R v Murdoch[2017] QCA 239

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA:  The appellant was a teacher and cricket coach at a school, at which the complainant was a student.  They lived near each other and developed a friendship through sport.
3. Between 30 September 1993 and 5 May 1994, when the complainant was about 13 years old and between grade eight or nine, he said the appellant had engaged in a number of acts that later became the subject of criminal charges.  They were: (i) he was shown a pornographic movie while staying over at the appellant’s house; (ii) during the movie the appellant sat on a nearby couch, took his penis out and masturbated; (iii) one night the appellant dared the complainant to run onto a cricket pitch and either urinate or defecate on it, and when the complainant declined to do so, the appellant took his own clothes off and went out to the pitch and defecated; (iv) on another night the complainant accepted a dare to run naked around an oval; and (v) while he did so, the appellant took photographs of him, and then asked him to pose for naked photographs.
4. The appellant was charged with five counts of indecent treatment of a child under 16, as follows:

1. Count 1: showing a pornographic film;
2. Count 2: exposing his penis and/or masturbating;
3. Count 3: exposing himself or running naked in front of the complainant;
4. Count 4: procuring the complainant to run naked around a cricket field; and
5. Count 5: taking a photograph of the complainant while the complainant was naked, running or posing.

5. After a trial he was found guilty on counts 1, 4 and 5, and acquitted on counts 2 and 3.  He has appealed against his convictions.
6. At the hearing, ground 1 of the Notice of Appeal^[1] was abandoned, and ground 4^[2] was only advanced if there was success on other grounds.  That left the grounds of challenge as:

1. ground 2: the trial miscarried by the admission of the memorandum document of J and the admissions of L;
2. ground 3: the verdicts are unreasonable as they are not supported by the evidence and are inconsistent;
3. ground 5: the learned trial judge erred in failing to provide adequate directions cautioning against propensity reasoning; and
4. ground 6: the learned trial judge erred in failing to provide adequate hearsay directions concerning J’s document and the admissions to L.

7. The contentions on appeal were advanced on the appellant’s behalf by Ms Hillard of Counsel who, together with Mackenzie Mitchell Solicitors, very commendably appeared pro-bono.

Evidence at the trial

8. The evidence at the trial came from a number of witnesses: (i) the complainant; (ii) one of the former deputy principal’s at the school (D); (iii) another former deputy principal, (L); (iv) the investigating police officer; (v) the complainant’s mother (W); (vi) another student at the school, (S); (vii) the appellant’s mother; and (vii) the appellant.
9. The evidence was complicated by two matters:

1. the appellant was in a car accident in May 1994, as a consequence of which he sustained serious head and brain injuries, and his tongue was cut and had to be sutured; and

2. documentary evidence was admitted in the form of a report by the school counsellor (J) who died prior to the trial.

The complainant’s evidence

10. The complainant was about 35 years old at the trial.  He outlined the background to his being a student at the school and becoming a friend of the appellant.  He would occasionally go to the appellant’s home after cricket.  He said he could recall three separate occasions when something of a sexual nature occurred, though he could not recall the dates.
11. The first was when the appellant showed him a pornographic video while he was at the house on a sleepover.  He said it was explicit, male-on-female, pornography.  During the video the appellant was seated on a nearby couch.  He had taken down his pants and was masturbating.  The complainant could see the appellant clearly but was unsure if he ejaculated.^[3]
12. The second was one night when the appellant, who was “always big into dares”, dared the complainant to run out onto a cricket pitch and urinate or defecate on the pitch.  It was between eight and nine o’clock.  The complainant said he declined to do so, whereupon the appellant did it himself.  He took off his clothes in sight of the complainant, then “walked out to the cricket pitch, then he came back and he told me he did a crap on the pitch”.  He was naked when he walked back to the car.  The complainant went out to the pitch and saw that the appellant had defecated on the pitch.^[4]
13. The third was a night when the complainant accepted a dare from the appellant to run naked around an oval across the road from where the appellant lived.  While he was doing that the appellant took photographs of him.  The complainant did not know beforehand that the appellant had a camera, but became aware of it when the flash went off.  As the complainant came back towards the appellant he was asked to pose with arms up or in muscular poses, and the appellant took more photographs of him.  The appellant directed him as to what poses to do.^[5]
14. After those occasions the complainant said he had the courage to tell the appellant that “enough’s enough”, and they did not see a great deal of each other except for passing in the school.  At that point the appellant threatened him, saying that if the complainant told anyone “I’m going to tell everyone at school that you’re gay and … I’ll say things about your mother”.^[6]  Because he was young and embarrassed the complainant did not tell anyone what happened.
15. The complainant said that when the appellant was in hospital after the accident he went to see him: “Basically I was forced to go see him. I didn’t want to see him.  Mum forced me to come up to the hospital and see him.”^[7]  He said his recollection was that it was in a Brisbane hospital, and the appellant’s parents and the complainant’s mother were there.  He explained what happened:^[8]

“ … he sustained some significant injuries and he was kind of out of it, you know.  Like, he was – like you would if you’re coming out of a coma.  He quite loudly said to me that he destroyed the photographs which I sort of looked at mum and the – and his parents and, yeah.  I was kind of embarrassed and shocked and didn’t know how to take that, but that’s what happened.”

16. The complainant said that while he did not tell anyone about the events, there came a time when the appellant was back at the school and asked for his home phone number.  That upset the complainant and he told the school principal, D, what happened.  From there he was sent to see the school counsellor, J.  He told J what had happened.^[9]
17. In cross-examination the complainant adhered to his account of what happened.  Relevant matters that came out in cross-examination were:

1. he had not contacted the police in 2013, they contacted him; he denied that he was reluctant to proceed with the investigation;^[10]

2. when he visited the appellant’s house he always went there by car from a sporting event or school;^[11] he could not recall how many times he visited the house, nor that there was a flatmate;^[12]
3. he had no recollection of the order in which the three occasions occurred;^[13]
4. he could not recall when it was that he visited the appellant in hospital, but it was not months after the accident;^[14] nor could he recall which hospital it was, or any details about the hospital itself;^[15]
5. it was put, and denied, that he visited the appellant in hospital several times in an eight week period;^[16]
6. it was put, and denied, that the appellant had not said anything about photographs or destroying photographs;^[17]
7. he said he did not know the other student, S, and there was no mention of S in the complainant’s statement because it was his statement;^[18] and
8. he agreed that he told the prosecutor that his mother had lied when she said: (i) the appellant had threatened the lives of her and her family; and (ii) that she had gone to the school when she saw photographs of the complainant naked.^[19]

Evidence of D

18. D was one of two deputy principals at the school.  He knew the appellant as a teacher and the complainant as a student.  He said he spoke to the complainant during which he gave “some very clear information that was very worrying to me”.^[20]  The complainant said that he had been shown pornographic movies by the appellant.^[21]  As a result he referred the complainant to the other deputy principal, L.
19. In cross-examination D said he could not recall the specifics of what the complainant told him, except that he had been shown pornographic movies, as had another student, S.^[22]  D did not tell the police because he decided that “it was prudent to let the senior deputy who looked after student welfare know at the earliest opportunity”.^[23]  He had no conversation with the appellant about the matter.

