R v Hall

[2022] NSWDC 109

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hall [2022] NSWDC 109
Hearing dates:	4/4/22-8/4/22, 12/4/22
Date of orders:	12/4/22
Decision date:	12 April 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	I find the accused guilty of counts 1 and 2.
Catchwords:	Crime – Judge alone trial – Verdict – Indecent assault
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338
Category:	Principal judgment
Parties:	NSW DPP – Crown Edward Smith Hall - Accused
Representation:	Ms K Mulley for Crown Mr T Healey for Accused
File Number(s):	2019/110683
Publication restriction:	Non-publication of the identity of the complainant, the complainant's mother and brother, and any other witness who was a child at the time of the alleged offences

Judgment on verdict

1. The Accused is charged with 2 offences, which are both as follows:-

Between 26 June 1974 and 30 November 1974 in Gloucester District or elsewhere in the State of New South Wales, did assault the complainant a male person and commit an act of indecency on him.

2. He has pleaded not guilty to those charges.

3. On 4 April 2022, an order was made by consent, that the Accused’s trial be conducted by judge alone. On Monday 4 April 2022, he was arraigned, and his trial commenced.

4. The charges involve one Complainant, who at the relevant time was aged 15.

General matters

5. In this judgement I record my verdicts, and reasons for reaching those verdicts.

6. In reaching my verdicts, I must take into account any warning, direction or comment which by law would be required to be given or made to a jury.

Onus / Standard of proof / Presumption of innocence

7. The Crown bears the onus of proving the charges beyond reasonable doubt. The Accused is presumed to be innocent unless the Crown satisfies me beyond reasonable doubt of his guilt of one or both of the offences. Beyond reasonable doubt is of course the highest standard of proof known to our law.

Assessing the evidence / Applying common sense

8. In assessing the evidence, and in determining whether the Crown has satisfied me of the guilt of the accused, I must approach the task with an open and unbiased mind, act logically, rationally, and not capriciously. Although in carrying out that task, I should apply common sense, my verdict must be based only on the evidence called in the trial.

Joint trials / Separate consideration

9. The two charges against the Accused are being tried together as a matter of convenience. However, there are strictly 2 trials being conducted and I must give separate consideration to the question of whether the Crown has proven its case in respect of either or both charges. In that regard, I must not compromise but must attend to the elements of each alleged offence and whether the Crown has satisfied me of its elements beyond reasonable doubt.

Elements of the alleged offences

10. The elements of the two counts are set out in MFI 1, with which Counsel agreed. The three elements are as follows: –

1. that the accused committed an indecent assault;

2. upon a male of whatever age;

3. with or without the consent of that male person.

• An “assault” involves a deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault, and does not have to be a hostile or aggressive act, or one that caused the complainant fear or pain.

• “Indecent” means contrary to the ordinary standards of respectable people in the community. For an assault to be indecent, it must have a sexual connotation or overtone.

11. In this case, there is no dispute that the Complainant is male, and no suggestion that there was “consent” to any touching. There is however very much a dispute as to whether the accused touched the Complainant in the manner alleged, or at all. As to whether the alleged touching was “indecent” by having a sexual connotation or overtone, no specific submissions were made to the effect that the alleged forms or touching were not “indecent”. However this is clearly one of the matters about which I must be satisfied beyond reasonable doubt, and a matter about which I will make observations and findings later in these reasons.

Evidence by remote means

12. One or more of the Crown witnesses gave evidence by audio visual means. I direct myself that I must not treat this evidence in any different manner by reason of the evidence being given in that form, but must approach my assessment of the evidence in the same manner as evidence given in person in the court room.

Complaint evidence

13. The Crown relies in this case on evidence of “complaint” made by the Complainant to various people. It is a matter for me as to whether I am satisfied that such complaints were made.

14. I direct myself that I am entitled to use that evidence in either or both of two ways. Firstly, the evidence of complaint made to others is some evidence that the alleged offences did occur. In other words, I can use the evidence as going to the truth of what the Complainant said. If I do use the evidence as going to the truth of the allegations, then the weight that I attach to it is a matter for me.

15. I also direct myself that whether or not I treat the evidence of complaint in this manner, I am also entitled to use it for a 2nd purpose, namely that the fact that the Complainant made complaints, at the time and in the manner that he did, may lead me to conclude that his evidence is more believable than if he had not raised the allegations as he did.

16. However, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated more than once.

Section 294 – Lack / Delay in complaint

17. I note that in this case, there was a period of delay between the offences alleged by the Complainant and any complaint to others. In accordance with s.294 of the Criminal Procedure Act 1986 (CPA), I warn myself that the absence of complaint or delay in complaining does not necessarily indicate that any of the allegations are false. I am conscious that there may be good reasons why a victim of sexual assault may hesitate or refrain from making a complaint.

Essential Crown witness

18. Although the allegations by the Complainant may be given support by other parts of the evidence, to which I must have regard, the Complainant is an essential witness in relation to each of the allegations. In those circumstances, while I do not need to be satisfied beyond reasonable doubt of every word uttered by the Complainant, I do need to be satisfied beyond reasonable doubt of the essence of the allegations that he makes concerning the alleged offences. If I am not so satisfied beyond reasonable doubt, then I must find the Accused not guilty.

Markuleski direction / Consequences of not guilty verdict on one count

19. As the Complainant is an essential witness whose evidence about the two allegations must be proved beyond reasonable doubt, I need to consider the effect upon my assessment of his credibility if I conclude that I cannot be satisfied beyond reasonable doubt of his evidence with respect to one of the counts. In other words, as the Crown case relies essentially upon the evidence of the Complainant for both counts – if I have a reasonable doubt about the Complainant’s evidence concerning (say) Count 1, then I must consider whether and if so, how this impacts on my assessment of his evidence in relation to the remaining count. If I cannot believe the Complainant’s evidence beyond reasonable doubt on one count, then it may be difficult for me to accept his evidence concerning the other count.

Inferences

20. I am entitled to draw inferences of fact from other facts that I find proved. However, I must be very careful in drawing inferences, and must not do so unless the inference is reasonable and rational in the circumstances.

21. Furthermore, and because of the onus of proof on the Crown, and the very high standard of proof, I must be extremely careful before drawing any inference of guilt. Before doing so, I must carefully examine any such inference, and satisfy myself that it is the only rational inference available in the circumstances.

Tendency evidence

22. The Crown in this case seeks to rely on an alleged “tendency” in the Accused, which it says supports the allegations. No objection or submission was made on behalf of the Accused in relation to the admissibility of this alleged tendency evidence, which is set out in an Agreed Facts document which is Exhibit 1. I will return to this evidence later in these reasons, when considering the Crown’s tendency argument, and when giving myself the relevant directions of law relating to this type of evidence.

