Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brown v R [2022] NSWCCA 116 Hearing dates: 04 May 2022 Decision date: 03 June 2022 Before: Bell CJ at [1]; Kirk JA at [58]; Price J at [59] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against conviction – trial by judge alone – whether trial judge should have directed herself in terms of s 165B of the Evidence Act – where no application for such a direction was made – whether failure to make direction resulted in a miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW) ss 66EA(1), 76 Criminal Procedure Act 1986 (NSW) s 133 Evidence Act 1995 (NSW) s 165B Evidence Amendment Act 2007 (Cth) Cases Cited: Binns v R [2017] NSWCCA 280 Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 Constantinidis v R; Lazar v R [2022] NSWCCA 4 Groundstroem v R [2013] NSWCCA 237 Higgins v R [2020] NSWCCA 149 Shanmugam v R [2021] NSWCCA 125 TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12 W v R [2014] NSWCCA 110 Category: Principal judgment Parties: Christopher Rowland Brown (Applicant) The Crown (Respondent) Representation: Counsel: G J Jones (Applicant) C Curtis (Respondent) Solicitors: George Sten & Co (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2018/289374 Decision under appeal Court or tribunal: District Court Jurisdiction: Common Law Division Date of Decision: 21 August 2020 Before: Woodburne SC DCJ File Number(s): 2018/289374 HEADNOTE [This headnote is not to be read as part of the judgment] In 2020 Christopher Rowland Brown (the applicant) was found guilty of five child sexual offences following a judge-alone trial and sentenced to an aggregate sentence of imprisonment of 8 years and an aggregate non-parole period of 5 years. The offences were alleged to have been committed by the applicant when he was a teacher at Erina Heights School between the years 1978 and 1980. In 1978 and 1979 the applicant taught a Year 3/4 composite class. In 1978 MB and JT were his students in the Year 3 part of the composite class and in 1979 they had progressed into the Year 4 part of the class. The trial judge held that the applicant assaulted his students MB and JT on a number of occasions during this time. Neither child said anything at the time to each other or to anyone else. In 1981 the applicant resigned as a teacher with the New South Wales Department of Education. He moved to Western Australia where he was employed with the Department of Education in that State. On 23 October 2018 the applicant was arrested and extradited from Western Australia to New South Wales. On 24 October 2018 he participated in an electronically recorded interview, during which he denied any such sexual misconduct. At trial, defence counsel made a number of submissions which fixed upon the lengthy passage of time since the events in question and the consequences thereof. At no time did defence counsel make an application under s 165B(2) of the Evidence Act 1995 (NSW) that the trial judge direct herself to the effect that the applicant had suffered a significant forensic disadvantage because of the consequences of delay in prosecution of the offences. The applicant appealed principally on the ground that there was a miscarriage of justice in that, even though no application was made, the trial judge did not direct herself pursuant to s 165B of the Evidence Act that the applicant had suffered a "significant forensic disadvantage" because of the consequences of delay. The Court held (Bell CJ, Kirk JA and Price J agreeing), granting leave to appeal but dismissing the appeal: As to the duty to give a s 165B direction 1. The duty on a judge to give a direction pursuant to s 165B(2) only arises on application by a party and where the trial judge is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay in prosecution. What is said to be the particular "significant forensic disadvantage" must form part of the application. Groundstroem v R [2013] NSWCCA 237; W v R [2014] NSWCCA 110; TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12, applied. 1. In a judge alone trial, the making of an application for a s 165B direction and the trial judge being satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay in prosecution, are preconditions to the obligation to give a s 165B warning pursuant to s 133(3) of the Criminal Procedure Act 1995 (NSW). Binns v R [2017] NSWCCA 280; Constantinidis v R; Lazar v R [2022] NSWCCA 4; Groundstroem v R [2013] NSWCCA 237; W v R [2014] NSWCCA 110; TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12, applied. 1. A trial judge does not have a duty to second guess counsel who chooses not to seek a s 165B direction. Groundstroem v R [2013] NSWCCA 237, applied. As to the issue of "significant forensic disadvantage" under s 165B 1. The significant forensic disadvantage must be, and be shown to be, real or actual and not speculative, with the burden lying on the applicant to do so. Shanmugam v R [2021] NSWCCA 125; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354, applied. As to whether there was a miscarriage of justice 1. There was no miscarriage of justice. The trial judge was cognisant of the forensic disadvantages suffered by the applicant because of the effluxion of time and expressly had regard to them in dealing with the matter. Judgment 1. BELL CJ: Christopher Rowland Brown (the applicant, the accused or Mr Brown) was charged with five offences, namely one offence of maintaining an unlawful sexual relationship with a child (s 66EA(1) Crimes Act 1900 (NSW)) and four offences of indecent assault of a female under the age of 16 years (s 76 Crimes Act). 