R v McIver - [2019] NSWDC 672

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McIver [2019] NSWDC 672
Hearing dates: 5 August 2019 – 19 August 2019
Date of orders: 13 September 2019
Decision date: 13 September 2019
Jurisdiction: Criminal
Before: N Williams DCJ
Decision:
Judge alone judgment – Convicted of 2 counts of indecent assault – convicted of 2 counts of buggery – not guilty of 1 count of assault occasioning actual bodily harm – not guilty of 1 count of assault

Catchwords: Historical child sexual assault; Bexley Boys Home; Salvation Army; common assault; assault occasioning; lawful chastisement
Legislation Cited: Crimes Act 1900
Criminal Procedure Act
Cases Cited: R v Trudgett [2008] NSWCCA 62
Williams v R [2019] NSWCCA 53
Category: Principal judgment
Parties: Regina (Crown)
John Dalziel McIver (Accused)
Representation:
Counsel:
Mr K. Gilson (Crown)
Ms L. McSpedden (Accused)
Solicitors:
Ms J. Yates (Crown)
Mr E. Rowe (Accused)

File Number(s): 2016/00326970, 2017/00172183
Publication restriction: Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys Home save for Trevor Hubbard and Ian Hubbard.

Judgment

HER HONOUR: Judgment in the matter of R v JOHN DALZIEL MCIVER, trial by judge alone, charged with 1 count of assault occasioning actual bodily harm, 5 counts of indecent assault, 1 count of common assault, 1 count of buggery with an alternate count of indecent assault and 1 count of buggery.
Pursuant to s 132 of the Criminal Procedure Act the accused JOHN DALZIEL MCIVER, elected to be tried by judge alone. The Crown agreed and the matter had been decided before the trial was allocated to me on 5 August 2019.
I am therefore both the tribunal of law and the tribunal of fact. Section 133 of the Criminal Procedure Act requires that I state the principles of law to be applied and record the findings of fact upon which I rely.
I will in the course of my judgment set out the warnings and principles of law to which I have had regard.
These largely reflect the directions that I would usually give to a jury in any such matter as the one before me.
I turn now to the charges and particulars.
On 5 August 2019 the accused was arraigned on an indictment with 10 counts referable to 4 complainants.
The counts included both sexual and personal violence offences contrary to provisions in the Crimes Act 1900. The accused was charged as follows:

COUNT 1

“That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales he did assault AM thereby occasioning to him actual bodily harm” pursuant to s 59(1) of the Crimes Act 1900.
The allegation supporting this count was that the accused pushed the complainant over in the shower area at the Bexley Boys Home causing him to fall on a wash trough and lacerate his eye which required stitches.

COUNT 2

“That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales did indecently assault AM, a male”, pursuant to s 81 of the Crimes Act 1900.
The allegation supporting this count was that the accused made the complainant bend over in the shower area and grabbed the complainant on the buttock cheek.

COUNT 3

“That between 8 November 1968 and 15 January 1971 at Bexley in the State of New Wales he did indecently assault GW, a male”, s 81 of the Crimes Act 1900.
This count was the subject of a directed verdict at the close of the Crown case.

COUNT 4

“That between 8 November 1968 and 15 January 1971 at Bexley in the State of New South Wales he did indecently assault GW, a male”, s 81 of the Crimes Act 1900.
This count too was the subject of a directed verdict at the close of the Crown case.

COUNT 5

“That between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales the accused did indecently assault DC, a male”, pursuant to s 81 of the Crimes Act 1900.
The allegation was that the accused made the complainant bend over and part his buttock cheeks. The accused then moved his hand over the complainant’s anus.

COUNT 6

“Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did assault CN” pursuant to s 61 of the Crimes Act 1900.
This allegation was that the accused kicked the complainant in the shins and grabbed him by the scruff of the neck on an occasion when the complainant was annoying the accused’s dog by playing a mouth organ.
It should be noted that the complainant gave evidence that the assault was a clip under the ear.

COUNT 7

“Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN, a male”, s 81 of the Crimes Act 1900.
This count was the subject of a directed verdict of not guilty at the close of the Crown case.