Evidence by the Accused

23. The Accused chose to give evidence in the trial. There was no obligation on him to do so. The fact that he gave evidence does not shift the burden of proof which remains with the Crown.

24. In his evidence the Accused denied the offences. If I accept his evidence in that regard with respect to any or both of the allegations then I must find him not guilty.

25. If I think that his evidence is probably true, or that there is a reasonable possibility that it is true, or might be true, then I must also find him not guilty of the particular count that I am considering.

26. However even if I reject his evidence entirely, then I must simply put it aside and return to the question of whether the Crown has satisfied me of the elements of either or both offences.

No onus on Accused

27. Although the Accused put forward a case in his defence, he bears no onus of proof, and the onus remains on the Crown. Suspicion, even the greatest suspicion, is no substitute for such proof.

28. As I have said, even if I do not accept any of the Accused’s evidence, I must simply put it aside and return to the question of whether the Crown has proven either of the charges beyond reasonable doubt.

ERISP

29. The Accused gave an interview to police in which he denied the allegations. He did not have to give that interview but could rather have relied on his right to silence. The fact that he gave that interview however means that that is a version that I must consider. If I accept that version – then I must find him not guilty. If I think there is a reasonable possibility that his version is correct – then again I must find him not guilty. But, even if I reject entirely his version, I must put it aside and return to whether the Crown has proven its case beyond reasonable doubt.

Motive to lie

30. It was suggested on behalf of the Accused that the allegations were a deliberate fabricated lie. It was suggested that they might have arisen from the Complainant’s resentment against the school, and also his resentment of the Accused, arising from his belief that he was expelled. This amounts to a suggested “motive to lie”.

31. While I have taken into account this suggested motive to lie, the fact that it has been raised does not shift the onus of proof from the Crown. Nor does it mean that the Accused takes on any onus to prove the suggested motive.

32. Therefore, while it is a matter that I must take into account, if ultimately I am not satisfied that any of the allegations do arise out of a motive to lie, I must put aside the suggested motive and return to the question of whether the Crown has satisfied me beyond reasonable doubt of the elements of either or both charges.

R v Jovanovic – “Why would the Complainant lie” - caution

33. In considering whether the Crown has proven either of the offences against the Accused, I must be careful not to reason, even if I am not satisfied that the Complainant had any reason to make up the allegations, that the absence of any such reason supports the Crown case in any way. In other words, I must not ask myself the question “why would the Complainant lie?”. There might be all sorts of reasons for a Complainant to give false or inaccurate evidence, and the absence of any reason, or apparent or possible reason, cannot be used to support his evidence or the Crown case in any way.

Anti-bad character direction

34. As the allegations involve a person who is now an inmate, it is obvious, and accepted, that he is a person who has committed offences in the past, being those set out in Agreed Fact document Exhibit 1. However, I must not use the fact that the Accused is in custody against him in any way, such as, for instance, to conclude that for that reason he is generally a person of bad character, or of no or reduced credibility.

Forensic disadvantage by reason of delay – Evidence Act s.165B

35. There has been a very significant delay in this case between the time of the allegations and the Accused being informed about, and being charged with, the alleged offences.

36. I am satisfied that the delay in this case amounts to a significant forensic disadvantage to the Accused. That disadvantage arises, as Counsel for the Accused submitted, from a number of matters. The sheer passage of time is a matter which, as Counsel submitted, to some extent speaks for itself. It potentially impacts upon the capacity for the Accused to have had a better recollection of what occurred at the relevant time. It makes it more difficult for him to, for example, provide evidence of alibi, or to access records such as receipts, diaries, telephone records, and to identify and call relevant witnesses who might have assisted the Accused in meeting the allegations. More specifically, and as conceded by the Crown, there is the fact that in 2012 there was a fire at St Pius which destroyed a large volume of records, many of which related to the period referred to in the indictment. Those records, had they been available, might for instance, have supported the Accused’s evidence to the effect that the Complainant was not expelled from school, but was only suspended.

THE EVIDENCE

The Complainant

37. The complainant, who was born on 20 March 1959, gave evidence that after completing year six in 1971, he commenced in year seven at St Pius Catholic school in Adamstown. While at that school, one of his teachers was the Accused, who he said taught him history, and was also a rugby league football coach. In 1974, the Complainant was in year nine, and in June of that year, his family suffered a tragedy when his [redacted] sister passed away [redacted].

38. He said that about 3 months after his sister passed away, he was approached by the Accused at school, who asked if he would like to go away shooting. He could not recall exactly where he was when this conversation occurred but said it was within the school, perhaps in the playground, and that the invitation came out of the blue.

39. It was a couple of weeks later, the Complainant said, which he thought was around August or September 1974, that the Accused picked him up from his home in Garden Suburb and they headed off in the Accused’s car. After that, he said they drove in an unknown direction for an hour or so to a bushland area. The Complainant could not recall what type of car it was, but did remember that he sat in the front passenger seat.

40. The Complainant said that they arrived at some premises where there was a male in his 30s who had dark hair, was unshaven and wearing a denim overall sort of outfit and also a younger girl who was in a thin cotton dress who had long hair. He recalled that the house was rather ramshackle and untidy and that on the table there was some meat under some gauze and a lot of flies on top of the gauze. The Complainant said that they slept at the house that night – and that he slept on a verandah and went to bed quite early.

41. According to the Complainant, the next morning he and the Accused headed off in the car along a bush track for maybe half an hour or so, until they came to an opening where there was a bow shaped creek on the left-hand side. He recalled that it was quite hot, and so he removed his T-shirt leaving on his jeans. After this he said that the Accused said to him something like “do you know the pressure points of the body?” - and after the Complainant said “no” the Accused said that he’d done some sort of army training, and suggested that the Complainant lay on the ground so that he could show him the pressure points. He said that after he laid on the ground, the Accused placed a thumb to the Complainant’s elbow and squeezed until he got a reaction, then put his finger behind the Complainant’s ear and pushed there until he got a reaction and then touched him around his ankle, and his knee. After this he placed his hand into the left side of the Complainant’s groin and pushed deeply into that, and then cupped his hand over the Complainant’s penis and testicles and began to squeeze. The Complainant said that he then sort of rolled to the side, and that at that point the Accused grabbed him by the nipples and started to twist, or squeeze his nipples. The Complainant said at that point he raised his left hand and swept the Accused’s arms away, and jumped up and said “come on you said we were going to go shooting”.

42. The Complainant said that the Accused then said “look, we’ll go and have a swim first”, and that when the Complainant said he wanted to get his swimmers from the car, the Accused said “no, look, men up here, we go swimming in the nude”. The Complainant said that at age 15, he was quite self-conscious and insisted that he wanted to get his swimmers from the car which he did when the Accused eventually opened the car boot.

