JG v R

SIMPSON J: On 11 February 2013 the appellant was arraigned on an indictment that contained 13 counts (of which counts 6, 8, 11 and 13 were pleaded as alternatives to counts 5, 7, 10 and 12 respectively). All charges were of sexual offences against teenage boys. Count 1 alleged an offence of buggery (Crimes Act 1900 (NSW), s 79) committed between 1 September 1965 and 31 December 1967, against a complainant to whom I will refer as GB. The remaining counts (except count 9) alleged sexual offences of various kinds committed between 1 February 1989 and 31 December 1989 against a complainant to whom I will refer as TE.

Counts 2 and 3 alleged indecent assault (Crimes Act, s 61E(1A)); count 4 alleged an act of indecency towards a person under 16 years of age by a person in authority (s 61E(2A)); counts 5, 7, 10 and 12 alleged sexual intercourse with a person under 16 years of age by a person in authority, without consent and knowing that the person was not consenting (s 61D(1A)); counts 6, 8, 11 and 13, the alternatives to counts 5, 7, 10 and 12, alleged sexual intercourse with a person over the age of 10 years, and under the age of 16 years, by a person in authority (s 66C(2)); and count 9 alleged common assault (s 61). The references to legislative provisions are references to the legislation as it applied at the time the offences are alleged to have been committed. There has, since the dates alleged in the indictment, been considerable legislative amendment with respect to sexual offences.

The appellant entered pleas of not guilty to all counts. A jury was empanelled and a trial proceeded. On 22 March 2013 the jury returned verdicts of guilty in respect of counts 1, 4, 5, 7, 10 and 12, and of not guilty in respect of count 9. The jury was unable to agree on verdicts in respect of counts 2 and 3.

On 17 June 2013 the appellant was sentenced to terms of imprisonment that, when aggregated, totalled 7 years and 6 months with a non-parole of 4 years and 6 months.

The appellant appeals against the convictions. He has not sought leave to appeal against the sentences imposed.

Before coming to the detail of the Crown allegations, it is convenient to set out the procedural history.

The appellant was arrested in September 2008. Initially he was charged with offences against four teenage boys. They were GB, TE, and two others to whom I will refer as SR and PW. The Crown proposed a joint trial of all charges. In April 2012 the Crown gave notice pursuant to s 97 of the Evidence Act 1995 (NSW) that it intended in the trial to rely on tendency evidence. The Crown proposed to rely on the evidence of each complainant with respect to the allegations of each other complainant to establish that the appellant had a tendency to have a sexual interest in teenage boys, to engage in sexual activities with teenage boys, and to use his position of authority to that end. The Crown identified a number of other witnesses from whom it proposed to adduce evidence for the same purpose. The Crown also gave notice under s 98 of the Evidence Act that it intended to rely on coincidence evidence. It proposed to rely on the evidence of each of the four complainants, and of other witnesses, to prove that the appellant committed the offences alleged.

By Notice of Motion filed in April 2012, the appellant sought a variety of orders, including an order that there be a separate trial in respect of the allegations made by each individual complainant, and an order for stay of the indictment in respect of the count relating to GB. This latter application was not pursued. Whether there should, or should not, be separate trials depended upon what determination was made as to the use of the evidence of each complainant as tendency or coincidence evidence in respect of the allegations of each other complainant. The appellant also challenged the admissibility of the proposed tendency and coincidence evidence of the other named witnesses.

The Notice of Motion came on for hearing before Cogswell DCJ in May 2012. Pursuant to s 130 of the Criminal Procedure Act 1986 (NSW), a pre-trial voir dire was conducted. GB, TE and PW, as well as a number of other witnesses, gave evidence in that proceeding. Ultimately, on 23 May 2012, Cogswell DCJ ruled that, with some relatively minor exceptions, the evidence in question would be admitted as tendency and/or coincidence evidence in the trial of the allegations of GB and TE: R v JG (NSWDC, 23 May 2012, unreported). However, the effect of this ruling was to sever the trials of the allegations of SR and PW.

A jury was then empanelled, and the trial proceeded. At the conclusion of the trial, the jury was unable to agree on verdicts.

A second trial was then fixed to commence before Garling ADCJ. The appellant sought to re-litigate the admissibility of the tendency and coincidence evidence. Having considered s 130A of the Criminal Procedure Act, Garling ADCJ adhered to the rulings made by Cogswell DCJ: R v JG (NSWDC, 13 February 2013, unreported). This ruling is the subject of grounds 1 and 2 of the appeal.

The appellant then sought an order that the proceedings on the indictment, so far as they involved count 1 (concerning the allegations of a single offence against GB) be stayed. That order was refused: R v JG (NSWDC, 20 February 2013, unreported). This ruling is the subject of ground 6 of the appeal. The second trial proceeded. This is the trial the subject of the present appeal.

In the second trial the evidence of GB and TE was given to the jury, pursuant to s 306I of the Criminal Procedure Act, by playing the video recordings of their evidence in the first trial. The evidence of a number of other witnesses was similarly given.

On 22 March 2013 the jury returned the verdicts set out above. By ground 3 of the appeal it is contended that the convictions are "unsafe and unsatisfactory". By grounds 4 and 5 complaint is made, respectively, of certain questions asked by the Crown prosecutor of two prosecution witnesses, and of the nature of cross-examination of the appellant by the Crown prosecutor.

An overview of the Crown case is as follows.

At all material times the appellant was a brother in a religious order working (not as a teacher) and living in a Catholic boys' boarding college in the city of Bathurst, in the central west of NSW. From 1986 he held the position of Vice President of the college. From 1990 he was engaged in community work. Both GB and TE were students at the college, although at widely separated times, GB from 1965 to 1967 (at about age 12 to 14) as a day student, and TE from 1988 to 1989 (at age about 14-15) as a boarder.

The offence against GB occurred on an afternoon when, in circumstances to be more fully described below, the appellant directed GB to an art room, where he (the appellant) sexually assaulted GB.

The allegations concerning TE involved a more complex course of behaviour, involving the appellant in "grooming" TE by befriending him, having him undertake tasks such as washing the appellant's car, giving him treats by way of reward and showing him pornographic images. Chronologically, the first offence against TE occurred in that context, when the appellant took TE to a local fast food restaurant.

The Crown case also involved allegations that the appellant had behaved in a sexually inappropriate way towards other students at the college, and to another teenager. This was the evidence tendered as tendency evidence under s 97 of the Evidence Act. The tendency evidence also included evidence of a variety of books, magazines and DVDs of a pornographic nature, with homosexual themes, and a focus on boys or young men, and condoms, seized in the execution of a search warrant on the arrest of the appellant.

What follows is an account of the evidence given in chief by GB, TE, and other prosecution and defence witnesses. It is not intended to, and cannot, represent any findings of fact with respect to disputed issues, other than those that are embodied in the verdicts of guilty.

For the sake of caution, I have anonymised the names of those witnesses who were students at the college, or who gave evidence of sexual encounters with the appellant. The allegations concerning GB

GB was born in June 1952. He attended the college between 1965 and 1967, at the ages of 13 to 15. The offence against him, the subject of count 1 on the indictment, was committed on an occasion when GB and two other students (who he believed were PM and IS) were returning from smoking in a machinery shed. At the time, a swimming pool was under construction in the college grounds. The three boys came across a tractor that had slipped into a trench. The appellant was standing beside the tractor drinking a glass of cordial. GB made a facetious remark to the effect that the appellant had "done a good job there". The appellant poured the cordial he had been drinking over GB's head. He then asked GB and the other boys where they were supposed to be and told them to go there. As the three boys set off, the appellant told GB to go to the art classroom and wait for him there. GB did so. GB thought that he was in trouble, for his facetious remark, and was going to be "flogged". The appellant arrived, carrying a white towel, unlocked the door and told GB to enter. He used the towel to attempt to clean the cordial from the back of GB's neck and head. He then told GB to remove his trousers. GB did so and the appellant told him also to remove his underwear. He did so. The appellant held him tightly around the bottom of the jaw and stood behind him and penetrated GB anally. In evidence, GB said: "He was using his left hand to hold me in position. He was using his right hand to guide himself. He was lifting me off the floor with - while he was thrusting to try and enter me further I suppose is the best way to describe it." (It is worth remembering that, although GB was a teenager at the time of the events in question, by the time he gave his evidence he was a mature man of 60 years.)

At that time GB was not aware of what it was that the appellant used to penetrate him. However, he then saw the appellant use the towel to clean blood and "slime" from around his buttocks, and to clean his own penis. It was then that GB realised that he had been penetrated by the appellant's penis. He said that the experience was as "a pain like I'd never ever felt before". He continued to experience pain for several days, and also bleeding from the anus.

GB was, by this time, crying. The appellant told him to "stop blubbering". He warned GB not to tell anybody about what had happened, and that if he did, he would deny it. He also warned him that children can be cruel towards other children who made complaints of that kind. He said: "Who are they going to believe, you or me?"

This gave rise to the first count on the indictment (buggery), the only count that concerned GB. The appellant was convicted of this offence.

GB maintained his silence. He did not tell anybody of the incident until about 2007 or 2008 when he told a psychologist, Dr Robert Woodside. In about 2008 he also told a psychiatrist, Dr Frukacz.

In evidence in chief, GB said that he came forward with his allegations after seeing news of the appellant's arrest, and lawyers acting for the appellant publicly declaring that the arrest was "a witch hunt", and the reporting of it "a media beat-up". That prompted him to ring lawyers in the Office of the Director of Public Prosecutions and encourage them to continue with the prosecution. The allegations concerning TE

The allegations concerning TE were more numerous. TE was born in September 1973. He commenced boarding at the college in 1988 when he was in Year 8. By that time the appellant was "second in charge" of the college. Brother Peter Dwyer was the head of the school. TE was also a mature man (aged almost 40) at the time he gave his evidence.

TE said that, initially, the appellant treated him very well, and TE liked him. The appellant had TE wash his car and gave him food that he liked. He said by 1989 "things started to feel not right".

Incidents of a sexual nature began in 1989. The first instance of physical contact with the appellant that TE recalled took place on an occasion when the appellant took him to a McDonald's restaurant in Bathurst, and bought him food. He said the appellant put his hand on TE's leg, and then lowered it into his groin, his two fingers rubbing each other and clicking. This allegation gave rise to count 2 on the indictment, an allegation of indecent assault against TE. (In respect of this count, the jury was unable to agree upon a verdict.)

The following day TE was washing the appellant's car. The appellant asked TE to remove his shirt. He put his arm around the top of TE's shirt and "pinched or played with my nipples ...". There was a practice in the college, among the students, of "nipple twisting" that was done by the boys to one another in order to cause pain. TE said that the action of the appellant in playing with his nipples was of a different character and was of "a fondling nature". TE said that the car washing took place in front of the college, at the main entrance. Only TE and the appellant were present. This allegation gave rise to count 3 on the indictment, an allegation of indecent assault against TE. (In respect of this count the jury was unable to agree on a verdict.)

The appellant developed a practice of inviting TE to his room. The appellant showed TE images of a "graphic nature" and asked whether it "turned [TE] on", and whether he had an erection. He showed TE the outline of his erect penis, and asked if that "turned on" TE. At one time he told TE that he was "like a little brother" to the appellant; the appellant told TE not to mention to anybody else that he was going to the appellant's room because he would be victimised by other students. The appellant had sexual images around the room that were of a homosexual variety. The appellant had a red toolbox in his wardrobe that contained about five or six homosexual videos of Asian boys with white men. The appellant showed these videos to TE. While the videos were playing, he performed fellatio on TE, and had TE either perform fellatio on him (which TE resisted) or masturbate him.

TE described one incident in which the appellant displayed to him the outline of his (the appellant's) erect penis within his shorts and said to him: "Do you mind if I wank?" TE replied that he did not want to see anything, to which the appellant replied: "How am I supposed to do it if you can't see me?"

He said that the appellant covered himself with a sheet, dropped his shorts to below his knees, moulded the sheet over the top of his penis and used his hand, over the sheet, to masturbate. He told TE to watch. The appellant ejaculated onto the sheet. This allegation gave rise to count 4 on the indictment, an allegation of an act of indecency toward a person under the age of 16 by a person in authority. (The appellant was convicted of this offence.)

Another incident occurred following a Sunday detention in early May of 1989. TE was required, as punishment, to rake the oval. When he returned rakes to a shed, he found that the shed where they belonged was locked. He walked towards another shed. This was a shed used by a brother, Brother Elrott. As he walked towards Brother Elrott's shed, the appellant intercepted him, and took him into the shed to which the appellant had a master key, which he then closed and locked from inside. When he first encountered the appellant on this day, Brother Dwyer was nearby. Brother Dwyer asked TE about the sweat on his forehead. The appellant asked TE to pose nude beside the lathe. TE refused. The appellant used industrial lubricant on his hand, and began to masturbate. He then put his hand down TE's pants and inserted his finger into his anus. The appellant's fingernail scratched TE's anus and he appeared to take pleasure from the fact that it hurt TE. The appellant then pushed TE over the lathe and penetrated TE's anus, with his penis. He asked TE if he was all right. TE replied that he was not. The appellant hurriedly left. These two incidents of penetration gave rise to counts 5 and 7 on the indictment, and the alternatives, counts 6 and 8. (The appellant was convicted on each of counts 5 and 7.)

Another incident which TE believed occurred on a winter Saturday or Sunday took place when TE was in the television room. The appellant took TE to the study hall which at that time was considered to be an out of bounds area. It was deserted. The appellant forced his penis into TE's throat. TE was vomiting and gagging. The appellant pushed him to the ground, pulled his pants down to his knees, and had forced penile-anal intercourse with him. These two acts gave rise to counts 10 and 12 on the indictment, and the alternatives, counts 11 and 13. (The appellant was convicted on each of counts 10 and 12.)

On another occasion TE was in the hall watching a movie with other boarding students. He left the room to obtain some water because he was coughing. The appellant took him to his room where he gave TE some cough medicine. He asked TE if he would like to stay in the room and lie on the bed as he was feeling unwell. TE declined. As he left, the appellant came into the hallway, took hold of him by the shirt, and began to drag him back into the room. Another priest (Brother Tanner) appeared in the hallway and the appellant released TE. This gave rise to count 9 on the indictment, a count of assault. (The appellant was acquitted on this count.)

TE first mentioned these matters to his mother during a telephone call that he made from the college. It was not the practice in his household to be direct about such matters, and his description to his mother of what occurred was somewhat vague. TE thought that his mother did not understand the nature of what he was describing. He also said that he complained to the matrons in the college infirmary. There were two "matrons" who worked in the infirmary, both registered nurses. They were Ms Marie Daymond and Ms Beverley Clark. Both were present, but TE believed that he spoke to Sister Daymond. TE gestured to her that he had a sore anus. She responded by telling him that he should stop putting things "in his bum". (In cross-examination, TE corrected this and said that it was Matron Clark who had told him not to put things in his anus. It was then elicited from him, in cross-examination, that he had told police that Matron Clark had suggested that he go into town to buy some women's panty liners to soak up the blood. He expressly confirmed, not only that this was what he had told police, but that this had happened.) He also spoke to a nun, Sister Mary Comer in 1989. He told Sister Comer about "putting a penis into my bottom". He said that he saw Sister Comer between 8 and 15 times.

In his evidence, TE referred to Brother Elrott, who was disabled and substantially confined to a wheelchair. TE struck up a relationship with Brother Elrott (who he described as "a very lovely man"). Brother Elrott maintained a workshop in a shed (where the conduct the subject of counts 5 and 7 took place). TE, with other students, assisted Brother Elrott physically by helping him to move between his wheelchair and his car, and take him up to his room. TE also spent time with Brother Elrott in his shed, assisting him by handing him tools and the like. Other evidence in the trial

Both of TE's parents gave evidence. His mother, ME, recalled the telephone call made by TE in which he made allegations about misconduct at the school towards him. She could not recall the exact words. Her evidence confirmed TE's impression that she did not understand the nature of what he was saying, nor the seriousness of it. His father, GE, also gave evidence of a much later complaint made to him by TE.

Investigating police located PM (one of the boys GB identified as having been with him when he came across the tractor incident). He gave evidence at the first trial. His evidence from that trial was read in the second trial. His evidence was of little assistance. He had a vague recollection of the incident involving a tractor rolling over. He did not recall smoking with GB. The other student named by GB could not be located by investigating police.

A record of interview conducted with a Mr Tom Collins, who had been the art teacher at the college in 1964, was read. The effect of this evidence was that only Mr Collins and another art teacher (Father Quinn) had keys to the art room. Mr Collins did not lend his key to anybody. He did not know if Father Quinn lent his key to anybody. The tendency evidence

The evidence of the tendency witnesses was, like that of the two complainants, given by playing the video recordings of their evidence in the first trial.

PW gave evidence. He said that he attended the college from the beginning of 1987. At that time the appellant was the Vice Principal. PW gave evidence of an incident that occurred in the dormitory during 1987, when he was leaning on a cubicle talking to fellow students. He said that the appellant came up next to him, put his arm around him and ran his hand down his back, inside and down the back of his shorts or pyjamas, and patted him on the bottom. The appellant was fondling his buttocks for half a minute to a minute.

PW's evidence was corroborated by MH, who said that he observed the incident described by PW.

RB gave evidence of an event he said he witnessed in 1987 when the appellant sat on a skateboard with a junior student on his lap. The manner in which the appellant held the student was disturbing to RB. That was because the student was sitting in the appellant's groin area and the appellant was holding him down in that position. RB then saw the appellant stand and get off the skateboard. He said the appellant's penis was erect. The appellant turned and walked in the opposite direction. RB also gave evidence of witnessing a similar incident on a second occasion.

SW was a student at the college from 1986 to 1991. He gave evidence of having observed an incident in his second year, in the dormitory. The appellant was talking to a group of students. He had his left hand inside the boxer shorts of another student. His hand remained so placed for more than a minute.

HM, a student at the college for about a year between the middle of 1985 and the middle of 1986, gave evidence of an incident he said occurred in 1986 at night in the appellant's room. At the request of the appellant, HM went to the appellant's room where they had a conversation which the appellant said was "getting to know [HM]". The appellant placed his hand on HM's leg, and moved it towards the groin. The appellant asked HM what he and his mates did for fun. With some presence of mind, HM replied that they used to "bash gays". The appellant told him that he had been "gay bashed" at Dee Why, but removed his hand and HM left the room.

MK gave evidence that he attended the college from 1986 to 1989, when he was in Years 9 to 12. On one occasion, when he was in Year 9 or Year 10 he saw the appellant with his arm around the back of a student, towards the student's pants line.

Another tendency witness was MA. MA was born in January 1979. MA was not a student at the college. He gave evidence of having first met the appellant at a dinner party in about 1993, when MA was 14. MA had an uncle, Noris Ioannou, with whom he was close. Mr Ioannou was in a long-term homosexual relationship with Robert Lyons, a psychiatrist. Dr Lyons had a holiday home at Cape Gervis (in South Australia). About a week after the dinner party, the appellant picked up MA from MA's parents' home to drive him to the Cape Gervis holiday home. MA said that, after dinner that night, he and the appellant were sitting on a couch massaging each other's feet. There might have been some movement by the appellant towards MA's genital area. Their legs were in each other's crotch area. Later that evening, when everyone had retired to bed, MA entered the appellant's room, jumped into his bed, and took hold of the appellant's penis. The appellant took hold of MA's penis. MA felt uncomfortable and left the room. The circumstances surrounding the dinner party, and these events, were the subject of evidence from Dr Lyons and Mr Ioannou. Their evidence essentially corroborated that of MA, although they could not attest to what had occurred in the bedroom.

The defence case was outlined at the commencement of the trial, when the solicitor representing the appellant gave an opening to the jury. He said that all allegations were "untrue". He went on to say: "... the defence case is that what [GB] says about this incident is untrue. [GB] never complained to anybody, anybody until September 2008. At that time ladies and gentlemen, there was enormous publicity when this accused was arrested on 3 September 2008. Front page news, TV, internet, the lot. Radio ... So [GB] comes forward nearly 41, 42, 43 years later, in the circumstances of considerable publicity. One of the things you will need to consider about [GB] is this; he hated that school. He was a dayboy. He didn't like it. Who could blame him I suppose. He felt different to the boarders. The boarders were regarded better as far as he concerned [sic]. He hated the order, he hated the school, he hated the institution and so on. You will have to consider carefully how someone could not complain, would not complain, would not talk about in any way to doctors that he was seeing, anything about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (There was, in fact, no evidence to support the assertions about GB's state of mind.)

With respect to TE, the solicitor referred to behavioural problems, and to TE's history of attendance at the college infirmary, of which there was evidence. He referred to TE's anticipated evidence that one of the matrons at the infirmary, when he made a complaint of bleeding from the anus, told him to wear women's panty liners. He suggested that the jury would accept the denials of the two matrons in preference to TE's allegation. He made reference to the anticipated evidence of TE concerning the incident at McDonald's, and told the jury that McDonald's at Bathurst did not exist at the time of the incident TE alleged.

He referred to the evidence concerning Brother Dwyer, and said that Brother Dwyer would give evidence, as he had in the first trial, that no such incident had ever occurred, and that it was "ridiculous" to suggest that it had. He concluded that part of his opening by saying: "That's the quality of the evidence of [TE]."

The solicitor went on to deal with some of the evidence that was to be given. The clear tenor of the opening was that all of the accusations against the appellant were false, and deliberately false, motivated, at least in the case of GB, by animosity to the college and to the appellant; and, in the case of TE, by his alleged fragile psychological condition. The solicitor made specific reference to TE's supposed "attendance" at an adolescent psychiatric school. The attribution of motive - the suggestion that GB was motivated by publicity generated by the appellant's arrest - could only be taken to mean that GB had deliberately come forward to join in the accusations against the appellant, and had done so dishonestly.

In case there was any doubt about it, during the hearing of the appeal, the appellant's solicitor expressly acknowledged that his intention in cross-examining the complainants as he did was to accuse them of deliberate fabrication.

It is clear from these passages that the defence case was that both complainants were making false accusations against the appellant.

That continued to be the theme in the cross-examination of the various Crown witnesses. A concerted attempt was made to discredit the two complainants in particular. One means by which this was attempted was to identify discrepancies in the evidence given by the complainants in committal proceedings, and statements they had made on prior occasions. For example, in a statement made by GB to police, he gave the dates of his attendance at the college as 1964 to 1966. During the committal proceedings he gave those dates as 1965 to 1967. It was put to both GB and TE that the events of which they complained had never taken place.

It was elicited from GB in cross-examination that he had made two statements to police. In the first (September 2008) he said that he had attended the college between 1964 and 1966. In the second (February 2009) he corrected the dates to 1965 to 1967. He was cross-examined with respect to a third document; this was not a statement made to police, but an account he had prepared for himself in 2012, but had provided to the Director of Public Prosecutions.

Cross-examination of GB focussed heavily upon the tractor incident. The main avenue of attack concerned the year in which he said it had occurred.

GB said in evidence that the incident of which he complained did not happen in 1965. What he could say with certainty was that the incident took place the year that the tractor went into the trench. In the statement he wrote for his own purposes in 2012 and provided to the Director of Public Prosecutions, he said that he thought he would have been 12 or 13 years of age at the time of the incident. That would have placed the incident in 1964 or 1965.

In the statement made to police, GB said that he could not remember the names of the two students in his company when he came across the tractor. By the time of committal, he recalled the names of the students as PM and IS.

In the document provided to the Director of Public Prosecutions, GB described the appellant's clothing at the time of the tractor incident as a white t-shirt and shorts. He did not, in his police statement, refer to or describe the clothing the appellant was wearing.

It was put to him that, in the two statements made to police, he had included an acknowledgement that the statement accurately sets out the evidence he would be prepared, if necessary, to give in court as a witness, and was true to the best of his knowledge and belief and he knew that if he said anything he knew to be false or did not believe to be true he would be liable to prosecution. No such acknowledgment was contained in the third document, the account he had prepared for his own purposes. Just what was intended to be achieved by that cross-examination is not clear; there does not appear to be any material discrepancy between the content of that document and his earlier statements, other than some confusion about the year in which the offence occurred.