2. The terms of the indictment were as follows: "CHRISTOPHER ROWLAND BROWN 1 between 1 January 1978 and 31 December 1980, in Erina Heights in the State of New South Wales, did maintain an unlawful sexual relationship with [MB], a child under the age of 16 years, namely aged 8 to 11 years, in which the said Christopher Rowland BROWN engaged in the following two or more unlawful sexual acts: a. Kissing the complainant on the mouth on one or more occasions; b. Touching the complainant on the thigh underneath her dress on one or more occasions; c. Touching the complainant on the vagina underneath her underwear on one or more occasions; d. Attempting digital-vaginal penetration of the complainant on one or more occasions. S 66EA(1) Crimes Act 1900 Law part code 93750 AND the Director of Public Prosecutions FURTHER CHARGES that CHRISTOPHER ROWLAND BROWN 2 between 1 January 1978 and 31 December 1979, at Gosford in the State of New South Wales, did assault [JT] then a girl under the age of 16 years, namely 8, 9 or 10 years, and at the time of the assault did commit an act of indecency upon her. S 76 Crimes Act 1900 Law part code 350 AND the Director of Public Prosecutions FURTHER CHARGES that CHRISTOPHER ROWLAND BROWN 3 between 1 January 1978 and 31 December 1979, at Gosford in the State of New South Wales, did assault [JT] then a girl under the age of 16 years, namely 8, 9 or 10 years, and at the time of the assault did commit an act of indecency upon her. S 76 Crimes Act 1900 Law part code 350 AND the Director of Public Prosecutions FURTHER CHARGES that CHRISTOPHER ROWLAND BROWN 4 between 1 January 1978 and 31 December 1979, at Gosford in the State of New South Wales, did assault [JT] then a girl under the age of 16 years, namely 8, 9 or 10 years, and at the time of the assault did commit an act of indecency upon her. S 76 Crimes Act 1900 Law part code 350 AND the Director of Public Prosecutions FURTHER CHARGES that CHRISTOPHER ROWLAND BROWN 5 between 1 January 1978 and 31 December 1979, at Gosford in the State of New South Wales, did assault [JT] then a girl under the age of 16 years, namely 8, 9 or 10 years, and at the time of the assault did commit an act of indecency upon her. S 76 Crimes Act 1900 Law part code 350". 1. On 24 August 2020, following a trial by judge alone, the applicant was found guilty on all five counts. 2. On 18 December 2020, the trial judge sentenced the applicant to an aggregate sentence of imprisonment of 8 years from 3 December 2020 to 2 December 2028 and an aggregate non-parole period of 5 years from 3 December 2020 to 2 December 2025. 3. The applicant has appealed principally on the ground that there was a miscarriage of justice in that the trial judge did not direct herself pursuant to s 165B of the Evidence Act 1995 (NSW) that the applicant had suffered a "significant forensic disadvantage" because of the consequences of delay such that, in the context of a judge-alone trial, the trial judge needed to inform herself of the nature of the disadvantage and take it into account when considering the evidence. 4. The delay related to the period between the offences and the charging of the applicant and his trial, which was in the vicinity of 40 years. 5. The applicant also submitted that the verdict was unsafe and unsatisfactory, although in written submissions it was conceded that "such only arises upon the s 165B ground being successful". 6. Section 165B of the Evidence Act provides (with emphasis added): "165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that advantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section— (a) delay includes delay between the alleged offence and its being reported; and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following— (a) the fact that any potential witnesses have died or are not able to located, (b) the fact that any potential evidence has been lost or is otherwise unavailable." 1. Section 165B(6)(b) makes it plain that delay per se is not sufficient to be regarded as a "significant forensic disadvantage" for the purposes of the section. 2. Section 165B of the Evidence Act was enacted by the passage of the Evidence Amendment Act 2007 (Cth). As Basten JA explained in Binns v R, [1] "its purpose was to address criticisms of the requirement in Longman v The Queen that a warning should be given where '[t]he fairness of the trial had necessarily been impaired by the long delay'". [2] 3. This Court has held that the duty to give the direction pursuant to s 165B only arises on application. [3] In Groundstroem, Adams J (with whom Macfarlan JA and Button J agreed) stated at [55]: "It also appears that the duty [to give a s 165B direction] arises only on application (as here) by the appellant and thus that the particular significant forensic disadvantage must form part of that application. An accused's lawyers will have obtained instructions as to the issues in the case and, accordingly, be aware how delay had given rise to any particular forensic disadvantage. This is a matter peculiarly within the accused's knowledge or, perhaps more likely, that of his or her legal advisers. For example, if an important witness had died, it could very well seem that the inability to obtain his or her evidence would place the defence at a substantial disadvantage but, if the defence was aware that the witness' evidence would, say, have assisted the prosecution or not assisted the defence, it would not be proper for counsel to rely on the death for the purpose of seeking a warning. Of course, it may be that a judge might think it right to raise particular matters with counsel so that, if they might have been overlooked, the matter could be made right in the interests of a fair trial but I do not think that a trial judge has a duty, as it were, to second guess counsel." 1. Price J in TO v R at [167] (with whom Button and Fagan JJ agreed on this issue) summarised the effect of s 165B and cited the above passage in support of the proposition that the duty on the judge to give a direction in accordance with s 165B(2) arises only on application by a party, and what is said to be the particular significant forensic disadvantage must form part of the application. 