43. The Complainant said he wrapped a towel around himself and changed into his Speedos while the Accused was undressing, after which the Accused walked to the creek which was about 20 metres away to the right – where he entered the water naked. The Complainant however said that he just sat up at the top of the creek, even though the Accused said to him on a number of occasions to come down to where he was. The Complainant said in evidence:

“He then sort of said to me on a number of occasions to come down to where he was on – in his location. And after what had just happened, because I can remember laying on the ground, laying there, looking off into the distance at the hills and thinking, Christ, like, where I was and what just happened, and – and realising the – the situation that I was in, that was quite adamant I was staying where I was. And in the end, after several sort of times when he asked me to come down to him, I said ‘Come on, you said we were going to go shooting’”.

44. After this, Complainant said they both went back to the car where they got dressed, and the Accused produced a firearm from the car, which he believed was a .22 calibre, because he could remember the small cartridges of the bullets. He said the Accused took a piece of paper and set it up amongst some trees, where a tree had fallen. He said he was quite nervous going down there as he was thinking “look, he’s got a gun, I’m out here”. After this he said they had several shots with the gun, and then the Accused said “Come on, it’s about time we started getting back”. The Complainant said he thought to himself “what a lot of rubbish. You’re going away shooting, like, as I said, we only had, like about 10 shots, and now we’re going,” – although the Complainant added that he was more than happy to leave at that time.

45. After this, according to the Complainant, the Accused drove him back to Garden Suburb, where they arrived, he thought, late afternoon. He said that the Accused dropped him at the front driveway, and did not speak with the Complainant’s parents. The Complainant said that he did not tell his parents anything about what the Accused had done to him.

46. After this weekend, he said that the Accused remained as his history teacher, but he otherwise did not have anything to do with him.

47. During the same year as the allegations, and after the shooting weekend incident, the Complainant said that there was an incident in the playground involving some boys fighting, in which the Complainant intervened to split them up, and that during this incident, he was grabbed from behind by someone who he thought was one of the other kids, and that he reactively turned around and punched the person, who turned out to be the football coach Father Saunders. Although the Complainant said he apologised straightaway, he was told to stand outside of the classroom near the Principal’s office. He said that while standing there, he saw Father Brennan who had just been appointed the new Principal, speaking with the Accused and that the Accused was whispering something in Brennan’s ear, and indicating towards the Complainant. He said that after this he was told to go home and that his parents would be contacted. He said that his parents attended a meeting at the school, after which they told him that he had been expelled.

44. The Complainant was asked by the Crown whether, having been expelled, he considered telling anybody about what happened on the shooting trip, but he said that his parents were too upset and he did not want to cause any more problems.

45. After being expelled, the Complainant said he remained off school for the rest of the year, but then commenced at Cardiff High School the following year – 1975. The Complainant left school at the end of year 10 and did a carpentry apprenticeship after which he worked with horses for several years before joining the Police Force in June 1990.

46. The Complainant said that he later disclosed the incident to his older brother, which he thought was probably while the Complainant was still school age, but that it could have been a number of years later.

47. The Complainant said that while working as a detective [redacted] he had a conversation with another detective, Grant Garside, in which he told Garside “basically what I’ve disclosed in my statement”. He said that this conversation occurred in the Detective’s office in a room that faces the police station, which has a small pathway adjoining it, that it was during a day shift, and that Grant had mentioned to him that he was going up to the church which was directly behind the police station, to interview a priest in regards to sexual assault offences. The Complainant said that he asked the priest’s name, and that when he was told it was Father Brennan, it was then that he told Garside – “basically, that when I was at school Father Brennan was the Principal at the time and that one of my history teachers, a Ted Hall had basically taken me away shooting and began to touch and feel me. Like he was telling me about pressure points of the body and so forth and that when I got to school I was later expelled and so forth and that I believe that Ted Hall the conversation had with father Brennan conspired to have me expelled before I mention anything at the school or to my parents”. The Complainant said he thought it was probably around 1996 or 1997 that this conversation took place. He said he thought that Grant Garside was “taken back” (sic) but added that he thought his mind probably was on the tasks of what he had at hand with Father Brennan.

48. In addition, the Complainant described another occasion, when he was working night shift at Maitland with a Senior Constable, Gerry Grace. He said on this occasion, when he was driving the police vehicle, and they were going past the Maitland Showground heading towards East Maitland, he commenced to tell Gerard what he had told Grant Garside, namely of the experience that he had had with the Accused Ted Hall. He said that on this occasion Gerard informed him that he was quite aware of Ted Hall. The Complainant said that he told Gerard Grace in similar detail to what he had told Grant Garside, namely about “the pressure points of the body and so forth”. He said that Gerard did not seem to be surprised about this information.

49. The Complainant said that at some stage around 2018, he became aware that the Accused had been charged with a number of offences relating to students from St Pius. He said he was having a coffee with a fellow detective, Pat Gleeson, at a Café adjacent to Hamilton train station, and that Pat had raised issues regarding Ted Hall. He said that after this he “googled” the news reports, and after reading them, decided to come forward and give a statement. The Crown Prosecutor read to the Complainant a list of names of males who it is agreed were the Victims or Complainants in the Accused’s earlier trial, in which he was found guilty of sexual offences against 9 boys (as agreed in Exhibit 1). The Complainant was asked whether he knew any of those people, to which he responded that none of the names were familiar and that he had never had a conversation with any of those persons. He was not challenged on this evidence, and no suggestion was made in cross-examination that the Complainant might have colluded with other complainants.

50. The Complainant was cross-examined and agreed that he had not made any notes about the incidents at any stage, even though he had been taught, when he became a Police Officer at age 29, about the importance of notes.

51. It was put to the Complainant in cross-examination that the Accused had never taught him any subjects, and had never coached him in football, but the Complainant maintained his evidence that these things did occur.

52. He was also cross-examined to the effect that there was nowhere to swim on the shooting trip, and that the Accused did not touch him as alleged, but the Complainant disagreed.

53. Finally the Complainant was cross-examined about whether he recalled that on the way to the shooting trip they were driving towards Gloucester and the radio was on, however the Complainant said he had no idea of the direction that they were heading and had no memory of the radio being on.

Grant Garside

58. Grant Garside was a former workmate of the Complainant, and worked as a Detective [redacted] from about 1992 to 2004. He said he worked with the Complainant on a number of occasions, although not too closely. Mr Garside said that in May 2019, he received an unexpected phone call from Detective Senior Constable Grob, who asked whether he recalled the Complainant ever disclosing to him any childhood sexual abuse. In response, he told Officer Grob that he did not recall at that moment and could not be sure. He said however that Officer Grob took a statement over the phone from him at that time in which he said he had no memory of any such disclosure. However he said that after this, and within six months of the phone call, he did remember that the Complainant had “floored me a little bit one day when he did say something to the effect that he’d been interfered with”. Although he could not recall where the conversation occurred, he said that the Complainant had said words to the effect that he had been interfered with as a child, that he could not recall whether the Complainant had said who interfered with him, and that in response he had said “Well, it happens to a lot of people”. Mr Garside was also asked whether he recalled having any involvement in charges being laid against Father Tom Brennan, but he said he did not know.

