evidence

1. [148]

   Section 6(1) of the Criminal Appeal Act provides, in part, that the Court must allow an appeal against conviction "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence".

2. [149]

   In the context of an appeal from a jury verdict it has been said that the ultimate question for this Court in determining such a ground of appeal is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], citing M v The Queen (1994) 181 CLR 487 at 494-495 and R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at 630 [20].

3. [150]

   It was also stated in The Queen v Baden-Clay (at [65]) that the setting aside of a jury's verdict on the ground that it is unreasonable is a serious step which should not be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.

4. [151]

   In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 54 [12] the plurality held that:

5. [152]

   Their Honours went on to say that it must "be borne steadily in mind that in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced" (at [12]).

6. [153]

   In written submissions, counsel for the appellant contended that this ground should be upheld because the evidence of each complainant "was not cogent, and it is clear that significant doubt ought to have attached to that evidence".

7. [154]

   The evidence of MB was said to lack cogency and there should have been significant doubt because:

8. [155]

   The evidence of TM was said to lack cogency and there should have been significant doubt because:

9. [156]

   The evidence of the appellant was also relied upon in support of this ground. It was submitted that it should have left the court with a reasonable doubt and an acquittal should have ensued because:

10. [157]

    MB's evidence in relation to "Chucky" has been referred to earlier (his evidence in chief at [13] and in cross-examination at [23]). It was his evidence that the appellant was known to students in 1976 by the nickname "Chucky". He had been told that this derived from a fictional character, "Chucky". However, that fictional character appeared in the film "Child's Play" which was not released until 1988.

11. [158]

    The trial judge allowed for MB having a false belief about a nickname for the appellant deriving from a character in a movie which was not released until 12 years later. In the course of his reasons why he accepted that MB was assaulted by the appellant he said:

12. [159]

    This topic was peripheral; the essential aspect of MB's evidence was his description of having been indecently assaulted by the appellant. The nickname "Chucky" was something that arose in MB's description of the appellant's reputation as someone who meted out "barbaric punishment". This was accepted by Mr Brady SC in the course of submissions as to the admissibility of such evidence to be relevant as going to MB's belief and thereby explaining his failure to make a contemporaneous complaint about the appellant's conduct.

13. [160]

    It is apparent that MB had incorporated information later acquired into his description of the appellant at the relevant time. But given the peripheral nature of the topic, it is not something that necessarily ought to have raised a reasonable doubt about the reliability of MB's evidence as to critical matters.

14. [161]

    Mr John Di Gravio's evidence has been reviewed earlier (at [54]-[55]).

15. [162]

    The point sought to be made on behalf of the appellant in this Court was that "an absence of any suggestion [by MB to Mr Di Gravio] that the appellant himself had abused MB speaks loudly" (AWS [53]ii). However, the written submissions for the appellant failed to acknowledge that some of the evidence of Mr Di Gravio was subsequently held to be inadmissible (largely by agreement on the basis that it infringed s 293 of the Criminal Procedure Act).

16. [163]

    Mr Brady SC had made a submission in the course of his closing address to the effect that there was doubt about the reliability of MB's evidence because he had not made any complaint to Mr Di Gravio. However, after the Crown Prosecutor raised the infringement of s 293, Mr Brady conceded that "because that wasn't put to the complainant, reference to whether he complained of Brother Christopher in a particular way is probably not a matter that I can submit on". Mr Brady accepted that the only relevance of Mr Di Gravio's evidence was that MB had told him that he had been sent to Brother Christopher's office for punishment and Brother Christopher would send him to Brother Dominic; in other words, he had been to the appellant's office on more occasions than he had said. This had been put to MB in cross-examination and he denied having said it to Mr Di Gravio.

17. [164]

    Mr Di Gravio's evidence, even in that limited respect, is difficult to regard as adverse to the reliability of MB's evidence that he had no personal interaction with the appellant before or after the occasion of the assault. Mr Di Gravio readily accepted that his recollection of what MB had said in a late night telephone conversation was possibly mistaken.

18. [165]

    In short, Mr Di Gravio's evidence did not require the trial judge to have any doubt about the evidence of MB.

19. [166]

    MB gave evidence that he attended the appellant's office after having been referred by his teacher because he was feeling unwell (see above at [14]).