2. Section 133(3) of the Criminal Procedure Act 1986 (NSW) provides that, in a judge alone trial, if any Act or law requires a warning to be given to a jury, the judge sitting by him or herself is to take the warning into account in dealing with the matter. 3. The appeal proceeded on the basis that "informing the jury of the nature of the significant forensic disadvantage(s)" suffered by the applicant because of the consequences of delay within the meaning of s 165B(4) of the Evidence Act, and noting the need to take that or those disadvantage(s) into account when considering the evidence, was a "warning" of the kind to which s 133(3) of the Criminal Procedure Act applied. 4. In the recent decision of this Court in Constantinidis v R; Lazar v R, [4] it was observed that: "[151] The effect of s 133(3) of the Criminal Procedure Act is that her Honour was required to heed warnings or cautions in the nature of those listed in s 165(2) of the Evidence Act, so far as applicable to the case, unless there were 'good reasons' for not doing so. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 the High Court considered the then applicable provisions for judge alone trials, which included a section in precisely the same terms as the current s 133. […] [152] The judgment of the High Court in Fleming v The Queen includes the following statements that are relevant to the grounds of appeal in the present case concerning s 165 of the Evidence Act. In these extracts we have omitted citations and substituted reference to ss 132 and 133 of the Criminal Procedure Act, in place of their Honours' reference to the equivalent sections as they were then numbered: [24] […] First, [s 133] in any particular case of a trial by judge alone may attract the operation of one or more of the limbs of s 6(1) of the Criminal Appeal Act. In all these cases, there will then be the question of the operation of the proviso. […] [27] Fourthly, whilst they are differently framed, the requirements of [s 133(2) and (3)] are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of [s 133]. [28] Fifthly, whilst [s 133(2)], when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of [s 133(2)] be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. […] [31] Finally, there may be a breach of [s 133(3)] with respect to the requirement to take a warning into account. The present appeal is put as such a case. [Section 133(3)] is framed in a fashion which differs from that of [s 133(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. [Section 133(2)] requires the inclusion of principles of law applied and of factual findings relied upon, whilst [s 133(3)] obliges the judge to take the particular warning into account. [32] The obligation imposed by [s 133(3)] 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in [s 133(2)], namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of [s 133(2)]. The judge is obliged by [s 133(3)] to take the warning into account and in doing so the judge applies a principle of law. [33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by [s 133(3)] that the warning be taken into account." 1. In the present case, not only was no application under s 165B(2) of the Evidence Act made during the trial but the trial judge expressly raised with defence counsel at the end of her address whether there were any other directions or warnings sought over and above those proposed by the Crown, to which the response was "[n]o. No, the Crown has a comprehensive list in MFI 7." That list did not contain a s 165B warning. 2. On one view (which I think is correct although not necessary to decide definitively), defence counsel's failure to seek such a "warning" or direction supplies a complete answer to the applicant's case because s 133(3) of the Criminal Procedure Act only operates when an "Act or law requires" a warning to be given, and the requirement under s 165B of the Evidence Act is dependent upon an application having been made to the judge and the trial judge being satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay. In Binns at [11], Basten JA described the existence of the obligation in s 165B(2) as subject to a precondition, namely that the judge "is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay". The making of an application for a s 165B warning may similarly be seen as a precondition to the obligation to give such a warning. That is certainly the effect of the cases referred to at [11]-[12] above. 3. On appeal, however, counsel for the applicant submitted that the trial judge should have directed herself in terms of s 165B even without an application for such a direction or warning having been made, and that the failure to do so resulted in a miscarriage of justice. 4. For the reasons given more fully below, this submission must be rejected. Its merits can be tested and assessed by reference to the submissions put to the trial judge and her Honour's treatment of the issue of delay and its consequences for the applicant in her reasons for judgment. 5. As will be seen, the trial judge was cognisant of the forensic disadvantages suffered by the applicant because of the effluxion of time and expressly had regard to them in dealing with the matter. Those disadvantages had been the subject of submissions to her Honour by defence counsel, the competency of whose conduct of the trial was not called into question. 