Gerard Grace

59. Gerard Grace was another former work colleague of the Complainant and worked with him at [redacted] Police Station. He said that he worked there between 1999 and 2005 and that the Complainant also worked at [redacted], although intermittently. Mr Grace said that in May 2020 he received a call from Detective Grob, who asked if he recalled being told by the Complainant about being abused as a child. Mr Grace said that while he did not recall any such disclosure, he does recall a conversation with the Complainant in which they were speaking about their school days in Catholic education. He said that he asked the Complainant whether he knew a teacher “Ted Hall” and that in response the Complainant said that he had a brother that had gone on a hunting trip with Ted, and that he felt that his brother was never the same after that hunting trip. He said when the Complainant mentioned this, his mood changed “in the wink of an eye” and that there was this “overwhelming sadness” and that he did not pursue the conversation after that.

Simon Grob

60. Detective Senior Constable Simon Grob gave evidence that in March 2016 he commenced investigations into the Accused and took a statement from the Complainant in November 2018. He produced a death certificate for the Complainant’s sister [redacted] confirming that she passed away [redacted] on 26/6/74, and also produced records (Exhibit 6) obtained from Cardiff High School, to confirm that the Complainant was first registered as a student at that school in January 1975. Those records also note that prior to this, the Complainant had been enrolled at St Pius High School. Officer Grob also indicated that as a result of a suspicious fire at St Pius in 2012, very limited student records are available for the 1970s and later. Exhibit 7, which was also produced by Detective Grob, includes a document apparently signed by the Accused on 2/12/74, which states that during 1974 he was a teacher at St Pius, and that one of the subjects that he taught was history, to Forms 3A and 3C.

61. Detective Grob confirmed also that on 9 April 2019 he interviewed the Accused in relation to the allegations by the Complainant, and the disc containing that interview became Exhibit 8 in the trial.

The Complainant’s brother

62. Evidence was given by the Complainant’s older brother, who said that the Complainant had told him that Ted Hall (ie the Accused) was a “poofter” and “had taken some boys to a property of some sort or excursions of some sort.” He said he thought that this conversation probably took place in the first year of his apprenticeship, and probably some time after the Complainant was expelled from St Pius, which he thought was in Year 2. The Complainant’s brother also said that in October 2020 he was contacted unexpectedly by Detective Grob, but that before this he had been asked by the Complainant whether he would be prepared to give a statement about what the Complainant had told him when they were younger.

Evidence of the Accused

63. The Accused gave evidence and confirmed his denial of the charges and the contents of his ERISP interview, which he described as succinct, accurate and clear.

64. He was cross-examined by the Crown. In his cross-examination he agreed that in his ERISP he had at one point said that it was “strictly” the two months of February and November that he would go shooting, but sought to clarify this by saying that those were the best months and there may have been a couple of times where he went slightly over this – for example into March, depending on the weather, but that he did not “to his knowledge” go shooting in April as it was too late in the term, and he would usually go home at Easter.

65. He was shown a photograph (MFI 4) to which he had been referred when giving evidence in Court in 2018, which he said was taken by Complainant RD at the conclusion of a shooting expedition. It was put to the Accused that in those prior proceedings his evidence was to the effect that this photo had been taken in April 1974. He did not however appear to agree with this, and maintained that this trip was earlier than April 1974, and probably in March and that the April date on the back of the photo would have been when the photos were returned to him. He agreed however that he did not in the 2018 proceedings at any stage suggest that the trip on which this photo was taken occurred in March 1974. The Accused maintained in cross-examination that February and November were the best months to go shooting but said that on this occasion they had gone in March as the weather was still good.

66. He agreed however that in the months of August and September he would go up to this same area to see friends, although not to shoot. The Accused said that as there were school holidays in August / September, he would usually go home to the family farm at Junee. He also said that in August / September 1974 he did go up to the Gloucester area to see his friends the Tim and Charlie Vintner, and that they sat around, had a luncheon and that after this he drove to Tea Gardens and came back through Karuah, but that this was a scenic trip and not a shooting trip.

67. It was put to the Accused that if the shooting involved only a paper target, then it would not matter where you are, however the Accused maintained that any shooting did not involve a paper target and that the Complainant was wrong.

68. The Accused was shown Exhibit 4 which is a photo of the Under 15B Rugby League team. He agreed that the photo showed himself and the Complainant, and that he was fairly sure that it was taken in 1974. He said however that he was not the coach of this team, but the selector and that he became the coach of the 14B team. He agreed however that he had coached the Complainant at least for one game and had refereed in a number of games in which he played.

69. He was cross-examined about the assertion in his interview that the Complainant’s mother might’ve provided a lift to one of the sporting venues on one occasion, and was shown by the Crown some RTA documents which the Crown suggested demonstrated that the Complainant’s mother was first issued with a driver licence in late 1979. However, these documents were not tendered by the Crown, and ultimately the evidence of the Accused was to the effect that it might have been the Complainant’s mother or father who was offering a lift, but that he had a clear recollection of the Complainant putting up his hand to indicate that a parent was available for this purpose.

70. It was put to him in cross-examination that there was an inconsistency between his police interview, in which he said he had a good relationship with the Complainant who he described as friendly, and his evidence in the trial to the effect that he was a bully and a brawler. However, the Accused said that his relationship was normally good, and that he was not asked any “negative questions” about the Complainant in his interview, and didn’t want to blacken his character.

71. It was also put to the Accused that he was making up evidence about the Complainant being suspended for failing to have his hair cut so as to mask the real reason that he had been talking to Father Brennan in proximity to the Complainant. He rejected this however.

72. The Accused was also challenged about a suggested difference between his interview and his evidence, concerning whether or not the Complainant was still attending a school at the time of the shooting trip. However, the Accused did not accept that there was any significant difference, and maintained that he had a memory of the Complainant approaching him one day when he was “loading buses”, and asking to be taken away shooting. As to why he had not mentioned “loading buses” in his police interview, the Accused said he was not asked.

73. He was also cross-examined about his evidence in his police interview that he was a “non-drinker and non-smoker”, as compared with his evidence in his previous trial that he did drink wine. The Accused said however that what he meant was that he was not a beer drinker, as beer was the main drink of choice in the Newcastle area at that time.

74. The Accused said in evidence that he recalled dropping in at the premises of his friend Don Hardman, where he dropped off a couple of maps, as Mr Hardman was not home, and that this occurred during the shooting trip with the Complainant. It was put to him in cross-examination that this was not mentioned in his police interview, but the Accused suggested this was non consequential, and that the Crown was “splitting hairs”.