COUNT 8

“Between 17 July 1968 and 15 January 1978, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN” pursuant to s 79 of the Crimes Act 1900, and in the alternative to count 8;

COUNT 9

“Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN”, a male pursuant to s 81 of the Crimes Act 1900.
The allegation supporting count 8 was that the accused inserted his penis into the complainant’s anus in the officer’s cottage, and count 9 in the alternative, that the accused inserted something other than his penis into the complainant’s anus.

COUNT 10

“Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN” pursuant to s 79 of the Crimes Act 1900.
The allegation supporting this count was that the accused inserted his penis into the complainant’s anus in the locker area of the boys’ home.

ARRAIGNMENT

The accused pleaded not guilty to all counts on the indictment.

ELEMENTS OF THE OFFENCES

The essential elements for each of the offences were contained in MFI 16 to which the parties have agreed is correct.
The elements and further content of that document is formerly incorporated into these reasons and of course is a fundamental guide to my judgment along with the annotated indictment which was before me as MFI 2.
I refer now to count 1, the s 59 charge of the Crimes Act 1900.
The essential elements or ingredients or facts that the Crown had to prove beyond reasonable doubt are, firstly, that the accused assaulted the complainant, and secondly, thereby occasioning him actual bodily harm.
With respect to counts 2, 5 and 9 pursuant to s 81 of the Crimes Act the essential elements or ingredients or facts that the Crown has to prove beyond reasonable doubt are that, firstly, the accused assaulted the complainant and that the assault was itself indecent.
With respect to count 6 pursuant to s 61 of the Crimes Act the essential elements, ingredients or facts that the Crown has to prove beyond reasonable doubt are that the accused assaulted the complainant, although not occasioning actual bodily harm.
Sections 8 and 10 of the Crimes Act, the essential elements or ingredients or facts that the Crown has to prove beyond reasonable doubt is that the accused engaged in an act of buggery with the complainant.
I turn now to definitions.
Assault means the deliberate striking, touching or application of force to the complainant. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain.
Actual bodily harm means the term bodily harm is to be given its ordinary meaning, and includes any hurt or injury which interferes with the health or comfort of the victim but need not be permanent, but must be more than merely transient or trifling.
Buggery means that the accused penetrated the anus of the complainant with his penis.
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.
I turn now to the issues that were placed before the Court in the course of the trial.
The accused challenged the evidence of the complainants and denied that he committed any sexual or physical act on any of them.
It was the accused’s case that if sexual or physical assaults were occasioned to any complainant, those acts were perpetrated by somebody else and each complainant had necessarily incorrectly nominated the accused as the perpetrator.
With respect to the counts of assault and assault occasioning actual body harm, whilst the accused denied ever striking either the complainant in the manner alleged nonetheless he maintained that for any such act committed in the alleged circumstances of either allegation the Crown must rebut lawful chastisement.
Cross-examination of DC addressed issues of contamination and his motive in the light of his attempts for the payment of additional compensation from the Salvation Army. He had sought this additional compensation for the shortcomings in his education that he believed he suffered as a result of his time at the Bexley Boys Home.
Issues of misplaced animus held by the two complainants AM and CN towards the accused for the death of Trevor Hubbard were also placed squarely in issue in the course of the trial.
The evidence of CN was put in issue given his length history of drug and alcohol abuse and longstanding mental health issues associated with PTSD.
Identification and/or recognition were also squarely placed in issue by the accused.
I turn now to counts 3, 4 and 7 upon which I directed verdicts of not guilty.
After the conclusion of the evidence of GW the Crown conceded that due to a lack of specificity in his evidence, in particular with respect to S-type problems, count 3 and 4 should be a verdict of not guilty by direction. Accordingly, I directed myself with respect to a directed verdict of not guilty on counts 3 and 4 of the indictment. There was no opposition to that course by the defence.
After the conclusion of the evidence of GN the Crown also conceded that count 7 should be subjected to a verdict of not guilty by direction given that the complainant did not give any evidence that could support count 7. There was no other evidence to support that charge.
Accordingly, I directed myself with respect to a directed verdict of not guilty on count 7 on the indictment. There was no opposition to that course by the defence.