6. Even assuming that the failure of defence counsel to make an application for a warning pursuant to s 165B is not determinative for the purpose of the applicant's argument, it is telling that defence counsel saw no need for such a warning. This was no doubt because of a combination of the submissions made in respect of the effluxion of time and defence counsel's view that the experienced trial judge was aware of the forensic disadvantages for the applicant occasioned by reason of the delay. A trial judge does not have a duty to second guess counsel who chooses not to seek a s 165B warning. [5] Background 1. In 1978, 1979 and 1980 the applicant was 27-30 years of age and a teacher at Erina Heights Public School. In 1978 and 1979 he taught a Year 3/4 composite class. In 1978 MB and JT were his students in the Year 3 part of the composite class and in 1979 they had progressed into the Year 4 part of the class. In 1980 both girls moved onto Year 5 with a different teacher. The trial judge held that the applicant assaulted his students MB and JT on a number of occasions. Neither child said anything at the time to each other or to anyone else. In 1981 the applicant resigned as a teacher with the New South Wales Department of Education. He moved to Western Australia where he was employed with the Department of Education in that State. 2. In 2017 MB decided to speak about what her teacher Mr Brown had done to her as a child, and she made an appointment to see a solicitor. Anticipating that the solicitor might ask her whether the applicant had done anything to any other child, and believing that something may have happened to JT, MB contacted JT to see if that would be okay with her if she mentioned her name. JT confirmed that it was okay to do so. MB spoke with a solicitor, who advised her to go to the police. Subsequently, MB and her husband attended a police station and MB made a statement to police. JT also attended a police station where she made a statement to police. 3. On 23 October 2018 the applicant was arrested and extradited from Western Australia to New South Wales. On 24 October 2018 he participated in an electronically recorded interview, during which he denied any such sexual misconduct. Course of the trial 1. The trial was conducted between 18 and 24 June 2020. In opening address, defence counsel placed emphasis on the passage of time that had passed since the events in question, relevantly observing: "When he's confronted in that interview, which he is with these allegations some nearly four decades later, on my submission there's aspects of his reaction, his response to the allegations are matters your Honour might find important in observing his answers to each of the questions, but also there's an aspect of the extent of the passage of time that has passed. There's certainly an issue because of that passage of time. The ability of the accused to confidently be able to say, 'I remember this, I remember that,' or whether or not he's attempting to answer questions to the best of his ability on the basis of what he recalls his practice or practices to be at different stages in his career. […] It is connected to the absence of detailed complaints made earlier in time and it ultimately, on my submission, is an issue of whether one complainant - that is [MB] - has taken it upon herself to attempt to find as many victims as she could, not to, as my friend said, report to the police but to go to see a local solicitor. Her intentions your Honour will see from the evidence to be tendered and that's a matter no doubt that will come up in issue, but it plays again out against the passage of time that's occurred and victims' memories, the vulnerability of those memories and just, in fact, whether it's intentional or not, what one person's statements can do to influence another potential witness's memories when they come to, after nearly four decades, try and remember what had happened in the past. In any event, your Honour will be assessing behaviour that occurred some nearly four decades ago in the 1970s and certainly there is no doubt that what was and what wasn't acceptable behaviour in a classroom in the 1970s is certainly different to that today, and when I make that outline of that issue in terms of social norms, whether hugging was something that was done by teachers back in those decades, the level of discipline and the type of discipline imposed, there's certainly a difference between decades and a difference between what was considered acceptable and now not acceptable." 1. MB, as well as JT, gave evidence in support of the allegations that were brought by the Crown. Other witnesses were called in the Crown case, some of whose evidence was admitted on a tendency basis. It is not necessary to refer to the detail of that evidence given the relatively narrow way in which the appeal was argued. It is, however, relevant to note that the trial judge declined to place any weight on fellow student LC's evidence on account of "the stated vagueness of her memories […] especially having regard to the passage of time". 2. It is also relevant to note that defence counsel submitted that the tendency evidence as a whole would ultimately be undermined if the trial judge was to make any findings that there either had been direct or indirect influence by one or more witnesses on the other complainants or witnesses whose evidence was being relied upon for tendency reasoning. In support of this submission, defence counsel provided an analysis of the contact between the witnesses before they made their statements to police. After considering the evidence of contact between the witnesses, the trial judge concluded that she was satisfied that any risk of contamination or collusion had been excluded by the Crown beyond reasonable doubt. Her Honour then relevantly noted: "[…] in circumstances where there has been a significant passage of time, which itself carries with it the risk of deterioration of memories, it is necessary that any risk of implanting memories be excluded. I am also satisfied in the present case there has been no misconstruction of innocent conduct and fabrication of evidence." 