75. The Accused also maintained in his evidence that the Complainant was mistaken about being “expelled”, and that he had only ever been suspended, and that this was due either to his having punched a teacher, or having failed to have his hair cut after being directed to do so.

Analysis

76. Clearly the evidence of the Complainant is a critical part of the Crown’s case. If I cannot accept the essence of the Complainant’s evidence beyond reasonable doubt, then I must find the Accused not guilty.

Submissions for the Accused

77. It was argued on behalf of the Accused that there are numerous reasons why I could not be satisfied beyond reasonable doubt of the Complainant’s evidence.

78. Firstly it was submitted that the Accused had given evidence, and denied the offences on oath, and never shifted his ground that none of these offences ever occurred. It was submitted, correctly, that there is no onus on the Accused to supply a reason as to why these allegations are now being made, some 47 years or so after the event. It was submitted that although the Accused was subjected to careful cross-examination, ultimately there were no dents in his credibility.

79. It was argued further, that there is no corroboration of the allegations which the Complainant makes, and there is no, or insufficient evidence upon which to doubt the honesty of the Accused’s evidence. It was submitted that weight must be given to the Accused’s sworn evidence that the allegations are untrue, and fabricated lies.

80. In this regard, it was submitted that a reasonable hypothesis for the making of the allegations was the resentment by the Complainant against the school, and against the Accused for having been, as he perceived it, expelled.

81. Mr Healey pointed out that there is no complaint evidence around the time of the allegations to support the Complainant’s version, and that complaint was only made in some form, many years later, when the Complainant spoke to some workmates. No complaint was made by the Complainant to his parents at the time, or to any teachers from the school. Mr Healey also argued that, while the Complainant claimed that he had made some disclosure to his brother, the brother when called in the trial gave no evidence of any direct complaint to him of any inappropriate conduct by the Accused towards the Complainant.

82. It was submitted that on the facts in this case which involve allegations from 47 years ago, there was a very heavy onus on the Crown, and significant difficulty in proving beyond reasonable doubt these very old allegations. It was also argued that regard must be had to the difficulty or any person to go back 47 years to try to remember what they were doing at that time, and that ultimately this is a word against word case, and in the face of the Accused’s evidence on oath, I would not be satisfied of either charge beyond reasonable doubt.

Crown submissions

83. The Crown Prosecutor commenced her closing submissions with an examination of the evidence of the Accused. I will return to the Accused’s evidence later in these reasons.

Evidence of the Complainant

84. The Crown submitted that I would find the Complainant to have been a reliable and credible witness. Firstly as to his demeanour, it was submitted that he was “authentic, and his evidence was given in a matter of fact way” and that he was “emotional at times consistent with somebody who was casting their mind back to an unpleasant and an emotionally charged time”. The Crown submitted that some significance attached to the fact that the Complainant became particularly upset at the pain his expulsion had caused his parents, and that this supports the credibility of his evidence. It was also submitted that the Complainant’s credibility was supported by his evidence, at page 21 of the transcript, where he said he recalled “laying on the ground, looking off into the distance at the hills and thinking Christ, like, where I was and what just happened… and realising… the situation that I was in”.

85. I am conscious of the need to exercise care in placing too much weight on the demeanour of a witness, which at times can be misleading. Nonetheless I was assisted to a significant degree in observing the Complainant give evidence, which he did in court in front of the Accused. In my view, his evidence was given in a straightforward, and as the Crown put it “authentic” and matter-of-fact way. His evidence, for example that “I was only 15 and quite self-conscious of my age and so forth, and I insisted that I – I wanted to get my swimmers out of the car” has the ring of truth about it, and is consistent in my view with the likely self-conscious thoughts of a 15-year-old boy in the presence of an adult teacher. I also agree with the Crown’s submission that the Complainant’s evidence about looking off into the distance, and realising the situation he was in, and that he was nervous, especially in the presence of a firearm, has the resonance of an actual memory of a lived experience, rather than a manufactured lie.

86. The evidence of the Complainant remained consistent, confined and restrained about the details of the alleged indecent touching that he said occurred. There was no attempt by him to embellish his allegations, for example by suggesting that the touching involved more than contact through his jeans, or that he was required or requested to touch the Accused in any way. For instance, there is the evidence of the Complainant at page 36 of the transcript, where in cross examination he was asked “You’ve made allegations in relation to the accused that he touched you on the testicles and penis area on two occasions?” To which he replied “on one occasion” and “I have a very vivid memory of that account”.

Evidence of “complaint”

87. The evidence of the Complainant is also given some support by the complaint evidence.

88. According to the Complainant, the first person he told about the incident was his brother, and although he could not recall exactly when this was, he thought it was probably while he was still school-age. The Complainant was never asked in evidence in chief to be specific as to the words he used when he spoke to his brother, the effect of his evidence being that he “confided” in his brother at some stage. In comparison, the evidence of the Complainant’s brother was that he recalled the Complainant telling him that the Accused was a “paedophile” although he explained that back in those days, the word paedophile was not really known, and that the Complainant would have used the word “poofter”. The Complainant’s brother said that his memory was that the Complainant told him that “Ted Hall had taken boys to a property of some sort - or excursions of some sort” and that he had probably said to his brother in response - “keep away from creeps like that” and that the Complainant also said words to the effect of “I feel that I haven’t just been expelled for hitting a priest, I’ve been expelled for knowing what goes on behind closed doors”. It must be accepted that the complaint to the Complainant’s brother was somewhat non-specific, in that it was not an allegation that the Accused had done anything directly to the Complainant. However, in my view the evidence of The Complainant’s brother does provide some support for the Complainant’s allegations. It provides support by reason of the confirmation that the Complainant made reference, not long after the alleged indecent assaults, to the Accused having “taken boys to a property” and being a “poofter” which the Complainant’s brother in the circumstances, given that the Accused was an adult, inferred was a reference to him being a paedophile. As I’ve said, the complaint to the brother lacks specificity in that it did not refer directly to the Complainant as the victim, however it is the sort of complaint that might be expected of a 15 or 16-year-old boy who would no doubt be self-conscious and embarrassed about making such a disclosure to his brother, or perhaps to anyone. There is also the fact that as the Complainant’s brother explained, around that time there was conflict in the family, and as a result, he did not want to be around the family very much, and missed out on a lot of what was going on with his younger brother at that stage.