20. [167]

    The written submissions for the appellant referred to his evidence in chief:

21. [168]

    The Crown, however, referred to other evidence given by the appellant a few questions later:

22. [169]

    MB was not challenged on his evidence that the reason he attended the principal's office was that he was sent there by his class teacher because he felt ill and wanted permission to go home. MB's evidence in relation to this was not contradicted by that of the appellant or any other witness. In these circumstances it is little wonder that senior counsel for the appellant did not in his closing address attempt to impugn the reliability of MB's evidence on the basis of this issue.

23. [170]

    A number of matters were raised, albeit with brevity, concerning the circumstances of TM's disclosure decades after the events in question. Aside from one issue that was spelt out in a little detail, it was not indicated in either written or oral submissions what was said to arise from the other matters referred to.

24. [171]

    Reference was made to TM disclosing what he claimed the appellant had done to him "in the context of a civil action for damages, in which the complainant spoke to many people before the police, including a psychologist and a psychiatrist".

25. [172]

    The sequence of events concerning TM's disclosure of what he said the appellant had done to him has been summarised above (at [51]).

26. [173]

    The only point in the submissions that was based on this chronology was that "It was apparent that the account given by [TM] to the psychiatrist of what had occurred was not entirely accurate and that at least an extremely exaggerated account of the number of school absences following the claimed assault had been given". (This was a reference to the evidence summarised above at [48].) The relevance of all of the other aspects of the chronology of TM's disclosure to the asserted lack of cogency is not self-evident. This includes the final sentence of the submission, "It is also apparent that the complainant had regard to medical records in the context of the proposed civil claim prior to giving an account to the police". This, presumably, is a reference to the means whereby TM was able to ascertain the date of the assault by reference to the hospital records that indicated his admission on 22 September 1980. That has no bearing on the cogency of TM’s evidence.

27. [174]

    As to the assertion to the psychiatrist by TM that there were a large number of sick day absences from school after the event, the trial judge reasoned:

28. [175]

    It was open to the trial judge to reason in that way. The fact that TM sought out another school because he no longer wanted to attend at Marist Brothers Kogarah was not disputed. It was a significant point as it supported his account of having been sexually abused by the school principal.

29. [176]

    The evidence concerning this topic has been summarised earlier. In short, the evidence of the appellant and his colleague, Mr Grahame Smollett, was to the effect that he was always clean shaven whereas TM's evidence was that, "I could feel his whiskers …I could feel the whiskers touching me … on like the sides of my legs and my testicles". He maintained this in cross-examination.

30. [177]

    It was submitted that the language used by TM was inconsistent with mere stubble as might arise in the course of a day.

31. [178]

    TM agreed without apparent hesitation in the above passage of the cross-examination that the appellant "was always clean shaven at school".

32. [179]

    The trial judge reasoned that "the itchy, scratchy feel of the accused's whiskers does not exclude him from being the offender" and that "what TM was describing was the course [sic] and texture of a man he could feel to his sensitive areas".

33. [180]

    This reasoning was open to the judge. It was not a matter that necessarily excluded the possibility of the appellant being the person who assaulted TM in the manner he described. It was a matter that had to be considered in the light of all of the other matters upon which the judge concluded beyond reasonable doubt that the appellant was the perpetrator of TM's assault.

34. [181]

    TM's evidence was that he went to the principal's office because he was in agony from having suffered a twisted testicle (see above at [29]). He agreed in cross-examination that a boy who felt sick during the day and wanted to go home could see the class master (above at [47]).

35. [182]

    In contrast to the evidence concerning MB and the procedures at Marist Brothers Hamilton, there was evidence of Marist Brothers Kogarah having more concrete procedures for dealing with boys who fell ill during the day. (As to this, see the appellant's evidence (above at [65]) and Mr Smollett's evidence (at [73]-[76].)

36. [183]

    The written submissions for the appellant asserted that "it was implausible for the principal of a reasonably large school to be dealing with a sick boy sent to the office only for the purposes of seeking permission to go home".

37. [184]

    The appellant's evidence in chief included, however, that he did not know whether TM came to see him in order to go home sick; he could not exclude it. He confirmed this in cross-examination.

38. [185]

    Given the appellant's concession, it is not "implausible" that TM attended the principal's office to seek permission to leave the school in order to receive medical attention.

39. [186]

    The contention in relation to the appellant's evidence was that none of it was counterintuitive or hard to accept; it carried significant plausibility; appropriate concessions were made in cross-examination; and he was left "unshaken and undiminished by cross-examination".