1. Evidence was also led to the effect that investigating officers had been unable to find various records of the school which may have shed light upon whether or not the applicant conducted his class in the relevant period in a demountable classroom, this being an issue as to which he did not have a clear recollection and as to which other witnesses' recollections differed. In her opening address, defence counsel said in this regard: "There is some issue, possibly some minor area of dispute as to where or in which buildings this was said to have occurred. The accused, as your Honour will hear in the interview, was of the view that he was teaching in a demountable classroom at the relevant times in relation to the three years that are in question. There's some other evidence and so there may be an issue raised in that respect." 1. In final address, defence counsel made a number of submissions to the trial judge which fixed upon the passage of time and the consequences thereof. Thus, in relation to the fading of memories over time, it was submitted that: "The witnesses that have appeared have each, in their own way, attempted to remember what happened. No doubt it's worth the comment to say that when we're considering events that occurred so long ago - I think it's almost four decades now and certainly we're asking questions of people who didn't come to make their statements until the last couple of years - that your Honour might have noted there's differences, in the sense that some witnesses came very confident to the court, very confident in their answers, didn't change or maintained their account, and where perhaps those witnesses didn't allow for the possibility of being wrong or stated their memories with much confidence, that could sit in contrast to other witnesses who made allowances for error, made allowances for the passage of time and made allowances for their memories not being correct. As the Crown pointed out, [JT] to a good degree was one of those witnesses, in that she thought about or appeared to think about her answers and appeared to qualify what was remembered. [MB] in one sense was very confident with her answers and didn't really allow for variation. One might think with the passage of time for anyone that some allowance should be made for the possibility of not having a perfect memory of those times, and it may be something that comes to have an effect on your Honour's assessment of that witness' evidence. Certainly, the more hesitant witness may be the one who treads more carefully in attempting to remember something that happened quite a long time ago." 1. In relation to the applicant and his evidence, defence counsel submitted that: "In relation to the accused's interview, certainly it was the first time he was confronted with the details of these allegations, and it is fair to say that the passage of time would result no doubt in limited memories of these days. It would no doubt result in the accused having to think about what had happened back then and no doubt make errors from time to time. One would expect that one is not going to remember perfectly exactly what happened so much time ago, and by this stage the accused had taught in a number of schools, in two different States, over many decades. I think he put it at thousands of children, and to be able to be absolutely precise as to exactly what had happened back then or more importantly what hadn't happened back then, on my submission, would be placing the bar too high in the circumstances." It was also submitted that: "The Crown identifies lies as consciousness of guilt, the fact that the accused didn't admit to having children sit on his lap. But clearly I'd make this observation. He appeared to be doing his best to try and remember those times, he had said. He had made statements which didn't attempt to distance himself from the children. He agreed with the police that he allowed children into his classroom at lunchtime. He admitted to police that he had physical contact with children, close physical contact with children, hugging them from time to time. My submission is his answers were not wholly attempted to divert the police or to make out that he didn't have a close relationship or a good relationship with these children, and that his answer in saying that he didn't allow children to sit on his lap is only a failure of memory, is only a failure of that time. It's not an attempt to do anything more than what he was trying to do in the interview and that was to answer the police questions to the best of his ability. Certainly, his memory was not perfect. He thought he'd been teaching in demountables the whole time. Obviously from the evidence, that seems to be incorrect, that it appears to be some of the time but not all of the time that he was at the school, and of course he was very clear with police that he had no specific memory of either of the girls, of the year, or of the particulars or of all of the particulars that were being asked of him. He did however recall the themed party and attempted to give as much detail as possible. There's nothing in the record of interview on my submission that would cause the Court concern." 1. In some respects, defence counsel called in aid the passage of time to support her submissions in support of the applicant. Thus, she submitted: "The Crown categorises this message as complaint evidence. If that be the case, then one of the complainants [MB] is complaining to the second complainant [JT] before either of them have given their statements in a vacuum of some four decades and in absence of specific complaint to any other person and that were the conversations that also occurred before the statements are made. On my submission, it would cause great concern to the Court in relation to having confidence that one person's memories haven't influenced or affected another person's memories who may not, at that point, have been set." 1. Defence counsel concluded her submissions as follows, again emphasising the passage of time between the alleged offences and the charges being laid: "On my submission, the passage of time, the difficulty with memories, the very possibility that some witnesses have influenced other witnesses before the making of statements and before memories have been properly accessed, the character of the accused, the isolated nature of these allegations, the Court could at the end of the day conclude that it is not satisfied beyond a reasonable doubt and acquit the accused." 