In his first statement to police, GB said that when he came across the tractor, it had its two right hand wheels stuck in the trench. At committal, he corrected this by saying that it was the two left hand wheels that were stuck. His explanation for this was that his perception depended upon the angle from which he was viewing the tractor.

The recurring theme of the cross-examination of TE was that his evidence was false. It was clearly implied that he had deliberately fabricated his allegations against the appellant. This, it appears, was sought to be supported in a number of different ways, which it is, regrettably, necessary, having regard to the grounds of the appeal and the submissions, to explore in some detail.

It was first suggested to TE that, from the beginning of his residence at the college, he had had learning difficulties, visual impairment, and difficulties in settling into the college life. At the end of the cross-examination, it was suggested to him that he had falsely stated to police that he had been accused by the appellant of lighting fires and stealing. I infer that these questions were put in order to suggest a motive for his making false allegations, although that was never directly put to him.

TE was then extensively cross-examined about each of his allegations. With respect to count 2, the allegation of indecent assault at a McDonald's restaurant in Bathurst, TE did not, in his evidence in chief, specify a date of its occurrence. In cross-examination he agreed that he had, in a statement made to police, fixed the timing of the incident as late February or early March 1989. It was put to him that as at that date, the McDonald's restaurant in Bathurst had not opened. He replied: "That's a load of crap." He was shown a newspaper cutting purportedly reporting the opening of the restaurant in August 1989. He said: "It's with my whole heart that I believe that I was in McDonald's in 1989 ..." He queried whether the opening reported in the newspaper was a "grand opening" and whether the business had in fact been operating at an earlier time.

He maintained that he had "physically" gone to McDonald's in Bathurst with the appellant. Ultimately, the Crown conceded that the McDonald's restaurant had opened in August 1989. Plainly, TE could not be right about both the date of the offence, and its location. TE was pressed to adhere to the date he had given. His focus was on having attended the restaurant, rather than committing himself to the date.

Another issue the subject of extensive cross-examination was the location and layout of the appellant's room, where TE said some of the offences and other events took place. He was asked to, and did, draw a diagram of what he said was the layout of the appellant's room. He was challenged by being confronted with another diagram, said to have been drawn by the appellant, which was markedly different. TE maintained that the room depicted in that diagram was not the room of the appellant. It was suggested to him that the room he had drawn was in fact the room of Brother Elrott, but he refuted this.

In cross-examination it was elicited from TE that, in his statement to police, he had given an account of an incident in the office of Brother Dwyer (the President of the college). This was not the subject of evidence in chief. The incident, as recounted by TE, was this. TE had gone to see Brother Dwyer to report that another student had stolen some clothing of his. Brother Dwyer had, on the table in his office, a number of photographs, which TE could clearly see were pornographic photographs of naked boys. Brother Dwyer attempted to conceal them. While TE was in the office, his uncle (whom TE said was a paedophile) arrived. He handed Brother Dwyer $100, and Brother Dwyer gave him photographs.

TE was cross-examined at length with a view to exposing what was said to be the unlikelihood of various aspects of his evidence. These included:

Throughout the cross-examination, TE was repeatedly accused of lying about various incidents of which he gave evidence. Similarly, the tendency witnesses were accused of fabrication. The appellant's evidence

The appellant said that he was first posted to the college in October 1965. He then occupied a guest room in an area of the college known as "the priest's corridor". He was not a member of the college staff.

He became involved in the construction of the swimming pool, where "the tractor incident" referred to by GB had taken place. He gave very detailed evidence about the circumstances of the tractor incident. He said that extricating the tractor from the trench took most of the day.

He said he did not recall GB, and had "nothing whatsoever" to do with him during the three years that he (GB) was at the college. He denied having directed GB to go to the art room after the tractor incident. He said he did not have a key to the art room, and, indeed, at that time did not know where the art room was. He denied anally penetrating GB, and denied warning or threatening him.

The appellant said that, in 1986, he was appointed a Vice-President of the college and Tutor Master and House Master of the boarding school. He gave detailed evidence describing his accommodation, which conflicted in a number of respects with the evidence of TE. He said that he had minimal contact with TE. He denied ever having taken TE to a McDonald's restaurant. He denied ever inviting TE to his room. He denied possession of any pornographic material. He said that he did not have a key to Brother Elrott's shed.

The specific allegations made by GB, TE, and the tendency witnesses were put to the appellant. He denied each. The appellant said that he moved to Adelaide in 1991 and became involved in the Adelaide Diocese and AIDS council. In that capacity he met Dr Lyons and Mr Ioannou. With respect to MA, he asserted that Dr Lyons had expressed to him concern about MA's sexual orientation and behaviour and had asked the appellant to act as a professional counsellor. By that time the appellant was living in Adelaide and had come to know Dr Lyons. An arrangement was made for the appellant to pick up MA and drive him to Cape Gervis. (This was disputed by Dr Lyons.) The appellant said that after dinner that night, and after he had retired to bed, MA came into his room and sat on his bed, wanting to continue the conversation that they had had on the drive down. He said that he immediately told MA to return to his room. He denied that MA had got into his bed.

The appellant said that he did not expel TE from the college. He acknowledged that, in two telephone conversations after his arrest (which was intercepted pursuant to a warrant) he had said of TE: "We expelled him, he was a pyromaniac", and: "I expelled him." He said that this was said out of frustration and upset at having been arrested and falsely accused.

He said that in 1997 he returned from Adelaide to Sydney where he took up a position at a Catholic organisation called Stanford House and continued his involvement in HIV/AIDS organisations. It was in the course of this work that he came into possession of the various books, magazines, DVDs and other items (including condoms) that were seized by police in the execution of the search warrant.

The appellant's evidence took issue, in a number of detailed aspects, with the evidence of both of GB and TE, and, to a lesser extent, with the tendency evidence witnesses.

In addition to the appellant's own evidence, 18 witnesses were called in his defence. A number of these were character witnesses, who attested his good character. Some had been students at the college at various times, and gave evidence that they knew of nothing untoward about his behaviour or reputation. Two gave evidence, consistent with that of the appellant, that the art room was always locked. Two gave evidence of the discipline system in force at the college. This appears to have been intended as rebuttable of evidence given by GB, that, when the appellant sent him to the art room, he feared that he was going to be "flogged".

Brother Dwyer gave evidence. He had no recollection of coming across TE at Brother Elrott's shed. He was referred to the evidence of TE that Brother Dwyer had asked him about sweat on his forehead, and was asked if that had ever occurred. He replied "No".

He denied that TE had ever come to his office about stolen clothing, and said that would not be within the normal college procedures. He described as "totally a fabrication" that there was an occasion when TE had come to his office when he had photographs of naked boys on his desk. He said that he did not recall ever meeting a person by the name of the uncle TE had spoken of.

The grounds of appeal are pleaded as follows: "1. The learned Trial Judge erred in refusing an Application pursuant to s 130A Criminal Procedure Act in respect of separate trials of the counts in the Indictment relating to [GB] and [TE]. 2. The Trial Judge erred in refusing an Application pursuant to s 130A(a) Criminal Procedure Act as to tendency and coincidence evidence relied upon by the Crown. 3. The conviction of the appellant was unsafe and unsatisfactory. 4. His Honour erred by permitting the Crown Prosecutor to cross-examine Matron Clarke as to 'masking' symptomatology relating to [TE]. 5. That a miscarriage of justice occurred as a result of the Crown Prosecutor being permitted to cross-examined [sic] the Accused contrary to Palmer v R [[1998] HCA 2; 193 CLR 1]. 6. The learned Trial Judge erred in refusing an application for a permanent stay of the Indictment in respect of [GB]."

Before commencing to deal with the individual grounds of appeal, I make this observation.

In support of the grounds, written submissions were filed on behalf of the appellant. The written submissions run to 111 pages. It was difficult to follow the argument advanced, partly because, as is apparent, the submissions have been prepared for purposes other than the appeal (such as an application to cross-examine witnesses at committal), and added to incrementally.

The manner in which the submissions were presented has increased the difficulty of understanding what the appellant's case is, and has very significantly increased the amount of time necessary to be taken to do justice to that case. This approach is unfair to other litigants whose determinations will be delayed while I (and other members of the Court) struggle to identify the case sought to be made. Discipline is called for in the preparation of submissions. The background to these grounds

As mentioned above, prior to the empanelment of the jury in the first trial, by Notice of Motion, an application was made on behalf of the appellant that there be a separate trial in respect of the allegations of each of the four complainants named on the indictment as it then stood. The outcome of that application depended upon whether or not the evidence upon which the Crown proposed to rely as tendency and/or coincidence evidence would be admitted for those purposes (or either of them). The Tendency Evidence Notice (s 97) nominated a number of witnesses from whom the Crown proposed to call evidence. These included students of the college, who were to be called to give evidence of the appellant behaving in a sexual way to themselves, or of having observed the appellant behaving in a sexual way to others.

The proposed witnesses named in the Tendency Evidence Notice also included police officers who would give evidence of the execution of a search warrant at the appellant's home after his arrest in September 2008, and to the seizure of a number of items from those premises. Those items included DVDs, books and magazines, condoms and a club membership card. The Crown proposed to rely on these items of evidence as indicating a sexual interest, on the part of the appellant, in young boys.

The Coincidence Evidence Notice (s 98) indicated that the Crown proposed to rely on the allegations of GB and TE to establish that, because of the improbability of the events the subject of those allegations occurring coincidentally, the appellant did in fact engage in the conduct alleged. Further, the Coincidence Evidence Notice foreshadowed that the Crown intended to rely on the evidence of the various items seized from the appellant's home to support TE's assertion that the appellant showed him pornographic videos and magazines.

The Notice of Motion was supported by an affidavit sworn by the appellant's solicitor. The affidavit recounted, in detail, the arrest and charging of the appellant, as well as other members of the Catholic Order of priests who administered and staffed the college. Annexed to the affidavit were many pages of extracts from newspaper and internet reports, and comments posted on the internet. It appears that this was intended to provide the foundation for the proposition that GB, and perhaps TE, had been influenced to bring their complaints by becoming aware of other allegations against the appellant, or other members of the college staff. This, in turn, appears to have been directed to a proposition that the evidence of the two complainants lacked probative value because it was affected by contamination resulting from what was said to be widespread media publicity.

Cogswell DCJ determined that (with minor exceptions) the evidence would be admitted for tendency and coincidence purposes. The effect of that ruling was that the application for separate trials would fail and the Notice of Motion would be dismissed. Although there is in the material before this Court no record of any formal order being made, it may be taken that, at least by implication, his Honour made an order dismissing the Notice of Motion. Once he had determined that the evidence of both complainants was admissible for tendency and coincidence purposes, it was inevitable that such an order would be made.

That is of some significance, for reasons that appear below.

At the commencement of the second trial a similar application was made to Garling ADCJ. Garling ADCJ considered himself bound by the order made by Cogswell DCJ. In reaching that view, he relied on s 130A of the Criminal Procedure Act.

Sections 130 and 130A are relevantly in the following terms: "130 Trial proceedings after presentation of indictment and before empanelment of jury (1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) ... (5) ... 130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) ... (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial."

There was no dispute that, for the purposes of s 130A(3), the trial before Cogswell DCJ had been "discontinued", and that the (implied) order made by Cogswell DCJ dismissing the Notice of Motion seeking separate trials was an order within that sub-section.

There is an issue, as yet unresolved, whether s 130 and s 130A encompass pre-trial rulings on evidence: see R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [151] per Howie J. This doubt derives from the interpretation given to the word "order" as it appears in s 5F of the Criminal Appeal Act 1912 (NSW): see R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633; DAO v R [2011] NSWCCA 63; 81 NSWLR 568.

Garling ADCJ was alive to this issue. He cited a decision of Haesler DCJ in R v BO [2012] NSWDC 194, in which his Honour concluded that, since s 130A is designed to avoid the unnecessary re-ventilation of issues which often lead to delays in criminal trials, the word "order" in s 130A encompasses pre-trial rulings and orders relating to the admissibility of evidence.

Garling ADCJ agreed with that view and adopted it. That is not the subject of any ground of appeal.

It is necessary to do no more than note that that issue exists. Certainly, it would be helpful if the NSW Parliament were to effect an amendment to put the matter beyond doubt. Section 130 and s 130A would be considerably more useful if it were clear that they are intended to ensure that pre-trial rulings on evidence are (absent the interests of justice dictating to the contrary) binding on subsequent judges dealing with the same proceedings.

There are two reasons why the issue does not call for determination in this case. The first is that it has not been raised in the very lengthy submissions provided on behalf of the appellant. The second is that, in any event, what was done by Cogswell DCJ amounted to an order. The order was to dismiss the Notice of Motion by which the appellant sought separate trials: see DAO v R [2011] NSWCCA 63; 81 NSWLR 568.

Garling ADCJ extracted sub-s 130A(1) and (3). He went on to say: "It is argued on behalf of the accused that I should make an order which would allow the reconsideration of this application on the basis that it would not be in the interests of justice for the previous order to be binding. The onus of proof, of course, is upon the accused. ... It is argued on behalf of the accused that I should allow this matter to be reconsidered because his Honour [Cogswell DCJ] made this ruling on the evidence available to his Honour but before his Honour heard the evidence in the trial. It is argued that the evidence which came out in the trial, which included evidence from the complainant, evidence from the accused and other evidence on the accused's behalf would allow this court to come to a different view. It is argued that the evidence given by the complainant [GB] was significantly unreliable. ... As I see the position, his Honour had before him a significant amount of evidence. His Honour, in a lengthy judgment covering a number of matters, obviously gave careful consideration to the point it is sought to re-argue. When I am looking at s 130A I do not consider it on the basis that one of the parties may not agree with his Honour's ruling or that I, indeed, may have reached a different conclusion. The section of the Act is in place for a purpose and that is that pre-trial orders or orders in another trial made by another judge, the trial Judge, cannot be re-argued except in exceptional circumstances. ... I have concluded, having looked at all those matters quite rightly raised, that this is not a matter in which I could rule that it would not be in the interests of justice for the order to be binding ... I cannot make any other finding than that I am bound by section 130A in relation to the first of these matters. ... I am not hearing arguments as to whether I would have admitted [the evidence] in this trial, I am purely ruling in relation to section 130A and, having considered all those matters, I have concluded that I am bound by section 130A in his Honour's ruling. I could not say it would not be in the interests of justice that that order be binding."

The argument that was put to Garling ADCJ was to the effect that experience in the first trial demonstrated unreliability in the evidence of both complainants. This, it was said, was because there was a risk that their evidence had been contaminated by pre-trial publicity, and because the complainants were hostile towards the appellant. Those arguments were essentially the same as had been put before Cogswell DCJ. They provided no basis for departure from the order made by Cogswell DCJ.

An additional argument was put to Garling ADCJ. That was that, since both GB and TE had given evidence in the first trial, and had been cross-examined, Garling ADCJ was in a better position than had been Cogswell DCJ to assess their credibility. Moreover, as the appellant had also given evidence in the first trial, it was possible to discern "an alternative explanation" for conduct of the appellant of which the two complainants gave evidence. The alternative explanation went to the appellant's possession of the items seized in the execution of the search warrant, tendered as indicative of the appellant's interest in homosexual activity, particularly with young boys or men. The alternative explanation was the appellant's involvement in HIV/AIDS organisations.

These submissions were, in my opinion, misconceived. The task of a judge determining admissibility of evidence under s 97 or s 98 is to decide, first, whether it would have "significant probative value". Since "probative value" is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Evidence Act, Dictionary), the assessment is of the capacity of the evidence to have that effect to a significant degree. In DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158, this Court held that, for the purposes of s 98, the assessment of probative value may take into account any alternative explanation (in a criminal case, inconsistent with guilt) of which there is a real possibility: at [10] (per Bathurst CJ) and at [78]-[82] (per Whealy JA). That appears to be because s 98 specifically directs attention to other evidence adduced, or to be adduced, by the tendering party. (The same must, obviously, apply to evidence tendered under s 97.) Both the Chief Justice and Whealy JA, however, also held that in the assessment of probative value it is no part of the judge's function to embark upon an assessment of the credibility of the evidence. That is, and remains, within the province of the jury: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [167]. That applies equally whether the evidence is tendered under s 97 or s 98, or is sought to be excluded under s 137. In a criminal case, a further assessment is required: to be admissible under s 97 or s 98, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant (s 101(2)).

The submissions put to Garling ADCJ invited his Honour to make an assessment of the probative value of the evidence by evaluating the credibility of the two complainants on the basis of the evidence they gave in the first trial, particularly their cross-examination. That was wrong in principle, and Garling ADCJ was correct not to succumb to the invitation.

A similar submission was made to this Court, and should similarly be rejected.

Moreover, what was said to be the possible subject of an alternative explanation was not the criminal conduct alleged, but the appellant's possession, at the time of his arrest, of items that might be thought to be indicative of a sexual interest in young men or boys.

In an alternative argument put on appeal, the appellant's solicitor seized upon the reference in the decision of Garling ADCJ to "exceptional circumstances". The contention was that his Honour applied the wrong test.

Had his Honour applied an "exceptional circumstances" test, then there is an available argument that this denoted error. However, in my judgment, he did not apply such a test. He set out the relevant sub-section (sub-s (3)) of s 130A, and twice thereafter expressed the conclusion, in correct terms, that he could not rule "that it would not be in the interests of justice for the order made by Cogswell DCJ to be binding". That is a test in the language of s 130A. The single reference to "exceptional circumstances" does not express the approach taken by Garling ADCJ to the issue that was before him.

Finally, it was argued that Garling ADCJ erred by failing to exercise the "discretion" conferred by s 130A. This was not a case, it was (correctly) pointed out, in which the second judge exercising jurisdiction was limited to the material available to the judge who made the initial decision. In this case, available to the judge, and said to be relevant to the assessment of probative value for the purpose of s 97 and s 98, was the evidence given by GB and TE in the trial, as well as that of the appellant. The evidence of the appellant can immediately be put to one side; probative value for the purposes of s 97 and s 98 is to be assessed by reference to the evidence in question, having regard to other evidence adduced or to be adduced by the tendering party. There is no room in that assessment for reference to be made to evidence tendered or to be tendered by the opposing party.

The relevance of the evidence of GB and TE in the trial was said to lie in the effect of their cross-examination. There was nothing in those parts of the cross-examination to which reference was made that impacted on this evidence other than their credibility. For the reasons given above, that does not affect the assessment of the probative value of the evidence so far as s 97 and s 98 are concerned.

It will be seen that both grounds 1 and 2 rely upon s 130A of the Criminal Procedure Act. There is no separate challenge to the decision (by Cogswell DCJ) that the evidence was admissible as tendency and coincidence evidence, nor any ground that asserts miscarriage of justice as a result of the admission of the evidence. No argument was directed to the admissibility of the tendency and coincidence evidence. To the extent that it is possible to do so in the absence of argument, I would conclude that the tendency and coincidence evidence was properly admitted.

I would reject grounds 1 and 2. Background

Prior to the commencement of the second trial a Notice of Motion was filed on behalf of the appellant, in which a number of orders were sought, the first of which was for permanent stay of the proceedings so far as they concerned the allegations of GB against the appellant. The Notice of Motion was supported by two affidavits sworn, respectively, on 24 January 2013 and 6 February 2013, by the solicitor who has represented the appellant throughout. The first affidavit runs to 62 pages of text in which is recounted, in microscopic detail, every incident with respect to the appellant, the charges, and the proceedings. By way of illustration, paragraphs 57-58 record a mention, on 19 December 2008, of the matter before the Chief Magistrate in which the question of venue was discussed. Just how this has any relevance to the application for stay, or any other of the orders sought in the Notice of Motion was and remains unexplained. Similarly, annexed to the affidavit are a very large number of documents, which are not paginated. It is impossible to discern the relevance of a great deal of this material. The plethora of documentation put before the court, without any attempt to explain its relevance, has added to the difficulty of determining whether there is any merit in this, and other, grounds of the appeal.

The second affidavit catalogues staff at the college who have died, or, who, by reason of medical conditions or infirmity, are not in a position to provide information or give evidence. Plainly, this is intended to demonstrate the disadvantage caused to the appellant in defending allegations that date back more than four decades. That disadvantage ought not be underestimated.

The hearing with respect to the Notice of Motion before Garling ADCJ was complicated by the fact that one of the orders sought in the Notice of Motion concerned the admissibility "of evidence as to Sexual Assault Communication Privilege" concerning GB. Evidence was given by two medical practitioners, but that issue, ultimately, was not pursued.

Garling ADCJ gave judgment on 20 February 2013. He identified as the matters to consider (as put to him on behalf of the appellant) the following: "(1) Delay. (2) The reason for the delay. (3) Was the accused responsible for any of the delay. (4) Prejudice to the accused. (5) Consideration of public policy, namely, the importance of bringing persons accused of serious crimes to be processed by the court system."

He began by noting the extent of the delay - that is, the delay between when the offence was alleged to have been committed, and when it was reported to police. That was between 41 and 43 years. (It was an even longer period before the allegation was brought to trial, and another year before the second trial commenced.) Garling ADCJ noted the submissions made on behalf of the appellant, to the effect that no real explanation for GB's delay in coming forward had been given, but his Honour also noted that GB had given evidence that the appellant had told him not to tell anybody of what he had done as he would not be believed. He noted a submission that GB, in complaining, was motivated by "animus" towards the college, and his unhappy experiences at the college. He further noted a submission that GB came forward after seeing the appellant's solicitor interviewed and disagreeing with what he had said. This submission was intended, it seems, to reflect on the credibility of GB's allegations.

Quite properly, Garling ADCJ did not make findings of fact on any of these matters. He accepted that the appellant was not responsible for any of the delay.

In relation to asserted prejudice, he noted that what was put on behalf of the appellant was:

Finally, his Honour considered the public policy issues and correctly directed himself in accordance with decisions such as Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23; Barton v The Queen [1980] HCA 48; 147 CLR 75 and R v RWO [2002] NSWCCA 133. He accepted that the appellant was at some disadvantage as a result of the delay, and other matters, but considered that the publicity, for example, could adequately be dealt with by directions.

In the written submissions filed with respect to the appeal, a great deal of emphasis was placed upon "the tractor incident". Complaint was made that, during the course of his evidence, the appellant maintained that there had been only one "tractor incident". The complaint appears to have been that, initially, the Crown alleged that the offence against GB occurred in 1965; but that, at committal, the Crown amended the charge to allege that it occurred between 1 September 1965 and 31 December 1967.

The "tractor incident" itself is peripheral to the allegation made by GB. It does no more than set in a temporal context what he alleged the appellant did to him. On GB's account, what occurred occurred in an art room, in the absence of any other person. Fixing with more specificity the date on which it occurred could not, in the circumstances of this case, make any difference.

It is true, of course, as in all cases of alleged historical sexual abuse, that there is disadvantage to the person accused, in, for example, being hampered in giving or obtaining evidence of what he was doing on a particular date. However, while that may be a disadvantage, it is not, and has never been, a sufficient basis for a stay of the proceedings: R v RWO [2002] NSWCCA 133; R v McCarthy (NSWCCA, 12 August 1994, unreported).

It was also submitted to this Court that GB's personal history was relevant to this question. Reference was made to what was said to be his medical history, during which he made no complaint or disclosure of the offence; to what was said to be his antipathy to both the appellant and the college; to what was said to be his antipathy to the appellant's legal representative; to what was said to be his motivation (supporting other victims); and that he was influenced by the media reporting.

The following submissions were put: "Seventhly, in a case in which there is basically only word against word, the actual prejudice to the Applicant is submitted to be very considerable. Eighthly, in this case the Applicant also faces reliance by the Crown upon tendency evidence being of its very nature highly prejudicial ... Ninthly, by reason of the delay the Applicant is no longer able to receive directions relating to:  corroboration  complaint  a full Longman [Longman v The Queen [1989] HCA 60; 168 CLR 79] direction  a direction as to evidence of a relatively young witness."