Evidence of L

20. L was the senior deputy principal at the school at the time of the events.  He knew the appellant as a teacher and the complainant as a student.  He recalled an occasion when the counsellor, J, spoke to him “regarding some impropriety which [the appellant] had confessed to him”.^[24]  He said:^[25]

“ … at the subsequent meeting between [the appellant], [J], myself and [D], who was the assistant principal at the time, [the appellant] made admissions to the fact that … he’d had two incidents of impropriety; one three years before when he had a year 8 student in his flat, and after watching a pornographic movie they moved over to the oval which was opposite … the flat and [the appellant] had dared … the student to run around without his clothes on.   He did that. [The appellant] then removed his clothes and did the same, and photographs were taken … which [the appellant] had then – at that meeting said that they had been destroyed …”

21. He did not speak to the appellant about the matters himself, but found out about them by the appellant’s admissions:^[26]

“ … the allegations were outlined by [J], and [the appellant] had agreed that they were – they were correct – true and correct.”

22. L made notes of the meeting, and having read them recalled that the appellant told the meeting that the complainant’s mother had seen the photographs and had indicated that she wanted the photographs and negatives destroyed, which he did.^[27]
23. L identified a statement by J, the school counsellor, as being part of the school records of the incident.  It became Exhibit 5.
24. In cross-examination, L said that he had not spoken to the complainant at the time of the meeting with the appellant.  He also said that he was not told about any allegation of masturbation.^[28]  Other matters to arise from cross-examination were:

1. L said he could not recall spending time with the appellant’s family on holidays, or at functions at the appellant’s family home, but could recall sending them a Christmas card; he accepted that he was a family friend of the appellant’s family, just as he was with most of the staff;

2. he recalled that the appellant was in a serious accident and hospitalized for six to nine months; and after a time he commenced back at the school on a return to work programme;^[29] he agreed that the appellant’s personality had changed post-accident;^[30] also the appellant looked different, had a strange eye, funny movement with his tongue and spoke differently; he had become more verbose;^[31]
3. he said his memory was aided by his notes, albeit that they did not record the conversation at the meeting in direct speech;
4. he agreed that the appellant was not warned that the allegations could end his career, or supplied with an independent advisor or lawyer;^[32]
5. after the appellant made the admissions the complainant and his mother agreed that the matter should go no further;^[33]
6. it was put, and denied, that L told the appellant’s father, that the appellant was having trouble because of his inability to control students and his odd behaviour and had resigned;^[34] however he believed he told the appellant’s father that he had committed serious improper acts;^[35] and
7. afterwards he passed on the information to the Catholic Education Office, and believed they would have passed it to the Teachers Registration Board.

Evidence of the police investigator

25. The officer said the complaint was made by the Catholic Education Office in March 2013, and it arose as part of their investigation for the Royal Commission into child abuse.  In cross-examination he agreed that records of the Princess Alexandra Hospital and the Royal Brisbane Hospital from 5 May 1994 to 31 January 1995 had been destroyed, and that other records were incomplete.
26. When the investigation commenced he was led to the student S who suggested he speak to the complainant.  As a result the officer approached the complainant.  At that stage the police elected not to proceed because of the complainant’s reluctance to be a witness.^[36]  He explained the reluctance:^[37]

“After being approached I believe he just wanted some time to think about it and sort of prepare himself and he asked for that time.  It took – and we also, due to the distance between Toowoomba and his address, there was issues in relation to communication, but he eventually came forward and said that he did wish to proceed.  So I continued with the investigation.”

Evidence from the complainant’s mother, W

27. W, the complainant’s mother, said that a friendship developed between the complainant and the appellant which included their regular attendance at various sporting events.  She said the complainant, with her permission, had been to the appellant’s house a few times, and so had she.  She said the appellant mentioned to her on one occasion that there “had been photos of my son … on an oval”.^[38]  She asked the appellant to let her see the photo:^[39]

“At first he wouldn’t let me see, and eventually I asked again, and I got to see the photo, and when he did say that if I showed you the photo.  He said but you’re never to tell anybody otherwise I will kill you if you do.”

28. The photograph, which was the only one she saw, was of the complainant “standing naked” on an oval or park.^[40]  She did not ask the complainant about it.
29. W said she went, with the complainant, to see the appellant in hospital.  She said it was a very brief visit and “while my son and I were there one thing that [the appellant] said was I destroyed the photos”.^[41]  She said the appellant’s parents were there at the time.
30. In cross-examination W agreed that she once “spent the night with [the appellant] in his unit”.^[42]  She agreed that she went to the school to make a complaint after she had seen the photographs, but nothing was done about it.^[43]  That was before the appellant’s accident.^[44]  She agreed that in a statement (done the day before her evidence) she said why she went to see the appellant:^[45]

“I mentioned going to the hospital with [the complainant] and seeing [the appellant]. … This visit was just after he had come out of the coma from being in a traffic accident.  I’m not sure of the exact timings.  It could have been a week or a couple of weeks, but I’m not sure, but it was definitely the PA Hospital in Brisbane.

The reason I went and saw [the appellant] was because, to be honest, I wanted to see how badly injured he was and I didn’t want him to be – to survive because of the naked photos of [the complainant] that he’d showed me earlier and the threat he’d made that he would kill me if ever I told anyone or mentioned them.”

31. She accepted that her statement showed hate for what the appellant had done to her son, saying it was “hate to a degree”.^[46]  She accepted that she was angry but denied that she did not want the appellant to live.^[47]  However, shortly after she agreed that she went there because she wanted him dead.^[48]
32. W could not recall many details of the hospital, including what ward they went to or where they parked, nor when it was beyond a couple of weeks after the accident.^[49]  She said as best she could recall it was an open ward with other beds.^[50]
33. W was shown a letter which she wrote to the appellant while he was in hospital (but before they visited), in which she was friendly, and to which was attached some scripture entitled The Greatest Spirited Gift.^[51]  She was also shown a card she later wrote to him, still while he was in hospital and before they visited, expressing good wishes towards him.^[52]

Evidence of S

34. S was a fellow student.  He had daily interaction with the appellant, who was his home room teacher, and through tutoring.  He went to the appellant’s home a few times and on one occasion he met the complainant there.  He related an occasion when the appellant dared him to run naked on the oval:^[53]

“ … he had told me about a dare that he had given to [the complainant] where he had sort of dared [the complainant] to do what he called a nudie run on that oval, and [the complainant] had apparently accepted this dare and had run from one side of the oval to the other without any clothes on, and I was told that he had taken photographs of [the complainant] … this was sort of like an initiation or a proving of trust was how it was put to me and that … I should do the same thing in order to … establish this trust or this bond between us, and so I had met [the appellant] in the middle of the night one evening.  I’d waited till family had gone to bed … and I snuck out of the house to go and meet him at the park across the road from his house, and, yeah, it was exactly that … we’d talked about this over … some time, and … I guess the initiation was for me to do the same thing as [the complainant], and I declined to do it.  I said I didn’t want to do it, and when I had said that I did not want to do that [the appellant] had said to me that … this rule was important, that if he was going to, sort of, trust me, that this was something that had to happen.  He had a camera at that time and had said that he would … as he had described with [the complainant], take photographs of me, and I said that I wasn’t going to do the run, and [the appellant] had said to me that in any case after I had said no that there was no film in the camera.”