89. The Complainant’s version gains further support by the evidence of former police officer Grant Garside. He said that when he received an unexpected telephone call in 2019 from Detective Grob, he did not immediately recall any disclosure of sexual abuse by the Complainant, although he said at that time that he could not be sure. However, he gave evidence that within about six months he did remember that the Complainant had “floored me a little bit one day when he did say something to the effect that he’d been interfered with”, and that in response he had said something like “well it happens to a lot of people”. Mr Garside said that the Complainant seemed very sincere about it, and did not elaborate, other than to say “I’d been interfered with as a child”. Mr Garside was not challenged about this evidence, and I accept that a conversation to this general effect did take place. The Complainant’s evidence about what he told Mr Garside was much more specific than what Mr Garside himself recalled. However, and as Mr Garside said at page 44 transcript, he did not really engage with the conversation, and “didn’t want to question [the Complainant] in relation to something I felt he’d dealt with personally himself”.

90. In the circumstances, any differences between the detail of the Complainant’s recollection of the conversation, and the recollection of Mr Garside, are not in my view of great moment. As I have said, I consider that Mr Garside’s evidence provides some support for the evidence of the Complainant.

91. Further complaint type evidence was given by another former work colleague of the Complainant – Mr Gerard Grace. He said that it was when he received a telephone call in May 2020 unexpectedly from Detective Grob that he first had to turn his mind back to any relevant conversations with the Complainant. He said that he had no memory of the Complainant ever telling him that he personally had been abused as a child. However, he said he did recall a casual conversation relating to their school days, as they had both gone to Catholic schools. He said that although the conversation started off pretty bubbly and jovial, it changed when he mentioned the name Ted Hall, and that the Complainant was interested to know how Mr Grace knew Ted Hall. After this he said, the Complainant - “disclosed to me that he had a brother that had gone on a hunting trip with Ted, and [the Complainant] told me that he felt that his brother was never the same after that hunting trip”. Furthermore he said that the Complainant’s mood “completely changed in the wink of an eye” and that there was an overwhelming sadness, and that he did not pursue the conversation after that. Mr Grace’s evidence about this conversation was not challenged in cross-examination, and I accept that a conversation to this effect took place. Again, it must be noted that this evidence of suggested complaint did not, according to the evidence of Mr Grace, refer to the Complainant himself having been abused. Nonetheless, it does provide in my view some support for the genuineness of the Complainant’s evidence, notwithstanding the difference between the Complainant’s recollection of the conversation and the recollection of Mr Grace. Firstly, the conversation referred to the Accused by name. Secondly, the witness noticed a significant change in the Complainant’s mood during the discussion. And thirdly the Complainant referred to a male being taken away on a “hunting trip” and never being the same after it. While the male was said, according to Mr Grace’s recollection many years later, to have been the Complainant’s brother, it is quite possible and perhaps understandable that the Complainant in the course of this somewhat casual conversation might have “anonymized” his disclosure to some degree. In summary, I am of the view that the essence of the conversation, as recalled in the evidence of Mr Grace, provides some further support for the version given by the Complainant.

92. The version given by the Complainant is given additional support by the evidence of the Accused. Firstly, in his interview, which the Accused said in evidence was “succinct, accurate and clear”, he agreed that there was an occasion when he picked up the Complainant from where he lived with his parents, and took him away - alone - on a shooting expedition on a weekend. Secondly, there is the agreement in the Accused’s interview at question 101, that on this occasion the weather was fairly hot, which accords with the recollection of the Complainant. Thirdly, there is the answer by the Accused at question 142 and following, and 468 and following that at times he would stay with friends, and that at one of these properties he usually slept on a veranda, and that it was rather basic or primitive, with flies everywhere. This provides some support for the Complainant, who described a residence which was rather badly kept and dirty, with lots of flies, and that he slept on a Veranda. Fourthly, at question 166 of his interview, the Accused said that he only ever shot .22 calibre, which accords with the recollection of the Complainant, who believed that the firearm was a .22. Fifthly, the Accused said at question 265 of his interview that the firearms were locked in the boot of the car, which is consistent with the evidence given by the Complainant, who said that the rifle had been taken from the boot. Sixthly, the Accused said in his interview that he parked the car next to a running stream and that “we jumped…in the creek” which provides some further support for the Complainant’s evidence that the Accused entered the water, and was encouraging him to do the same.

Tendency evidence

93. An important part of the Crown case, which it says provides additional support for the Complainant’s allegations, is the suggested “tendency” evidence. In this regard, the Crown points to the contents of Exhibit 1, which sets out the findings made by Judge Gartelman SC, in a previous Judge alone trial relating to the Accused. Exhibit 1 sets out details relating to 21 offences of a sexual nature committed by the Accused over a 13 year period from about 1973 to 1986, during which the Accused was a teacher at St Pius. The offences involved 9 separate victims, who were aged between about 13 and 16 years. All of the victims were male, and all of them were at the time of the offences students at St Pius at the same time that the Accused was a teacher there.

94. The Crown relies upon this evidence to support an argument that the Accused at that time had a sexual attraction to young male persons who were students at St Pius, and a tendency to act on that sexual attraction by committing sexual acts upon them. The Crown also argues that the evidence supports the conclusion that the Accused had a tendency to use his position of authority over male students at St Pius and exploit them for his own sexual gratification; a tendency to use his position as a teacher at Pius to obtain access to male students so as to engage in sexual activity with them; a tendency to befriend male students from St Pius and socialise with them outside of school in order to deal with them sexually; a tendency to take advantage of his position of responsibility over male students from St Pius and exploit that opportunity when alone with them; a tendency to touch and squeeze genitals of young male students; and a tendency to take male students on shooting camping trips in order to deal with them sexually.

95. In order to use the evidence in the way that the Crown suggests, I first need to be satisfied about which (if any) of the acts referred to Exhibit 1 actually occurred. However, in this case, there is no dispute that the contents of Exhibit 1 are agreed findings of fact made in previous proceedings relating to the Accused. No submission has been made on behalf of the Accused which seeks to challenge any of those agreed facts, and I therefore proceed on the basis of those facts.

96. As there is no dispute about those facts, I must proceed to consider whether, based on the act/s disclosed in the agreed facts – whether I am satisfied that the Accused had the tendency which the Crown alleges.

97. If I decide that I cannot draw the conclusion that the Accused had that tendency, then I must put aside, or ignore, any suggestion that the Accused had the tendency asserted by the Crown.

98. If however I am satisfied (based on all or any of the acts recorded in Exhibit 1) that the Accused did have the tendency asserted by the Crown, then I may use that tendency in considering whether I am satisfied beyond reasonable doubt of either of the offences in the indictment.

99. However - even if I do find that the Accused had the tendency alleged by the Crown, that fact alone is not enough to prove the Accused's guilt of any offence in the indictment. But it may provide support for other evidence in the Crown case - and that is the only way in which I can use any finding of the alleged tendency.

100. Of course - before I can find the Accused guilty of any count on the indictment, I first must be satisfied beyond reasonable doubt that the evidence given by the Complainant is truthful and accurate, and that the specific act alleged in that count occurred.

101. It is important to note that I cannot find the Accused guilty of any count in the indictment based only on a finding that he had the tendency alleged by the Crown.