The last of these is difficult to understand. There is no reason that delay precludes appropriate directions being given to a jury. That appropriate directions were given is evidenced by the fact that there is no ground of appeal that raises the absence or the adequacy of any of these directions.

Nor is it apparent why a stay should be granted on the basis that the Crown case depends upon the word of the complainant as against the word of the appellant. That is the case in almost all trials of sexual assault or abuse. And it is difficult to understand why a stay should be granted on the basis that tendency evidence has been determined to be admissible.

It is only in rare and exceptional circumstances that a trial of a serious criminal allegation will be stayed. So much is established by the authorities to which Garling ADCJ made reference.

The appellant has failed to establish any basis on which a stay should have been granted, and has failed to establish any basis of error in the determination of Garling ADCJ to refuse to stay the proceedings.

Ground 6 must, therefore, also be rejected.

This ground is based on two false premises. The relevant evidence is the following. Ms Maree Daymond and Ms Beverley Clark were both registered nurses who worked in the infirmary at the college, Ms Daymond from 1979, Ms Clark from 1975. Both gave evidence that TE attended the infirmary on numerous occasions, complaining of stomach pains.

Ms Daymond, who gave evidence first, was asked by the Crown prosecutor in chief: "Now as part of your training did you learn that young men or adolescents can sometimes mask what is happening to them by complaining about stomach pains?" The appellant's solicitor objected and, after hearing argument, Garling ADCJ rejected the question.

Ms Clark was then called to give evidence. The Crown prosecutor asked her: "In the course of your training did you learn that young male adolescents can complain about stomach problems but in fact be referring to something else?" Ms Clark asked for the question to be repeated: when it was repeated she said: "I think, no." She is recorded as saying: "I have always during my nursing career, treated the symptoms as they were presented. I do not presume to diagnosis [sic]." She went on to say that if a student made repeated complaints of tummy aches she would refer him to a general practitioner and rely on his or her diagnosis.

That was as far as the evidence in chief of Ms Clark went on this topic. However, in cross-examination, she was asked: "You were asked a number of questions about whether you would deduce from symptomatology of bleeding from the anus what in your mind would trigger a thought or belief or a suspicion of sexual assault. Remember those questions asked of you?" She said she did and accepted that that was the evidence that she had given.

The two false premises underlying this ground of appeal are (i) that the Crown prosecutor cross-examined Ms Clark; and (ii) that Garling ADCJ permitted cross-examination on the subject of "masking symptomatology".

The written submissions on behalf of the appellant referred to the requirements of the Evidence Act in respect of "expert evidence" (s 79) and credibility evidence (s 102). Since no evidence of the kind the subject of the ground was given, it is unnecessary to deal with these arguments.

There was some ambiguity in the approach eventually taken on behalf of the appellant. Although, at one point, he seemed to abandon this ground, he also maintained that he relied on his written submissions. Like Hall J, I have considered it wise to deal with the ground, although briefly.

Ground 4 of the appeal must fail.

In Palmer v The Queen [1998] HCA 2; 193 CLR 1, it was held that it is impermissible to cross-examine an accused as to whether he or she can nominate any motive for a complainant to make false allegations.

The complaint under this ground does not involve any cross-examination of the appellant of that type. It is, however, related: the cross-examination of which complaint is made was cross-examination of the appellant to the effect that it was his assertion that various of the witnesses were lying in their evidence. That is not the same as asking whether a witness has a motive to lie, but, in the same manner, it does invite the accused person to express a view concerning what is in the mind of the witness - that is, whether false evidence is a deliberate lie, or mistaken or merely unreliable for some other reason. It is always open to an accused person to give evidence contradicting any part of the evidence given by a Crown witness. Doing so does not necessarily entail the assertion that the witness is dishonest in giving that evidence. The Crown did not dispute that questions of the kind put to the appellant were, if not impermissible, certainly ill advised.

The cross-examination of which the appellant now complains is as follows. MK (a tendency evidence witness) spoke of having seen the appellant with his arm around the back of another student, towards the pants line. In his evidence in chief the appellant said that he had no recollection of that ever having occurred. In cross-examination, when he was asked about MK's assertions, step by step, he said: "It didn't happen."

He was then asked about assertions of another witness (RB). These were the assertions that RB had observed the appellant on a skateboard with a young student against his groin. The appellant's answers were: "I remember him saying that and it's totally ridiculous that that could ever happen ... It's ridiculous ... It's not physically possible ... I remember him saying that and that also is a lie ..."

The transcript then records the following: "CROWN PROSECUTOR. He's a liar too? A. Absolutely a liar. Q. Is [MK] a liar? A. Yes. Q. He said that he saw it on two separate occasions? A. I know what he said, yes. It still makes it a lie."

The appellant was then asked about the evidence of PW. PW was the witness who said that the appellant put his hand down the back of PW's pyjamas or shorts and fondled his bottom. The appellant said: "I remember him saying that and that also is a lie ..." The following transcript is then recorded: "Q. So [RB's] lying? A. Yes. Q. And [PW] is lying? A. Yes."

The appellant was then asked about the evidence of a witness, MH. MH had given evidence of observing the appellant with his hand on the buttocks of another boy. The transcript records the following: "Q. And that's what he says he saw you do? A. That is also false. Q. He's a liar too? A. Yes."

The Crown prosecutor (Mr Hughes) then asked about the witness SW, who gave similar evidence. The appellant agreed that to behave in that way was "totally inappropriate" and said that he would never do it. The transcript then records the following exchange: "Q. And what you were doing I put to you, is you were grooming - that is - getting the boys used to being touched inappropriately by yourself, that's right isn't? A. It is not right Mr Hughes, it is totally false. Q. [SW] is a liar? A. Yes Mr Hughes. Q. As is [MH]? A. Yes Mr Hughes. Q. As is [PW]? A. Yes Mr Hughes ... And they all contradicted each other as to the incident."

The appellant was then asked about the allegations made by TE. The following is recorded in the transcript: "Do you remember [TE] saying that you befriended him, that you said in effect he was like a little brother to you? A. I remember him saying that, but that did not happen. Q. He's lying about that? A. Yes, like he lied about everything else. Q. Like all the others lied about everything? A. Yes. Q. And he said that you took him to the McDonald's restaurant at Bathurst for a meal? A. He said that but that it also untrue." He denied fondling TE's chest or nipples. He was asked if he was doing this in pursuance of his grooming of TE. He said: "It is totally false Mr Hughes."

He denied showing TE any pornography and said that TE had never been in his room. He was asked about performing fellatio on TE and said: "That is totally false."

He was asked about having TE perform fellatio on him, which he also described as "absolutely false". He said that did not happen.

When asked about gaining sexual gratification from masturbating in the presence of TE, he said: "It did not happen. He's a pathological liar." When pressed on what he meant by "pathological", he said: "Well describe it as you will but that's what I - that's my description of the accusations against me would have to be made by a pathological liar." When asked if that also included GB, he replied "Absolutely". He said: "... I said [TE] was a pathological liar and now I'm saying [GB] is a pathological liar also."

The transcript then records the following: "Really, the people that are accusing you, that don't agree with you, you categorise them as pathological liars? A. Absolutely, because I have been falsely accused. Q. The other alternative of course, [name of appellant] is that they're telling the truth and you acted exactly the way they say you did. That's right, isn't it? A. That is totally, totally false."

Later, the appellant was asked about the evidence of the witness Dr Lyons. The appellant had asserted (in his evidence in chief) that Dr Lyons had asked him to counsel MA (who gave evidence of being in bed with the appellant). Dr Lyons denied that he had made that request. The following exchange is recorded in the transcript: "Q. Was he lying when he said that? A. He was lying because why else would Dr Lyons invite me to pick [MA] up from his home, drive him to Cape Gervis, alone in my car when he and [MA's] uncle were also driving from Adelaide to Cape Gervis that same afternoon after work. ... Q. And he's lying according to you? A. I'm saying - I've given you the reasons that he asked me to pick him up and I can think of no other reason why he would do that unless he asked me to speak with [MA]."

At a later stage in the cross-examination, the following exchange is recorded: "Q. Is this the case, correct me if I'm wrong, your case, every single person in this trial who alleges sexual misconduct on your part perpetrated by you on them is a liar? A. Yes. Q. That extends from [GB] in the period 65/67 through [HM] in a room on the priest's corridor in 86. It continues with [SR] in 1987. It continues to [PW] who said that you put your hand down his pyjama shorts. It continues through all the allegations of sexual misconduct described by [TE], including anal penetration and it includes, it culminates in [MA], who said that he got into your bed and their (sic) was a mutual holding of penises. All of those witnesses are lying, is that your case? A. Yes. Q. And additionally, every single witness in the prosecution case in this trial who says they witnessed you acting in a predatory and inappropriate way with young students at the school, they're also lying, according to you? A. The incidents didn't occur so, therefore, they could not have witnessed it. Q. So [MK] lied when he told the jury he saw you with your hand on a year 7 student or 8 student on the steps leading up from the swimming pool area to the main building? A. Yes. Q. [RB] is lying when he told the jury you were sitting with a young pupil next to your groin and that when you stood up he could see you had an erection and you quickly walked away, not once but on two separate occasions? He's lying? A. Yes. Q. [SW] was lying, as was [MH], when they both testified about your placing your hand down [PW's] pyjama pants or shorts in the year 8 dorm? Correct? They're lying? A. I think you said [SR] never made that accusation. Q. No, [SW]. A. I'm sorry, [SW]. Yes. Q. Both Noris Ioannou and Dr Robert Lyons are lying when they describe your inappropriate physical contact with their 15 year old nephew, [MA], in 1994? A. Yes. All their evidence contradicted each other. Q. Indeed Dr Lyons is lying when he says he never asked you to counsel his nephew? That was a lie? A. Definitely a lie. Q. You've heard persons who have come and given evidence about complaints made by [TE]? First of all, his mother said that he made a complaint while he was still at school. She's wrong about that?"

At this point objection was taken to the "line of cross-examination". Garling ADCJ expressed his view that the question could not be asked and the Crown prosecutor replied: "I don't extend it to there."

The cross-examination then continued (without further objection): "Q. But this is the situation, these people who span a great number of years, they all - all of them have come and lied about you? A. Yes, and there's a gap of 20 something years between the first accusation in 1965 and the next one in 1986 when I returned to the college and I was at the college from 1965 until 1980 and [GB] is the only accusation during that 20 year period."

The Crown very properly accepted that, as a general principle, a witness should not be asked whether another witness is or is not telling the truth or is lying: Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232; R v Foley (1998) 105 A Crim R 1. However, the Crown pointed to matters preceding the cross-examination. Reference was made to a similar line of questioning in the first trial. The transcript of that trial is not before this Court, but no issue was taken as to the accuracy of what is extracted in the Crown submissions in this respect. That extract shows that Cogswell DCJ raised the very question of the propriety of cross-examination of this nature. He referred to s 41 of the Evidence Act (dealing with "improper questions"). He then said: "But I'm assuming that was a considered decision because of - I don't know - but a forensic advantage that you expected ..."

The following is then recorded: "WALSH (solicitor for the appellant): Your Honour, I think I have to concede that the situation was that [JG] was capable probably of answering the question ... What weight one puts to the answer or to the evidence is another thing ... But it did come across my mind ... and I thought it wasn't put in specific terms, it was, rather, in the general about other third parties lying, so -- HIS HONOUR: No. It was put that so and so - X and Y and Z were lying and then they're all lying. WALSH: Tendency witnesses. HIS HONOUR: And I'm not being critical of you and, indeed, I haven't heard Mr Hughes [the Crown prosecutor] on whether he says that they were admissible questions or not. But I just wanted to check. Thank you. Good. WALSH: Yes. I think, technically, your Honour, they were inadmissible, but I must concede I took a forensic view because of they were being put and I just thought ..."

Further, in the first trial, it was put to TE in cross-examination on behalf of the appellant that he had not seen photographs of naked boys on Brother Dwyer's desk. He asked if the cross-examiner was accusing him of lying, on saying that he did not see such photographs. It was put to him that: "... there never were any photographs on Brother Dwyer's desk depicting naked boys." He disagreed.

It was then put to him directly: "Well, I'm putting to you that you've lied about that; you've lied to the police and you're lying to the court about this?" TE replied that he was not lying about that. Later it was put to TE that what he was saying about the incident involving Brother Elrott's shed and the appellant was a lie. He denied that.

In respect of TE's evidence that he had been accused by the appellant of lighting fires, it was put to TE: "See, I put to you very specifically that's just a lie?" Later it was put to him that that evidence was "untrue" as was his evidence that the appellant had accused TE of stealing.

As mentioned above, the evidence given by GB and TE in the first trial was played to the jury in the second trial via the video recordings of their evidence. That meant that it was well known to all that the cross-examination of the complainants to the effect that they were lying would be before the jury.

I have earlier referred to and extracted the manner in which the appellant's solicitor opened to the jury the nature of the defence case. It was clearly insinuated that GB was lying, and was motivated to do so by his hatred of the college, and that other witnesses would contradict assertions made by both complainants. It was also clearly insinuated that TE was lying in his allegations.

In these circumstances, although I would accept the Crown's concession that the questions asked by the Crown prosecutor were, at times, impermissible, I am satisfied that those questions did not result in a miscarriage of justice. In this respect I am comforted by the acknowledgment by the solicitor that he had not objected to the questions in the first trial as a result of a forensic decision. He similarly did not object in the second trial. I can only infer that that was for the same reason. On appeal, he acknowledged that his intent in opening, and in cross-examining, had been to assert deliberate fabrication.

In the circumstances, r 4 of the Criminal Appeal Rules has particular resonance. I would not grant leave to argue this ground and if leave were granted, I would reject ground 5 of the appeal.

The written submissions advanced purportedly in support of ground 3 run to 30 pages. They commence with a brief reference to well known authority: M v The Queen [1994] HCA 63; 181 CLR 487. At paragraph 321, it is said: "There is set out, hereunder, the features which give rise to establishing, with respect, the ground that the conviction, was unsafe and unsatisfactory."

Thereafter, up to and including paragraph 348, are references, in summary form, to evidence given by GB, both in chief and in cross-examination. I can only assume that the intention behind this summary of evidence was to draw attention to inadequacies in GB's evidence. However, they include such mysteries as: "331 [GB] agreed that the contents of the third Statement were true. However, there was no acknowledgement that anything that he said in the statement was true and correct and he would be liable for prosecution if he wilfully stated anything he knows to be false."

The third "statement" was the document prepared by GB of his own volition, recording, for his own purposes, the allegations he made against the appellant. GB said that he made that document available to the Director of Public Prosecutions. Just what point is sought to be made by pointing out the absence of an acknowledgement of the kind mentioned is completely obscure.

At paragraphs 341 and 343, the following appears: "341 [GB] agreed that his state of mind was such that because the Applicant (sic) was in close proximity of the tractor that he had driven the tractor in to the trench. [GB] gave this evidence ... 'Q. Now I want to put to you that the Applicant did not drive the tractor into the trench? A I didn't actually say that he did.' 343 ... [GB] agreed that he had given evidence to the effect that his recollection as to the timing of the incident in the early afternoon was indeed a 'feeling'. [GB] asserts that it was about 1 o'clock when he came across the Applicant.

The entirety of the written submissions in relation to GB's allegations extracted passages of his evidence. It did no more.

It may be that the intention behind making these references was to contrast the evidence given by GB with evidence given by the appellant and other witnesses. However, no attempt was made to do so, and no references were given to any conflicting evidence. Indeed, despite the fact that, beside the appellant, 18 witnesses were called in the defence case, virtually no mention was made of any evidence given by those witnesses.

Paragraphs 349-393 consisted of references to the evidence given by TE. For example, the following appears: "378 [TE] made an allegation that he was on detention in May 1989. He was unaware that the behavioural school committee suggested to him that in May 1989 the weather in Bathurst was extremely cold. In fact, there would be no raking of any grass at that time of year. His Honour agreed to this. He agreed that the grass would have been cut by the device behind the tractor put to him the grass was mulched. He agreed with this. In the presence of Brother Dwyer at Brother Elrott's Shed 379 According to [TE] Brother Dwyer was somehow present outside the shed when he was taking the rake down to Mr Sweetman. The tale is that the Applicant came across him and in turn Brother Dwyer was involved. Brother Dwyer gave evidence that at no time did he come across [TE] or the Applicant as alleged by [TE]. Deadlocking of the door 380 According to [TE], the Applicant unlocked the door to Brother Elrott's shed and then deadlocked the door from the inside. It was clearly suggested to [TE] that Brother Elrott's shed had a Judas door which could only be opened by a key. I would agree with this. He was shown a photograph but would not agree nor when shown a photograph of the inside of the door of the shed that it could have been deadlocked: 'I am not even agreeing that that was the actual door of Brother Elrott's shed at all, and ... photographs clearly established there was a Judas door with a rocking mechanism off the door.' Industrial lubricant 381 [TE] gave evidence that the Applicant had imposed next to an item of machinery and then used industrial lubricant to perpetrate an act of anal intercourse with him. The likelihood that the Applicant would use industrial lubricant to perpetrate such an act is utter nonsense. ... 385 [with reference to the evidence of TE concerning his conversation with Matron Clark] ... It is suggested that the Matron was so dedicated they would make such remarks. Judge Cogswell permitted each of the Matrons to be cross-examined and that inconsistent evidence was replaced."

I extract these paragraphs, not because they stand out as difficult to understand but isolated passages in the submissions. Far from that, they are illustrative of the written submissions. They demonstrate the difficulty I have had in understanding the case sought to be made on behalf of the appellant. For this reason, during the hearing of the appeal, the appellant's solicitor was asked to identify the points he sought to make in order to establish that the verdicts were "unsafe and unsatisfactory". He first referred to paragraphs 107 and 108. I am quite unable to discern anything in those paragraphs that bear upon the reasonableness or otherwise of the guilty verdicts.

The legal representative then went on: "Firstly, in respect of the complainant GB, was the feature of his evidence that commenced in the committal proceedings, that the incident did not occur in 1965, but occurred in 1966 and 1967. The timing issue ... The second issue is that in respect of GB, on any view, notwithstanding the problem that he had so far as irritable bowel syndrome was concerned, that over a very lengthy period of time there was no complaints ... Thirdly, that it was apparent that the motivation of GB in coming forward was to do with publicity, and in particular, his outrage, as my learned friend says in her submissions, at the temerity of lawyers defending members of the Order [of priests to which the appellant belonged]. Fourthly, that GB in the obvious circumstances where he was confronted with clear photographic evidence that the tractor incident had occurred in circumstances where the accused was not clothed with a white t-shirt and white shorts, for instance, he was in overalls, and Mr Scheppingen was present and so on, then came up with the contention under oath that there was another tractor incident. The third point is that GB had considerable animus or animosity towards not only the accused, he says because of what was done to him, but also to the school and the institution of the school.

The appellant's solicitor then referred to the two students nominated by GB as having been with him at the time he came across the tractor incident and the absence of support from those students. [PM gave evidence, that he could not recall ever having smoked with GB, and had only a vague recollection of the tractor incident. The other student, IS, had not been located.]

The solicitor then went on: "There was just no evidence, for instance, that GB didn't even know the accused and the accused didn't know him. I don't know how to describe that, but there was no grooming or anything like that in relation to that particular complaint, no previous relationship."

It seems to me, from what has been extracted, that, so far as the conviction on count 1 is concerned, the matters sought to be raised are: (i) "the timing issue" - that is, the year in which the tractor incident occurred; (ii) the absence of complaint by GB until 2007 or 2008; (iii) the motivation of GB in making a complaint, it being suggested that he did so [dishonestly] out of hostility towards the appellant and to the college. Resolution

The task of an appellate court in determining a ground of appeal that a verdict is unreasonable was established in M v The Queen (and re-stated in a number of cases thereafter) as follows (at p 493): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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 accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted) This has been affirmed in MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. The timing issue

Both in the cross-examination of GB and on the appeal, an inordinate amount of attention was paid to the year in which the tractor incident occurred. A great deal was sought to be made of GB's uncertainty on this question, and what was put as his fluctuating evidence about it. For example, initially he said that it did not occur in his first year at the college (1965); when cross examined about this, he said: "That's my belief, it wasn't 1965."

He agreed that it could have been 1966 or 1967. Later, still in cross-examination, it was put to him that the tractor incident occurred in November 1965 and not 1966 and not 1967. GB replied: "If you say that, Mr Walsh, and that is correct, I'll go along with that."

The following is recorded in the transcript: Q. But you have given evidence today that it definitely did not occur in 1965? A. Did I say definitely didn't? Q. Yes, you did. It didn't occur in 1965. A. Well, in that case, I've made a mistake haven't I? Q. Well, are you now changing your evidence from 1967, 1966 to 1965. A. Well, I'm not changing my evidence, no, not all. I'm just saying that that was my recollection." It was then suggested to him that the incident occurred in November 1965 and not 1966 and not 1967. To which he replied: "If that's what you're saying is correct, then I'll go along with that."

So far as I can determine - and no alternative proposition was advanced - the only importance of the tractor incident was that GB associated it with the offence that he alleged the appellant committed against him. So far as can be gauged from the transcript, GB was willing to accommodate questions that proposed dates alternative to that he had initially suggested.

The appellant himself did not give evidence of when the incident occurred. Its timing appeared to have been fixed on his behalf by reference to a school magazine ("the Echoes") that made light of the incident. While, in the overall assessment of the credibility of GB, his various answers about the timing of the incident must be taken into account, the timing issue itself seems to me to be of no moment.

Facts that are uncontroversial are: Absence of complaint

There is no mention in the written submissions of the absence of any complaint by GB. The first mention that I can find of that was made in response to the specific question asked by this court. Nor was there any cross examination of GB about the absence of complaint.

It has long been a matter of common knowledge that victims of childhood sexual abuse frequently do not make timely complaint of their treatment. GB gave evidence that the appellant told him to tell nobody, that if he did he would not be believed, and that he would be ill-treated by other students. In my opinion, the lack of complaint by GB until adulthood is of no weight in the assessment of this ground. Motivation

Again, no mention was made in the written submissions of ill feeling towards the appellant or the school imputed to GB. Nor was there any mention of that subject in the cross examination of GB. The only relevant cross-examination followed GB volunteering that, while he was at the college, he had been hit on the head with a pointer by a science master, and flogged around the legs and the buttocks with a Bunsen burner hose. He was then asked if the way he was treated at the school was something he "greatly resented". He answered: "I wasn't real happy about it, that's a good way of putting it, yeah." Just what was referred to as GB's "considerable animus or animosity" towards the appellant and towards the college is obscure.

The above represents my analysis of the points identified as those on which the appellant relied. I am conscious that there were other issues in relation to GB's evidence. For example, his evidence was that the offence against him took place in the art room, which the appellant unlocked with a key that he had. There was evidence in the defence case from two former students (William Kelly and Allan Chapman) that the art room was always locked. The art teacher of the time, Mr Collins, confirmed in a record of interview that became an exhibit, that he had one of only two keys to the art room. The appellant said in his evidence that he did not know where the art room was and that he did not have a key.

With respect to the counts involving TE, the written submissions contained a very long list of "bullet point" topics, said to be indicative of the unreliability of TE. Some of these are: " the colour of the applicant's car;  the location of the washing of the car; ...  the likelihood of detection of any presence of pornography by a laundry or cleaning lady; ...  inherent unlikelihood of the raking of grass on the oval in May 1989 at the College; ...  there was no conversation between [TE] and Brother Dwyer about the allegations involving the applicant;  that [TE] gave his evidence repeatedly in such a combative way when confronted with facts which clearly demonstrated his unreliability, he would not make any concession that he was wrong, and in the context of the McDonald's incident, the fact that the restaurant was not built at the time he alleges he was taken there by the applicant, he amounted it to being 'a load of crap'." These points were not further expanded.