35. He recalled an occasion in 1997 when he met the complainant at a party.  The complainant was drunk and:^[54]

“… was sort of quite visibly upset when he saw me, and he said that [the appellant] was a cunt, and he just said … that someone should kill him, and … he made … a number of comments, and it was a surprise to me because I … had not expected that reaction from [the complainant], and I said what had happened to you because … I couldn’t see [the complainant] volunteering that information because … he wasn’t really in a … fit state, and … I said, what was the cause of your upset between you and [the appellant], and he had said that either [the appellant] has masturbated in front of him, or that he had made [the complainant] masturbate in front of him, and I can’t be sure of what it was and I didn’t ask any follow up questions.  I … explained to [the complainant] that … this kind of thing, it wasn’t his fault.  He hadn’t done anything wrong.  I felt that he had been put in that situation.”

36. In cross-examination, S said that 2013 was when he was first asked to remember the conversation with the appellant.  He was confronted with a statement he made in 2013 and agreed that the word “camera” was not in it, but he said he recalled that the appellant did refer to a camera.^[55]  He accepted that the first time he had mentioned the conversation with the complainant at the party was only the previous day to his evidence.^[56]  He explained:^[57]

“My recollection for those things, I think … has probably always been present in my head, and I’ve spent a good deal of time trying to forget much of these interactions which I hope people would appreciate, but having said that, when I was talking off the cuff yesterday, those are things that when I had said were asked back to me if they were in my statement, and I reread my statement, and they weren’t.”

37. S said that it was he who told the police that they should speak to the complainant.

Evidence of the appellant’s mother

38. The appellant’s mother said that the appellant shared his townhouse with various tenants, and at the time of his accident he had been sharing with a female tenant for about two years.  She identified photographs of the appellant (pre-accident) and his tenant.
39. After the accident the appellant spent six weeks in Royal Brisbane Hospital, first in the intensive care unit in an induced coma, and then in the neurological ward.  During the time in ICU she stayed with him 24 hours a day.  At the end of the six weeks the appellant spoke for the first time, which was a signal that he could be moved to a rehabilitation unit at Princess Alexandra Hospital.
40. While the appellant was in ICU the complainant’s mother visited and was turned away.  She and the complainant later visited when the appellant was in the neurological ward at Royal Brisbane Hospital.  She said that they were only there a few minutes and then her husband escorted them out.^[58]  There was no conversation between them and the appellant, and the appellant said nothing.^[59]
41. She said that the appellant was changed after the accident, both in terms of facial expressions and the use of odd, out of context or inappropriate expressions.^[60]  She said that L and his wife were friends of the family and L assisted when the appellant tried to return to work as part of his rehabilitation.
42. In cross-examination she said that when the appellant moved to Princess Alexandra Hospital his tongue was still swollen^[61] and he gradually started to speak again, but it was limited.^[62]  There was an occasion when the complainant and his mother visited at the same time as another student and his mother.^[63]  She was definite that she had seen the complainant’s mother three times at Royal Brisbane Hospital but never at the Princess Alexandra Hospital.^[64]  She denied that the appellant had said anything about destroying photographs.^[65]

Evidence of the appellant’s father

43. The appellant’s father gave evidence broadly similar to that of his wife, except as detailed below.
44. He said that at Royal Brisbane Hospital he could only remember two boys and two ladies visiting.^[66]  The complainant and his mother were in that group.  He did not have any interaction with them himself, but the boys were “a bit giggly” which upset his wife, so he politely encouraged them to leave.^[67]  He said that the appellant could not speak and there was no conversation with him during that visit.
45. At the Princess Alexandra Hospital he had no interaction with the complainant or his mother.^[68]  He said that when the appellant resigned it was the appellant who told him, not L,^[69] and L did not tell him of any allegation of inappropriate sexual conduct by the appellant.^[70]
46. In cross-examination he said that when the complainant and his mother visited he did not know who they were.  The boys were laughing a bit and he was embarrassed.^[71]  He was definite that they did not visit at the Princess Alexandra Hospital, but at Royal Brisbane Hospital.^[72]  That was then modified as he said he did not know if they were at Princess Alexandra Hospital.^[73]

Admissions at trial

47. A formal admission was made at the trial, namely that on 5 May 1994 the appellant was involved in a car accident near Gatton for which he required hospitalisation.

The statement by J; Exhibit 5

48. The statement by J was dated 5 August 1996 and in the form of a letter addressed to the Principal of the school.  It was marked “CONFIDENTIAL” and read as follows:^[74]

“During the course of the day of Friday 2/8/1996 it came to my attention via [D], Deputy Principal, that the behaviour of [the appellant] had possibly been unlawful in that he had shown a pornographic video to a student who at the time would have been 12 years of age.

As I had spoken to [the appellant] on a number of previous occasions it was agreed that I should speak to him regarding the concerns.

I spoke to [the appellant] regarding the concern and voiced my own disquiet at the incident.

I informed [the appellant] that it would be necessary for me to inform the Deputy Principal forthwith.  I terminated the interview and made an appointment for [the appellant] to see me in one hour.

I spoke to the Deputy Principals of the concerns and of the follow-up meeting with [the appellant]. During this time Deputy [D] was having an interview

I then spoke with the boy concerned privately, the purpose of which was to alleviate any anxiety he might be feeling.  During our discussion he revealed that the video he saw was actually pornographic.  It depicted male-female and female-female sexual intercourse.

He further revealed (for the first time) that [the appellant] on one occasion had dared him to run naked around a park which he did.  He also indicated that [the appellant] had done likewise.  The boy then revealed that whilst he was naked [the appellant] took a photo or photographs of him.

At a subsequent meeting between [the appellant] and himself the boy indicated that [the appellant] had informed him that the photographs had been destroyed.

He (the boy) also indicated that [the appellant] had made him feel that he couldn’t tell anyone.  He also disclosed that [the appellant] had asked him not to tell anyone of the incident when he visited [the appellant] in hospital (following a serious car accident [the appellant] had been involved in).

I reassured the boy regarding his feelings and told him the matter would be dealt with.

The boy indicated he was going to tell his mother of the photo incident and that she already knew of the video incident.

The boy left as he was running late; we made a tentative appointment to talk later in the week, which he was happy with.

I then spoke to [the appellant] regarding the concern of the boy.  [The appellant] indicated that what the boy had said was true.  I then rang Deputy Principal, [L]; a meeting was convened immediately between [the appellant], myself and the two Deputy Principals.

At this meeting I informed the Deputies what [the appellant] had disclosed; [the appellant] indicated that the information was correct.

A second meeting was then convened between the Principal, Deputy Principals and myself.  At this meeting the Principal was informed of the events.  The Principal then organised for [L] to inform the CEO and to take advice.

This letter is in response to a request via [L] and the CEO that I make some general statement around the incident and proceedings.”

Discussion

49. I intend to deal with each ground, but in an order that reflects the relationship of one ground to another and the order in which they were argued, at the same time setting out the competing submissions relevant to that ground.