102. The only way in which evidence of the alleged "tendency" can be used in support of the Crown case is as I have set out above.

103. In particular, I must not substitute evidence of some other act or some tendency as being sufficient to prove either of the charges in the indictment. As already stated, before I can find the Accused guilty of any count, I must be satisfied beyond reasonable doubt of the particular allegation in that count, and of the elements that apply to that count.

104. Also, I must not reason that because the Accused committed the acts of misconduct referred to in Exhibit 1, he is for that reason a person of general bad character and must have committed one or more of the offences alleged in the indictment.

105. The Crown has, as I have previously set out, particularised the alleged tendency of the Accused in a variety of ways. However, it seems to me that at its most basic level, the alleged tendency can be described as follows. Firstly a tendency to have a particular state of mind – namely to be sexually attracted to young males aged between about 13 to 16 years, and secondly, a tendency to act on that state of mind by committing various sexual offences against male students at St Pius Catholic School, in the course of contact with them, either at school or in the course of sporting or social contact with them outside of school.

106. As the Crown submitted, Exhibit 1 shows that the Accused committed 21 offences of a sexual nature over a 13 year period from about 1973 to 1986, during which the Accused was a teacher at St Pius. The offences involved 9 separate victims, who were aged between about 13 and 16 years. All of the victims were male, and all of them were at the time of the offences, students at St Pius at the same time that the Accused was a teacher there. The Crown points out that the Complainant was at the time of the alleged offences, also a male student at St Pius, and was aged 15 yrs. He had contact with the Accused, either as a teacher or as a sporting coach, selector, supervisor, or referee. The alleged offences are said to have occurred in the second half of 1974, which is within the same period of time that the Accused committed the sexual offences in Exhibit 1. Furthermore, the Crown points to the fact that in relation to two of the victims (RD and PM), sexual offences occurred in the context of the Accused taking the victims on shooting trips.

107. In my view, the contents of Exhibit 1 do support the tendency that I have described at paragraph 105 above. The evidence in my opinion points very powerfully to the conclusion that the Accused had a sexual attraction to young males aged between about 13 to 16 years. The evidence points very powerfully also to a tendency to act on that state of mind by committing various sexual offences against male students at St Pius Catholic School, in the course of contact with them, either at school or in the course of sporting or social contact with them outside of school.

108. I note the following comments of the majority of the High Court of Australia in Hughes v The Queen [2017] HCA 20; 263 CLR 338:

“An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience.”

109. While that case was concerned obviously with offences involving female children, the analogy with the nature of the sexual acts disclosed in Exhibit 1 is clear.

110. In my view, the evidence in Exhibit 1 supports the existence of a tendency in the Accused to have the state of mind to which I have referred at paragraph 105 above, and the existence of a tendency to act on it in the ways I have described. That evidence provides, in my view, very strong support for the Crown case, by making it more likely that the Accused carried out the acts alleged by the Complainant.

Evidence of the Accused

111. Turning then to the evidence of the Accused.

112. The Crown submitted that there were a number of inconsistencies and implausibility in the evidence given by the Accused and that I would reject his evidence, and put it aside.

113. Firstly, it was submitted that there were a number of inconsistencies between the Accused’s evidence and the contents of his police interview. It was argued for example that in his interview, the Accused told police that when he went away with the Complainant, they had gone swimming, whereas in his evidence in the trial, the Accused denied that they swam. I have considered this submission, but I do not accept that there is any significant inconsistency, given that at question 204 of his interview the Accused said, when asked if they went swimming - “…we quickly jumped in just after finishing off… but the water is so bloody cold you were in and out so quickly”. In my view this version is reasonably consistent with the version the Accused gave in evidence.

114. It was also argued by the Crown that there was an inconsistency between the Accused’s interview and his evidence as to whether the Complainant’s mother had driven the Complainant to football. It was pointed out that in his interview at question 614 the Accused said “I think [the Complainant’s mother] might have provided a lift for us to one, one of the venues once”. In this regard, the Accused was cross-examined about some RTA records, and it was suggested to him that the Complainant’s mother did not have a driver licence at the relevant time. The RTA documents however were not tendered into evidence, and so there is no independent evidence as to whether or not the Complainant’s mother did have a driver licence at the relevant time. However, and putting this issue to one side, it does not seem to me that there was any significant inconsistency between what the Accused said in evidence, as compared with what he said at question 614 of his interview. In his evidence, he explained that what he meant when he gave the answer at question 614 was that he had a recollection of the Complainant indicating that his mother might have been available to provide a lift if required. Having considered the matter, and especially the qualifying words “I think [the Complainant’s mother] might’ve” in the answer to Q614, I am not satisfied that the suggested inconsistency is made out.

115. The Crown also pointed to an alleged inconsistency between the Accused’s evidence that he had called into the home of his friend Don Hardman to drop off some maps, whereas he made no reference to this in his interview. The Accused in evidence suggested to the Crown that this omission was splitting hairs and inconsequential. However, in my view there is some significance in this difference between the oral evidence of the Accused, and what he said in his interview. After all, the record of interview was very lengthy, with the majority of the speaking being done by the Accused. The Accused in that interview went into extraordinary detail of his claimed recollections, and regularly and freely added extraneous detail of questionable relevance. I find it difficult to accept therefore that he forgot to mention that in the course of the shooting trip they had stopped at the house of one of his friends, especially given that he was informed during the interview that one of the allegations by the Complainant was that they had stayed the night at the premises of one of Accused’s friends. In particular, I note the content of question and answer 485 of his interview where he was asked “… you took him to a friend’s house on a property somewhere on the way” to which he replied “No, that did not happen. We drove straight there.” There is also the answer by the Accused at question 491, where he said he had no idea whose house the Complainant might have been describing, and “We went up for the morning and back for the morning”. In my view, it is not plausible that the Accused, who is obviously a very intelligent man, and a man who pays great attention to detail, simply forgot to mention this part of the journey, and it is not plausible that his failure to do so was because the Police did not ask him about the matter.