Again, I have been forced to attempt to discern what points are sought to be made on behalf of the appellant.

One of these clearly involved the alleged event that was the subject of count 2. That was the indecent assault said to have taken place when the appellant took TE to a local McDonald's restaurant. It was conceded on behalf of the Crown that the McDonald's restaurant in Bathurst did not open until later in the year than the date attributed by TE to the offence.

During the course of the summing up, the jury sent two notes with questions. The second, as read onto the transcript by Garling ADCJ, read: "Charge 2 shall the jury consider location as H says the incident happened in Bathurst ie, if the jury finds that there's doubt about location does it mean it has to acquit on this charge?" (What "H" refers to is unexplained.) The question suggests that the jury was alive to, and concerned with, the doubt about TE's evidence in this respect. The appellant was given the benefit of that doubt.

Count 2 was one of the counts on which the jury was unable to reach a unanimous verdict. This may well reflect the jury's concern about the timing or the location of the incident.

One issue on which TE was extensively cross examined, and was the subject of evidence from the appellant, was his assertion that he had frequently visited the appellant in his room. TE was asked to draw a diagram showing the appellant's room. The appellant denied much of what was asserted by TE. For example, the appellant said that the room he occupied had five windows; TE drew in his diagram one or two windows. There was also an issue concerning what TE said was his reporting of some incident to either or both of the matrons at the College, and his evidence that he was advised to "stop putting things up my bum" and to purchase some women's panty liners to stop the flow of blood. Both matrons denied having heard of any such complaint or having given such advice. The submission made in this respect was that TE's evidence was so unlikely as to be implausible.

Another disputed matter concerned the circumstances in which TE left the College. He said that he had been expelled; Brother Dwyer, who had been the Principal of the college, said that he had not been expelled. TE's father, GE, said: "We was told that [TE] wasn't to come back. So he was expelled." He said that it was Brother Dwyer who had told him that.

The tape-recorded telephone conversations of the appellant after his arrest give considerable credence to the evidence of TE and his father. Indeed, the appellant said that he had believed that TE was expelled. This is an issue of little moment, except that it significantly supports the general credibility of TE.

The evidence of TE and the evidence of the appellant were in conflict in a significant number of matters of detail. It is of considerable importance that TE was cross-examined, unequivocally to the effect that his evidence was deliberately false. So much was expressly acknowledged on the hearing of the appeal. What the jury, therefore, had to weigh were the appellant's denials, together with his challenge to TE's evidence on matters of detail, against the evidence of TE, who refuted virtually all of those challenges. In this case, the jury was uniquely placed to assess the credibility of the witnesses. It may well be that they considered that any failure of TE in his recollection of the number of windows in the appellant's room to be of no moment. Alternatively, they may have accepted TE's evidence and disbelieved the appellant. It was fully open to them to do so. Generally, the matters of detail were not matters that in any way bore upon the core allegations. There was, throughout the cross-examination of TE, an explicit suggestion that the room he described was the room of Brother Elrott. However, there was, and could have been, no suggestion that TE was mistaken, and that Brother Elrott was the perpetrator of the offences he alleged. Brother Elrott, it will be recalled, was seriously disabled. In any event, mistaken attribution of the offences was no part of, and was inconsistent with, the defence strategy.

I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on all of the counts of which he was convicted. Moreover, having studied the evidence in some considerable detail, I experience no doubt of the appellant's guilt.

In my opinion, ground 3 should be rejected.

It follows that, in my opinion, the appeal should be dismissed. The order I propose is: (1) Appeal against conviction dismissed.

HALL J: The appellant, JG, appeals his conviction on six counts following a jury trial in 2013 before Acting Judge Garling in the District Court. The jury at his first trial before Cogswell DCJ was discharged in July 2012, when they were unable to agree as to any of the counts with which he had been charged.

The indictment alleged offences by the appellant against two complainants, GB and TE. There were in all 13 counts in the indictment (some pleaded in the alternative). The jury returned guilty verdicts in respect of six counts (Count 1 in relation to GB and Counts, 4, 5, 7, 10 and 12 in relation to TE). Counts 6, 8, 11 and 13 were pleaded in the alternative to some of the above counts and therefore verdicts were not required on those counts. A not guilty verdict was returned in respect of Count 9 and the jury were unable to reach a verdict in respect of Counts 2 and 3.

The appellant was sentenced on 17 June 2013 to an overall sentence of 7 years 6 months with an overall non-parole period of 4 years 6 months to expire on 21 September 2017. There is no application for leave to appeal against sentence.

In the Notice of Appeal filed on 9 September 2013 the appellant relied upon six grounds in support of the appeal against conviction as follows: "1. The learned Trial Judge erred in refusing an Application pursuant to s 130A Criminal Procedure Act in respect of separate trials of the counts in the indictment relating to [GB] and [TE]. 2. The Trial Judge erred in refusing an Application pursuant to s 130A(a) Criminal Procedure Act as to tendency and coincidence evidence relied upon by the Crown. 3. The conviction of the appellant was unsafe and unsatisfactory. 4. His Honour erred by permitting the Crown Prosecutor to cross-examine Matron Clarke as to "masking" symptomatology relating to [TE]. 5. That a miscarriage of justice occurred as a result of the Crown Prosecutor being permitted to cross-examine the Accused contrary to Palmer v R. 6. The learned Trial Judge erred in refusing an application for a permanent stay of the Indictment in respect of [GB]."

It is convenient to address Grounds 1 and 2 together.

On 11 February 2013, the appellant was indicted before Garling A-DCJ at the Sydney District Court. He entered not guilty pleas to all counts.

The indictment presented at the second trial was in the same terms as that left to the jury in the first trial, with the exception of Count 1 being amended (as to the commencement date of the period referred to in Count 1) during the course of the first trial. That is a matter discussed below.

The counts in the indictment concerning the two complainants, GB and TE, were in the following terms: (1) Between 1 September 1965 and 31 December 1967, at Bathurst in the State of New South Wales, did commit with GB an act of buggery, contrary to s 79 of the Crimes Act 1900. (2) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, and at the time of the assault did commit an act of indecency upon TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(1A) of the Crimes Act. (3) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, and at the time of the assault did commit an act of indecency upon TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(1A) of the Crimes Act. (4) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did commit an act of indecency towards TE, a person then under the age of 16 years, namely 15 years and under the authority of JG, contrary to s 61E(2A) of the Crimes Act. (5) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (6) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (7) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (8) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (9) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did assault TE, contrary to s 61 of the Crimes Act. (10) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (11) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act. (12) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, without the consent of TE and knowing he was not consenting, contrary to s 61D(1A) of the Crimes Act. (13) Between 1 February 1989 and 31 December 1989, at Bathurst in the State of New South Wales, did have sexual intercourse with TE, a person above the age of ten years and under the age of 16 years, namely 15 years, and under the authority of JG, contrary to s 66C(2) of the Crimes Act.

On 19 April 2012 the Crown served notices under ss 97 and 98 of the Evidence Act 1995.

The Crown served a Coincidence Evidence Notice pursuant to s 98 of the Evidence Act dated 19 April 2012.

The Coincidence Notice referred to evidence intended to be adduced by the Crown as to "two or more events" the subject of a number of statements, including statements of GB dated 23 September 2008 and TE dated 7 November 2009.

The evidence was to be adduced to prove that the appellant did numerous specified acts in relation to, inter alia, both complainants GB and TE. Those included that the appellant:

The evidence was also to be adduced to prove that the appellant:

In paragraph [2] of the Notice the relevant "events" were identified. In section C of paragraph [2] reference was made to "events" referred to in particular paragraphs of the statement of a witness (who may be identified by the initials JF) and in the statement of the complainant TE. It was stated in respect thereto: "The evidence is to be tendered to prove that [the appellant] showed homosexual pornographic videos and magazines to [TE]."

In paragraph [2]D the "events" in question were identified by paragraph numbers in statements of coincidence witnesses and in the statement of TE. Again, it was noted: "The evidence is to be tendered to prove that [the appellant] showed homosexual pornographic videos and magazines to [TE]."

The Tendency Notice pursuant to s 97 of the Evidence Act sought to prove that the appellant had the following tendencies: (1) To have a sexual interest in 12-15 year old boys. (2) To engage in sexual activities with 12-15 year old boys. (3) To use his position of authority to obtain access to 12-15 year old boys so that he could engage in sexual activities with them. (4) To have a sexual interest in young males.

The tendency evidence was said to be relevant to the following facts in issue (only the identified facts in the notice relating to the complainants GB and TE are reproduced below, not those identified in respect of four other named complainants) "(a) Whether the [Appellant] had penile anal intercourse with [GB]. (b) Whether the [Appellant] restrained [GB] when having penile anal intercourse with him. ... (f) Whether the [Appellant] touched [TE's] groin. (g) Whether the [Appellant] touched [TE's] bare chest. (h) Whether the [Appellant] showed [TE] heterosexual pornographic videos. (i) Whether the [Appellant] showed [TE] homosexual pornographic videos. (j) Whether the [Appellant] gave [TE] money (k) Whether the [Appellant] showed [TE] videos depicting a young male fellating an adult male. (l) Whether the [Appellant] showed [TE] a movie depicting an adult male having penile anal intercourse with a young male. (m) Whether the [Appellant] showed [TE] his erect penis. (n) Whether the [Appellant] asked [TE] if he had an erection. (o) Whether the [Appellant] masturbated in the presence of [TE]. (p) Whether the [Appellant] told [TE] to look at him when he was masturbating. (q) Whether the [Appellant] fellated [TE]. (r) Whether the [Appellant] asked [TE] to fellate him. (s) Whether [TE] masturbated the [Appellant]. (t) Whether the [Appellant] put his finger in [TE's] anus. (u) Whether the [Appellant] had penile anal intercourse with [TE]. (v) Whether the [Appellant] forced [TE] to fellate him. (w) Whether the [Appellant] held [TE] down when having penile anal intercourse with him. ..."

In the previous trial of the counts on the indictment, Cogswell DCJ heard and determined a number of pre-trial issues. The application heard by Cogswell DCJ sought the separation of counts involving various complainants and rulings as to the admissibility of the evidence of various tendency and coincidence witnesses. His Honour conducted a voir dire examination between 14 May 2012 and 22 May 2012. The prosecution in the course of the inquiry called evidence in order to establish the nature and extent of any risk of concoction or collusion between the complainants and the tendency witnesses.

On 23 May 2012, Cogswell DCJ delivered judgment on the voir dire issues that his Honour was required to determine. These centred around the admissibility of tendency and coincidence evidence. At that time the prosecution had presented an indictment containing fifteen counts concerning four complainants.

Cogswell DCJ ruled that the evidence of the tendency witness, who may here be referred to as JR, was inadmissible. His Honour severed the counts relating to two complainants who may here be referred to as R and C. His Honour ordered that there be a joint trial involving the complainants GB and TE.

His Honour noted that, in assessing the probative value of the evidence which the Crown proposed to adduce, Mr Walsh asked him to take into account the good deal of media publicity that surrounded the arrest and charging of the appellant and another person associated with the same school at which the acts relating to the counts on the indictment were said to have taken place.

Having regard to the issues raised by Mr Walsh in the appeal proceedings, I set out below, in summary form, certain of the observations and findings of Cogswell DCJ on the issue of contamination and concoction.

His Honour noted: "... [Mr Walsh] asks me to take into account that publicity, any contact between the former pupils, any ill feeling which the former pupils may have towards his client as well as the circumstances in which they gave their statements to the police. Those factors, Mr Walsh argues, may be relevant to the question whether the evidence of those witnesses might have become contaminated, either by concoction or in some other way." (at [35])

In relation to the complainant GB, his Honour noted that GB had not discussed what had happened to him with any former pupils up until the time he gave his statement to police. His Honour also noted that he had spent a good deal of time outside the State. As to media publicity, GB's evidence was that he saw something on television, but apart from that, he did not read any other material before making his statement to the police.

So far as information that GB may have gained from the internet, it was noted that it was only in the last two years (that is, before the voir dire) that he had become familiar with using the internet and his Honour accepted that he could not have used it before giving his statement to the police.

GB had acknowledged that the story was "all over the media back home" in his regional city. His wife had kept articles for him to read when he got back after he had been away.

Cogswell DCJ noted that what prompted GB to come forward was seeing Mr Walsh being interviewed on the television. That angered him because he said that Mr Walsh was describing the events as a "witch hunt" and GB's view was that the events did in fact happen and what Mr Walsh was saying should not be said: at [37].

GB denied having seen an article that was shown to him by Mr Walsh called "Darker Secrets".

GB acknowledged, frankly, his Honour noted, that he had no affection whatsoever for the appellant, but when pressed about why that was, he made it clear that that was because "I was raped by him in the classroom": at [37].

Cogswell DCJ stated that in his opinion there was no real chance that GB's evidence had been relevantly concocted. He noted that that was because of the limited discussion he had had with fellow pupils or former pupils and also because of his limited means of access to the internet. He noted that he had not seen one of the articles that Mr Walsh had shown him and his motivation was as stated above: at [39].

In relation to the complainant TE, Cogswell DCJ noted that he had been examined "... in all four areas of possible contamination": at [44]. His Honour noted:

The first time that TE saw anything on the television was the same night that he had heard the radio broadcast in the morning. He remembered seeing a picture of one of the other members of staff and heard the appellant's name mentioned in the broadcast, but did not recall any image of the appellant.

As to access to the internet, TE acknowledged that he had used the internet in a very limited way "only in the last six months": at [44].

TE's evidence was that he had not looked anything up on the internet concerning the appellant, that he did not know how to and nor did he have a friend or anyone look it up for him.

TE acknowledged that he was accused of stealing by the appellant and as a result he was expelled from the school. He said that he did not entertain any hostility against the appellant in relation to what he regarded as the false allegations from the appellant about him setting fires "but I certainly have some hostility for what he did to me as a student there": at [44].

What TE regarded as the false accusations were, TE considered, "just his scapegoat of me opening my mouth about what was happening".

Cogswell DCJ concluded that the prosecution had satisfied him that there was no real chance of any relevant contamination so far as TE was concerned. His Honour observed that TE's hostility towards the appellant was directly related to the incidents which he said occurred to him by the appellant. He noted that his internet access was extremely limited as was his access to former students: at [45].

The provisions of the Criminal Procedure Act 1986 in relation to the power to order separate trials are contained in s 21(2)(a) and (b).

Applications under s 21(2)(a) and (b) may arise in a variety of circumstances. They include cases where tendency evidence is relied upon at a trial where the allegations involve offences against two or more complainants. Section 101 of the Evidence Act provides that tendency evidence about an accused relied upon by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In Hoch v The Queen (1988) 165 CLR 292, the High Court's observations, though related to "similar facts" at common law, provide guidance in a case such as the present in relation to coincidence evidence under s 98 where concoction or collusion arose for consideration: "...that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused. ... "In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility. Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction." (at [9]-[11])

The findings of Cogswell DCJ in relation to the issues of contamination and concoction accordingly support or confirm that the evidence of GB and TE had the probative force which rendered the same admissible, assuming that the provisions of ss 98 and 101 were otherwise satisfied.

His Honour then analysed the coincidence evidence and the tendency evidence at [49]-[84].

It is clear that the trial judge's findings on the admission of tendency and coincidence evidence would have a significant influence on the outcome of the separate trial application. If the challenge to the evidence were unsuccessful, there would be less basis for ordering separate trials, a position that arose in R v Daley [2001] NSWSC 1211 at [3]. If the opposite were the case, the exclusion of the tendency or coincidence evidence in relation to one or the other complainants (that is, GB or TE), the case for separating the trials would be stronger.

In relation to the coincidence evidence, his Honour noted that that evidence concerned allegations of penile/anal intercourse made by GB and TE.

The coincidence evidence also concerned claims by TE that the appellant showed him what were regarded as homosexual pornographic videos and magazines.

His Honour observed that when the appellant was arrested in 2008, police found certain DVDs and magazines depicting homosexual sex in his possession. The prosecution wished to tender that material to support TE's claim that he was shown such things by the appellant.

He noted that the evidence sought to be adduced was directed to proving that each event was not just an isolated one-off or a coincidental occurrence that may never have occurred at all or may have been misunderstood. The fact that they were similar events pointed to the appellant doing them deliberately. The fact that they were similar complaints pointed, the prosecution argued, to the unlikelihood that those complaints were untrue.

As to the tendency evidence, the Crown wished to prove that the appellant had a tendency to act in a particular way in two areas, and had a particular state of mind in two areas. These were identified in the Tendency Notice dated 19 April 2012.

The two areas where the prosecution claimed the appellant had a tendency to act in a particular way were to engage in sexual activities with 12-15 year old boys and to use his position of authority to obtain access to boys in that age range so that he could engage in sexual activities with them.

His Honour then proceeded to analyse the relevance and the probative strength of the coincidence and tendency evidence. He separately analysed the issue of prejudicial effect and, with one stated exception, his Honour concluded that the probative value of the proposed tendency and coincidence evidence substantially outweighed any risk of unfair prejudice to the appellant. His Honour emphasised that he expressed that opinion having regard to the directions that would be given to the jury: at [77].

His Honour separately noted that a submission had been made by Mr Walsh that the gap in time between GB's allegation and the other allegations was significant. His Honour stated: "... I do not regard it as so significant that it deprives the evidence of its significant probative value. It is still an extraordinary thing for two boys to claim that a member of staff at the school anally penetrated them ..." (at [87])

Finally, his Honour concluded that the magazines and DVDs had significant probative value as coincidence evidence. His Honour noted that what would obviously occupy the minds of jurors was the likelihood (in considering whether they were satisfied beyond reasonable doubt) of a religious brother at the school showing homosexual videos, pornographic or not, to one of the pupils at the school. The location or finding of such DVDs or other material in the possession of the appellant "at the time of his arrest was relevant to the jury's assessment of that likelihood": at [89].

The assessment of the coincidence and tendency evidence by Cogswell DCJ required a consideration of the tests of admissibility for such evidence imposed by ss 97 and 98 of the Evidence Act. In general, such evidence is not to be admitted unless either alone or in conjunction with other evidence adduced or to be adduced, it would, in the opinion of the court, have significant probative value.

"Significant", as his Honour noted, is to be interpreted as meaning "important" or "of consequence": Re Lockyer (1996) 89 A Crim R 457, approved in R v PWD (2010) 205 A Crim R 75. In order to determine the significance of the coincidence and tendency evidence, the trial judge in this case was required to give consideration to the fact or facts relevant to the facts in issue in the proceedings and to which the evidence was directed.

His Honour referred to Mr Walsh's contention that the relevant fact in issue was "whether [the appellant] engaged at all in the conduct alleged against him": at 33. Cogswell DCJ stated that he was prepared to accept that as "a composite representation of the facts in issue in this case".

Whilst his Honour did not analyse all of the discrete factual circumstances in relation to the sexual assaults alleged by GB and TE, "relevant" facts going to the facts in issue, may be considered to include at least the following: (1) The location of the alleged sexual assaults concerning GB and TE, namely, on the school premises. (2) The age of GB and TE as at the time of the alleged assaults. (3) Their positions at the school, namely, as young teenage students (in the age range 13-15 years.) (4) The actions/conduct of the appellant as described by GB in relation to the offence the subject of Count 1, and as described by TE in relation to the offences of sexual intercourse contrary to s 66(2) of the Crimes Act 1900, the subject of Counts 7, 10 and 12, involving physical force and restraint by the appellant. (5) The appellant's position of authority over TE at the time of the alleged offences, and, so far as GB was concerned, the appellant's position as staff member

The above factual matters may be considered in the determination of the existence of similar facts for the purpose of s 98 of the Evidence in proof of the particular sexual assaults, anal/penile penetration, as alleged by GB and TE.

On the pre-trial application Cogswell DCJ had evidentiary statements of tendency witnesses in respect of the period between GB's and TE's attendance at the school relating to the appellant's conduct and his state of mind in displaying a sexual interest in young adolescent males.

As his Honour observed, the relevant coincidence evidence related to two matters, the allegations of penile-anal intercourse made by GB and TE and additionally the claims made by TE that the appellant had showed him homosexual pornographic videos and magazines.

His Honour concluded that the coincidence and tendency evidence proposed to be called had significant probative value, noting that an issue would be the likelihood that the appellant as a member of a religious order would engage in sexual activity with a teenage pupil. Accounts, his Honour observed, "given by others of such activities having taken place, if accepted beyond reasonable doubt could well be regarded as evidence of importance or of consequence": at 63.

The tendency and coincidence evidence, in my assessment, was of a nature and quality to support the trial judge's determination that it possessed significant probative value within the meaning of ss 97 and 98 of the Evidence Act. Additionally, the probative force or strength of the coincidence evidence relating to the sexual assaults alleged by GB and TE was reinforced by the trial judge's finding that there was no real chance of contamination. I note, in this respect, that GB and TE gave evidence on the voir dire.

In assessing the coincidence and tendency evidence Cogswell DCJ gave detailed consideration to the matters the subject of the evidence proposed to be adduced by the Crown in determining the issues of probative value and prejudicial effect and in the application of the provisions of s 101 of the Evidence Act.

On the issue of the admissibility of the pornographic materials seized by police, Cogswell DCJ, properly, in my opinion, accepted that such evidence was admissible under s 98 in relation to the count concerning TE based upon TE's allegation that the appellant showed him pornographic materials. No error has, in my opinion, been established with respect to his Honour's determination on the admissibility of the coincidence and tendency evidence.

In assessing the issue of prejudice for the purpose of ss 97, 98 and 101, his Honour gave consideration to the matters raised on behalf of the appellant, including, in particular the issue of delay and consequential matters. Whilst his Honour did not in express terms refer to the particular impact of delay on recollections, the loss or absence of evidence through the death or other unavailability of witnesses or arising by reason of other circumstances, it is clear that his Honour was conscious of the delay and its relevance. His Honour noted in this respect that the delay was not significant enough to deprive the proposed evidence of its significant probative value: at 87. The potential disadvantageous effect of such matters upon the appellant and the necessity for proper and strong trial directions were plainly given appropriate attention by his Honour in the assessment of the admissibility of the proposed evidence and the significance of that in determining the application.

In my opinion, I do not consider that Cogswell DCJ erred in the determination of the admissibility of the tendency and coincidence evidence.

As earlier indicated, this was a case, in my opinion, where the outcome of the separate trial application would be determined by the decision to be made on the coincidence and tendency evidence. On the basis of the orders in favour of the admissibility of such evidence, as discussed above, there was, in my assessment, no error in Cogswell DCJ having refused the separate trial application.

On 13 February 2013, and prior to the empanelment of the jury for the second trial, the appellant sought to have, in effect, a redetermination of the previous orders made by his Honour Judge Cogswell.

The application was made by way of Notice of Motion in which a number of orders were sought, including: (i) A permanent stay order of the proceedings on the single count concerning complainant GB, being Count 1 on the indictment. (ii) Orders excluding material seized by police upon the arrest of the appellant. (iii) An order concerning good character. (iv) An order relating to sexual assault.

The Notice of Motion was supported by the affidavit of Gregory Walsh, solicitor, sworn on 24 January 2013, a copy of which is in the Appellant's Tender Bundle at Tab 13.

Grounds 1 and 2 of the present appeal concern the refusal of Garling A-DCJ, in effect, to reconsider the pre-trial orders made by Cogswell DCJ as to: (i) The order refusing the application for separate trials relating to GB and TE; and (ii) The order as to the admissibility of the tendency and coincidence evidence.

The application for the above orders proceeded under s 130A of the Criminal Procedure Act 1986, the terms of which are set out below.

His Honour Garling A-DCJ ultimately determined that he was bound by the rulings made by Cogswell DCJ and, applying the provisions of s 130A of the Criminal Procedure Act, he determined that it was not in the interests of justice for the orders made by Cogswell DCJ to be other than binding. His Honour also declined to make an order staying the proceedings on Count 1.