Ground 2 – evidence wrongly admitted

50. This ground related to the statement by J (Exhibit 5) and the admissions made to L.

Appellant’s submissions

51. For the appellant Ms Hillard submitted that Exhibit 5 should not have been admitted because it did not come within s 93 of the Evidence Act 1977 (Qld).  Under s 93 what is a “trade or business” and what is a “record” is narrowly construed, and this document did not come within those definitions.  Section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) does not make admissible a document that would be hearsay complaint evidence.
52. Further, even though its admission on the basis that it was a business record was not objected to by trial Counsel for the appellant,^[75] it ought to have been excluded on discretionary grounds, including that the appellant was suffering cognitive deficits at the time, the appellant was not told that he had the right to seek advice, the document was not a word for word account but in narrative form, and the appellant was denied the chance to cross-examine on it.  Cross-examination would have been directed to such things as what was meant by the expressions “concern”, “concerns”, “disquiet” and how things were “indicated”, and whether there was pressure on the appellant to admit the conduct.
53. Further, Exhibit 5 contained second hand hearsay, principally in parts where J told others at the meeting of the appellant’s admissions; for example “I informed the Deputies what [the appellant] had disclosed; [the appellant] indicated that the information was correct”.  Section 93 did not make second hand hearsay admissible.  Reliance was placed on R v Suteski^[76] and Tan v R.^[77]
54. L’s evidence as to the appellant’s admissions at the meeting should have been excluded on discretionary grounds.  His evidence of what J said about the allegations in the meeting, that was said to be adopted by the appellant,^[78] is second hand hearsay.

Submissions for the Crown

55. For the Crown it was submitted that at the trial it was accepted that Exhibit 5 had been written by J and was kept in the school records.  It was a report to the Principal which recorded that allegations were put to the appellant who indicated that they were true.  The appellant did not challenge the document as hearsay at the trial, but only on the unfairness ground.  The appropriate basis for its admissibility was s 93 of the Evidence Act, which was satisfied.  If J were alive he could have testified to the matters in the letter.  The challenge, made pre-trial trial and rejected, was principally based on the unreliability of the appellant’s statements in light of his brain injury.  There was no reason to doubt the pre-trial ruling.
56. L’s evidence was that he was at a meeting where allegations were put to the appellant and the appellant agreed that they were correct.  That is not hearsay.  Further, the directions given in the summing up, as to Exhibit 5 and the admissions to L,^[79] were appropriate and sufficient to avoid any unfairness or miscarriage of justice.

Discussion – ground 2

57. In my view the letter, Exhibit 5, came within the provisions of s 93 of the Evidence Act.  It was a document that was brought into existence at the request of the Deputy Principal (L) and the school’s CEO, to record factual matters concerning the school’s investigation of alleged impropriety by a teacher in respect of a student.  It cannot be doubted that a school has an obligation, as part of its business of caring for student welfare, to investigate such an allegation, and to keep appropriate records of the investigation, and its outcome.  Just as a school’s records of student attendance are admissible,^[80] so too are the records of such an investigation.
58. Nor, in my respectful view, can it be doubted that a school is a “business” within s 93(1)(a).  It has long been established that both public and private hospitals are a business for the purposes of that section.^[81]  This school was a fee charging school.^[82]  If a hospital which charges fees to administer to the physical welfare of persons is a business, how can it be that a school, which charges fees to administer to the educational welfare of persons, is not?
59. The document was retained as part of the school’s records.^[83]  The author, J, had personal knowledge of the matters in it, as he was the person who spoke to the other actors including the appellant, and was present at the meeting between the appellant, J and the Deputy Principals.  J was dead.
60. In so far as some of the information was supplied indirectly, it came from persons who “may reasonably be supposed to have … personal knowledge of the matters dealt with in the information”: s 93(1)(a).  The only such evidence is limited to the opening paragraph, relating that one of the Deputy Principals drew the school’s counsellor’s attention to an allegation about the appellant.  However, that paragraph could not have been adduced to prove the truth of it, but was in the form of original evidence to explain why events then followed.
61. I do not accept that s 4A of the Criminal Law (Sexual Offences) Act operates to deny the admissibility of Exhibit 5.  That section is directed to evidence of complaint.  It provides that evidence of “how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made”: s 4A(2).  Such evidence is almost always hearsay in the sense that it consists of a complainant’s allegation of sexual conduct by an accused, in the absence of the accused.  The only such part of Exhibit 5 is that where J recorded what the complainant said about the allegations, namely the six paragraphs starting with “I then spoke with the boy”: paragraph [48] above.  That is unobjectionable preliminary complaint evidence.
62. Attention was focussed on the highlighted part of the following sentence: “At this meeting I informed the Deputies what [the appellant] had disclosed; [the appellant] indicated that the information was correct.”  That was at a meeting where the appellant was present. Read in context that was a reference to what the appellant had said to J at the previous meeting between them,^[84] namely that “what the boy had said was true”.  Therefore it was J telling others, in the presence of the appellant, what the appellant had said directly to J.  That was evidence of an admission by the appellant that the complainant’s account was correct.
63. Similarly, L’s evidence of what was said at that meeting was unobjectionable, in so far as it referred to allegations put and admitted by the appellant.  Otherwise the evidence the subject of the submissions on the appeal was not tendered to prove the truth of what was said:

1. the first was that “[J] rang me.  He said that he needed to see me regarding some impropriety which [the appellant] had confessed to him”;^[85] that could not prove the truth of what [J] said;

2. the second was, “… the allegations were outlined by [J], and [the appellant] had agreed that they were – they were correct – true and correct”;^[86] that fell into the category of allegations put at the meeting and admitted by the appellant; and
3. the third was the evidence of L that he could not give a verbatim account of what was said at the meeting and it was not written down verbatim;^[87] it is unclear why this was submitted to be objectionable hearsay; it was evidence that was relied upon to suggest that L’s evidence should be rejected but that was a matter for the jury to weigh.