BACKGROUND OF THE FACTUAL MATRIX

The allegations concern a period of time from July 1968 until January 1974 when the accused was for two discrete periods of time a member of staff at the Bexley Boys’ Home.
The Bexley Boys’ Home was run by the Salvation Army. It provided accommodation for up to 100 boys aged between five and about 16 years. The resident boys were either generally wards of the State or had been left in the care of the boys’ home by their family as they were unable to look after them.
Exhibit 4 was what was referred to as a Gantt style chart, indicates that the accused was posted to the Bexley Boys’ Home for two periods; the first one commencing on 18 July 1968 and finishing on 14 January 1971, and a second period which commenced on 20 January 1972 and finished on 17 January 1974.
Exhibit 4 also indicated times that various boys were resident in the home and other relevant staff members’ postings.
While posted to the Bexley Boys’ Home the accused was provided with accommodation in the assistant manager’s cottage which was located within the grounds of the boys’ home.
This was clearly marked on exhibit 1 as the assistant manager’s quarters. Those premises comprised a two bedroom cottage situated close to the main building and dormitories of the boys’ home.
I turn now to the directions of law in a judge alone trial.
The accused has pleaded not guilty and elected to be tried by judge alone. Accordingly, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return verdicts according to the evidence.
The burden of proving every element of a charge and the guilt of the accused rests firmly and only on the Crown. The burden of proof of course rests on the Crown and does not move.
There is no onus of proof on the accused at all.
I have had the benefits of submissions from the Crown Prosecutor and the accused’s counsel. They were careful and fulsome. I note of course that they are not evidence. I have considered each party’s submissions on how I should approach the evidence and the particular areas of which I should pay particular scrutiny.
I have considered the party’s submissions; particularly Ms McSpedden’s careful submissions on behalf of the accused with respect to what she says are the significant frailties and shortcomings of each of the complainants’ evidence.
I have closely reviewed all of the evidence including viva voce evidence of witnesses called before the Court, documents and photographs, both ERISPs that the accused participated in with police, and of course the evidence of the accused and in his case.

DIRECTIONS OF LAW

SEPARATE COUNTS

The accused was being tried initially on 10 counts with 7 remaining (after the directed verdicts) counts jointly.
The charges are being heard together as a matter of convenience.

There is no tendency evidence.

I repeat and underline there is no tendency evidence and I have not taken any such matter into account.
I must consider each count separately which means that I would be entitled to find the accused guilty on one count or more counts, and not guilty on another or others if there is a logical reason for that outcome.
Whilst each charge must be considered separately, there must be a logical consistency in the result.

IMPARTIALITY, PREJUDICE, SYMPATHY, ANTIPATHY

In my role as the tribunal of fact I must evaluate the evidence in an impartial and dispassionate way. I do not leave my common sense at the door and I should have regard to my understanding of people in human affairs.
I do not act on suspicion no matter how grave nor do I act on what I think probably might be the case.
I direct myself that I must put aside any sympathy or antipathy that I may have for anyone involved in the trial. I must put aside any prejudice I might have, including any prejudice regarding the subject matter of the counts on the indictment.
I must also put completely aside any publicity about similar allegations in other cases. Any media reports of the Royal Commission into Institutional Responses to Child Sexual Abuse, both generally and to any extent that they may relate to allegations against the Salvation Army or this accused. They are not relevant to my task and I entirely disregard such knowledge that I do have.
I remind myself that as the tribunal of fact I must approach the issues in this trial dispassionately and objectively.
My findings and ultimate verdicts must be based only on the evidence that has been properly put before me in the trial. To do otherwise would be contrary to my significant and solemn responsibility that I have to return verdicts according to the evidence.