The bases upon which the admissibility of the tendency/coincidence evidence was challenged before Cogswell DCJ were identified in paragraph [32] of the Appellant's Written Submissions as: "(i) The lack of degree of similarity between the alleged conduct on the various occasions. (ii) The lack of degree of similarity of the circumstances in which the alleged conduct took place. (iii) The degree of concoction and contamination of the proposed tendency/coincidence evidence."

In the Appellant's Written Submissions criticism was directed to an alleged failure by Cogswell DCJ to consider the evidence of GB and TE "in the context of significant probative value": Paragraphs [304]-[307].

The submission was made that neither Cogswell DCJ nor Garling A-DCJ dealt with the issue of "significant" probative value by considering the evidence of GB and TE: at [307].

The Crown disputed these contentions. In its written submissions at [27] the Crown observed: "Judge Cogswell considered in detail the evidence supporting the tendency and coincidence notices and considered whether that evidence was capable of establishing the asserted tendencies or coincidences. Having carefully identified and analysed all of the relevant evidence Judge Cogswell determined that the evidence had significant probative value and that probative value substantially outweighed any risk of unfair prejudice." (at [27])

The additional evidence relied upon by the appellant before Garling A-DCJ to that which had been placed before Cogswell DCJ included the evidence given at the first trial relating to Count 1 concerning GB. In summary, the affidavit evidence of Mr Walsh included the following matters:

Particular matters identified as arising in the first trial in the cross-examination of GB related to the following:

In the appellant's written submissions in this Court at [49] it was observed that GB's "... recollection of the alleged sexual assault by the applicant specifically hinges on the Tractor Incident". (emphasis in original)

Additional matters relied upon in the Appellant's Written Submissions at [310]-[312] that were said to undermine Cogswell DCJ's finding as to there having been no real chance of GB's evidence being concocted, included:

The application before Garling A-DCJ sought: (i) A ruling under s 130A. (ii) The exclusion of the coincidence evidence relating to the items seized upon arrest. (iii) A stay on the count relating to GB (effectively removing GB as a tendency and coincidence witness as to the counts involving TE).

Section 130A is in the following terms: 130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial. (emphasis added)

Accordingly, Garling A-DCJ was required to determine whether "it would not be in the interests of justice for that order[s] [made by Cogswell DCJ] to be binding".

On 13 February 2013, the trial judge, Garling A-DCJ, concluded: "As I see the position, his Honour had before him a significant amount of evidence. His Honour, in a lengthy judgment covering a number of matters, obviously gave careful consideration to the point it is sought to re-argue. When I am looking at section 130A I do not consider it on the basis that one of the parties may not agree with his Honour's ruling or that I, indeed, may have reached a different conclusion. The section of the Act is in place for a purpose and that is that pre-trial orders or orders in another trial made by another judge, the trial Judge, cannot be re-argued except in exceptional circumstances. "It seems to me that his Honour fully considered the decision he reached and that the difference between what he may have been considering then and what perhaps, if he was sitting here today with additional material considering it, it would mean that his Honour would be looking at what often happens in trials, that is, there is significant argument as to a witness's accuracy, reliability and other matters of that nature. They are dealt with at a trial by a jury. I have concluded, having looked at all those matters quite rightly raised, that this is not a matter in which I could rule that it would not be in the interests of justice for the order to be binding. The case, of course, went before a jury. It was heard on the basis of the current indictment and the jury could not reach a conclusion on any of the charges. It seems to me that the trial proceeded in what I would have thought is a normal way and the jury did not reach a conclusion which we see from time to time. I cannot make any other finding than that I am bound by section 130A in relation to the first of these matters." (T 3-4, 13 February 2013)

The appellant submitted on this appeal that Garling A-DCJ fell into error in his Honour's approach to s 130A and, in that respect, relied upon the following four matters: (1) His Honour applied a test of "exceptional circumstances" which was not the appropriate test under s 130A of the Criminal Procedure Act. (2) His Honour failed to properly consider the detailed matters raised in support of the application, especially in the context of GB as to his evidence at the first trial. (3) His Honour failed to properly consider coincidence evidence, especially that relating to GB and TE. (4) His Honour failed to properly consider the coincidence evidence in the materials found in the possession of the appellant upon his arrest on 3 September 2008.

It was contended for the appellant that his Honour failed to properly give detailed consideration to the "additional body of evidence directly relevant to whether the Crown ought to be permitted to rely upon tendency and coincidence evidence": Appellant's Written Submissions at [317].

The written submissions for the appellant set out a detailed analysis of the relevant facts and issues arising with extracts from the trial transcript and references to relevant authorities. I do not mean any disrespect to Mr Walsh in not referring in detail to all of those submissions in this judgment. I have, of course, closely considered all written and oral submissions made on behalf of the appellant and the Crown.

In relation to the "exceptional circumstances" ground referred to in (1) above, it was submitted on behalf of the appellant that the trial judge applied a much more stringent test than that which the statute specifically required. It was observed that s 130A does not refer to a test of "exceptional circumstances", but rather, the test is expressed in terms of whether "it would not be in the interests of justice for the order to be binding". The words "interests of justice", it was submitted, are words having the widest possible reference and they enliven a discretionary judgment. The words also incorporate, it was contended, as a paramount consideration, that an accused person should have a fair trial: Appellant's Written Submissions at [315].

In relation to the issues referred to in (2) and (3) above (at [285]), it was submitted for the appellant that the trial judge was in error in failing to have regard to the evidence of GB and TE in the context of considering the need for the evidence to have "significant probative value" under the Evidence Act. It was additionally submitted that (a) there was a large body of evidence that went to the risk of concoction and contamination, and (b) that the tendency witnesses had animus towards both the appellant and the school: Appellant's Written Submissions at [317].

In relation to (4) above (at [285]), in respect of the materials seized on 3 September 2008, it was submitted for the appellant that Garling A-DCJ failed to give proper consideration to the evidence given in the first trial of the appellant and other defence witnesses and place "in proper context his [the appellant's] possession of those materials": Appellant's Written Submissions at [318]. The latter evidence included the appellant's volunteer work with HIV/AIDS sufferers and his explanation for possessing the pornographic materials. It was submitted this evidence gave rise to considerable prejudice to the appellant: Appellant's Written Submissions at [318].

In paragraph [22] of Mr Walsh's written submissions in the present appeal , reference was made to the submission made in support of the argument under s 130A. In respect of the items seized by police on 3 September 2008 it was submitted: "... for instance although the Accused had told Detective Sergeant Grassick ... that he had in his possession certain items because of his work with HIV and AIDS patients, of course when he came to oral evidence character was put at issue. It was raised in advance of his case, good character and he explained that over a lifetime and indeed at the time of his arrest in 2008 he had been working many difficult years in helping people who tragically suffer from HIV and AIDS in our community ..."

Reference was made to the further submission by Mr Walsh that Cogswell DCJ did not have that body of evidence to place in proper context the good works that had been done by the appellant and the "need to have safe sex practices and DNA magazines are distributed ...": at [22].

In his oral submissions to this Court on 7 February 2014, Mr Walsh emphasised that Garling A-DCJ had "... the additional bit of evidence in which there was very comprehensive explanation under oath, together with other witnesses that explained the alternative inference that this material was in the possession of the accused as part of his good works in the community. That is different to what Judge Cogswell had." (T 6:29-35)

In the Crown's submissions it was contended that Garling A-DCJ in fact considered the admissibility of the evidence given at the first trial in his judgment: T 4:9-T 6:7, 13 February 2013. The Crown submitted that his Honour considered the application and the constraints of s 130A of the Act.

Mr Walsh in his submissions to this Court again emphasised that the accused had given an explanation under oath that he had for over twenty years been working with HIV patients: T 4:5-12.

Mr Walsh submitted that his Honour ought to have taken into account this new evidence of an alternative explanation for the use of the items seized and that there was a broad test under s 130A which entitled his Honour to have regard to such additional material and an alternative explanation.

It was contended that there was no reference by Cogswell DCJ or by Garling A-DCJ to the "extraordinary delay" of GB making a complaint, nor the nature of the complaint to Dr Frukacz ("in very general terms") and that GB only came forward after considerable media publicity and the arrest and charging of the appellant.

The Crown's response was that it was evident Garling A-DCJ considered the evidence, including the additional evidence from the first trial, that was placed before him and the submissions that had been advanced. It was submitted that his Honour found, as was open to him to find, that in the circumstances he was not satisfied that it would not be in the interests of justice for the order to be binding: Crown's Written Submissions at [35].

The Crown further submitted that the trial judge considered the application and the constraints of s 130A and determined that, in the circumstances of the case, he was not satisfied that it would not be in the interests of justice for the order to be binding. Judgment was delivered ex tempore and there was no suggestion at the time that there had been a failure to have regard to any evidence: Crown's Written Submissions at [40]-[41].

The Crown additionally observed that the trial judge only once used the words "except in exceptional circumstances", and that on all other occasions his Honour correctly referred to the "interests of justice" requirement: Crown's Written Submissions at [22].

The appellant's submission before Garling A-DCJ had been that GB was "significantly unreliable". The Crown observed in its submissions to this Court that the "problematic matters were summarised" for his Honour: Crown's Written Submissions at [33].

The Crown submitted that, as Garling A-DCJ stated, he had examined the relevant matters all of which had been the subject of recent reference in the submissions for the appellant.

Section 130A of the Criminal Procedure Act applies to pre-trial orders made by a judge in proceedings on indictment. A pre-trial order means any order made after the indictment is first presented before the empanelment of a jury for a trial: s 130A(4).

The following matters are noted: (i) The provisions of s 130A are expressed in expansive terms referring to any order falling within the definition in s 130A(4). (ii) The provisions would, accordingly, apply to separate trial orders, but doubt has been expressed as to whether they apply to evidentiary rulings: per Howie J in R v Ford [2009] NSWCCA 306 at [150] (his Honour however, observed that in the Second Reading Speech introducing the bill that originally amended the Criminal Procedure Act by inserting the provision in the terms then appearing in s 130A, it was intended that it would apply to evidentiary rulings). It was unnecessary to resolve the question in that case. (iii) A redetermination of a pre-trial order is only possible in the limited circumstances stated in s 130A, namely, "... it would not be in the interests of justice for the order to be binding". (iv) An error in a pre-trial order may justify a court concluding that it would not be in the interests of justice for the order to be binding. Not every error of fact or law, however, may justify a judge redetermining the pre-trial order previously made. Much will depend upon the nature and/or effect of such an order.

I will proceed to deal with each of the four matters raised by the appellant in paragraph [285] above.

Garling A-DCJ was clearly aware of the precise terms of s 130A which his Honour, in part, extracted into his judgment. He made express reference to the "interests of justice" test contained in the s 130A (Judgment at p 2).

His Honour noted that the application under s 130A was made upon the basis, inter alia, of the evidence adduced in the first trial (including the evidence from GB) and further noted the submission for the appellant to the effect that the evidence given by GB "was significantly unreliable": Judgment at p 3.

His Honour made reference to Mr Walsh's affidavit sworn 24 January 2013 and noted the reasons set out in it in support of the submission as to why the court should "revisit" the matters previously decided.

Garling A-DCJ also took into account the matters that had been considered by Cogswell DCJ.

Notwithstanding the trial judge's use of the phrase "exceptional circumstances", it is important to note that his Honour did not apply that as the test for determining the application. He employed that phrase in explaining the rationale for the provisions in s 130A. A little later on the same page of the judgment his Honour applied the correct test in saying: "... I have concluded, having looked at all those matters quite rightly raised, that this is not a matter which I could rule that it would not be in the interests of justice for the order to be binding ..." (at p 4)

I have concluded that there is no merit to the contention that the trial judge applied the wrong test.

The appellant before Garling A-DCJ relied upon evidence given in the first trial, including the evidence in cross-examination of GB and TE as well as the evidence given by the appellant. The evidence in the defence case at trial and relied upon before his Honour dealt with the appellant's volunteer work with HIV/AIDS sufferers and his explanation for the pornography found in his possession. The additional material relied upon before Garling A-DCJ also included the evidence of Dr Roberts which purported to lessen the significant probative value of GB's evidence as well as TE's evidence.

I accept the Crown's submission that Garling A-DCJ considered the matters relied upon and argued by Mr Walsh as well as the evidence to which those submissions related. His Honour indicated that he had done so and made it clear that, in his opinion, the issue of the reliability of GB was a matter for the jury's determination at trial, which it clearly was.

Many of the matters raised in the submissions for the appellant were directed at demonstrating, in light of the additional evidence of GB in the first trial, that GB's evidence was unreliable.

However, in determining the issue of significant probative value for the purpose of s 97(1)(b), it is well-established that a restrictive approach is to be taken to the circumstances in which issues of reliability and credibility may be taken into account in determining the probative value of evidence for the purposes of determining questions of admissibility: R v Shamouil [2006] NSWCA 112; (2006) 66 NSWLR 228 at [60] per Spigelman CJ.

The Chief Justice in that case observed that there will be circumstances, as envisaged by Simpson J in R v Cook [2004] NSWCCA 52, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue: at [63].

An example given by Simpson J in Cook was where the evidence is so preposterous that no jury would accept the evidence.

That is not this case. The issue of GB's reliability or credibility, as I have indicated, was a matter for determination by the jury and not one for a trial judge to determine.

As to the submission of a failure by Garling A-DCJ to consider evidence of concoction/contamination caused by animus towards the appellant and the College, I accept, as the Crown submitted, that there was no significant change in the evidence on the voir dire to that given at the first trial. Cogswell DCJ concluded that arguments as to alleged concoction or contamination had not been made out and there was, in my assessment, no basis established for Garling A-DCJ to depart from the ruling that had been made on that question. I do not consider this matter of complaint has any merit.

On the issue of the appellant's possession of pornography, extensive submissions were made by Mr Walsh in his written submissions at [183]-[199]. The proposition contended for on behalf of the appellant was that in determining the admissibility of the evidence as to his possession of such materials under s 98 of the Evidence Act, Garling A-DCJ failed to take into account the evidence as to an innocent or alternative explanation given at the first trial.

In relation to the submission that Garling A-DCJ did not consider the coincidence evidence relating to the possession of the pornographic items seized on arrest, Garling A-DCJ referred to Cogswell DCJ's consideration of such evidence and to his determination that the evidence was admissible as coincidence evidence.

His Honour Garling A-DCJ dealt with this matter at pages 4-5 of his judgment of 23 May 2012, making it clear that he had "considered all those matters", his Honour having extracted parts of the judgment of Cogswell DCJ on the probative value of the items seized to the facts in issue in the trial in which TE was the complainant.

I do not consider that there is any substance to the submission that Garling A-DCJ failed to properly consider the coincidence evidence relating to the possession of the pornographic materials in the items seized upon arrest.

Essentially the question at issue was whether or not the evidence was admissible as coincidence evidence. The fact that the evidence may have supported an alternative explanation does not make the evidence inadmissible. Recognition of the jury's role in determining such issues should not be put to one side.

In DSJ v R; NS v R [2012] NSWCCA 9, Bathurst CJ (at [10]) observed that the real possibility of an alternate explanation inconsistent with (in that case) the guilt of the accused will be relevant to forming the view required by s 98 that the evidence has probative value. However, importantly, the Chief Justice stated: "... However, this does not involve either undertaking the fact-finding analysis suggested by Senior Counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury."

It is commonly the case in determining admissibility of coincidence and tendency evidence that, on the voir dire, the Crown produces statements relating to matters upon which evidence will be sought to be led at trial. In the particular circumstances of this case, Garling A-DCJ was required, inter alia, to consider the evidence given at the first trial, including in particular the appellant's evidence, by way of explanation, of the circumstances in which he said he came into possession of the materials seized by police. Such an "innocent" or alternative explanation, if accepted by a jury, would deprive the evidence of its probative value.

As earlier indicated, Garling A-DCJ stated that he had, in determining the application made under s 130A, taken into account evidence led in the first trial. Whilst express reference to the actual evidence to which his Honour referred would have been desirable, I consider that, having regard to the particular submissions made to him on this aspect, his Honour's statement as to what he had taken into account was sufficient to indicate the basis of his decision. I consider that no error has been established in this respect.

Finally, whilst the appellant gave evidence in the first trial as to an alternative explanation for being in possession of the materials seized by police, at the end of the day that was an issue that fell within the province of the jury. The question as to whether the particular matters relied upon by the appellant in support of the alternative explanation were to be accepted required an evaluation by a jury. As noted above, the approach to be taken in determining the admissibility of coincidence and possible alternative explanations for such evidence has been established: DSJ v R; NS v R [2012] NSWCCA 9, Bathurst CJ at [6]-[10] and Whealy JA at [78]-[81].

At the end of the day, his Honour was required to determine whether, on the evidence before him, including the evidence in the first trial relied upon by the appellant, there was a proper basis, in the interests of justice, to reconsider the decision of Cogswell DCJ. His Honour's decision not to intervene in this respect was, in my assessment, entirely appropriate.

Garling A-DCJ was required to consider the pre-trial orders of Cogswell DCJ in light of the evidence before him, including the evidence given at the first trial and which was tendered on the voir dire, in order to form an opinion, as specified in s 130A(1). It is clear that his Honour considered the evidence and the submissions before concluding that in effect, there was no requirement to depart from or do anything other than regard the earlier pre-trial orders as binding. On a review of the matters raised in submissions in this appeal on behalf of the appellant and the Crown, I am of the opinion that there is no basis for forming any other conclusion than that expressed by his Honour. Accordingly, no error has been established in respect of Grounds 1 and 2 and they should be dismissed.

I will deal separately with the stay application determined by Garling A-DCJ when considering Ground 6.

The appellant applied by Notice of Motion dated 21 January 2013 for a permanent stay of proceedings of the sole count concerning GB (Count 1). The application was pursued before Garling A-DCJ on 11 February 2013. There had been no previous determination of an application for a stay of proceedings.

The applicant relied upon the affidavits of Mr Walsh sworn on 24 January 2013 and 6 February 2013 in support of the Notice of Motion. As the Crown noted, considerable parts of the first affidavit were not admitted and were not pressed. Extensive written submissions were relied upon as well as oral submissions.

Garling A-DCJ refused the application for a stay of proceedings.

In oral submissions Mr Walsh observed that Ground 3, the unsafe and unsatisfactory ground, overlapped Ground 6 in some respects: T 14:10-12, 7 February 2014.

The Crown relied upon its written submissions.

In the Appellant's Written Submissions it was contended in the hearing of the stay application before Garling A-DCJ that the date on which the tractor incident is said to have occurred (in 1965 or 1966), was of importance to the appellant's contention as to prejudice.

Count 1 on the indictment averred a time "between 1 September 1965 and 31 December 1967". In this period, both the appellant and the complainant were at the College.

During the first trial, an amendment was made to Count 1 in relation to the nominated period. The first trial commenced with a time period of 1 January 1966 through to 31 December 1967.

GB's evidence at the first trial proceeded on the basis that he believed the appellant only joined the school in 1966.

The day upon which the assault the subject of Count 1 occurred was, according to GB the day the tractor went into the trench. At the time he observed the tractor GB said that the only persons present were the appellant and, he believed, two of his school friends.

As the Crown noted, GB was cross-examined as to the date of the offence and that that evidence demonstrated his uncertainty as to timing. However, his evidence was guided by his belief that the appellant did not arrive until 1966 and the incident could be dated from the tractor incident.

As the Crown noted in its written submissions at [110]: "Although the complainant initially dated the incident by his recollection of his age and when the appellant arrived, which placed the offence in 1966 or 1967, he readily accepted that it may have been 1965 if the appellant was at the school and the tractor incident could be dated to that time."

In the written submissions for the appellant at [596] it was noted that the tractor incident was critical to the Prosecution and Defence case. The appellant had attempted to rely upon a particular photograph to demonstrate the unreliability of GB's evidence and also to prove the appellant's innocence of the charge against him.

The submission for the appellant continued: [596] "... However what the Crown Prosecutor did was to suggest in cross-examination to the Applicant that the incident in which the tractor went into the ditch or trench was not in any way associated with the photograph shown to him by Mr Walsh on behalf of the Applicant. In other words what the Crown Prosecutor did was to put to the Applicant that there was another incident in which the tractor had been driven into the trench."

The submission on behalf of the appellant, the then applicant for a stay of proceedings, was that there was, in the circumstances in which the period in Count 1 was altered, overwhelming prejudice to him and that this was manifest because the jury would reason that there were two and not one tractor incidents: "... thus, the witnesses who were either dead or unavailable were even of more critical importance in the defence of the count against the Applicant." (Appellant's Written Submissions at [597])

The appellant's case in respect of Count 1 was at least partly based upon the proposition that the photograph in the Echoes magazine showing a tractor, the appellant and others, was one taken in November 1965.

As the Crown observed in its submissions at [109], the effect of the evidence given by GB in the first trial was an acceptance that the photo may have been taken of the same tractor incident, but not at the same time that he made observations or had dealings with the appellant. The appellant's evidence was that the tractor incident occupied almost the full day.

In support of the stay application there were five matters or criteria on the basis of which a permanent stay was sought of Count 1. All related to the issue of delay. They were: (i) The delay; (ii) The reasons for the delay; (iii) Whether the accused was responsible for any of the delay; (iv) Prejudice to the accused; and (v) Consideration of public policy, namely, the importance of bringing persons accused of serious crimes to be processed by the Court system.

As noted in the written submissions for the appellant, his Honour dealt with each of the above points as follows: (i) That the accused was not responsible for any of the delay. (ii) There were a number of areas of prejudice, including publicity about him and other members of the religious order. Additionally, the dispute about the tractor incident and the number of people who were present at the time who were depicted in the photograph were deceased. There were other witnesses who, because of delay, were not able to be ascertained. (iii) The importance of the public policy in bringing persons charged with offences before the court was accepted.

The written submissions for the appellant reproduced his Honour's reasoning in relation to prejudice in these terms: "Whilst a number of witnesses are deceased, the real issue is whether or not sexual assault took place. There were no witnesses so there is no reference to an eye-witness to the assault. It is not surprising that various witnesses may have died during that period. In addition, the Accused concedes many of the matters surrounding his time or work at the College. Delay is common in historical sexual assault cases and can be cured by directions." (Appellant's Written Submissions at [604])

It was submitted on behalf of the appellant that the trial judge erred in rejecting the application for a permanent stay of the proceedings in respect of Count 1. In that respect a number of matters were raised in relation to the issue of "reasons to explain or justify the delay", criteria (ii) in the above list of five criteria.

The appellant's written submissions at [608]-[618] set out details as to the medical attendances by GB upon medical practitioners from approximately 1999. These included his general practitioner, Dr Jamieson, a Dr McGarrity and a psychologist, Mr Woodside (2007) and Dr Frukacz, Consultant Psychiatrist (2008). Notwithstanding such medical attendances, GB did not disclose any history of alleged sexual assault whilst he was at the College. This included a period when he was being treated for depression.

The Crown observed that Dr Pullman gave evidence on the voir dire that the failure to report sexual assaults was not at all unusual or unexpected and that the failure to complain is not unexpected in sexual assault offences, referring to the observations of Bell J in R v RWO [2002] NSWCCA 133 at [103]. In RWO delay was a period of thirty-five years up to the date of trial.

A further matter raised was a question of the motivation of GB in coming forward in 2008. It was submitted that the publicity surrounding the arrest of a former priest in May 2008, and the appellant's arrest in 2008, and the publicised remarks of the lawyers representing the appellant, were relevant in explaining GB's motivation.

As to unreliability, the evidence on the voir dire, which Cogswell DCJ accepted, was that GB had not discussed either the assaults or the appellant with others whilst at the school or in later years.

The appellant's written submissions on Ground 6 reproduce in most aspects the submissions dated 11 February 2013 that were relied upon on the stay application. A copy of the latter submissions are at Volume 3 of the Appellant's Tender Bundle, Tab 15.