64. The fact that there was no objection at the trial to the tender of Exhibit 5 on the basis that it did not come within s 93 of the Evidence Act, does not end the matter.  Notwithstanding the absence of objection the appellant was entitled to a fair trial, and if there was a prospect that Exhibit 5 might have prejudiced his prospect of an acquittal the absence of objection would not preclude this Court from intervening to prevent a miscarriage of justice.^[88]
65. The appellant’s submissions as to the unfairness in Exhibit 5 covered almost the entirety of the letter.  I will deal with them in sequence.
66. In the first paragraph reference was made to the phrase “the behaviour of [the appellant] had possibly been unlawful” and it was submitted that unfairness resulted from this phrase in two ways: (i) it was not evidence that could have been given by J if he were able to be called; in other words, it was not something of which direct oral evidence would have been admissible under s 93(1); and (ii) read in context, the letter then reveals that meetings were held with the appellant, a person then with cognitive impairment and working under a rehabilitation scheme.  Given that the first paragraph was in the form of original evidence and not relied on to prove the truth of its contents, I am unpersuaded that unfairness was caused by its inclusion in Exhibit 5.
67. In the second paragraph reference was made to the fact that J had spoken to the appellant before and for that reason was to speak to him again.  It was submitted that this added to the unfairness because of the seriousness of the matters to be discussed and in the way the admission occurred.  I am unable to accept this submission.  The “concerns” referred to in the second paragraph are, in context, the concern that possibly there had been unlawful conduct in the showing of a pornographic video to a student.  That paragraph simply explains why it was that J spoke to the appellant.
68. The third paragraph stated that J spoke to the appellant “regarding the concern” and “voiced my own disquiet at the incident”.  This was said to contain an opinion and was not evidence that J could have given if called.  As well, it was said that the unfairness resulted from the inability to test what was meant by “disquiet” and what words were used to voice it.  Nothing in that paragraph added to the substance of what Exhibit 5 was tendered to prove, namely the admissions by the appellant.  It may be that the words beyond merely having spoken to the appellant could not have been given but they do not create or add to unfairness.
69. The fourth and fifth paragraphs were said to have added to the unfairness, by revealing the escalation of the interview process, which ultimately involved the admissions being extracted from the appellant, a person with impairments and working under the Commonwealth rehabilitation scheme. I do not accept that to be so.  Those two paragraphs merely reveal the sequence, namely that the first interview with the appellant was terminated, and why, and that J spoke to others.
70. The first sentence of the sixth paragraph was said to be evidence that J could not give if called as a witness.  That may be so of the words following “privately”, where the purpose of speaking to the complainant was mentioned, but nothing turns on it.  Counsel on the appeal even characterised it as “splitting hairs”.^[89]
71. The balance of the sixth, seventh and ninth paragraphs were accepted to be preliminary complaint evidence.  However, it was submitted that paragraph eight was inadmissible because it was a repetition of an admission made to the complainant, namely that the photographs had been destroyed, and therefore became a prior consistent statement that bolstered the evidence of the complainant.  I pause to note that that was not a basis upon which its exclusion was sought at trial.  I do not agree that it was inadmissible for that reason.  In my view, it was recording part of the preliminary complaint, in that conduct had occurred, and photographs had been taken but were destroyed.
72. Conceding that it was again “splitting hairs”, it was submitted that the first part of paragraph 10 was evidence that could not have been given by J if called as a witness, and therefore not admissible under s 93(1).  That may be so but objection was not taken to its admission under s 93, so nothing turns on it.  The second part, that “the matter would be dealt with”, was submitted to be unfair because it demonstrated the seriousness of the matter, and therefore the unfairness in the way the admissions were obtained.  In my view, that statement is relatively innocuous.
73. Paragraph 11 was submitted to fall into a slightly different category.  Counsel for the appellant accepted that there may have been a forensic advantage to the defence to have that evidence before the jury as it was contrary to the evidence of the complainant’s mother.  The unfairness was said to lie simply in the fact that J could not be cross-examined.  However, it was admitted without objection under s 93 and therefore that complaint falls away, especially when directions could be given to the jury as to how to use the statement.
74. Paragraph 12 was accepted to be not damaging, which I take to mean not unfair, even if strictly inadmissible as being evidence that J could not give.  However, it was admitted under s 93.
75. Paragraphs 13 and 14 were submitted to be unfair because J could not be cross-examined, particularly as to how the appellant “indicated” that what was said by the complainant was true, and that what was said about his response was correct.  However, where a document is admitted under s 93 it will always be the case that the author is not cross-examined, and directions can be given to the jury about the approach they are to take. That was the case here.  I do not consider that paragraph to be unfair.
76. Finally paragraph 15 was submitted to be unfair in that it revealed the seriousness of the matter and the way the admissions were obtained.  I do not accept that submission.  That paragraph simply records events in the investigation without descending to detail.
77. The ultimate submission as to Exhibit 5 and L’s evidence was that they ought to have been excluded under s 98 of the Evidence Act, which provides:

“(1) The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.”

78. I do not accept that submission.  The reliance placed on Exhibit 5 and L’s evidence was in respect of those parts that recorded the appellant’s admissions as to the conduct alleged.  Unless those admissions were obtained in a way that was infected with unfairness the interests of justice would be served by their admission into evidence, not the reverse.  It is true that the appellant suffered a brain injury that left him with cognitive deficits, but the pre-trial evidence did not suggest that he would have been in a position of vulnerability in the meetings about the alleged conduct.  Expert medical evidence at the pre-trial hearing was given by two neuropsychologists, Dr Anderson and Dr Keane.
79. Before referring to their evidence, I note that the learned judge hearing the pre-trial application, and Counsel then appearing for the appellant, were the trial judge and trial Counsel respectively.  At the pre-trial hearing, and before any evidence was called, the appellant’s Counsel did not oppose the admission of the document that became Exhibit 5 under s 93 of the Evidence Act, but submitted that it be “excluded on discretionary grounds because he was still suffering from … these cognitive deficits from his road traffic crash … his cognitive deficits and his inability to sustain questioning in a stressful situation was such that he simply said yes to the answers”.^[90]  The learned primary judge asked whether, if he was against the application to exclude and it went in, all of it would be admitted.  The appellant’s Counsel responded in the negative, saying that there needed to be discussions between himself and the prosecutor.^[91]
80. Dr Anderson said that the frontal lobe damage had left the appellant with disinhibited behaviour, or acting without thinking, where he would make inappropriate comments and poor decisions.  In addition his memory and concentration were affected.^[92]  She said that at the time of the admissions made at the meetings with J and L:^[93]

“… [the appellant] was likely to be still recovering from the effects of the injury and, thus, his judgment may well have been substantially affected.  His ability to think clearly about the situation, engage in self-protection and even assess the truth of any allegations, in the context of confusion and poor memory would, in my view, have all been affected at that time.”

81. Dr Anderson then summarised her opinion this way: “… it is possible that he was saying and doing things without thinking about the consequences and not fully understanding them.”^[94]  The learned trial judge the sought to clarify what she meant:^[95]

“HIS HONOUR:  Well, not fully understanding the consequences.  You seem to be indicating that he may speak truthfully without taking into account the need for self-protection?---Well, I simply – I put that in because it was my concern about the issue of his agreeability.”

82. In cross-examination, Dr Anderson said that there was no lack of intelligence or comprehension of language, but disinhibition and poor judgment.^[96]  The impact on cognitive function was mild.^[97]  There was no suggestion of lack of truth telling or gratuitous concurrence.^[98]  The highest that Dr Anderson would go was that one needed to consider that there was a possibility the appellant had gratuitously agreed to the allegations.^[99]  The disinhibition meant that he failed to appreciate the gravity of the situation and the need to take it seriously or think about the consequences.^[100]
83. Dr Anderson said she could not exclude either possibility, one that the appellant was being suggestible, the other that he was being truthful.^[101]
84. Dr Keane said that gratuitous concurrence was when someone agreed with information even though they did not agree with it.^[102]  She also put it as saying yes to any proposition without thinking of the consequences.^[103]  She did not see evidence of that with the appellant.^[104]
85. Dr Keane said that disinhibition was the state of being more likely to do or say something that previously one would have been restrained from doing.^[105]  A disinhibited person was more likely to come out with something that they think rather than censor what they say.^[106]  She did see evidence of that with the appellant.^[107]  However she said that the reports did not reveal that the appellant said yes to the allegations just to be agreeable.^[108]
86. Dr Keane disagreed that there was a question of reliability about the questions and answers that were put to the appellant at the meetings in 1996.^[109]  She explained:^[110]

“… from what I understand, [the appellant] agreed with what was proposed and added information, further information.  That is typical of people with disinhibition, … that internal censor that would stop you from saying, “Oh, yes, I did that,” you know, because it would be … and be understanding that … there would be a legal consequence is impaired.  So you’re more likely … to agree with the correct assertion.  So … what you’re seeing in the report is this inhibition at work with him saying, “Yes, I did it, and I did this and this as well.”  So that’s where the disinhibition in the report comes about, rather than – it’s disinhibition rather than gratuitous concurrence.”