ASSESSMENT OF WITNESSES

I direct myself that I may believe the whole of what a witness says I may disbelieve the whole of what a witness says or I may believe a part and disbelieve another part of a witness’s evidence.
It goes without saying that a witness may be honest and accurate, honest but mistaken or dishonest in relation to any one or more aspects of the witness’s evidence.
Each witness has given evidence about events that they have remembered. A person’s memory may depend upon a number of different factors including that person’s capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail and the capacity to recall a memory and articulate it.
The subject matter of an event is also relevant to memory and its reliability. Some events themselves are of little or no consequence, and any memory of that event may be retained only for a short time. On the other hand others are of greater importance and accordingly one might remember it for a relatively long time, although over time aspects of the detail of the memory or the parts one considers to be of no real consequence might fade. All of these factors derived as a matter of common sense and human experience might impact on what someone can remember of an event or how clearly they might remember it.
My task in relation to the evidence of a particular witness is to decide whether I consider their evidence to be sufficiently reliable such that I can act upon it to the very high standard required by the criminal law, being proof beyond reasonable doubt. Reliability is said to depend upon two quite different but overlapping factors; one factor is a witness’s honesty, and the other is the witness’s accuracy. There are many factors which can have a varying upon a witness’s honesty. In considering the question of honesty I might consider the impression the witness made upon me. Demeanour and impression are important valid factors to take into account.
I could ask myself did a particular witness impress me as somebody doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me?
Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was being asked?
Did the witness strike me as being objective and impartial or did the witness strike me as appearing to have an axe to grind, or to be colouring his or her evidence in some way?
Did the witness concede that he or she had lied in their evidence?
Of course demeanour and impression are matters that I am entitled to take into account. Nonetheless I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. These observations of course apply equally to prosecution and defence witnesses’ demeanour and impression alone did not determine the honesty or accuracy of the witness’s evidence.
If I conclude that a particular witness has been doing his or her best to be honest I would need to be moved to the second aspect of reliability which relates to a witness’s accuracy. A witness can be perfectly honest and accurate or perfectly honest yet completely or partially inaccurate.
To determine how accurate a particular witness’s evidence is I may look to a number of factors. For example, how careful was the witness’s observation with respect to the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event or affected by any emotions such as stress, panic or fear that may have impacted upon their powers of observation and the laying down of an accurate memory in the first place. How old was the witness at the time? How long ago were the relevant events?
How important to the witness might surrounding details of an incident or event have been such that the witness focused on committing to his or her memory all aspects of the event as opposed to what the witness perceived to be the significant part of the event? Has the witness provided a consistent account of the incident of the event?
They are all matters that I take into account in considering those issues.

BEYOND REASONABLE DOUBT

This is a criminal trial and the burden of proving the guilt of the accused was firmly on the Crown. That onus of proof relates to every element of each of the offences charged. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt beyond reasonable doubt in relation to the counts on the indictment.

The words beyond reasonable doubt are to be given their ordinary English meaning.
Our system of justice provides that persons tried in our courts are presumed innocent unless and until they are proven guilty by the Crown beyond reasonable doubt. I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes then the appropriate verdict is not guilty. If the answer is no the appropriate verdict is guilty. That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove each and every single fact or issue beyond reasonable doubt. The onus is on the Crown to prove all of the elements of the offence, the subject of each individual charge, beyond reasonable doubt.

INFERENCES

My role as judge of the fact extends beyond concluding whether or not any particular fact has been established by the evidence. As the judge of the fact my role extends to drawing reasonable inferences or conclusions drawn from the facts I find established. I note that the words inference and conclusion are interchangeable.
In a criminal trial I must be satisfied of the guilt of the accused beyond reasonable doubt. That means of course, amongst other things, that I should be extremely careful about drawing any inference. I am to examine any possible inference to ensure that it is a justifiable inference. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

SPECIAL CONSIDERATION OF COUNTS

As noted above, I must consider each count separately. I must not simply determine whether the Crown has proved the accused’s guilt on the charges in a global or collective way. Giving separate consideration to each count on the indictment means I am entitled to bring in different verdicts in relation to different counts. However, as noted above, different verdicts on different counts must be based on a logical and reasoned approach rather than as a result of caprice or an arbitrary or random approach.
As I separately consider each count I must look at the evidence which specifically relates to the counts then under consideration, and make a determination with respect to that count upon it before proceeding to the next count.

MARKULESKI

As noted above I must consider each count separately. I noted that giving separate consideration to each separate count on the indictment means I am entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. So if I would find the accused not guilty on any count or counts on an indictment, particularly if that was because I had doubts about the reliability of a particular complainant’s evidence I would have to consider how that conclusion affected my consideration of any other counts pertaining to the same complainant, because an issue critical to the determination of each of these matters is the reliability of the particular complainant’s evidence.
The complainant and CN are two complainants in respect of whom there is more than one count charged. Accordingly this direction pertains to my consideration of their matters.