1. The Crown case with respect to count 1 comprised the evidence of MB, some supportive evidence given by others, tendency evidence and a lie said to amount to a consciousness of guilt. It was her Honour's "overwhelming impression at the time of hearing the evidence" that MB was an honest and reliable witness. The trial judge nevertheless recorded it as "necessary to bring into account those matters raised on behalf of the accused". Defence counsel submitted that MB, in contrast to JT, was very confident with her answers and did not allow for variation. She submitted that with the passage of time, some allowance should have been made for the possibility of not having a perfect memory of those times. The trial judge recorded that she had "taken this submission into account in assessing [MB's] evidence". 2. The trial judge considered MB a confident witness who gave consistent evidence and stated on occasions when she could not remember things. Her Honour then noted, "[s]he also, on her account, had good reason to remember the things she stated in evidence, and that was so notwithstanding the lengthy passage of time". 3. The trial judge also stated that she had taken into account that SC, another student in the applicant's Year 3/4 composite class at the relevant time, said that whilst the applicant cuddled her, she did not sit on his lap and he did not kiss her, whereas MB said that she did see SC being kissed on the cheek and that she did not believe she was wrong about that, and she also remembered seeing SC sitting on the applicant's knee. Her Honour then stated, "[s]uch differences in account are, in my assessment, reflective of a difference in recollection over the passage of time", before concluding that those differences did not undermine or damage the evidence given by MB as to the acts the applicant did to her. 4. Defence counsel also pointed to the initial evidence of EM, another student in the Year 3/4 composite class, that she did not ever recall seeing the applicant kiss any student in his class. EM's evidence was adjourned part heard, and on 22 June 2020 she spoke to a detective and told him that the question triggered a vague memory of the applicant kissing people and that he may have kissed her on the cheek. In that regard, EM recalled the applicant's breath smelt like tuna. The trial judge considered this evidence illustrative as to why it is that the fact EM did not give evidence of observing the applicant regularly kissing MB did not operate to undermine MB's evidence, either in respect of this or any other matter. Her Honour continued: "[EM's] account of the question triggering her memory on that issue was an honest and understandable account, having regard to the passage of time and the fact that such kissing may be regarded as being of less significance than the other activities she recalled witnessing of the accused putting her, or other girls, on his lap or between his legs, as he marked work, and in particular of her witnessing him touching each of [MB] or [JT] in a matter [sic] which she did not like and which she did not want to happen to her, and which caused her to stand further away from the accused when she got her work marked, that is, when the accused ran his finger under the elastic of those girls' underpants." 1. In relation to counts 2-5, the Crown relied upon evidence given by JT. It also relied upon generally supportive evidence given by others, tendency evidence, and again in its case upon a lie as consciousness of guilt. Despite having a strong impression of JT as an honest and reliable witness, the trial judge recorded it as "necessary once again to take into account matters raised on behalf of the accused" and proceeded to do so. 2. The trial judge rejected the applicant's evidence that he did not commit the acts alleged and found his evidence not credible and unreliable. Her Honour regarded the strength of the evidence in the Crown case as "palpable throughout the hearing", noting that the case "only got stronger" with each witness called. 3. Ultimately, the trial judge held that she was satisfied beyond reasonable doubt of the guilt of the applicant for each of the offences. 4. In her reasons for judgment, the trial judge made the following observations which are of particular relevance to the appeal: "In the present case having regard to [defence counsel's] submissions particularly concerning the significant passage of time between the events and the police interview, I have determined not to proceed in the manner urged by the Crown. Taking the most favourable approach to the accused, which is reasonable to do having regard to the significant passage of time, it is appropriate to allow for the possibility that he did not deliberately lie about not having children sit on his lap and that is so even though his firm denials are completely unsustainable. As I have said, whether or not the accused deliberately lied to the police in his record of interview about such a matter, he did lie in evidence in seeking to explain his firm denials. That is a matter I can take into account in assessing the credit of the accused and it has a bearing on whether or not I believe the things he did say in his interview and in evidence. In my assessment the accused's evidence was not credible and it was unreliable. His admission in evidence that he sat children on his lap was limited to the possibility of same when it was clear that it was a common occurrence