87. Following that evidence Counsel then appearing for the appellant conceded that “given the evidence of Dr Anderson and Dr Keane, that the admissions to [L] and [J] … it’s difficult to sustain a concrete argument about their reliability”.^[111]
88. On the first day of trial, the document that became Exhibit 5 was referred to and the learned trial judge was told that its admission under s 93 of the Evidence Act was not opposed.^[112]  It was also revealed by Counsel for the appellant^[113] that there had been “some edits from it”.^[114]  In my view, the inference to draw is that the appellant’s trial Counsel had been involved in the editing process.
89. The prosecutor then raised the issue concerning the admissions to L and J, and told the learned trial judge that as they were ruled admissible in the Crown case “the Crown will be leading those admissions”, and that Dr Keane would only be called if the defence proposed to call Dr Anderson on the issue of gratuitous concurrence.^[115]  In response Counsel for the appellant said:^[116]

“Firstly, we are not calling an expert in the defence case at this stage.  Much depends on what the Crown witnesses say, of course, as well.  What has been called has been – what would be called has been disclosed to the prosecution.  We certainly intend calling the mother and father of the defendant to indicate that post the accident, for a number of years, the defendant was making irrational and unreliable statements.  We’re not suggesting that he was gratuitously concurrent, but that as a result of the head injury he would say things that were just out of context.

Now, the prosecutor can’t just call a witness in rebuttal evidence without an application, and will have to have very good reason to do so, but I have at no time suggested that we were not calling – and they actually have a proof of both of the affidavits of [the appellant’s mother and father], as to what they would be saying about that. … Sorry, they have an affidavit of [the appellant’s mother] about examples that she gave of … the defendant just saying irrational things.  Now, that’s as far as we’re going to take it.  We’re not suggesting that it’s gratuitous concurrence; we’re just saying that post accident he had a problem or he would say things that were inappropriate and out of context.”

90. In my view, trial Counsel for the appellant made it clear that (i) admission of Exhibit 5 under s 93 of the Evidence Act was not opposed; (ii) the defence case was to be conducted on the basis that there was no reason to consider the admissions in it unreliable or the product of gratuitous concurrence arising from the residual effects of the appellant’s brain injury.  As a consequence there was no evidence from Dr Anderson or Dr Keane at the trial, nor was the appellant’s mother asked to give evidence (as she did at the pre-trial hearing)^[117] of the appellant’s gullibility and susceptibility to suggestions by students and others.
91. There was no renewal of the application to exclude Exhibit 5 or L’s evidence of the admissions.
92. In those circumstances I am unpersuaded that there was any relevant unfairness in the admission of Exhibit 5 or L’s evidence of the admissions.  The submissions on the appeal were framed on the basis that the unfairness stemmed from the seriousness of the subject matter, the fact that the appellant had then returned to work under a rehabilitation programme, that he had a cognitive impairment, and the failure to tell the appellant that he could obtain advice about his position.  However, underpinning all those factors was the implicit contention that the appellant was in a vulnerable position because of his post-accident condition.  There was no evidence to support that conclusion.  Moreover, it was a contention abandoned at the trial in light of the expert medical evidence.  Had it been raised the Crown would have called Dr Keane to give the evidence she gave pre-trial.
93. I do not consider that R v Suteski^[118] assists the appellant.  That was a case where an electronic recording of a statement was tendered on the basis that the interviewee was not available to give evidence.  It was tendered under the New South Wales analogue of s 93B of the Queensland Evidence Act, s 65 of the Evidence Act 1955 (NSW).  The New South Wales statute had a section that is not replicated in the Queensland statute, s 137, which provided that: “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.  The consideration of that section, provoked by an application to exclude the evidence, turned on what might be “unfairly prejudicial”, and whether the inability to cross-examine the witness was unfairly prejudicial.
94. The Court^[119] reviewed some of the decisions on s 137, and concluded:^[120]

“[126] For the reasons earlier identified, I see no reason why the inability of the appellant to cross-examine Sakisi should not have been relevant for s 135 and s 137 of the Evidence Act.  However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to these provisions.  See Ordukaya v Hicks [2000] NSWCA 180, Bakerland Pty Ltd v Coleridge [2002] NSWCCA 30, and in particular the decision of Heydon JA in R v Clark [2001] NSWCCA 494 at [164].

[127] The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant.  Each case, in my view, needs to be examined individually by reference to the well understood balancing exercise.”

95. The difference in the statutory regimes means Suteski is of limited utility, especially as Exhibit 5 was not tendered under the Queensland analogue to s 65 of the NSW statute.  It lays down no principle that would govern the present case, recognising, as it does, that each case depends on its own facts.  The same is the case with Tan v R^[121] which turned on the same statutory provision.
96. Furthermore, trial Counsel expressly conducted the defence case on the basis that: (i) Exhibit 5 was admissible under s 93; (ii) it was being relied upon by the Crown for the admissions in it, as well as the preliminary complaint aspect; (iii) the appellant’s condition did not warrant the exclusion of the admissions; and (iv) Exhibit 5 had been edited by defence Counsel prior to its tender into evidence.
97. Further, defence Counsel seems to have taken forensic advantage of the matters referred to in Exhibit 5, in two ways.
98. First, the participants in the critical meeting where the appellant said the information was correct were the appellant, L, D and J.  L and D gave evidence.  L’s evidence is extracted above.  D said nothing of the meeting in his evidence in chief, and in cross-examination denied that he had any conversations with the appellant about the matters in issue.^[122] Therefore there was a basis to contend that there was a relevant inconsistency between L and D, such as to create doubt.
99. Secondly, Exhibit 5 made no reference to the allegation of masturbation.  That formed a basis to have L agree, in cross-examination, that there was no mention of it at any time.^[123]  No doubt that was a consideration in the jury’s decision to acquit on that count.
100. Whilst these matters may have been simply a reaction to Exhibit 5’s tender, nonetheless they lessen the impact of suggested unfairness.
101. In the absence of a renewed application to exclude the evidence Counsel on the appeal accepted that it was not incumbent on the trial judge to do so of his own motion.^[124]
102. This ground lacks merit.

Ground 6 – failure to give adequate hearsay directions

103. This ground was allied to ground 2 in that it was contended that inadequate directions were given as to the way to approach Exhibit 5.

Submissions

104. Ms Hillard submitted that only part of the Bench Book direction required by s 93C of the Evidence Act was given, but acknowledged that if Exhibit 5 was properly admitted under s 93 there was not the same stringent requirement for a direction as there was under s 93C.  However, she submitted that more was required than was done, particularly as this was an old offence.  The contended deficiencies were the need for warnings: (i) as to the fact that J was not giving evidence on oath and therefore the evidence was not given under the same imperative to speak truthfully as under sworn evidence, and needed to be approached with caution; (ii) that J’s testimony might not be a reliable account, and that he may have misheard or not recalled accurately; (iii) that J’s evidence was untested and untestable, especially as to J’s honesty and reliability, and the jury were denied the chance to see and hear J.
105. For the Crown it was submitted that the directions given were appropriate and sufficient.  As to the suggested deficiencies: (i) the learned trial judge gave adequate directions to cover the aspects of it not being on oath or testable, and the need for caution; (ii) directions about the balance were inapt in the case of a memorandum where the author is speaking of events he witnessed, as opposed to a witness who says they were told something by another, who is dead.

Discussion

106. The learned trial judge gave directions that dealt with Exhibit 5 and the admissions.  The jury were told that:^[125]

1. it was a hearsay document as J was dead; had he been alive his evidence could not have been in that form, but he would have been called to give evidence based upon his recollection of events;

2. it was only because J was dead that it could be presented in that form, but it had no special weight simply because it was a document;
3. it had not been adopted by the complainant as a true record;
4. it was “untested and untestable”;^[126]
5. what it records as having been said by the appellant to J “cannot be examined to ascertain its reliability by the usual means for testing the honesty and reliability of witnesses, cross-examination, and the opportunity given to a jury to see and hear the source of the information”;^[127] and
6. there was therefore “a need for caution in deciding whether to accept as reliable the things relayed to you as hearsay in that document, and in forming a view about the weight which ought to be given to that information”.