40. [187]

    On the face of it, this appears to be correct. There is nothing of significance in the appellant's evidence that is inherently implausible and nothing was said at trial to suggest that he was "shaken or diminished" by cross-examination. However, it was necessary for the trial judge to weigh the appellant's evidence, and that of his witnesses, against the evidence relied upon by the prosecution. He had the advantage of seeing the witnesses and hearing their evidence as it was given whereas this Court is confined to the printed pages of the transcript.

41. [188]

    The judge described TM as a witness in the following terms:

42. [189]

    He described MB as a witness this way:

43. [190]

    The prosecution case was that each complainant felt unwell and attended upon the appellant as the principal in order to obtain permission to leave the school. A secretary ushered the complainants into the principal's office and the door was closed. It was well open to the trial judge to accept that this occurred.

44. [191]

    The complainants' evidence was that it was in those circumstances that they were indecently assaulted by the appellant. They described the assaults with detail that gave their accounts considerable verisimilitude. It was well open to the judge to accept that the assaults occurred in the manner they described. For example, his Honour said in respect of TM's evidence:

45. [192]

    In relation to MB's evidence the judge said:

46. [193]

    Having concluded that the complainants were assaulted in the manner they described, it was well-open to the judge to be satisfied that it was the appellant who perpetrated the assaults. As the principal, the appellant was a significant person at each of the schools. Each of the complainants recalled going to his office because they were suffering from an incident of ill-health. They recalled being admitted to the appellant's office after first speaking with a secretary. They each recalled again speaking to a secretary after leaving the appellant's office and arranging for their mothers to be contacted in order to come and pick them up. The prospect of such detail being merged with a memory of an assault that was committed by some other adult somewhere else at the school appears to be most unlikely.

47. [194]

    The acquittal of the appellant in respect of the offence charged in Count 2 of the indictment did not detract from MB's credibility. The judge said that he was "satisfied beyond reasonable doubt that it was the accused who in Count 2 fondled his own penis through his robe under MB's buttocks". Count 2 alleged that the appellant committed an indecent act "with" MB. The judge was not satisfied of the "with" aspect.

48. [195]

    On my assessment, it was well open to the trial judge to be satisfied of the guilt of the accused in respect of the three indecent assaults charged in Counts 1, 3 and 4 of the indictment beyond reasonable doubt.

49. [196]

    Leave to appeal in respect of this ground should be granted but it cannot be upheld.

Conclusion

1. [197]

   None of the grounds of appeal against conviction should be upheld. The appeal against conviction should be dismissed.

2. [198]

   In relation to sentence, I agree with the reasons and conclusion of Schmidt J that leave should be granted but the appeal be dismissed.

3. [199]

   Section 18 of the Criminal Appeal Act provides that "time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant’s sentence". It is necessary to adjust the dates of commencement of the sentences in order to reflect the fact that the appellant has been on bail since 23 November 2017. He was in custody for 21 whole or part days from 3 to 23 November 2017 and so his first sentence should be specified to commence on 20 April 2018.

4. [200]

   Accordingly, the orders I favour are:

5. [201]

   SCHMIDT J: At the time of his offending, each of the appellant’s offences attracted a maximum penalty of 5 years. He did not give evidence on sentence. In November 2017 Arnott SC DCJ sentenced him to an overall term of imprisonment of 18 months with a non-parole period of 9 months, having concluded that the individual sentences should be:

Leave to appeal

1. [202]

   Leave to appeal is sought to advance only one ground, namely, that the sentence is manifestly excessive.

2. [203]

   To establish this ground of appeal the applicant must show that the sentencing judge has fallen into error in the exercise of the sentencing discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; or that there must have been some misapplication of principle, even though where and how cannot be discerned from the reasons given: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; or that the sentence was, in the face of the evidence, unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

3. [204]

   While I accept that leave to appeal the sentence should be granted, in my view the appeal must be dismissed.

The Crown’s case on sentence

1. [205]

   In the Crown’s written submissions reference was made to relevant statistics and authorities. While it was accepted that sentencing practices had moved adversely to the applicant since his offending, it was submitted that in his case, use of comparable cases was of limited assistance, because of the small number of cases which might be described to be ‘comparable’, as discussed in R v Moon [2000] NSWCCA 534 at [23], R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [104] and Magnuson v R [2013] NSWCCA 50 at [85].

2. [206]

   It was also accepted that the approach discussed in Denham v R [2016] NSWCCA 309 at [109] should be adopted, where it was observed:

3. [207]

   Given the nature of the appellant’s offending and its consequences, as discussed in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110], the Crown argued that a custodial sentence was warranted. It was accepted that there would be some concurrence in the sentences imposed, but that the additional criminality involved in the offending against the two victims, had to result in some accumulation.