at least in respect of certain girls. Further, his admission that he cuddled children only extended to limited situations. His expressed belief that he only taught in demountable classrooms was wrong. His evidence about the way his desk would have been placed was wrong. Whether by reason of the passage of time or a desire to minimise opportunity and close contact, I did not consider the accused's evidence to be reliable. Of course, rejection of an accused's evidence does not automatically lead to acceptance of the Crown case. Even where it is determined to put the accused's evidence to one side, the question will remain, has the Crown upon the basis of the evidence that I do accept, prove [sic] the accused's guilt beyond reasonable doubt? Ultimately, [defence counsel] submitted that having regard to the passage of time, the difficulty with memories, the very possibility that some witnesses have influenced other witnesses before the making of the statements and before memories have been properly accessed, the character of the accused, the isolated nature of the allegations, the Court could conclude that it was not satisfied beyond reasonable doubt of the guilt of the accused and find the accused not guilty of the charges. I have taken into account all of the submissions made on behalf of the accused including those I have not recited. Notwithstanding [defence counsel's] careful questioning and thoughtful submissions, all of which I have considered, I was of the view at the time of hearing the evidence and remain of the view, that there is only one proper verdict to be returned in this matter and that is that the accused is guilty beyond reasonable doubt of each of the offences charged. In so concluding I have borne in mind the very long passage of time and the risk that memories can fade and be distorted. I have also borne in mind that the accused does not stand to be punished for any behaviour that might have been considered acceptable in the 70's such as holding a child's hand or hugging them or having them sit on the lap, or kissing them on the head or cheek. I have also kept in mind that the plainly considerable passage of time means that Mr Brown can do little more than he has done in denying the conduct alleged. I have remained cognisant of his long history of very good character. I have also remained cognisant of the fact that from beginning to end, the burden of proof is on the Crown and that the standard of proof is the highest known to law, namely, proof beyond reasonable doubt. However, the strength of the present case is simply undeniable. In accordance with my duty, I find each of the essential elements of counts 1 – 5 proved beyond reasonable doubt." (Emphasis added.) Consideration 1. Counsel for the applicant accepted, as he was bound to do in view of the portion of the reasons for judgment reproduced above, that this was not a case in which the trial judge paid no regard to the passage of time and the consequences of that for the applicant in defending the historic charges of sexual assault. Indeed, he in terms accepted that the trial judge was "alert to […] and aware" of the combination of delay and memory loss. He sought to draw a subtle distinction between a significant forensic disadvantage and the "risk that memories can fade", noting that the trial judge expressed herself in these terms in the passage extracted from her judgment reproduced at [40] above. His submission was that "risk" fell short of disadvantage. 2. I would, with respect, reject this submission. The risk that the memory of material witnesses had faded or disappeared in its entirety is no less capable of constituting a significant forensic disadvantage than an actual loss of memory. 3. As noted above, delay per se is not sufficient to be regarded as a "significant forensic disadvantage" for the purposes of s 165B. Section 165B(6) makes that plain. Further, it is not any forensic disadvantage that potentially engages s 165B but one that can fairly be described as "significant". Further, the disadvantage must be and be shown to be real or actual and not speculative. [6] 4. Counsel for the applicant sought to identify the significant forensic disadvantages which he submitted the trial judge should have warned herself of as falling into three groups: 1. the loss of memory of witnesses occasioned by the effluxion of time; 2. the unavailability of potential witnesses, in particular a number of parents of children to whom the children said they had complained but who had died in the intervening years; and 3. the loss or unavailability of other evidence such as school records which may have cast light upon whether the applicant taught in a demountable classroom or whether there was a mandatory winter school uniform which involved the wearing of pants rather than tunics, this being relevant to the evidence in relation to the applicant slipping his hand up the side of the girls' dresses. 1. As to the first matter, the applicant furnished schedules setting out numerous occasions upon which various prosecution witnesses volunteered that they were not able to recall certain matters. How this was a source of disadvantage to the applicant, let alone significant forensic disadvantage to him, was not made plain. Indeed, at trial, defence counsel sought to make much of the passage of time and the frailty of witnesses' memory as a reason for discounting the quality of witnesses' memory in relation to those matters that they said that they could recall. This argument has already been dealt with to a significant extent at [41]-[43] above. 2. In any event, it is abundantly clear from the passages extracted above from both submissions at trial and the reasons for judgment of the trial judge that her Honour did not need to warn herself in terms of the obvious fact that memories fade over time, and that any assessment of reliability of evidence based upon memory must necessarily bear that fact in mind. The Crown submitted, and I accept, that the fact that there were certain matters that witnesses could not remember after 40 years was readily apparent to the tribunal of fact and did not call for a special direction. 