107. In my view those directions covered all that was necessary to meet the Bench Book requirements appropriate to the case.  They ensured the jury were aware that it was not on oath, untested and untestable, its honesty and reliability was unable to be scrutinized in the usual way of trial evidence, and that meant they should be cautious in deciding whether to accept it as reliable and worthy of weight.
108. Exhibit 5 was written upon specific request to do so, on the Monday following the Friday meetings with the appellant, addressed to the Principal, and in respect of a serious matter concerning alleged impropriety.  It was identified by L, one of the participants in the critical meeting, who did not suggest any inaccuracy in it.  That assumes some significance in my view, because L had his own notes which he used to refresh his own memory of the events.  In those circumstances directions as to the possible risks posed by inaccurate recollection, perceptions or interpretation of events, mishearing or misinterpretation, or inaccurate recall due to faulty memory, were inapt to the occasion. In fact they might only serve to confuse the jury.
109. As to the admissions in Exhibit 5 and in the evidence of L, the jury were told:^[128]

“First, you must be satisfied that the particular statement was made by the defendant.  If you are satisfied that the statement was, indeed, made by the defendant, the second aspect you must consider is whether those parts … that the prosecution relies on as indicating guilt, are true and correct.  It is up to you to decide whether you are satisfied that those things said by the defendant, which would tend to indicate that he is guilty of the offence, were true, because if you are not satisfied, you cannot rely on them as going to prove his guilt.”

110. By that direction the jury were adequately warned that they had to be satisfied that the appellant had actually said the things attributed to him as admissions in Exhibit 5 and L’s evidence, and that they were true.  Short of reaching that state of satisfaction they could not be relied upon.
111. In my view, this ground lacks merit.

Ground 5 – misdirection on propensity reasoning

112. This ground concerned the evidence from the student, S, set out in paragraphs [34] to [37] above.

Submissions

113. Ms Hillard submitted that despite the learned trial judge having concerns about this evidence as similar fact evidence, his Honour only gave a partial warning against impermissible propensity reasoning.  It was contended that once the evidence was before the jury it needed to be dealt with appropriately, and that required a comprehensive propensity warning.  Relying on KRM v The Queen^[129] it was submitted that it was not a case where there was no undue risk of drawing the jury’s attention to an impermissible chain of reasoning.  Even though this was not raised by trial defence Counsel that was not fatal to the point on appeal.^[130]
114. It was submitted that two further parts of Bench Book Direction 70.4 should have been given: (i) warning that evidence of uncharged acts was there for a limited purpose and they needed to be satisfied of the charged offence beyond reasonable doubt; and (ii) if they did not accept the evidence of a witness to the uncharged acts, that could be taken into account when assessing that witness’s evidence on the charged acts.
115. For the Crown it was submitted that the evidence of S was principally concerned with an admission by the appellant, that he had dared the complainant to do a “nudie run” and asked S to do the same thing.  That evidence had a legitimate tendency to implicate the appellant in the charged offence.  It also carried some risk of prejudice by introducing evidence of other discreditable conduct involving another boy.  Therefore a direction was required to ameliorate the risk of prejudice.  The issue was discussed with Counsel prior to the summing up and defence Counsel expressly agreed with the proposed direction.
116. It was submitted that the direction given was adequate, and there was no application for a redirection.

Discussion

117. The learned trial judge commenced his directions in respect of the evidence of S by identifying the limited scope and purpose of his evidence:^[131]

“The defendant is charged only with the offences set out in the indictment. In addition to the evidence of the complainant relating to the charges on the indictment the Crown has led evidence of [S] of another incident in which the defendant dared him to do a nudie run on the oval opposite where the defendant lived.  That evidence is before you only because it was in the course of that conversation where the defendant is said to have said to [S] that [the complainant] had done such a run and that the defendant had taken photographs of him.

The prosecution says that that evidence of [S], if you accept it, is an admission by the defendant of his conduct against [the complainant] which are counts 4 and 5 on the indictment.”

118. Thus it was made clear to the jury that the evidence was before them only for the admissions in it.
119. The direction then continued:^[132]

“Even if you accept the evidence of [S], you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he has been charged.  So it would be quite wrong of you – for you, to reason that you are satisfied he asked [S] to do those acts on another occasion, therefore, it is likely that he committed a charged offence.”

120. It is true to say that no redirection was sought.  But, it goes further than that.  It seems that not only did defence Counsel agree that the proposed direction (which was materially identical to that actually given)^[133] was sufficient,^[134] he proposed the form of the direction himself, when addressing how the evidence of S should be treated:^[135]

“MR MacKENZIE: Yes, your Honour.  If that’s the case, the question is how do we deal with that evidence?  In my respectful submission, a direction should be given to the jury that the reason it’s there is because it’s part and parcel of this alleged admission, and that the second part of that direction should be that the jury shouldn’t devolve into propensity type reasoning.”

121. When the proposed direction was put forward by the learned trial judge the Prosecutor then told his Honour that “I won’t be persisting in arguing that it would fall under similar fact, and I’m happy with that direction that your Honour has outlined in relation to the evidence”.^[136]  The reference to “it” was to the evidence of S.
122. As to the first aspect which, the appellant contended, should have been added, it is pertinent to note that the jury had been directed that: (i) in respect of each charge they had to reach a unanimous verdict;^[137] (ii) guilt had to be proven beyond reasonable doubt on each charge, which meant the jury had to be satisfied beyond reasonable doubt of every element that goes to make up the offence charged;^[138] and (iii) each charge had to be considered separately, evaluating the evidence relating to that particular charge to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved its essential elements,^[139] and the complainant’s evidence had to be considered in respect of each count when considering that particular count.^[140]
123. In my view, those directions adequately covered the first aspect of what was said to be missing from Bench Book Direction 70.4.
124. As to the second aspect, there was no need to include the contended direction.  S did not give evidence of both uncharged acts and the charged acts.  His evidence was before the jury for the admissions in it by the appellant.  Otherwise S said that he had been dared to do a nude run, but declined.  Use of that evidence was expressly limited to the admissions, as the jury were told.  In that case the added part of Bench Book Direction 70.4 would have served to confuse the jury and distracted from their task.
125. In my view, this ground lacks merit.

Ground 3B – inconsistent verdicts

126. This ground focussed on the acquittals on count 2 (masturbation) and count 3 (the appellant being naked in front of the complainant) compared to the convictions on count 1 (showing the pornographic video), count 4 (getting the complainant to run naked around the oval) and count 5 (taking a photograph of the complainant, naked).