RELIABILITY

I turn now to a direction regarding the evidence of each of the complainants. I must examine their evidence carefully and satisfy myself that they are reliable witnesses, that is that they are honest witnesses and witnesses who are accurate in vital respects.
I must examine and evaluate the evidence of each complainant in light of any criticism that has been made of it. It is only after such careful scrutiny and evaluation, and if I am satisfied beyond reasonable doubt that evidence in reliable as to the elements of the particular charge I am considering, that I can find the offence proved.
In determining whether the Crown has established its case in respect of a particular count on the indictment as I separately consider each count I must also consider any evidence that I find proven that may support or contradict the accounts given by the complainant to whom the particular count under consideration relates.
One of the complainants has been subject to abuse by people other than the accused during their childhood. Some of them have also suffered from mental health and related issues, including resorting to drugs and alcohol as a way of coping with the traumas of their developmental years. At least one of the complainant’s has pursued compensation from the Salvation Army in respect of their experiences at the Bexley Boys’ Home.
Of course it is a matter of human experience that suggests that each of these types of matters can influence in a number of ways the recollection of witnesses and the evidence that they may give with respect to those recollections. I must be very mindful as to the existence of these considerations in my assessment of the evidence of individual complainants to whom they might relate and approach the evidence with appropriate caution where they exist, the possibility that factors such as these may affect the reliability of the complainant’s evidence. Specifically, the matters outlined above may have affected adversely a complainant’s capacity to lay down an accurate memory in the first place, or affected his capacity to accurately recall the events about which evidence is given. These factors may have led a complainant to becoming convinced of an inaccurate version of events. A witness may have been influenced by a number of factors to reconstruct a memory out of a multitude of recollections of varying or questionable accuracy.
I must therefore scrutinise with care each complainant’s evidence having regard to these factors. I must be satisfied that he is not just an honest, but he is also a sufficiently accurate witness in the accounts he has given.
In any criminal trial there are factors that may impact on the witness’s reliability that witness’s evidence must be approached with caution because of the onus and standard of proof placed upon the Crown.
I do not suggest that there is no entitlement to convict an accused upon the evidence, even the uncorroborated evidence of any complainant. Clearly I am entitled to do so, but only after I have examined the witness’s evidence and satisfied myself that it is reliable beyond reasonable doubt.
In considering the evidence of each complainant and whether it does satisfy me of the guilt of the accused to the requisite standard I must of course look to see if it is supported or contradicted to any extent by other evidence.

FORENSIC DISADVANTAGE

I must give myself a warning relating to the issue of delay in the complaints being made in this case.
I must appreciate fully the effects of delay and ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt.
The disadvantages in the context of this particular case included the following:

i. The loss of evidence with the effluxion of time, including the loss or destruction of documents and records that might be pertinent to the prosecution or defence, to the prosecution or defence of the allegations;

ii. The death of a number of witnesses;

iii. The fading or interference with memory or the accuracy of memory through the effluxion of time.

These difficulties loom large in this case and put the accused at significant disadvantage in responding to the prosecution case, either in testing prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecutions commenced much sooner it would be expected that each complainant’s memory for details would have been clearer. This may have enabled the evidence to be checked in relation to those details against independent sources so as to verify it or disprove it.
Each individual complainant’s inability to recall precise details of the circumstances surrounding the incidents make it difficult for the accused to throw doubt on the evidence by pointing to circumstances which may contradict it. Had the accused learnt of the allegations at a much earlier time he may have been able to recall the relevant details which could have been used by his counsel in cross‑examination of the complainants.
Another aspect of the accused’s disadvantage is that had he learnt of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at a particular time, and to have been able to bring forward evidence to support him.
The accused has been put in a situation of significant disadvantage; therefore he has been prejudiced in the conduct of his defence on each count.
As a result I warn myself that before I convict the accused on any count I must give the prosecution case in respect of that count the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about, for example, the fact that a complainant’s evidence has not been tested to the extent that otherwise it could have been, and the inability of the accused to bring forward evidence to challenge it or support his defence.