In summary, the submissions relied upon delay, more particularly, prejudice arising from the delay before GB reported the alleged sexual assault. The following matters were noted: (i) The absence of an explanation for the failure of GB to make "a timely complaint": Appellant's Written Submissions at [617]. (ii) That GB's "complaint" in 2008 was motivated by a combination of "animus towards the Accused and the College because of the miserable time he had there" and the considerable publicity: at [617]. (iii) The timeframe of the offence. GB at the committal said that he did not think the Count 1 offence occurred in 1965 and said he was unsure whether it occurred in 1966 or 1967. The submissions relating to this matter are discussed in the paragraphs that follow.

Before considering the issue of delay and prejudice, I will first address the claim of prejudice arising from the amendment to the indictment as to the period of the offending alleged in Count 1.

As to [358](iii) above, the Crown's submissions at [121] observed: "The appellant claimed that the change to the time period specified caused unfair prejudice. The unfair prejudice apparently being that if there was only one tractor incident, it occurred in November 1965 and was therefore outside the charged period. Also, that the evidence marshalled addressed an incident in November 1965 and if there was a possible second tractor incident then the defence was at a disadvantage defending it."

As earlier noted, on the indictment presented GB averred a time period in respect of Count 1 of "between 1 September 1965 and 31 December 1967."

During the first trial an amendment was made to the indictment whereby the time period was changed to 1 January 1966 to 31 December 1967.

The defence case sought to relate the tractor incident to November 1965 and no other time. The defence sought to rely upon a photograph of a tractor accident depicted in a photograph in a College publication "Echoes ...", a copy of which is in Appeal Book volume 1 at p 910, showing a number of people including the appellant.

It is necessary to refer to the evidence of GB on the above photograph. GB was first taken to it at T 258:45, 21 February 2013. He there said he recalled it being shown to him at the committal. The cross-examination on the photograph continued at T 266-274. GB stated at T 272:25-30 that the photograph was not one taken when he, the two other students and the appellant were standing together before the alleged sexual assault incident. He then added at T 272:44-46: "... this photograph has been taken after or before the incident that I'm talking about, Mr Walsh. This photograph has nothing to do with when I was there and [P] and [I] were there."

This evidence, if accepted by the jury, would provide an answer to the defence case that the photograph depicted those present at the tractor incident at the time GB said the appellant sent him away to the art room. The photograph had depicted the appellant differently dressed from the clothing GB said the appellant had been wearing at the time of the tractor incident.

The appellant's submissions on the stay application had sought to establish actual prejudice to the appellant because the Crown Prosecutor had led GB into saying there had been two tractor incidents as a means of explaining the otherwise inconsistent facts reflected by the photograph.

However, as the evidence of GB referred to above indicates, GB did not say or attempt to explain away the photograph by introducing the fact of two tractor incidents. He instead said that the photograph must have been taken at a different time of day - morning or afternoon and not at the time of the tractor accident.

The basis claimed in the submissions for the appellant of added or actual prejudice arising from delay due to the introduction by GB of not one but two tractor incidents has not been established. He did not, as I have said, give evidence suggesting more than one tractor accident.

In relation to the decision of Garling A-DCJ on the stay application, his Honour considered the particular issues raised before him relevant to delay and the issues of prejudice. One such issue concerned the unavailability of a large number of witnesses through death. Some of these included persons in the photograph of the tractor relied upon in the defence case and those who, it was contended, could have demonstrated that GB's account was wrong and unreliable .

In R v RWO [2002] NSWCCA 133, a case involving a delay of 35 years up to the trial, Bell J observed at [65]: "The delay in this case has been very great indeed. However, commensurate delays, even greater delays, have not of themselves been held to be a sufficient basis for a court refusing to exercise jurisdiction."

Garling A-DCJ referred to RWO in his Honour's judgment.

In R v McCarthy (Court of Criminal Appeal, 12 August 1994, unreported) Gleeson CJ observed: "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported CCA, 11 June 1992) and R v Goldberg (unreported CCA, 23 February 1993)."

It was submitted for the appellant that Garling A-DCJ erred in proceeding on the basis that prejudice could be met by appropriate directions. However, it was open to the trial judge to evaluate the extent to which prejudice could be addressed by directions. As the Crown observed, he was in a position to know what evidence would be led having the evidence available from the first trial was available to him

The principles were stated by Bell J in RWO as follows: [62] The principles upon which a court will permanently stay proceedings on indictment are well settled. They are enunciated in Barton v the Queen (1980) 147 CLR 75 at 111; Jago v the District Court of New South Wales (1989) 168 CLR 23; Glennon v the Queen (1992) 173 CLR 592; and Walton v Gardiner (1993) 177 CLR 379. [63] It is a power to be exercised only in exceptional cases; Jago per Mason CJ at 31. In Jago Gaudron J explained why that is so at 76: "The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at p 399, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals'. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson, 'sparingly, and with the utmost caution'." [64] It will be appropriate to permanently stay proceedings on indictment in a case where, as the result of delay, the continuation of the proceedings would necessarily result in a trial which was unfair. As Mason CJ observed in Jago at 33: "In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness. ... The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR, at pp 102, 106; Sang [1980] AC at p 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. ... To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR, at p 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson [1987] v R, at p 973."

I do not consider that the appellant has established a fundamental defect which went to the root of the trial of such a nature that directions from the trial judge could not properly or adequately address any unfairness arising from the delay.

I have concluded that no error has been established in the decision of Garling A-DCJ in refusing to make an order staying the proceedings on Count 1. His Honour was clearly mindful of the relevant principles to be applied. It is also apparent that his Honour was aware of the factual matters that could potentially give rise to prejudice and the need for strong jury directions to address those matters. In carrying out the balancing test required I do not consider that his Honour was bound to conclude that a trial on that count would necessarily be unfair. In my assessment, error has not been established. Ground 6 accordingly should be dismissed.

Ground 4 is devoid of merit on two bases. Firstly, the question asked by the Crown Prosecutor did not elicit any answer as to "masking" symptomatology. Secondly, Mr Walsh on the hearing of the appeal stated that he did not press this ground: T 20:9, 7 February 2014. However, just prior to that statement Mr Walsh also stated that he relied on his written submissions in relation to this ground. In the circumstances, it is best to deal briefly with the matter raised by Ground 4.

Ground 4 was addressed in paragraphs [548] to [567] of the Appellant's Written Submissions.

The appellant's submissions asserted that the objection to the Crown's questioning of Matron Daymond on the subject of "masking symptomatology" amounted to expert evidence but the witness had not been qualified as to any relevant expertise that she had. Further, no notice had been given of the evidence sought to be elicited from her on that topic.

During the second trial Matron Daymond, a registered nurse, was asked by the Crown Prosecutor as to the issue of "masking" symptoms. The question was: "Now as part of your training did you learn that young men or adolescents can sometimes mask what is happening to them by complaining about stomach pains." (T 671:46-48, 27 February 2013)

As the Crown's submissions noted, there was an objection to the question based on the absence of notice and the failure to qualify the witness as having relevant expertise.

Paragraphs [73]-[75] of the Crown's submissions sets out questions and answers that were asked: "She was then asked, without objection [T 27/2/13 697.45- 698.36]: Q. In the course of your training, did you learn that young male adolescents can complain about stomach problems but in fact be referring to something else? A. Would you repeat the question please? Q. In the course of your training, did you learn that young persons, young adolescents, young male adolescents can complain about stomach problems and be referring to something else? A. I think, no. Q. You never learnt that? A. Beg your pardon. Q. You never learnt that? A. I have always during my nursing career, treated the symptoms as they were presented. I do not presume to diagnosis. Q. If you have repeated complaints of tummy aches in a young lad, would it cause you to consider the possibility that something else other than a stomach upset was going on? A. I would refer the young person or any other person who complained of frequent tummy pains to a GP and I would rely on his or her diagnosis. None of her answers were responsive to the question. In cross-examination Matron Clark was asked [T 27/2/13 704.5]: Q. You were asked a number of questions about whether you would deduce from symptomatology of bleeding from the anus what in your mind would trigger a thought or belief or a suspicion of sexual assault. Remember those questions asked of you? A. Yeah I do. Q. You said no? A. I-- Q. That was your evidence? A. Yes yes. Q. Was it your practise that if anything serious occurred so far as the presenting symptoms of a student you'd refer him on to Dr Wilson? A. That is correct."

The Crown noted that there was no cross-examination regarding stomach aches masking something else. There was no questioning of Matron Clarke to suggest that she lacked expertise to comment on the Crown Prosecutor's question.

At the conclusion of the evidence the Crown observed, there was no confirmation that stomach aches could mask another complaint.

In these circumstances, the Crown correctly submitted at [78]-[79]: "This material did not form part of either the Crown or the Defence address. Nothing was said in summing up nor was any request made that anything be said. The appellant contends that the admission of the evidence was of significant prejudice: AWS [567]. There was in fact no evidence. There was limited questioning from the Crown Prosecutor that found no acceptance with the witness."

Accordingly, there was in fact no opinion expressed on the matter of masking symptoms.

I do not consider, as stated above, that there is any merit to Ground 4. The ground accordingly should be dismissed.

This ground was argued upon the basis that it is impermissible for an accused to be asked questions by the Crown about whether a complainant has any motive to lie or as to whether any witness is lying, whose evidence is opposed to the accused: Appellant's Written Submissions at [576]. A number of authorities were cited in support of this proposition commencing with the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1 (per Brennan CJ, Gaudron and Gummow JJ at 8: Appellant's Written Submissions at [577]-[583].

It was submitted for the appellant that the cross-examination was most unfair to the appellant: at [586]. It was submitted that the effect of the cross-examination was to reverse the onus of proof and that the line of questioning pursued implied that unless the appellant satisfied the jury that the Crown witnesses were liars, they should accept the complainant's evidence and convict: Appellant's Written Submissions at [586].

Further, it was submitted that the extensive nature of the cross-examination was such that any direction by the trial judge could not have overcome the unfair prejudice to the appellant, such that a miscarriage of justice had occurred in these circumstances: Appellant's Written Submissions at [586]-[587].

In the "Supplementary Note on behalf of the Appellant - JG" dated 12 February 2014, the issue of impermissible cross-examination was addressed, initially in terms as to the possible application of Rule 4 of the Criminal Appeal Rules.

Attention was drawn to an issue raised by Mr Walsh with the trial judge about the line of cross-examination by the Crown Prosecutor in putting to the appellant in respect of the evidence of GB and TE, and tendency witnesses, questions such as "Do you say he is lying?" or "Is that a lie?": T 1470-1472, 15 March 2013.

Mr Walsh referred the trial judge to Palmer v The Queen and other authorities. He stated his concern as to how the Crown proposed to address the jury on such evidence and that if the Crown Prosecutor did refer to that evidence it would occasion prejudice to the appellant: T 1471:10-20.

The trial judge asked Mr Walsh what he wanted him to do: T 1471:30-32.

Mr Walsh replied that he requested the trial judge to ask the Crown Prosecutor as to what he proposed to do about the matter and further in light of the authorities to which he had drawn attention to redress the problem that's arisen - that it was not up to the appellant to explain "why any particular complainant may have a motive to tell an untruth": T 1471:35-40.

Discussion then occurred on the subject of directions (T 1474:45 to T 1475:1-5).

The trial judge made the observation that the appellant had expressed his "view" that "they were lying": T 1474:5-7 and further that he "had a very firm view about this": T 1474:10-12.

In the Crown's Supplementary Submissions it was noted that the appellant had not sought a discharge of the jury and that there was no suggestion that the evidence could not be covered by suitable direction: at [17].

The Crown further submitted that there was no suggestion that the trial judge did not comply with the request for a direction and that he gave a perfectly adequate direction to the jury: at [18].

The Crown accepted that as a general principle, a witness should not be asked whether or not a witness is not telling the truth or is lying: Gonzales v R [2007] [NSWCCA 321; (2007) 178 A Crim R 232: Crown's Written Submissions at [83].

The Crown submissions referred to the observations in R v Foley (1998) 105 A Crim R 1 at 8.3 to the effect that impermissible cross-examination of the kind referred to in Gonzales v R was unfair because it forced the honest witness into a recrimination and sought to rely upon the natural reluctance of a person to defame another. In Foley it was stated to be a form of "... bullying, using unfair means to persuade a person to retract his or her evidence ...".

The Crown noted in its submissions that in the first trial on 18 June 2012, Cogswell DCJ raised the line of questioning with the defence at T 1604:14-T 1606:16 as follows: "HIS HONOUR: Now, the other thing I was just going to raise is the number of times Mr Hughes put to the accused as a witness that other witnesses were lying and you didn't take objection. I'm not saying you should or shouldn't have. That is an area which, by the looks of it, is dealt with by section 41 of the Evidence Act. But I'm assuming that was a considered decision because of - I don't know - but a forensic advantage that you expected-- WALSH: Your Honour, I think I have to concede that the situation was that Brother Gaven was capable probably of answering the question. HIS HONOUR: That's-- WALSH: What weight one puts to the answer or to the evidence is another thing. HIS HONOUR: Yes. WALSH: But it did come across my mind-- HIS HONOUR: Yes. WALSH: --and I thought it wasn't put in specific terms, it was, rather, in the general about other third parties lying, so-- HIS HONOUR: No. It was put that so and so - X and Y and Z were lying and then that they're all lying. WALSH: Tendency witnesses. HIS HONOUR: And I'm not being critical of you and, indeed, I haven't heard Mr Hughes on whether he says that they were admissible questions or not. But I just wanted to check. Thank you. Good. WALSH: Yes. I think, technically, your Honour, they were inadmissible, but I must concede I took a forensic view because of the way they were being put and I just thought- HIS HONOUR: I can understand that. WALSH: Well-- HIS HONOUR: I can understand. Yes. WALSH: Yes. HIS HONOUR: Just checking. WALSH: No, no, I appreciate that, your Honour." (Crown's Written Submissions at [86])

The Crown submitted that the final address for the appellant squarely suggested that witnesses were lying or were other than witnesses of truth: Crown's Written Submissions at [87]. Additionally, the Crown observed that the conduct of the first trial was largely reproduced during the second trial and assisted to define the parameters of the dispute.

The Crown submitted that it was significant that at the commencement of the second trial the defence commenced its opening to the jury with an assertion that the allegations by GB, TE and any of the persons outlined by the Crown Prosecutor as giving tendency or coincidence evidence were "untrue": T 193:31, 20 February 2013.

The Crown noted that the defence opening concluded with the statement that the appellant had been "falsely accused" in this case: T 202:20, 20 February 2013 - Crown's Written Submissions at [89].

In paragraph [90] of the Crown's Written Submissions it was stated: "The appellant either volunteered that a witness was lying or was asked to confirm that he was alleging a witness was lying on a number of occasions. They include: T 1226.7: A. asked if GB was lying; A said "absolute lies"'; T 1242.41 A said GB's evidence was "false, it's untrue"; T 1253.18 A said SR told "lies" and was "absolutely false"; T 1253.19 A was asked if HM was lying, A said yes; T 1253.22 A was asked if SR was lying, A said "absolutely"; T 1253.45 A said SR gave evidence, "but it's false"; T 1253.50 A said SR's other evidence was "totally false"; T 1254.29 A said HM's allegation was "absolutely false"; T 1254.33 A said another part of SR's evidence was "totally untrue"; T 1255.38 A said RB's evidence was "a lie"; T 1255.40 A was asked if RB was a liar, A said "absolutely liar"; T 1255.43 A was asked if MK was a liar, A said yes; T 1255.47 A said about MK's evidence "still makes it a lie"; T 1258.28 A said that the witnesses who said he sexually molested them were "totally false" and the accusations were "totally untrue"; T 1259.8 A said PW's evidence was "also a lie"; T 1259.9 A was asked if RB was lying and A agreed; T 1259.12 A was asked if PW was lying and A agreed; T 1259.34 A said MH's evidence was false; T 1259.38 A was asked of MH was a liar and he said yes; T 1260.15 A said the evidence he inappropriately touched someone was "totally false"; T 1260.17 A was asked if SW was a liar and he agreed; T 1260.20 A was asked if MH was a liar and he agreed; T 1260.23 A was asked if PW was a liar and A agreed; T 1266.25 A was asked if TE was lying and A said "like he lied about everything else"; T 1260.33 A said was TE said about McDonalds was "untrue"; T 1271.12 A said that part of TE's evidence was "totally false"; T 1271.42 A said that part of TE's evidence was "totally false"; T 1271.45 A said that part of TE's evidence was "absolutely false"; T 1272.10-29 A said TE was a "pathological liar", the others were liars, that GB was also a "pathological liar", and agreed that those that didn't agree with him were "pathological liars" as he had been "falsely accused" T 1278.10 A said that part of TE's evidence was "totally untrue"; T 1278.45 A said that part of TE's evidence was "totally, totally false"; T 1279.9 A said that part of TE's evidence was "untrue"; T 1280.7 A said that part of TE's evidence was "totally false"; T 1283.41 A was asked if Dr Lyons was lying and A said he was; T 1286.23 A said what Dr Lyons said was "untrue"; T 1286.30 A said the allegation re MA was "untrue"; T 1286.49 A said MA's allegation was "untrue"; T 1287.44 A said MA's allegation was "totally untrue"; T 1287.46 A was asked if MA was a liar and A said he was "a liar"; T 1287.49 A was asked if MA was a "pathological liar" and A said he didn't know "whether he's pathological but he's lying"; T 1288.43 A said evidence re his conduct to MA was "untrue"; T 1297.30 A said TE's evidence he had pornography was "totally untrue"; T 1309.4 A said TE had "made absolute false and horrendous accusations"; T 1316.3 A said these types of students had made "false allegations"; T 1316.11 A was asked if liars would come forward as a result of publicity; T 1318.24 A said those who complained made "false accusations"; T 1319.16 A was asked Q. Is this the case, correct me if I'm wrong, your case, every single person in this trial who alleges sexual misconduct on your part perpetrated by you on them is a liar? A. Yes. Q. That extends from [G B] in the period 65/67 through [H M] in a room on the priests' corridor in 86. It continues with [S R] in 1987. It continues to [PW] who said that you put your hand down his pyjama shorts. It continues through all the allegations of sexual misconduct described by [TE], including anal penetration and it includes, it culminates in [M A], who said that he got into your bed and there was a mutual holding of penises. All of those witnesses are lying, is that your case? A. Yes. Q. And additionally, every single witness in the prosecution case in this trial who says they witnessed you acting in a predatory and inappropriate way with young students at the school, they're also lying, according to you? A. The incidents didn't occur so, therefore, they could not have witnessed it. T 1319.40 A was asked if RB was lying and he said yes; T 1319.46 A was asked if SW, MH and PW were lying [he did not respond]; T 1320.3 A was asked if Dr Lyon and Dr Ioannou were lying and he said yes; T 1320.11 A was asked if part of Dr Lyons evidence was a lie and A said "definitely a lie"; T 1320.13 A was asked if TE's mother was wrong in her evidence about a complaint."

The Crown noted that it was only at this point that an objection to the above "line of questioning" was made and the Crown Prosecutor upon the objection stated that he did not "extend it to there". The Crown submitted that clearly the objection had only been made upon the basis that the appellant could not have had direct knowledge of the subject of the question and could not comment: Crown's Written Submissions at [91].

The Crown observed that immediately after the objection a further question on the above line was put at T 1320:23 without objection.

The Crown's submission was: "There was no objection to any of the questioning about a witness or witnesses lying. As the appellant ably demonstrated in his evidence, it was his case that almost all the witnesses called were lying, and that a number were pathological liars. Given the number of witnesses who gave accounts of a number of individual incidents occurring at different times involving the appellant it was not feasible to mount a case that they were mistaken or that their accounts were somehow confused." (Crown's Written Submissions at [93])

The Crown further submitted that it was clearly a case where the central "planks" of the defence case was that the witnesses were lying. That this was so it was said was supported by the defence final address "resolutely suggesting that each complainant lied and did not give truthful evidence": Crown's Written Submissions at [94].

The Crown further submitted that the appellant was not questioned as to: "...what motive each or any witness had to lie. The appellant was not questioned as to any reasons why a witness was lying, he was merely asked to confirm that he was in fact suggesting that a witness or witnesses were lying about all or part of the evidence. The questioning did not enter into any questioning about motive or absence of motive such as was criticised as being impermissible in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; particularly at [7] and [8]." (Crown's Written Submissions at [95])

The Crown further submitted that the Crown Prosecutor did not suggest an absence of a motive to lie or raise for consideration the motive that any of the witnesses would have had to lie, nor did the questioning reverse the onus upon the appellant. The submission was that he merely articulated what the appellant's case was. It was a matter of significance, the Crown observed, that it was the appellant himself who suggested on many occasions that evidence was a lie or false: Crown's Written Submissions at [96].

In relation to Ground 5, a question was raised from the Bench as to whether it had been put by Mr Walsh to tendency witnesses that they were lying. Mr Walsh put to some, but not all of the tendency witnesses, that the particular "event" they said occurred did not happen (eg, the witness Mr Walsh, RB and SR), with other witnesses no such proposition was put.

A number of tendency witnesses were asked whether the boys referred to the appellant by nicknames such as "gay van" and "poof truck". It was put to one witness, Mr Walsh, that because of his attitude towards the offender, combined with rumours about his sexual ideation, he had come to the view that the appellant was doing "something wrong" and he was not. Mr Walsh rejected the proposition: T 775:1-5, 28 February 2013.

The Crown noted in its supplementary submissions that while some witnesses regarded the nicknames as being directed to the perceived sexuality of the appellant, others placed a more naïve interpretation on the names: at [11].

Before addressing the impermissibility of the line of questioning the subject of Ground 5 and any effect it may have had, it is necessary to make the following observations: (i) Although Ground 5 contends, in effect, that the Crown Prosector was "permitted" to cross-examine the accused contrary to Palmer v R, as the Crown observed the questioning proceeded without any objections being taken to the line of questioning. (ii) The line of questioning pursued by the Crown Prosecutor did not, as the Crown properly submitted, contravene the principle with which the High Court was specifically concerned in Palmer v R. This aspect is further discussed below. (iii) Ground 5 must be considered in the context of the trial. This includes the defence case as actively pursued by the appellant. This essentially was expressed to be that the prosecution of him was built upon a series of lies by the complainants GB and TE and by the tendency and coincidence witnesses.

Each of the matters referred to in the preceding paragraph are, in my opinion, of importance in assessing whether a miscarriage of justice arose as the result of the impugned line of cross-examination by the Crown Prosector in the cross-examination of the appellant.

In the determination of the merits of Ground 5 it is important to recall certain of the well-established principles that apply to a witness, including in particular an accused person, invited in cross-examination to express an opinion as to whether another witness was lying: (i) Cross-examination of a witness which involves putting to the witness a question as to whether another person is lying or has invented something is impermissible: R v Praturlon (CCA, 29 November 1985, unreported). (ii) A question of that kind is impermissible as it seeks to have the witness express an opinion as to whether other witnesses are telling the truth, that is, to impugn their truthfulness: Gonzales v R [2007] NSWCCA 321 at [147]. (iii) It is permissible to ask a witness whether what another witness has said is true. The witness may be asked if he/she knows of any reason why the other witness should be hostile to him/her or should tell a false story about him/her: R v Leak (1969) SASR 172. (iv) If the witness says that what the other witness has said is not true, he/she should not be asked to enter into the witness's mind and say whether he/she thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him/her for opinion evidence: R v Leak, supra, at 173-4 per Bray CJ, Hogarth and Walters JJ. (v) If a witness is asked to express an opinion as to whether other witnesses are telling the truth and that the party affected (eg, an accused person) suffers prejudice as a result of such impermissible questioning, then a miscarriage of justice may be found to have occurred.

I return to the question as to the basis upon which the defence case was conducted at the second trial.

Mr Walsh, appearing for the appellant, opened the defence case commencing at T 193.