Submissions

127. On this ground Ms Hillard contended that the acquittal on counts 2 and 3 were inconsistent with the verdict of guilty on counts 1, 4 and 5.  It was also contended that the conviction on count 1 was inconsistent with the convictions on counts 4 and 5.  It was submitted that because counts 1 (the pornographic video) and 2 (the masturbation) occurred in the same incident, and depended on the same evidence, the verdicts were irreconcilable.  Further, there was no rational basis on which a disbelief of witnesses leading to acquittal on counts 2 and 3 could not have also affected satisfaction of guilt on counts 1, 4 and 5.
128. However, in the course of the appeal Ms Hillard conceded that if the evidence in Exhibit 5 was admitted there was a basis to distinguish the verdicts, and the jury could have convicted on counts 1, 4 and 5, but acquitted on counts 2 and 3.^[141]
129. For the Crown it was submitted that the differences in the evidence on each count revealed a plausible basis to differentiate the verdicts.  The complainant’s account was not, of itself, implausible.  There were inconsistencies, especially given that the events occurred more than 20 years ago. However, there was supporting evidence for some counts.  The appellant admitted that he had shown the video (count 1), encouraged the complainant to run nude around the oval (count 4), and taken photographs of the naked complainant (count 5), which the complainant’s mother had seen.  The lack of complaint about the masturbation, and its absence from Exhibit 5 and L’s evidence, was a distinguishing feature about count 2.  The conviction on count 4 may have been seen by the jury as sufficient reflection of the appellant’s culpability in respect of the nudie runs.

Discussion

130. The learned trial judge gave careful directions that each count was to be considered separately, and the jury were entitled to reach different verdicts on different counts.
131. In MacKenzie v The Queen,^[142] Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of “logic and reasonableness”:

“… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”^[143]

132. As was said by this Court in R v CX:^[144]

“Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”

133. That passage was adopted from what McHugh J said in Osland v The Queen.^[145]  McHugh J went on:^[146]

“Whatever category fits the case, the setting aside of a conviction on the ground of inconsistency of verdicts is a recognition that the jury has erred in its conclusions either in evaluating the facts or in giving effect to the directions of law in the judge's charge.  When the verdicts are in accordance with the evidence and the directions of the trial judge, inconsistency of verdicts is not a ground of appeal.”

134. Thus attention is focussed on the quality of the evidence on each count, whether there is supporting or corroborating evidence, or contradictory evidence.
135. The evidence of the complainant in respect of counts 1, 4 and 5 was supported by the admissions in Exhibit 5, and as recalled by L and S.  As well the complainant’s mother gave evidence that she had seen the photographs.  By contrast there had been no complaint voiced as to the masturbation, and no mention of it at the meetings referred to by L or in Exhibit 5.  D did not suggest it either.  That is enough, in my view, to demonstrate a basis for the jury’s doubt as to count 2.
136. As to count 3 (the appellant being naked in front of the complainant), the jury may have had some doubt about accepting the complainant’s evidence, and when it came to the element of wilfulness.  The only support for this count came from the complainant.  His evidence was that the appellant had dared him to run, and when he declined the appellant went out onto the oval and defecated on the pitch.  There was little to say that the exposure of the appellant’s naked body was wilful, that is deliberate or intentional, beyond the fact that the complainant said he could see him.
137. Further, the incident in count 3 was not referred to in the evidence of L, D or S.  Nor was it clear that it was included in Exhibit 5, which did say that both had done a nudie run but that it was all at the same time as the photographs.
138. Those matters are enough to conclude that there was a basis for the jury to distinguish count 3 from counts 1, 4 and 5.  This is not a case that comes within what was said in CX: paragraph [132] above.
139. This ground fails.

Ground 3A – unreasonable verdict, cannot be supported by the evidence

140. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[147] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.  SKA adopted a passage from M v The Queen which said:^[148]

“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.  Questions of law are separately dealt with by s 6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

141. In M v The Queen the High Court said:^[149]

“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.”

142. Recently the High Court has restated the pre-eminence of the jury and the role of a criminal appellate court, in R v Baden-Clay:^[150]

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.”  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court 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.”

Submissions

143. Ms Hillard submitted that the inconsistencies in the complainant’s accounts of what occurred, what was said to others, the timing of when allegations were raised (especially the masturbation allegation), the unfairness in being unable to properly test the Crown case, and implausible matters in the evidence, ought to have caused the jury to have a doubt about the appellant’s guilt.  Amongst the inconsistencies or implausible matters were: where the hospital confession occurred; showing a pornographic video in a unit where the appellant lived with a flatmate; running naked in a public place; the cards and letters from the complainant’s mother, which were inexplicable with a confession; and the differences in accounts by S, L and D.
144. For the Crown it was submitted that the admissions by the appellant, and the supporting evidence of the complainant’s mother as to the photographs, were powerful reasons why the verdicts on counts 1, 4 and 5 were not unreasonable.  There were inconsistencies but they were all matters that were raised before the jury and were matters for them to weigh. The inconsistencies were not enough to cause doubt.

Discussion

145. In the course of preparing the reasons on other grounds it has been necessary to review the whole of the evidence at the trial.  I am not persuaded that the verdicts were unreasonable, or unsupported by the evidence.  I can state my reasons for that shortly in light of what has been said above on the other grounds.
146. The evidence of the appellant’s admission to the events in counts 1, 4 and 5 is a powerful reason to conclude that the verdicts were supported, and not unreasonable as understood in M, SKA and Baden-Clay.  In the course of dealing with grounds 2 and 6, I have referred in some detail to the pre-trial evidence of Dr Anderson and Dr Keane, and the reasons why there was no relevant unfairness in the way in which the admissions were obtained.
147. Those admissions were made at the time the meetings were held with J, L and D, each of whom was charged in different ways with the investigation of what must have been a serious matter, alleged impropriety of a teacher with respect to a student.  That may well have been seen by the jury as a reason to accept the admissions as balanced and accurately recorded.  And, L’s evidence was supported by refreshing his memory from contemporaneous notes of his own.
148. In addition there were admissions in the evidence of S.  There was no compelling reason to doubt S’s evidence, even allowing for the late inclusion of the masturbation allegation.  If the jury followed the directions they were given^[151] they could well have rejected parts of what S said, while accepting other parts at the same time.  That applies to the evidence of all witnesses.  There is no reason to think that the jury did not do as they were told; indeed, the fact that they acquitted on two counts suggest they did.
149. Support for acceptance of the complainant’s evidence also came from the preliminary complaint evidence.  True it is that the trial was many years after the event, but the preliminary complaints were not.
150. The letter and card from the complainant’s mother to the appellant, while he was in hospital, may be said to reveal some inconsistency between the evidence of her attitude to the appellant.  However, the dates show that they were sent immediately after the accident,^[152] before the visit to him in hospital, and at a time when there was plainly some degree of friendship between them.  The jury may well have concluded that was not such a strange thing to do in the immediate aftermath of a friend’s life threatening accident, even if the personal attitude hardened thereafter.
151. It is true that the events were a significant time before investigation and trial, but the jury were given a Longman direction,^[153] warning them to consider the evidence very carefully, and in particular to scrutinise the evidence of the complainant with great care before arriving at a conclusion of guilt.  Having been properly directed in that sense the jury were best placed to assess the evidence and to resolve the issues that they needed to resolve.
152. Being careful not to substitute trial by this Court for trial by jury, I am unpersuaded that the verdicts are unreasonable and cannot be supported by the evidence.
153. This ground fails.

Application for leave to appeal against sentence

154. This application was only to be pursued if any ground of appeal was successful and a resentence followed.^[154]  As they have all failed there is no need to deal with the challenge to the sentence.

Disposition

155. For the reasons given above, the appeal should be dismissed, and the application for leave to appeal against sentence refused.
156. APPLEGARTH J:  I agree with the reasons of Morrison JA and with the orders proposed by his Honour.