111. The Crown also pointed to the evidence from the Accused relating to the sacking of the Gough Whitlam government, which it is agreed occurred on 11 November 1975. In his evidence at page 142 of the transcript, the Accused was taken to his police interview where, at question 493 he suggested that the shooting trip with the Complainant would have been “about 1976”. In response to the question from the Crown, the Accused said in evidence “no it wasn’t. It was 1975”, and added “it was the weekend after Gough Whitlam was sacked”. Furthermore, at page 144 of the transcript, the Accused, during a long and unresponsive answer, volunteered the following information – “We went on this trip on the week that Gough Whitlam – the week after Gough Whitlam was sacked in 1975 because he was asking me questions about it in the car when we had the radio on. And I will tell you why I know that, because Malcolm Fraser was appointed as the caretaker Prime Minister and he asked me who I was going to vote for. And without hesitation of course, I told him.” This evidence does not fit well with the version given by the Accused in his Police interview. In that interview, he made no suggestion that the shooting trip with the Complainant took place around the time that the Whitlam government was dismissed, even though he went into a great deal of detail about what he did recall of the shooting trip. That detail even went into a claimed recollection of the Complainant wearing board shorts, and his having warned the Complainant to watch out for snakes. It is also noteworthy that, at question 254 of the interview, the Accused did make mention of the Whitlam government being “sacked”, however this was only in the context of providing reasons as to why funding had been withdrawn from the school cadets. It is implausible, in my view, that in circumstances where the Accused made specific reference to the Whitlam government in his interview, and in circumstances where he went into intricate detail of his recollection about the Complainant and the shooting trip, he would not have mentioned that the shooting trip had occurred “the weekend after” the dismissal of that government. I note that the Accused said in his evidence that he was taken at an early hour and was still reasonably asleep at the time of the interview, and that this, and the passage of 40 years might explain any inconsistencies or omissions. However, that is not born out by the interview, in which the Accused presents as articulate, intelligent and alert, and as having, or at least purporting to have, an extraordinary recollection of detail, and an enthusiastic wish to pass on and expand on those details to the police at every opportunity. In my view therefore, and notwithstanding the very significant passing of time since the alleged events, the Accused’s assertion in evidence that the shooting trip was just after the sacking of the Whitlam Government in 1975 was a recent invention. In my view, this suggestion which was not made in his interview, was designed to refute the Complainant’s evidence that the shooting trip was in 1974, and to support the Accused’s assertion in evidence that the shooting trip would not have occurred while the Complainant was still a student at the school, as this could not have happened unless another teacher went along.

112. The Crown also pointed to a difference between the Accused’s interview and his evidence, as to the nature of his relationship with the Complainant, and about the character of the Complainant. In his interview, at question 31, the Accused said that his relationship with the Complainant was “good” and that he was a friendly and outgoing kid. However, in his evidence, the Accused said that the Complainant was a “bully” and a “brawler”.

113. There is also an inconsistency between the Accused’s interview and his evidence in Court with respect to the circumstances of the Complainant leaving St Pius. In his police interview, the Accused simply said that the Complainant had left school at the time of the shooting trip. However in his evidence in Court he elaborated on this by saying that the Complainant had been suspended, either because of having punched Father Saunders, or later, in his evidence “because of a hair issue” which he explained elsewhere in his evidence as being the fact that the Complainant’s hair was too long and he had failed to have it cut after being directed to do so. There are obvious problems of inconsistency in this evidence, and as the Crown submitted, the Accused’s evidence as to the reasons for the supposed suspension, rather than expulsion, remain somewhat unclear. However, and leaving aside his evidence about the punching of Father Saunders, and having regard to the images contained in Exhibits 3 and 4, which show most of the boys to have quite long hair, I do not accept the Accused’s evidence that the Complainant was suspended for “a hair issue”.

114. I have also had regard to the Accused’s interview where he said at Q946 that he could not have committed the offences as alleged by the Complainant, as the Complainant would not have allowed it to happen given he was a tough hard man. However, while the Complainant might have been a reasonably fit and strong 15 year old, Exhibit 4, which depicts both the Accused and the Complainant in the context of the Under 15B football team, demonstrates very clearly the significant size difference between the Accused, even when sitting down, and the relative size of the Complainant. In addition, there is the fact that the Complainant was, according to his evidence, alone in a remote location with an adult authority figure. I do not find this suggestion by the Accused to be compelling or even believable.

115. I have had regard to all of the evidence given by the Accused, as well as the contents of his police interview.

116. I have also had regard to my own assessment of the Accused and his demeanour in Court, and in his interview. I have done so however with the necessary caution that needs to be exercised when considering the demeanour of a witness. In my assessment, the Accused was a witness who went to great lengths to provide answers, usually very detailed answers, that were aimed at placing him in the best possible light and which were aimed at deflecting any inconsistencies or difficult questions that he faced. He was a witness who, despite constant reminders to focus on the question being asked, constantly used the questions to provide the answer that he thought would either deflect the question or place him in a favourable light. While allowances must always be made for the possibility or likelihood that any witness may be stressed, and might not understand the question they are being asked, that does not in my view provide an explanation for the evasive and often rambling answers that this Accused gave either in his evidence or in his interview. He is, as I have noted, an extremely intelligent and detail-focussed man, at least when he wants to be. I was left with the impression that the evasive and non-responsive nature of his answers were a deliberate choice or strategy.

117. Having regard to the various inconsistencies I have identified, as well as my own assessment of the Accused, I do not accept his evidence, and I put it aside.

Conclusion

123. I return then to the Crown case.

124. I found the Complainant to be a direct and forthright witness. He impressed me as a witness doing his best to recall actual events, and I reject the suggestion that he has made up a deliberately false story.

125. As I have also noted, his evidence gains some support from the complaint witnesses. It also gained significant support, as I have already observed, from the evidence of the Accused.

126. Furthermore, the Crown case is given very substantial additional support by the tendency evidence.

127. I accept the evidence of the Complainant beyond reasonable doubt, to the effect that the Accused touched and/or squeezed him on the genitals, after which he grabbed, squeezed or twisted the Complainant on the nipple or nipples.

128. Although, as I have said, the Crown case is given very substantial additional support by the tendency evidence, I record the fact that even if the tendency evidence is put to one side, I remain satisfied beyond reasonable doubt of the truthfulness and reliability of the Complainant’s evidence. As already noted, I have reached this conclusion based on my assessment of the Complainant’s evidence itself and also the other evidence to which I have referred, which supports him.

129. As previously noted, the only dispute with respect to the elements of the charges, relates to element 1 - whether the Accused committed an indecent assault.

130. I am satisfied that the actions of the Accused in touching the Complainant on his genital region, through his clothing, without consent, amounted to a deliberate and unlawful touching, and therefore an assault. I am also satisfied, given that the touching was of the Complainant’s genital region, that the touching had a sexual connotation or overtone. I find the Accused guilty of Count 1.

131. I am also satisfied that the actions of the Accused in touching, or twisting the Complainant on the nipples, amounted to a deliberate and unlawful touching and therefore an assault. In order to make out the offence however, the touching must have a sexual connotation or overtone. In this regard, I take into account that the touching of the nipples occurred immediately after the touching of the genital region. I also take into account that the area of the nipple, even on a male person, is an area of the body which has some sexual connotation or overtone. I am satisfied therefore that the touching of the Complainant’s nipple/s did have a sexual connotation or overtone. I am satisfied that the Crown has proven all of the elements of Count 2 and I find the Accused guilty of that offence.

132. I convict the Accused of both offences.

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Amendments

13 April 2022 - Headings reformatted.

Decision last updated: 13 April 2022