In relation to the complainant GB, Mr Walsh told the jury: "So [GB] comes forward nearly 41, 42, 43 years later, in the circumstances of considerable publicity. One of the things you will need to consider about [GB] is this; He hated that school. He was a day boy. He didn't like it. Who could blame him I suppose. He felt different to the boarders. The boarders were regarded better as far as he [was] concerned. He hated the order, he hated the school, he hated the institution and so on. You will have to consider carefully how someone could not complain, would not complain, would not talk about [it] in any way to doctors that he was seeing, anyone about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (T 197, 20 February 2013)

In relation to the complainant TE, Mr Walsh stated: "The evidence that you will hear is that [TE] was referred to her [a psychologist], referred to her because he had certain problems and the problems were he was a pyromaniac. He was lighting fires at the school and [the appellant] came across him, caught him and referred the matter to Brother Dwyer the [principal]. This is all twisted by [TE] into the allegation that [the appellant] had it in for me because he was sexually assaulting me and he was falsely accusing me, falsely accusing me of being a pyromaniac." (T 199, 20 February 2013)

Towards the end of the opening Mr Walsh stated that the appellant had been: "... falsely accused in this case ..." (T 202:20)

In his closing address, Mr Walsh questioned the motivation of GB saying that he had come forward in "... very suspicious circumstances, after nearly half a century, 41, 42 years ...": T 1528:7-10, 18 March 2013.

Mr Walsh in his closing address to the jury stated that: "... The reasons [GB] came forward I suggest to you do not pass muster. He clearly was motivated because he was angry in [his?] perception of the defence of this religious man. He hated the college. He hated the college. He hated the brothers. He hated the priests. He had a harm [sic] time there, he didn't like it. When you go to his evidence, I suggest to you there are so many inconsistencies in the way his evidence unfolded in the context of this tractor incident ...". (T 1528:10-14)

A little later Mr Walsh put to the jury: "... They're the sort of details, and level of detail that indicate to you that this fellow is not telling you the truth. He's come forward in very suspicious circumstances ladies and gentlemen." (T 1528:21-24)

In relation to the complainant TE, Mr Walsh put to the jury that, if in relation to the McDonalds incident: "... you come to the view that you can't accept him as a witness of truth in respect of that allegation, how can you accept him on any other allegation ..." (T 1531:8-15)

Finally, Mr Walsh addressed the jury on the features of the appellant's room as distinct from that of Brother Elrott and stated that TE had "got it dead wrong": T 1540:33. A little later, Mr Walsh stated: "... He's made false allegations against [the appellant]. Once again [TE] has lied to you and he's got it demonstrably wrong. He never went to [the appellant's] room." (T 1540:35-40)

As the references to the evidence set out in paragraph [406] indicates, on a number of occasions the appellant volunteered, without being asked, that the particular evidence of a witness constituted lies and that a number of questions put to the appellant in cross-examination were in effect seeking confirmation from the appellant that he was alleging that a particular witness was lying.

The general principle is, as earlier stated that a witness should not be asked whether another witness is not telling the truth or is lying: Gonzales v R, supra.

In the present case I do not consider that it can be said that the objective of the line of cross-examination by the Crown Prosecutor was to obtain an opinion as to whether the complainants and the other Crown witnesses were liars in the sense discussed in R v Foley, supra, at 8.3.

In the context of the trial and the way in which the defence was conducted, the object of the cross-examination in asking the question "Is [X] lying?" was principally directed to confirming what was in effect the express basis or premise for the defence which was that all the Crown witnesses were telling lies.

The line of cross-examination pursued by the Crown Prosecutor to which this ground relates was not seeking from the appellant an explanation as to whether or not he could identify a motive in a particular witness to lie as discussed in Palmer v R, supra.

If the cross-examination by the Crown Prosecutor, in contravention of the general principle stated in R v Gonzales, occasions prejudice then a finding that a miscarriage of justice occurred may well be open depending upon the particular facts of a case. However, whether prejudice arises is a matter to be determined in light of the defence case and the way in which it is conducted.

This, in my opinion, is not a case in which the impermissible line of questioning could be said to have created unfairness, as for example, by either oppressing a witness by confronting him/her by the evidence given by other witnesses in the way discussed by this Court in R v Praturlon, supra, referred to in Gonzales v R at [146], or by reversing the onus.

In circumstances in which the appellant's case was built upon the proposition that the complainants and the other Crown witnesses were lying, there is an inherent difficulty in accepting that the line of cross-examination by the Crown Prosecutor produced any identifiable unfairness to the appellant.

The Crown, in my opinion, was correct in saying that this was a case where the central plank of the defence case was that the witnesses were lying. The cross-examination was in reality merely articulating what the appellant's case was. The appellant on a number of occasions emphasised the point by volunteering, without being asked, that the particular witnesses had lied.

In these circumstances and having regard to the fact that the line of cross-examination pursued by the Crown Prosector did not seek to have the appellant identify a motive for any suggested lies, I do not accept the submission for the appellant that there was, in effect, a reversal of the onus of proof.

In all the circumstances, accepting that the line of cross-examination pursued by the Crown Prosecutor was impermissible in accordance with the general principle stated in Gonzales v R, I do not, however, consider in the circumstances of the case and for the reasons discussed above that any miscarriage of justice could or did arise.

The written submissions for the Crown set out the relevant principles and the test in determining whether jury verdicts are unreasonable or cannot be supported having regard to the evidence: at [42]-[34].

The written submissions for the appellant also addressed the same: Appellant's Written Submissions at [319]-[320].

In determining this ground in terms of s 6(1) of the Criminal Appeal Act 1912, the issue is whether the verdicts are unreasonable or cannot be supported having regard to the evidence: Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 at [31]-[34].

The test was stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. The test was restated in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

This Court is required to make an independent assessment of the evidence, both as to its sufficiency and quantity: Raumakita, supra, at [31]. As observed in that case, this involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty. The central question is whether the Court is satisfied that the appellant is guilty of the offence charged: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at 575, [11]-[14], 576-7, [20]-[22].

In Raumakita, supra, it was also stated at [32]: "In exercising that function, the evidence ought not be considered piecemeal: R v Hillier R v Keenan .... The Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events ..."

In M v The Queen it was observed at 494-5 that: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

The submissions on behalf of the appellant on Ground 3 focussed upon the claimed inconsistencies or weaknesses in the evidence of the complainants GB and TE: T 15-22.

The appellant's written submissions in relation to Ground 3 were set out in paragraphs [319] to [547] of the appellant's written submissions.

Within those paragraphs specific submissions were made concerning the evidence of GB in the second trial at [322]-[348] and as to the complainant TE at [349]-[386].

The remaining paragraphs, [387]-[453] related to the following witnesses: (i) Sister Mary Comer: paragraphs [387]-[393]. (ii) ME (TE's mother): paragraphs [395]-[399]. (iii) GE (TE's father): paragraphs [400]-[408]. (iv) Judith Gill: paragraphs [409]. (v) Marie Daymond: paragraphs [410]-[418]. (vi) Sister Beverley Clarke: paragraphs [419]-[423]. (vii) Sister Mary Comer: paragraphs [424]-[429]. (viii) Brendan Tanner: paragraphs [430]-[432]. (ix) Detective Sergeant Faulkner: paragraphs [433]-[435]. (x) Detective Inspector Grassick: paragraphs [436]-[441]. (xi) Dr Ross Wilson: paragraphs [442]-[453].

The evidence said to support Ground 3 was referred to in the Appellant's Written Submissions at [321]-[453]. Ground 3 was addressed in paragraph [454] of the Appellant's Written Submissions as follows: "It is submitted that in this case the evidence of [GB] and [TE] is so lacking credibility for the reasons which have been advanced, this Court should, with the greatest of respect, entertain a reasonable doubt which a reasonable jury ought to experience. It is submitted that the evidence contained such discrepancies, inadequacies and is tainted and lacks probative force that it would lead this Court, with the greatest of respect, even making full allowance for the advantages enjoyed by the jury, that there is a significant possibility that an innocent person has been convicted." (Appellant's Written Submissions at [454])

This ground of appeal was argued upon the basis that there were "features" of the evidence of the complainants, GB and TE, that established that the convictions on the counts concerning each was unsafe and unsatisfactory: Appellant's Written Submissions at [321].

In essence, the attack on the veracity of the complainants TE and GB is said to have been established by evidence of alleged inaccuracies in their evidence. As discussed below, the distinction between reliability and veracity is an important one. However, with respect, it was not a distinction that was, in my opinion, maintained in the submissions made for the appellant in the challenge made to the evidence of GB and TE. Many of the asserted "inaccuracies" related to matters of detail relevant to issues of credibility (that is, reliability) rather than veracity per se.

The effect of the submissions was essentially directed to the asserted untruthfulness/unreliability of each complainant by reason of claimed "discrepancies" and "inadequacies" and generally by a lack of probative force in the evidence of GB and TE. Accordingly, in the paragraphs that follow, an examination is made of the evidence, particularly that concerning GB and his account of the events relevant to Count 1 and the issues concerning it raised at trial. I will similarly examine below TE's accounts of the offences charged in the indictment.

The paragraphs that follow set out in summary form the background facts and matters established in evidence adduced at the second trial in relation to the individual counts in the indictment.

GB was born in 1952 and attended the College when he was in First, Second and Third Forms in the years from 1965 to 1967. He commenced as a student at the College in late 1965.

In evidence he stated that his family resided on the outskirts of Bathurst. They were not well off and his parents did not pay fees for him to attend the College.

GB's evidence was that he believed the appellant came to the school in 1966. He said that the only times that GB had any contact with him was when the appellant was supervising "work detail". At times when there were not enough teachers to look after the students in classes the students were sometimes sent to undertake digging for a new swimming pool as a means of keeping them occupied: Crown Summary of Trial at p 17.

GB gave evidence about an incident (the "tractor incident") that occurred on one particular occasion when he and two other students were returning after they had been smoking in a machinery shed. They came across a tractor that had slipped into a trench that had been dug from the pool to the pump shed. On GB's evidence the appellant was, on the occasion in question, standing beside the tractor and drinking from a tall glass of cordial.

GB said that he was "trying to be a bit clever" and he bent over, looked underneath the tractor and said words to the effect of "done a good job there" to the appellant. The appellant poured the liquid he had been drinking over GB's head. GB then sent the other two students away and instructed GB to go to the art class and wait for him there.

When the appellant arrived GB said he was carrying a white towel. The appellant used the towel to attempt to remove the cordial from the back of GB's neck and head. The appellant then told GB to remove his trousers, and eventually, his underpants.

The Crown's Summary of Trial as to the evidence in chief of GB is in the following terms: "He went to the art room and waited for the appellant. He thought that the incident occurred in the early afternoon and he had a feeling that it was close to a school holiday period (T p239). When the appellant arrived he was carrying a white towel. The appellant used keys to open the door to the room and told him to go in. The appellant used the towel to attempt to remove the cordial from the back of his neck and his head. The appellant then told him to remove his trousers. He did so and the appellant said, 'And the rest', referring to his underpants (T p240). He removed his underpants and the next thing he was aware of was the appellant grabbing him around the bottom of the jaw in a choker-type hold. The appellant was standing behind him (T p241). He felt something entering him from behind. He came to realise that the appellant had forced himself into his backside. He screamed in pain. GB was asked to describe what actually happened. He answered, 'He was using his left hand to hold me in position. He was using his right hand to guide himself. He was lifting me off the floor with - while he was thrusting to try and enter me further I suppose is the best way to describe it' (T p242). At that point in time he was not aware of what the appellant was using to enter him. It was only after the appellant used a towel to clean blood and slime from around his backside area and to clean his own penis that he realised what had entered him. He was not able to say whether the appellant had ejaculated in his anus. He described the pain as 'A pain like I'd never felt before'. It was intense. The pain continued for several days and he also suffered bleeding for several days (T p243). Before the appellant left the room he told him to stop blubbering. He was crying. The appellant warned him that if he told anybody about what had happened he would deny it. The appellant also warned him of how cruel children could be towards somebody who made those sorts of complaints. The appellant said to him, 'Who are they going to believe, you or me?' (T p244)." (Crown's Summary of Trial at pp 17-18)

GB's evidence was that he gave an account of what happened to him in the alleged assault by the appellant to Robert Woodside, Psychologist, in or around about 2007 or 2008. GB's evidence as to the issue of delay and the circumstances concerning the same will be discussed in relation to Ground 3: see paragraph [575].

GB gave evidence of the circumstances in which he came to make his first statement to police. He said in evidence that he had seen two lawyers who were representing the appellant saying that the investigation was "a witch hunt", a "media beat up". He contacted the DPP's office and in due course police interviewed him and took a statement.

TE was born in 1973. He commenced at the College in 1988 when he was in Year 8. He had a limited number of friends at school and was not greatly interested in sports.

In 1988 his evidence was that he saw the appellant at least two or three times a day. At that time the appellant was second in charge of the College. Brother Dwyer was head of the College.

The evidence in chief of the complainant TE in relation to the counts on the indictment are summarised below. The following is an outline of TE's evidence in chief.

TE said in evidence that when he was in his first year at the school he thought that the appellant was a nice man and that he treated him very well.

On occasions, he said the appellant would show TE graphic images and asked him whether nor not they turned him on. The appellant also showed TE the outline of his erect penis and asked him if he was turned on. The appellant told him that that was what boys did.

The complainant TE gave evidence of eight offences that occurred on six separate days. The appellant was found guilty of five offences (Counts 4, 5, 7 10 and 12, not guilty on one count (Count 9) and the jury were discharged in relation to two counts (Counts 2 and 3). There was additional sexual contact evidence led as context evidence.

As indicated above, the jury were unable to reach verdicts on Counts 2 and 3.

The first physical contact TE could remember occurred when the appellant took him to McDonalds at Bathurst. During that time he alleged that the appellant put his hand on his leg and moved it down towards his groin. This alleged incident constituted the basis for Count 2.

A further incident was alleged to have occurred the following day. TE's evidence was that he was washing the appellant's car. The appellant asked him to remove his shirt and he put his arm around him and pinched and played with his nipple. His evidence was that the touching of the nipple did not feel like a "nipple twist" that the boys sometimes gave each other.

In the appellant's submissions it was said that Count 2 represented a critical incident in the Crown's case against the appellant. TE had alleged that in February/early March the appellant had driven him to McDonalds. He stated that he told police that the appellant's car was blue or metallic blue contrary to the suggestion in cross-examination that the appellant drove a beige coloured Honda vehicle.

It was established that as at February or early March 1989 McDonalds at Bathurst had not been built.

It was the appellant's case that he had never driven TE to McDonalds at Bathurst, or any other McDonalds establishment.

The alleged incident the subject of Count 3 was said to have occurred on a Saturday morning after the McDonalds incident, right in front of the College. It was put to him that Cahill Oval in or near that area would have been in operation from as early as 9.00am for the playing of sport. TE disagreed.

TE's evidence was that the area in question was out of bounds on Saturdays. Reliance was placed on other evidence to the contrary and that the area in question was a "hive of activity": Appellant's Written Submissions at [362].

In the Crown submissions it was put that a question from the jury indicated that they held some concern as to the timing of Count 2. The Crown observed that a concern in respect of the timing of Count 2 would flow on to concern regarding the timing of Count 3. The inability to reach verdicts on these counts, the Crown contended, was explicable: Crown's Written Submissions at [52]. Further, there was an issue as to whether the conduct in Count 3 would amount to an act of indecency.

The Crown submission was that whatever the reason for the failure to reach a verdict, the failure to agree, of itself, did not indicate an adverse view had been formed of the credibility of the complainant.

TE gave evidence that the appellant masturbated in his presence and instructed him to watch. Evidence was also given that the appellant would instruct TE to watch pornographic videos and then ask him if he was aroused. There was also evidence that TE was often asked to engage in fellatio with the appellant and touch the appellant's penis.

The evidence of TE in relation to Count 4 was set out in the Crown's Summary of Trial as follows: "... TE gave evidence about an incident that occurred 'at the beginning of the paedophile acts'. The appellant displayed the outline of his erect penis within his shorts. The appellant then said, 'Do you mind if I wank?'. He replied, 'I don't want to see anything'. The appellant then said, 'How am I supposed to do it if you can't see me?'. There were sheets over the back of the appellant's chair and the appellant put a white sheet over himself, dropped his shorts to below his knees, moulded the sheet over top of his penis and used his hand to masturbate himself (T p337). The appellant told him to watch. He tried to look away a few times and the appellant said, 'Look at me'. The appellant continued masturbating until he ejaculated. The appellant cleaned himself, pulled up his pants and told him that he had better get to where he was meant to be (T p338). On other occasions the appellant asked him to his room. In the hotter months the appellant would give him a cold drink and comment as to the heat. The appellant would remove his own shirt and ask him if he wanted to remove his shirt. The appellant would then play a pornographic video (T p338). The appellant would tell him to watch the video and ask him if he was aroused. Clothes were removed and the appellant would try to force his (the appellant's) penis into his (TE's) throat. The appellant quite often sucked his (TE's) penis and the appellant asked him to suck his (the appellant's) penis. He didn't like to do so and so he often masturbated the appellant to the point of ejaculation. He did so at the appellant's request (T p339). Over time the appellant's actions towards him became more aggressive (T p339). The appellant asked him not to tell anybody what was going on. He looked up to the appellant. The appellant told him that he was like a little brother and that made him feel very important. He continued to visit the appellant's room (T p340)." (Crown's Summary of Trial at pp 23-24)

In respect of Count 5, the relevant acts were alleged to have occurred after TE had been on detention and raked grass off the oval. TE gave evidence that after he returned the rakes to the shed, he saw the appellant. The appellant then put industrial lubricant on his hands, masturbated, and then placed his fingers in TE's anus (Count 5 and in the alternative Count 6.)

The events giving rise to Count 7, namely, forced penile-anal intercourse, were alleged to have occurred immediately after the events giving rise to Count 5. "The appellant then pushed him over the lathe, pulled down his (TE's) pants and inserted his penis into his (TE's) anus (count 7 and in the alternative count 8) (T p 360)." (Crown's Summary of Trial at p 26)

This count alleged the appellant forced his penis into TE's throat. The Crown's Summary of Trial records TE's evidence in relation to Count 10 (and in the alternative Count 11) as follows: "... TE gave evidence about an incident that occurred during the winter months on either a Saturday or Sunday. He felt that the incident occurred on a Sunday after church. He was in the TV room. The appellant was 'on the prowl' and upon seeing him in the TV room gestured to him. The appellant took him to the study hall which at that time was considered to be an out of bounds area. No one else was there. The appellant opened the door for him to go into the room. The appellant then forced his penis into his throat ...(T p343)." (Crown's Summary of Trial at p 24)

The events giving rise to Count 12, namely, forced penile-anal intercourse, were alleged to have occurred immediately after the events giving rise to Count 10. "The appellant then pushed him to the ground, pulled his pants down to his knees and had forced penile-anal intercourse with him (Count 12 and in the alternative count 13) (T p 343)." (Crown's Written Submissions at p 24)

In the written submissions for the appellant at [349] it was submitted that the background of TE was important as he, before his enrolment at the College, had behavioural problems. He had difficulties with poor hand and eye co-ordination and difficulty in relating to other students at his previous school. He liked rural life and it was said that he was ill-suited to life at a boarding college.

In the appellant's case it was suggested that TE was not without problems during his schooling years, that he was over-represented in the infirmary and was suspected of lighting fires. He was asked to leave the school towards the end of 1989.

In the written submissions for the appellant it was stated that in 1988 TE attended the infirmary 125 times and in 1989 he attended 120 times. There were two matrons of the College still there who gave evidence.

TE maintained that the infirmary was a refuge for him from the appellant. He said that he made a complaint to the Matron that he was bleeding from his anus.

Matron Clarke and Matron Daymond in their evidence did not accept his account in this latter respect.

In his written supplementary submissions dated 12 February 2014, Mr Walsh in relation to Ground 3 raised issues concerning TE's evidence of having been sexually penetrated by the appellant.

Both points relate to Dr Wilson as follows: (i) Dr Wilson was a well-known medical practitioner who, at the time of the offences, attended the College once and sometimes twice a week and he attended on TE for various health reasons. There were entries in the infirmary records relating to a number of such attendances. (ii) According to Inspector Grassick, police had spoken to Dr Wilson about whether he had received any history of bleeding from the anus by TE. (iii) Dr Wilson was called in the defence case. He gave evidence that no police officer had spoken to him until Inspector Grassick phoned him a week before he gave evidence. In Mr Walsh's submissions it was stated that Inspector Grassick was under cross-examination at the time of that call and Dr Wilson's evidence was that the name TE was not raised by Inspector Grassick.

Mr Walsh submitted this was very relevant evidence and was "powerful evidence" affecting the credibility and reliability of TE. Had TE indicated that he had experienced bleeding from the anus, or any type of sexual abuse, it would have been investigated.

In the Crown's Submissions in Reply dated 13 February 2014 the following matters were raised in response: "1. TE's evidence in chief was that he spoke with a matron and indicated with gestures that his anus was sore: T 387-389. 2. TE was cross-examined on this incident. He indicated he was brief and did not give too much detail. He indicated, with some apparent hesitation, that he told Matron Daymond [later changed to Matron Clark] that he had been sexually assaulted by the appellant: T 528-530. 3. TE did not give evidence that he spoke with Dr Wilson about sexual assault or that he was treated over the injury. TE was asked no questions about Dr Wilson. 4. Det Grassick was cross-examined about the content of part of TE's police statement: see AWS [7], T 1081.32. The most this evidence established was that TE had indicated in his statement that he was examined by "a doctor". It was never stated that it was Dr Wilson. 5. It is apparent that the infirmary notes were available and that the notes did not support an entry relating to bleeding from the anus. That a statement was not obtained from Dr Wilson by Det Grassick is not of particular concern. Certainly, such absence was apparently not raised in the first trial and only became an issue belatedly in the re-trial. 6. Dr Wilson gave evidence. He was taken to TE's medical records from the school. Although initially claiming that he recalled TE as attention seeking and narcissistic and noted for over attendance in the infirmary, he recounted many legitimate complaints supported by medical observation or testing. 7. In December 1988 the infirmary notes reflected TE attended with diarrhoea, with observable blood and mucus [this is not within the charge period and it is not suggested it relates to any charged incident]. Dr Wilson, although noting the existence of blood on an occasion, indicated that TE never complained of bleeding from his anus in 1988 or 1989: T 1450.25. 8. Dr Wilson, when asked if TE complained about the appellant to him in 1988 or 1989, responded "no, not to my knowledge": T 1450.29. 9. In view of the absence of evidence from TE that he saw and was examined by Dr Wilson, and no questioning of him as to the content of his statement, and in the context of all of the evidence at trial this issue should not cause the Court concern."

In the appellant's written submissions the following matters were noted:

According to TE he went to the appellant's room three times a week. He alleged that he was shown pornography and looked at the pornographic videos. TE was taken to a colour plan of the College. It was submitted that he got the appellant's room wrong: Appellant's Written Submissions at [366].

The appellant's submissions relied upon a number of other aspects of TE's evidence said to demonstrate error or inconsistencies.

TE's evidence was that he first complained to his mother during a telephone call that he made from a pay phone at the College. He said that members of his household would not swear or refer to genitalia and "in very broad circumstances" he told her that, "they were putting things in his bottom". He could not say when it was, in relation to any particular incident, that he told his mother. He said it was during 1989 and it was during winter.

TE also gave evidence of having complained to one of the matrons at the school infirmary. He believed he spoke to Sister Daymond.

TE gave evidence that he complained to a nun, Sister Mary Comer in June or July 1989.

After he left school he told his father graphic details of what had happened whilst he was at school. He felt that the conversation occurred in 1996 because it was not long after his father had bought another property.

TE gave evidence that he told Judith Gill in 2003 that he had been assaulted at the College. He did not go into much detail as he said it was not something that he said he found easy to talk about: T 349.

TE gave evidence, as noted above, that he told his mother in 1989 of misconduct whilst at school.