The appellant’s case on sentence

1. [208]

   On sentence it was accepted for the appellant that on the evidence, the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that no penalty other than imprisonment was appropriate for his offending had been passed, given the established breach of trust which had been involved in his offending.

2. [209]

   What was not conceded was that the appellant’s breach of trust had been more serious because he was the principal, who had a higher degree of authority than that of a teacher. Reliance was also placed on the appellant’s offences having been opportunistic, with no planning, systematic exploitation, or grooming of his victims.

3. [210]

   The appellant’s case was advanced on six bases, namely:

   1. (1)

      the objective seriousness of the offences;

   2. (2)

      sentencing patterns at the time of those offences, discussed in Magnuson v R [2013] NSWCCA 50, and statistical material advanced;

   3. (3)

      the delay since the offending;

   4. (4)

      the appellant’s behaviour since then;

   5. (5)

      what was involved in the proposed Marist Brothers treatment and safety plan;

   6. (6)

      the appellant’s age and health and the fact that there was no prospect that he would re-offend.

4. [211]

   It was thereupon submitted that the appellant’s offences fell into the middle, or perhaps lower range of such offending, with the fellatio offence being accepted as the more serious. It was argued, however, that full-time imprisonment was not necessary in the appellant’s case, given that his offences did not fall at the top of the range, with the result that a suspended sentence could be imposed upon him, on terms which would amount almost to home detention. Evidence about those terms under the system operated by the Marist Brothers, was led from Deborah Swain, Province Safety and Wellbeing officer who explained the safety and wellbeing plan on which the appellant relied.

Arnott SC DCJ’s reasons

1. [212]

   After recounting the circumstances in which the offences occurred, which his Honour noted had been set out in detail in his judgment on verdict, Arnott SC DCJ turned to consider the seriousness of the offences which had been found proven, having rejected the evidence given by the appellant at trial, in which he denied having committed any of the offences.

2. [213]

   His Honour then outlined the victims’ evidence as to the impact which the offending had had upon each of them, concluding that the effect had been significant. He considered that this evidence had to be taken into account in determining the penalty to be imposed, but he did not take those impacts into account as a matter of aggravation, because they were an inherent part of each offence.

3. [214]

   In assessing the seriousness of the offence against MB, Arnott SC DCJ took into account:

4. [215]

   In assessing the seriousness of the offences against TM, Arnott SC DCJ took into account:

5. [216]

   His Honour concluded that:

   1. (1)

      The assault involving the act of fellatio was the most serious of the appellant’s offences, given that it involved a gross breach of trust committed against a 14 year old boy. It was assessed as falling within the middle of the range. The other two offences were found to have been of similar seriousness.

   2. (2)

      General deterrence had to feature in the appellant’s sentence, given that children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties which can be caused by such conduct.

   3. (3)

      Given the seriousness of his offending and that the appellant had used his position as principal of the victims’ schools, his subjective circumstances, including his prior good character could result in little allowance by way of mitigation of the offending.

6. [217]

   The appellant’s subjective circumstances were, however, taken into account. They included that the appellant, who on sentence was aged 81 years, was 40 at the time he assaulted MB and 44 when he assaulted TM.

7. [218]

   His Honour also explained the extensive material tendered about the appellant’s circumstances, including reports from a psychiatrist; a psychologist; the applicant's general practitioner; medical records; the safety and well-being plan prepared for the applicant by the religious order of which he was then still a member; some 21 testimonials; a presentence report; and a presentence psychological report.

8. [219]

   His Honour noted that this evidence showed:

9. [220]

   His Honour concluded that while the appellant had not demonstrated any remorse for his offending, the evidence did establish that he had rehabilitated himself and was unlikely to re-offend, his last offence having occurred 37 years ago and there having been no further offending since that time.

10. [221]

    His Honour took the view, however, that while the offences which the appellant had committed against children were “stale crimes”, the delay in prosecution had enabled him to demonstrate his rehabilitation.

11. [222]

    Arnott SC DCJ also took into account the materials and submissions which the parties advanced in relation to sentencing practices at the time of the applicant’s offending, which occurred prior to the enactment of the Sentencing Act 1989 (NSW), when the specification of non-parole periods was regulated by the Parole of Prisoners Act 1966 (NSW). That Act did not prescribe a prima facie proportion between the non-parole period and head sentence. His Honour also took into account that at that time, sentencing practice was to fix a non-parole period of between a third and a half of the term of the sentence.