3. As to the second matter, counsel for the applicant submitted that the inability to cross examine the deceased mother of one witness to whom the witness said that she had complained at the time of the events in question was a "significant forensic disadvantage". It is by no means evident that this was or would have been a significant forensic disadvantage to the applicant. It was entirely a matter of speculation whether or not the mother would have been called and, if called, whether or not her evidence would have helped or hindered the applicant in his defence or whether defence counsel would have taken the forensic risk of challenging any corroborative evidence that may have been given. Speculative disadvantage does not engage s 165B of the Evidence Act. [7] At most, it was a disadvantage not to have the opportunity to consider whether or not to cross examine a witness who may or may not have been called had she still been alive. The burden lay on the applicant to demonstrate that he had suffered a significant forensic disadvantage. [8] This burden was not discharged. 4. At the trial, the particular witness' evidence remained uncorroborated by any evidence from her mother and the experienced trial judge would have been well aware that the witness' claim to have informed her mother could not be improved in the absence of her mother. In any event, even if the absence of the witness' mother was a significant forensic disadvantage (which I very much doubt), it could not be said that this was a matter that resulted in a miscarriage of justice in the sense of depriving the applicant of a chance of acquittal. 5. The trial judge said in her judgment that "I have also kept in mind that the plainly considerable passage of time means that Mr Brown can do little more than he has done in denying the conduct alleged". This was a succinctly expressed recognition of the forensic disadvantages that may have been attributable to the effluxion of time, including the death of potentially relevant witnesses. Given the way in which the argument was mounted, on the counterfactual that the trial judge had been asked to give herself a s 165B warning in respect of the absence of a deceased potentially corroborative witness supporting the prosecution case, and thus an inability to test that evidence, a "warning" in that respect would not have been warranted or necessary. 6. No basis was supplied for concluding that the absence of the deceased mother represented a significant forensic disadvantage for the applicant. It is to be borne in mind, in this regard, that s 165B does not require a direction or warning unless the judge is satisfied that the accused has suffered a significant forensic disadvantage. 7. As to the third matter, namely the loss or unavailability of documentary evidence, much was made of the inability to find plans as to how the school at which the offences occurred was configured 40 years ago and, in particular, whether the applicant taught in a demountable. 8. It was certainly the case that the investigating officers confirmed that relevant plans of classrooms and the school configuration could not be located for the years in question. 9. On this issue the Crown submitted that whether the applicant taught the Year 3/4 composite class in a demountable or in a solid building was of no significance and that the applicant's suggestion in his ERISP that the demountables were encased in glass (through which inappropriate conduct would have been visible) was of no moment in circumstances where the Crown case was that many of the offences occurred brazenly in a crowded classroom. [9] 10. The Crown also submitted that, even on the evidence of the complainants, the classroom they recalled being in had some windows. The applicant himself accepted, in the end, that the classroom may not have been a demountable after all. 11. The significance of this issue was reflected in the fact that defence counsel's closing address accepted that, in the end, little turned on whether the classroom was a demountable or otherwise, having regard to the evidence that, whatever it was, it was in a busy part of the school with a craft room adjacent to it, which, according to at least some witnesses, was regularly occupied by the arts and crafts teacher. 12. I am not satisfied that the inability to obtain plans of the school buildings constituted a significant forensic disadvantage to the accused so as to require a specific warning. In any event, when considering whether the failure to give such a warning, even if one had been sought or was otherwise required, resulted in a miscarriage of justice, the trial judge's general observation set out at [49] above was more than adequate to demonstrate that her Honour was fully cognisant of the forensic limitations and disadvantages which the applicant faced in defending the charges. 13. For all of the above reasons, there was no miscarriage of justice. Whilst I would grant leave to appeal, the appeal should be dismissed. 14. KIRK JA: I agree with Bell CJ. 15. PRICE J: I agree with Bell CJ. ********** Endnotes 1. [2017] NSWCCA 280 at [18] (Binns). 2. See also W v R [2014] NSWCCA 110 at [125]. 3. Groundstroem v R [2013] NSWCCA 237 at [56] (Groundstroem); W v R [2014] NSWCCA 110; TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12 at [167]. 4. [2022] NSWCCA 4 at [151]-[152]. 5. Groundstroem at [56]. 6. Shanmugam v R [2021] NSWCCA 125 at [45]. 7. Ibid. 8. Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [39]. 9. Cf, Higgins v R [2020] NSWCCA 149 at [76(4)]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022