TE gave evidence that he complained of having been abused at the school in 1990/1991 and 1995 to his father and a friend in 2003.

TE's mother, ME, gave evidence of an occasion in 1989 when, during a telephone call, her son made allegations about misconduct at the school towards himself. She was unable to say when in 1989 that occurred. She could not remember the exact words that he used. He said that things were happening that he wasn't used to and did not like it. He was upset. She did not know what was going on at the time. She thought it was kids being silly and she told him to "bop" the kids. He said to her "Mum, I can't bop the teachers".

ME gave evidence that TE attended the school in 1988 and 1989. He was not there in 1990.

TE's father, GE, gave evidence. In 1989 he had been contacted by TE and notified of some trouble that he was getting into. ME then contacted the school. There was some discussion about missing tools and sockets and it was suggested that TE had taken them.

On another occasion, Brother Dwyer had rung him about the lighting of fires. Brother Dwyer told him that TE had been lighting fires. He was told to take TE to Bathurst Police Station. He did so and TE was interviewed by police. Police did not take any action against TE in relation to the allegation. TE did not return to the school to sit for exams.

GE gave evidence that in about 1990, 1991 TE told him that he had been abused at school. The conversation took place face to face on the farm. They were ploughing and he thought it was when they had lunch that TE told him. He did not question TE further about it.

In 1995 GE said that he had a further conversation with TE. TE was moving house. TE told him that he had been abused. He said that he had been penetrated and was bleeding from the anus. He then rang sister Mary Comer and told her that TE had been abused at the school.

In 2008 he spoke to TE and there was some discussion about what had happened to him at the school. TE again told him that he had been penetrated.

In cross-examination he agreed that in 1990 or 1991 when TE told him that he had been abused, there was no mention of the appellant. He agreed that it was after the arrest of the appellant that TE told him that he had been penetrated.

Ms Gill gave evidence that in December 2003 TE told her that he had been sexually abused at the College in Bathurst. He said that he had been penetrated by someone. He did not go into any more detail. He did not tell her that it was by a staff member.

Ms Daymond was a registered nurse who had worked at the College infirmary. She recalled TE as a frequent visitor to the infirmary.

Her evidence was that no student had ever made a complaint of sexual assault to her. She had never examined any student with an injury with or suggestive of sexual abuse.

Ms Daymond could not recall TE complaining of suffering from a sore anus and she denied making statements as had been stated in evidence by TE.

Ms Clarke, a registered nurse who worked at the college infirmary between 1975 up until 2008 said she had not heard any disclosures from students regarding any inappropriate sexual abuse by College staff. She had never been told of symptoms suggestive of sexual abuse having occurred.

Ms Comer was a religious sister and registered psychologist. She saw TE on a number of occasions in 1989 as counsellor.

She referred TE to a specialist adolescent service for further assessment. She met with his mother following that appointment. To her recollection that was the last time she spoke to either of his parents.

She denied suggestions that TE had complained to her that he had been penetrated.

The Crown observed that supportive material was available to demonstrate the appellant's sexual interest in, and participation in, sexual activities with boys aged 12 to 15 years. The Crown relied upon tendency evidence and also coincidence evidence: Crown's Written Submissions at [63].

The Crown additionally submitted: "A number of former students gave evidence of sexual incidents that the appellant perpetrated upon them or observations made of sexual conduct perpetrated by the appellant upon other students. An acquaintance also gave evidence of mutual penis holding. These all involved inappropriate touching of the boys, and on one occasion the appellant was observed to have an erection after such touching. Pornographic material was located in the appellant's possession in 2008 which available to the jury in assessing TE's evidence that he was shown pornographic material by the appellant. The jury had the benefit of seeing the witnesses, both the complainants and the appellant and of assessing their evidence. This is a considerable advantage denied to an appellate court: R v Markuleski (2001) 52 NSWLR 82 per Spigelman CJ at [70] per Wood CJ at CL at [231]." (Crown's Written Submissions at [64]-[65])

The appellant gave evidence. He was born in 1941 and joined the Vincentian religious order in 1959.

In about mid-October 1965 he was sent to St Stanislaus College. At that time he was not a member of staff. He was sent there to enable him to attend Bathurst Technical College.

He gave evidence in relation to the tractor incident. He said that he and a Mr Scheppingen were laying pipes in a trench that had been excavated by contractors, the trench being a drainage trench associated with the construction of a swimming pool. He said that when they were backfilling the trench the wheels of Mr Scheppingen's tractor slipped into the trench.

He then gave evidence about the incident which he said occurred around mid-to-late morning and that he and Mr Scheppingen worked all day to extract the tractor that had slipped into the trench from it.

He denied pouring cordial over GB's head. He did not recall GB at the school and said he had nothing to do with GB at all.

His evidence was that at the time of the tractor incident he did not know where the art room was situated and he did not have a key to the art room. He denied directing GB to go to that room and he did not go there and open it with a key. He denied that he had anally penetrated GB.

In the years 1986 and 1987 he said his room was not on the priests' corridor and that in 1988 and 1989 his room was in the Slattery Wing above the entrance to the College. He said in 1988 and 1989 he never locked the door to his room.

He was shown a diagram that had been drawn by TE (Exhibit 6) and he gave evidence that the layout of his room was not as depicted in the diagram.

He gave evidence that he was aware of TE in 1988.

He said he did not have a television and video in his room and that there was no television or video on a moveable stand during his time at the College.

The appellant also gave evidence concerning the locking mechanism of Brother Elrott's shed door and he did not have a key to that door. There were only two persons who had a key, including Brother Elrott.

His evidence was that any contact he had with TE in 1988 would have been minimal.

He denied taking TE to McDonalds as alleged and denied that he asked TE to wash his car in the front of the school.

He stated in evidence that he did not invite TE to his room. He said he was diligent in interviewing students in his office and never interviewed any student in his room.

He denied having pornographic material in his room at the College at any time. His evidence was that the room was regularly cleaned by a cleaning lady and his room was attended to by a laundry lady.

He denied ever showing TE a pornographic video and did not discuss sex with him, nor perform the activities TE alleged. His evidence was he did not develop a friendship with TE or with any other student and that TE never came to his room.

He denied that he saw any student raking grass on the College oval and that the ovals were maintained by maintenance staff. This was relevant to Count 5 concerning TE.

He had no recollection of coming across TE in circumstances where they ended up approaching Brother Elrott's shed. He said he did not have a key to that shed and the door to the shed was not able to be deadlocked. He denied ever being in the shed with TE and denied the sexual assault alleged by TE.

He denied taking TE to a study hall on a Sunday morning and committing the sexual assault detailed in TE's evidence.

His evidence was he had no recollection of a particular event occurring as described by a Crown witness, MK, and denied the incident described by RB. He stated that the area where the incidents were alleged to have occurred was one of the busiest areas of the College.

He denied touching the witness "B" in the Year 8 dormitory as alleged by SW.

In relation to HM's evidence that he came to his room on the priests' corridor in 1986, he said at no time during his second stay at the College did he have a room on the priests' corridor. He denied touching HM as had been alleged.

In the beginning of 1991 he moved to South Australia where he joined the Adelaide Diocese and Aids Council (ADAC). He commenced there as a volunteer with that organisation and was later employed as a pastoral care worker and education officer.

In relation to the alleged incident at Cape Jervis in 1995, the appellant said he remembered MA but denied any physical contact with him.

In relation to the DVD "Gay Man's Guide to Safe Sex" which was seized by police, the appellant said he acquired it during the course of his training and self-education in relation to HIV/AIDS.

At the time of his arrest he said he was working full-time for Vincare. When he returned to Sydney in 1998 he was employed by, and then did volunteer work, for organisations that helped HIV/AIDS sufferers.

He had obtained the condoms found in his room from the AIDS Council of NSW and from Stanford House so that he could distribute them to his clients. He said he had picked up the magazines that were found in his room from various locations including Stanford House and the AIDS Council of NSW. He did that because he felt that it was important for him to keep up to date with what was happening in the HIV community.

His evidence was that he had acquired the VHS tapes and the DVDs that were seized from his room over many years. He could not recall how, or who, he got them from but some backdated to the earliest times of his ministry in Adelaide. He said that at the time he was regarded with suspicion by members of the gay community and persons would give him those recordings to try to shock him. He said he had not ever looked at the recordings. In cross-examination he agreed that at a previous trial he had given evidence that the DVDs and VHS tapes had been in his possession since his time in Adelaide. It was put to him that his evidence had changed since the first trial because he knew that the DVDs had not been manufactured in the 1990s.

The challenge made to GB's evidence at trial did not directly suggest that his evidence had been contaminated through discussions with any particular person or persons nor by GB having read any internet or other media publicity.

As the Crown observed, the nature of the attack upon his credibility effectively went to the issue of his reliability. He was cross-examined on a number of matters that may be regarded as peripheral to the alleged sexual assault that occurred the subject of Count 1. Such matters included details concerning the "tractor incident" and associated matters such as the clothing worn by the appellant.

The contention on behalf of the appellant at trial was that the evidence of GB was unreliable as he was uncertain as to the year in which the alleged incident occurred, that he was uncertain as to precisely which friends he had been with on the day in question, he was uncertain as to which wheels of the tractor were involved in the incident and that he had what he referred only to a "feeling" as to the time of day upon which it occurred, and finally, that his recollection as to the clothing that the appellant was wearing on the day in question was inconsistent with clothing shown to be worn by the appellant in a photograph taken with him standing next to the tractor when in the drainage trench. There was, I note, an important issue at trial as to the particular occasion or date on which the photo was taken.

I have earlier set out in summary the evidence of GB as to the events he alleged in respect of the tractor incident and the events concerning Count 1.

The alleged inconsistencies in GB's evidence, as I have noted, concentrated largely upon the reliability of his evidence. The distinction in sexual assault cases between a witness' credibility on certain issues and his or her veracity is an important one. In Reed v R [2006] NSWCCA 314, Spigelman CJ observed at [62]-[65]: "The only significance that I can see of the new information, is for the purpose of cross-examination of LK on credit because she had suggested that MH was not present on the occasion. In a word against word case, such as this, any information capable of being deployed in cross-examination on credit is potentially of significance. Nevertheless, questions of fact and degree are involved in order to determine the statutory question: Has there been a miscarriage of justice? That question must be understood in the sense suggested by Simpson J In Grey: Was the material of "sufficient relevance"? In my opinion, in the circumstances the new material was not of sufficient relevance. Even in a word against word case, it is not the case that anything capable of impinging upon the credibility of the sole Crown witness must be permitted to be investigated in full. Credibility issues involve questions of reliability and of veracity. It is sometimes important to distinguish between them. Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. 'Remembering Trauma' Harvard University Press, Cambridge, Massa., 2003 esp at pp 48-62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness. With regard to issues of veracity, surrounding detail can be of greater significance. In the present case, the credibility of TF, whose statement raised a possible inconsistency with LK's version, was so low, and MH's stated inability to recall detail was such, that the suggestion that further inquiry could lead anywhere was entirely speculative."

In evidence at the committal hearing GB said he could not remember the year in which it occurred.

In his first statement to police dated 23 September 2008, he stated that he went to the College from 1964 to 1966. During the committal hearing he amended the dates from 1965 to 1967. When cross-examined at the committal, he said that the incident did not occur during his first year at the College.

In a document that he prepared dated 4 September 2012, GB stated that he believed that he would have been twelve or thirteen years of age at the time of the incident. He agreed that he turned twelve in 1964 and thirteen in 1965. He could not remember whether it occurred in 1966 or 1967. He said that the only thing he could say was that it happened in the year that the tractor went into the trench.

The Crown submission was that his evidence as to the year of the incident in no fashion undermined his evidence: Crown's Written Submissions at [45].

Prior to the committal hearing on 8 December 2009, GB recalled the students were IS and PM. He said he recalled their names as a lot of little things had come back to him from time to time and those were two students who he said he regularly smoked with.

Beyond the delay in recalling the names of the students, no other submission as to its possible significance was relied upon.

In a typed statement which GB prepared dated 4 May 2012, he stated he believed that at the time of the incident the appellant was wearing a white T-shirt and shorts. He agreed that in his first police statement (23 September 2008) he did not refer to what the appellant was wearing.

In the photograph shown by Mr Walsh to GB in the trial, the appellant was wearing different clothing. The Crown submission was that the fact that the appellant was wearing other clothes when photographed at a time other than when GB was present, accounted for little: Crown's Written Submissions at [46]. The Crown noted that GB's evidence was that when he observed the appellant there was no one else there other than GB's two school friends. The photograph shown to him, however, showed others present. Exactly as to when the photograph was taken, relative to the incident, was unknown.

GB had stated that the right side tractor wheels were stuck in the trench. At the committal this changed to the left wheels. He attributed the change to clarifying the difference between facing the tractor and from the perspective of a driver of the vehicle.

GB's evidence was that he recalled it was hot. He felt that the incident had occurred in the early afternoon after lunch because of the extreme heat of day. He felt it was perhaps one o'clock for that reason - as in or towards the middle of the day. The fact that he "felt" that it was in the early afternoon, by reason of the heat, did not establish any inconsistency of significance.

In the appellant's written submissions, reference was made to the fact that GB was taken to the photographs at page 8 of the publication "Echoes" which in November 1965 showed the construction site inundated with 12-15 ft of water. GB did not recall the drainage trench having been constructed. Reference to the scene depicted in the publication as at November 1965 is not a matter of any particular significance on the issue of the reliability of GB's recollections.

PM in evidence stated that he attended the College from 1964 until 1967. He remembered the appellant and he remembered the pool being built. He said he vaguely remembered an incident involving a tractor rolling over. He knew that GB was in his year. From time to time he smoked at school. He went smoking with a lot of different people. He did not think that GB smoked.

Police, as noted above, were unable to locate the other person identified by GB, namely IS.

A record of interview was conducted with Mr T Collins (Exhibit R). Mr Collins commenced teaching at the College in 1964 and his role was to look after the art department. The art room had one door; the door was always locked except when classes were being held.

He and the other art teacher, Father Quinn, were the only people with keys to the art room. He did not loan his key to anyone. He could not say if Father Quinn loaned his key to anyone.

In his final address to the jury in the second trial (at T 1521-T 1528), Mr Walsh raised the following issues concerning the evidence of GB: (i) His motivation in coming forward after forty two years and reporting the alleged sexual assault. (ii) That GB hated the College and its staff and had told Dr Frukacz that he had had a miserable time at the College. GB had not reported having been sexually assaulted to Dr Frukacz. (iii) The fact of delay went not only to both the credibility and reliability of GB, but also raised considerable difficulty in the appellant defending himself. (iv) The variation in GB's evidence as to the year in which the incident is said to have occurred. (v) The period in which relevant construction had been carried out on the swimming pool, in particular, that as at November 1965 when it is said the incident occurred, there was no pump house in 1965, 1966 or 1967. For an inexplicable reason GB had referred to a pump house when in those years it did not exist. (vi) GB's account to police that two right-hand wheels of the tractor went into the trench when the photographs revealed it was the two left-hand wheels. (vii) That the delay in GB's recollection of the names of the two students he said he was with served to demonstrate his unreliability. (viii) In relation to the clothing worn by the appellant at the time, there was no reference by GB in his first two police statements as to the clothing. In his third statement he referred to the appellant having worn shorts and a white T-shirt. There was no explanation as to why he had only referred to the clothing in his last statement. (ix) GB was wrong in describing the windows in the art room. (x) That GB, coming forward forty two years after the event was clearly motivated because he was angry when he heard the appellant's lawyer speak out suggesting that the allegations were a "beat-up" and so on. Additionally, GB hated the College and the brothers and the priests. (xi) It was suggested in the final address by Mr Walsh that there were many inconsistencies in the way GB's evidence unfolded in the context of the tractor incident.

As I have also noted above, Mr Walsh relied upon issues associated with GB's alleged motivation, it being argued for the appellant at the pre-trial hearings that GB had "animus" against the College and its staff.

In his opening address to the jury, Mr Walsh emphasised that GB had come forward over forty years after the alleged events "in the circumstances of considerable publicity": T 197:28-30. He said that the jury would hear that GB felt different to the boarders, that he hated the Order, and hated the school and the institution: T 197:30-35. He put to the jury: "... you will have to consider carefully how someone could not complain, would not complain, would not talk about [sic] in any way to doctors that he was seeing, anyone about what [the appellant] did to him. It's just simply extraordinary and the timing of it comes out with all this publicity, blanket publicity about the order at the time of the arrest of this accused. What a coincidence." (T 197:32-40)

GB's evidence was that he told Robert Woodside, a psychologist, about the alleged events in or about 2007 or 2008. He said he had also told a psychiatrist he was seeing, Dr Frukacz. That was around 2008. He said he did not tell anyone before then because it was "not the sort of thing that you sort of discuss".

GB gave evidence, as noted above, that he came to make his statement to police in circumstances where he had seen two lawyers who were representing the appellant saying that the investigation was a "witch hunt" a "media beat-up". He soon after gave his statement to police.

There was no evidence before the jury that GB's evidence was contaminated in any way and there was no evidence of collusion. The principal basis upon which his evidence was challenged was his reliability. The attack on his veracity was largely based upon what was referred to as his "animus", having hated the College and its staff and the long delay before disclosing the alleged sexual assaults.

An examination of GB's evidence does not, in my assessment, establish that he was discredited as a witness. The matters relied upon in the appeal in relation to GB were not, in my opinion, sufficiently cogent as to destroy his credibility.

The issues concerning GB's credibility centred upon the accuracy of his recollection many years after the alleged events on matters that were essentially peripheral in nature. The reliability or otherwise of his recollection and evidence on such matters required the jurors to assess the significance of his recollection upon them and the extent to which they found his account of the events concerning the offences alleged and his evidence on the peripheral matters to be persuasive and reliable.

The submissions for the appellant referred to the following matters as adversely affecting TE's reliability: (i) That he was "a very troubled student" at the College who was involved in lighting fires (a matter disputed by TE). (ii) That his allegations concerning the McDonalds restaurant events were shown to have been factually incorrect. (iii) The inherent unlikelihood of the alleged incident the next day when TE claimed he was washing the appellant's car in view from every window of the front of the building. (iv) The inherent unlikelihood of the alleged incident in mid-1989 after raking grass on the oval, when that was not the time of year the grass was cut. (v) The shed was Brother Elrott's shed and the appellant either did not have or would not have any key to open the shed. TE was challenged as to his evidence of the type of locks on the shed doors. (vi) The inherent unlikelihood of the appellant using machinery lubrication to sexually assault TE. (vii) The inherent unlikelihood of the appellant having sexually assaulted TE in the study hall when other students would have been in the area. (viii) As to TE's evidence of having reported the sexual assaults, Sister Comer in her statement made no mention of any report or allegation. It could not be suggested she lied about that aspect. (ix) TE visited the infirmary approximately 127 times in 1988 and 125 times in 1989. (x) Whilst TE's evidence was that he went to the appellant's room on many occasions and was shown pornography and pornographic videos, he was wrong when identifying the appellant's room on a colour plan. (xi) That TE took a good deal of time in drawing a sketch of the appellant's room and its contents. He misdescribed the number/location of the windows. Although he said he was shown videos he did not mark a television/video on the sketch plan. TE had said that there was a television on wheels for general use. It was kept in the hallway. There was a large fireplace in the room omitted from the sketch plan. (xii) TE said that movie nights were on Fridays. It was put to him that he was wrong and they occurred on Saturdays. (xiii) The issues concerning Dr Wilson's evidence raised in the appellant's supplementary submissions.

There was no evidence before the jury that TE's evidence was contaminated. Nor was there evidence of collusion. There was in the appellant's case a suggestion that TE was motivated by his dislike of the school and staff, including the appellant. However, the principal challenge to TE's evidence was upon the basis of his unreliability as a witness having regard to the matters set out above.

TE gave evidence of a report by him to his mother whilst still at school. There is a lack of specificity in the report but his evidence, if accepted, was capable of providing some evidence of him having reported, at the least, interference with him by someone.

TE's evidence of having disclosed the occurrence of sexual assaults upon him to his father, was also a matter for the jury to take into account having heard and seen TE and his father give evidence.

The late reporting of sexual assaults to medical practitioners and the psychologist, and the evidence concerning the same, as discussed above, is a familiar issue in child sexual assault cases and it is one matter that requires assessment by a jury in light of all the evidence.

On my review of the evidence of TE and the issues raised in respect to his evidence in the appellant's submissions I do not consider that a conclusion can be reached that TE was a discredited witness. As in the case of the complainant GB, many issues raised in cross-examination of TE related to peripheral facts suggesting possible inconsistency and unreliability. However, I do not consider that on appeal it can be said that it was not open to the jury to have accepted TE as a credible witness and accept his accounts in respect of the sexual assaults the subject of the counts on which they returned guilty verdicts.

In the result, having considered the totality of the evidence, I consider that the appellant has not established that the evidence of GB and TE lacked credibility as he contended, with the result that the jury ought to have experienced a doubt as to his guilt of the offences of which he was convicted.

In these proceedings in which the credibility of GB and TE and the appellant was critical, the jury's advantage of hearing and seeing them give evidence was of fundamental importance in assessing the veracity of each. That, of course, was central to the jury's consideration of the evidence of GB and TE in relation to the sexual assaults each claimed occurred.

There were a number of matters relevant to the probative strength of the coincidence evidence of GB and TE. These included: (i) the fact that they had each attended the school many years apart; (ii) that they had not communicated with one another about the appellant; and (iii) that each alleged assault by the appellant involving anal/penile penetration in circumstances involving similarities. It was clearly open to the jury to determine the coincidence evidence of each complainant as having significant probative value.

I do not consider in relation to Ground 3 that the guilty verdicts reached by the jury on Counts 1, 4, 5, 7, 10 and 12 were unreasonable or were not supported to the requisite standard by the evidence. I am satisfied that the evidence established, to the requisite standard, the appellant's guilt of the offences in respect of which he was convicted. I accordingly have concluded that Ground 3 is without merit and should be dismissed.

On the basis of the analysis and conclusions set out above, the appellant has not established any of the grounds of appeal relied upon.

I accordingly propose that the appeal be dismissed.

SCHMIDT J: The appellant advanced six grounds of appeal, although the 'nub of the appeal' was explained by Mr Walsh at the hearing of the appeal to relate to grounds 1 and 2, the alleged errors under s 130A of the Criminal Procedure Act 1986 (NSW). These grounds were pressed on the basis of Garling ADCJ's alleged failure to properly consider the evidence received at the first trial.

I agree with Simpson and Hall JJ that the appeal must be dismissed, the appellant not having established any of the grounds pressed, for the reasons given by Simpson J. I wish to add only brief comments in relation to ground 3, that the conviction was unsafe and unsatisfactory and ground 5, that there was a miscarriage of justice as the result of the appellant's cross-examination.

As to ground 5, it may not be overlooked that there was in reality no objection to the Crown's approach to the cross examination of the appellant, either at the first or the second trials. That reflected forensic decisions, as Mr Walsh explained at the hearing of the appeal, given the appellant's case, with both complainants being cross examined on the basis that they were untruthful and unreliable witnesses and with every witness, that there was a powerful body of ill will towards the appellant. The Crown met that case in the appellant's cross-examination, as has been explained, without objection.

In the result in my view in the particular circumstances of this case, the appellant is not only bound by the forensic decisions made at the trial, no miscarriage of justice has been established and even though leave under Rule 4 should be given in relation to ground 5, the appeal must be dismissed.

The case pressed for the appellant at the hearing was that both complainants' evidence, in which there were so many inconsistencies and which was indicative of unreliability, established ground 3.

I do not need to add to Simpson J's explanation of the evidence and the problems with the case advanced. Having myself considered the evidence I have also not been left with the doubt which the appellant contended the evidence raised as to his guilt of the counts of which he was convicted. 05 August 2014 - Former paras [86] to [94] inclusive deleted; replaced by paras [86] and [87]. Amended paragraphs: [86]-[94]