12. [223]

    His Honour also accepted that sentencing for sexual offences against children was at the time of the offending significantly more lenient than now, but concluded that there were no discernible patterns of sentencing for the appellant’s offences under s 81. Accordingly, his Honour’s approach was to have regard to the maximum penalty for each offence at the time it was committed, as well as the other matters which normally would be taken into account on sentencing. They were identified to include the relevant objective and subjective matters established by the evidence, as well as relevant authorities.

13. [224]

    Given that the appellant’s offences had been committed by a headmaster of a church school against 13 and 14 year old children, in serious breach of his position of trust and authority, Arnott SC DCJ concluded that while the appellant’s offences were not of the most serious kind, the only appropriate sentence was one of full time custody, even when sentencing standards at the time of the offending were taken into account.

14. [225]

    His Honour noted that the sentences he imposed were considerably less than those which would be imposed, had the offences been committed today, because they now carry more than a maximum 5 year sentence. While he accepted that current sentencing practices were thus inapplicable, his Honour concluded that alternatives to full time custody were not warranted, given the objective seriousness of the appellant’s offending.

15. [226]

    Arnott SC DCJ also took the view that the non-parole period he imposed represented the minimum period of imprisonment required to be served by the appellant for his offences. The sentences for the offences against TM were made wholly concurrent, as the result of the application of the totality principle, because they had occurred as a part of the one ongoing act of criminality. His Honour took the view that a degree of partial accumulation for the offence against MB was warranted, because that was a discreet and separate crime against another victim.

16. [227]

    Special circumstances were also found and the applicant’s release at the end of the non-parole period was directed.

The parties’ cases on appeal

1. [228]

   On appeal the appellant sought to establish that the sentences so imposed upon him were manifestly excessive, that being demonstrated by a combination of factors identified in the written submissions. It was not, however, submitted that there had been obvious error in his Honour’s approach to any one of these factors, which were identified to be:

2. [229]

   It was also submitted that the sentence had given weight to denunciation of the appellant’s conduct and general deterrence, in circumstances where specific deterrence had little role to play in his sentence.

3. [230]

   It was argued that in the appellant’s circumstances, denunciation itself did not require that a full time custodial sentence be imposed upon him and that it was desirable for alternatives to full time custody to have been considered, given that two of the sentences were of 6 months, that engaging the provisions of s 5(2) of the Crimes (Sentencing Procedure) Act 1999.

4. [231]

   That section required Arnott SC DCJ to record his reasons for deciding that no penalty other than imprisonment was appropriate in the applicant’s case. It was not, however, suggested that his Honour had failed in this obligation.

The sentence was not manifestly excessive

1. [232]

   In my view nothing advanced for the appellant established that his Honour erred, either in his approach to the sentences he imposed on the applicant, or in the conclusions which he reached, as to any of the matters advanced for the appellant on the evidence, or as to the applicable principles, or in the sentence imposed upon the appellant.

2. [233]

   As was conceded on sentence, none of the authorities or the statistical material relied on established any particular pattern of sentences for offences against children dealt with under s 81, at the time of the appellant’s offending. The one case of Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188, did not establish such a pattern and involved relatively different offending. In the result, his Honour’s approach accorded with that explained in Magnuson.

3. [234]

   Proper account was also taken by his Honour of the applicant’s subjective circumstances and that he had not offended again, for some 37 years. That this did not reduce the objective seriousness of the offences for which the applicant was being sentenced, was also correct.

4. [235]

   As his Honour accepted, the appellant’s circumstances did reduce the role of specific deterrence in the sentence, as did the conclusion that the appellant had been rehabilitated and was unlikely to offend again.

5. [236]

   Despite the conditions proposed under the Marist Brothers’ plan, given the nature and seriousness of the offences which were found proven and the obligation imposed on sentencing judges to sentence in accordance with the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, there was in my view also no error in the conclusion that a custodial sentence was warranted. These purposes are:

6. [237]

   Nor was there any error in his Honour’s conclusion that the sentence for the appellant’s offences should not be suspended.

7. [238]

   While the appellant’s offending was opportunistic, involving as it did two children who went to see him when they were ill and needed to go home, the abuse of the position of trust and authority which the applicant then had as the head of the religious school in whose care the victims had been entrusted, was substantial. Contrary to the case advanced for the appellant, that was more significant on sentence than would have been the case, had he been a classroom teacher, who did not occupy such a position.

8. [239]

   In that context, in the case of both victims, the nature of the appellant’s assaults were sufficiently serious to have warranted the conclusion that a term of full time custody had to be served by the appellant, albeit one much shorter than that which would have been imposed upon him, if he was to be sentenced in accordance with current law.

9. [240]

   Even approaching the sentence in light of sentencing practices prevailing at the time of the offending, the sentence imposed on the appellant had to result in a minimum period of actual incarceration during which the appellant had to be placed in full time custody. That period had to reflect the elements of punishment including rehabilitation, the objective seriousness of his crimes and his subjective circumstances: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628–629.

10. [241]

    As was the Crown’s case on sentence, his Honour did have to take into account the fact that not only was the appellant’s offending callous in both cases, the more so for TM who was in agony from the twisted testicle from which he was then suffering, but understandably, it had serious ongoing consequences for both of the appellant’s victims.

11. [242]

    In the circumstances, the appellant’s concession that the s 5(1) threshold had been passed, so that a custodial sentence was warranted, was properly made. The conclusion that a suspended sentence, in order for the appellant to live under the proposed Marist Brothers’ Plan was not appropriate, given the nature of that plan and the limited legal consequences which would result for the appellant if he breached the plan, was also properly open.

12. [243]

    The result of his Honour’s approach, an overall term of imprisonment of 18 months with a non-parole period of 9 months, has not been shown to be manifestly excessive in all of the relevant circumstances established by the evidence.

Orders

1. [244]

   In the result, I would order that leave to appeal on sentence be granted, but the appeal be dismissed.

2. [245]

   In relation to the conviction appeal, I agree with the reasons, conclusions and orders which R A Hulme J proposes. Accordingly, I agree that the orders his Honour proposes should be made.

3. [246]

   HAMILL J: I agree with R A Hulme J that the appeal against conviction must be dismissed. I agree with his Honour's reasons for that conclusion.

4. [247]

   It would have been preferable for the trial Judge to have stated clearly that he rejected the appellant's denials that he committed the offences. However, as R A Hulme J explains, in the circumstances of this case, the only explanation for the verdicts and acceptance of the complainants' evidence (beyond reasonable doubt) was that the Judge rejected the appellant's evidence on the central issue in respect of each charge. This is clear from the legal direction his Honour gave himself and which is set out by R A Hulme J at [114]. From that legal direction, it is plain that the trial Judge did not "believe the accused's evidence" or conclude that his evidence "might be true". In either of those circumstances, the principles of law stated would have resulted in an acquittal on each charge.

5. [248]

   Further, allowing for the possibility that the failure explicitly to reject the appellant's evidence constituted an error of law or a failure to comply with the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW) (neither of which proposition do I accept), it is clear that there was no miscarriage of justice in the sense referred to by the High Court in Filippou v The Queen at [4] and [13]. Counsel for the respondent very properly brought the Court's attention to certain passages from the decision of the High Court in Kalbasi v Western Australia [2018] HCA 7. I accept Ms Baker's submission that the observations of the plurality did not purport to overturn what was said in Filippou although the language at [12] and [13] sits a little uneasily with the High Court's earlier judgment. In the circumstances of the present case, it is clear that there was no miscarriage of justice because, as R A Hulme J demonstrates, the only possible explanation for the trial Judge's conclusion is that he rejected the appellant's evidence.

6. [249]

   In relation to ground 4, I have examined the transcript and exhibits and concluded that it was open to the trial Judge, in the sense explained by the High Court in cases such as M v The Queen and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, to be satisfied beyond reasonable doubt of the appellant's guilt. This is a case where the trial Judge's advantage in seeing and hearing the evidence, especially the evidence of the complainants and the appellant, is significant. Any doubt said to arise from matters such as the erroneous evidence of MB in relation to the appellant's nickname ("Chucky") is resolved by reference to the trial Judge's advantage of seeing and hearing MB's reactions to the cross-examination on this and other peripheral issues. As to these matters, I respectfully adopt the analysis of R A Hulme J at [157] - [195].

7. [250]

   I agree with Schmidt J that the sentence appeal must also be dismissed. The sentences were severe given the age of the appellant, extensive delay and substantial increases in maximum penalties and sentencing patterns in the ensuing forty years: see, for example, MC v R [2017] NSWCCA 316. However, this was a case involving an egregious breach of trust by a head master charged with the responsibility for the pastoral care of the vulnerable young victims. The material relied on to establish the sentencing patterns existing in 1976 to 1980 does not establish that the sentences imposed by Judge Arnott SC were manifestly excessive.

8. [251]

   Accordingly, I agree with the orders proposed by R A Hulme J.