COMPLAINT EVIDENCE

The Crown does not rely in any of these matters on complaint evidence. The absence of complaint does not necessarily mean that the allegations are fabricated.
Neither absence of complaint or delay in complaint necessarily means that the allegations made by the complainant in each case are made up. There may be good reason an individual would fail to complain or delay many years before making a complaint.
A failure of timely complaint must be viewed in the context of each complainant at the relevant time being a child who was then what was described as an inmate of an institution run by a religious organisation conducted with a military like presentation.
In those circumstances it is not unsurprising or unreasonable that there was an absence of complaint. It does not follow that the allegations are false simply because there was an absence or delay in complaint.
In considering what may be expected from a child as a consequence of sexual offending I am mindful that there is no correct way to respond. The response of an individual is guided by many factors. It may be influenced by age, by familial support, by the identity of the perpetrator and the relationship to that person and the circumstances in which the alleged offending occurred.
In considering the absence of each complainant I take into account their age and personal circumstances at the time. The failure to complain must be viewed in the context of the period concerned, and each complainant being a child who was effectively in an institution.

MOTIVE TO LIE

A question may be asked in each case as to why the complainant would make up such serious allegations against the accused. Accordingly I give myself the following direction about that question.
It would be wrong to conclude that the complainant whose evidence I am considering is telling the truth because there is no apparent reason in my view for him to lie. People lie for all sorts of reasons. Sometimes this is apparent, other times it is not. Sometimes the reason is discovered, other times it is not.
This direction flows from the basic legal proposition in any trial that the Crown who brings the case must prove its case beyond reasonable doubt and the accused does not have to prove anything.
When the defence directly assert a lie was told by the complainant an accused person does not have to prove that the complainant had a motive to lie or what that motive might be. My task does not include speculating about whether there is some reason why the complainants would lie.
At all times before I can find the accused guilty of a particular count I must be satisfied beyond reasonable doubt of the reliability and honesty of the evidence of the complainant to which that count relates.

THE ACCUSED GIVING EVIDENCE

The accused gave evidence in this trial. His account in the witness box was given subject to an affirmation made by him to tell the truth, and he was exposed to cross-examination.
The accused, as any person accused of a serious criminal activity, has a right to silence. He was under no obligation to give an account to the police and he was under no obligation to give evidence in this trial.
An accused person does not have to prove anything. This flows again from the basic principles that he is presumed innocent and it is for the Crown to prove the allegation beyond reasonable doubt.
Having decided to give evidence the accused became a witness. I am entitled to assess what he said and the way in which he said it in the same way that I assess all witnesses who gave evidence. I may accept all of what he said, reject parts and accept other parts of his evidence or reject everything that he said.
However, it is most important that I bear these directions in mind:

i. The fact that the accused chose to give evidence in this trial and that he chose to give an account to police in two recorded interviews after his arrest does not mean that the onus of proof shifts from the Crown to the accused;

ii. The accused bears no onus to prove that he is not guilty, he is presumed innocence. It is always the Crown who bears the onus of proving its case;

iii. I should clearly understand that it is not a contest between whether I prefer the evidence of the complainant or the evidence of the accused in my consideration of any individual count. It is not a contest because the onus of proof is not on the accused to prove anything;

iv. It is evident that if in this Court there is a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove in respect of one or more counts, then I am bound in law to bring a verdict of not guilty on that count or counts;

v. It is not the position that I have to believe that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised, the Crown must establish beyond reasonable doubt the charges which it brings against the accused, and it is never for an accused to prove that he or she is not guilty.

vi. Even if I were to reject the accused’s account or important aspects of it, before I could find him guilty on any particular count I must be satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence charged by the particular count I am considering.

CHARACTER

Detective Sergeant Warren gave evidence that the accused has no criminal record. It is accordingly open to me to find that the accused is a person of good character. If I do so conclude the law provides that the accused is entitled to have me take that good character into account in his favour in the following way.
The fact that the accused is a person of good character entitles me to consider the improbability of his having committed the offences alleged. In other words, it is a matter I may take into account when asking myself in relation to any particular count whether the Crown has satisfied me beyond reasonable doubt of his guilt on that count.
Further, I can use the fact that the accused is a person of good character to support his credibility. It is the reason that a person of good character is less likely to lie or give a false account either in giving evidence or giving an account of the events in answer to questions asked by the police.
None of this means of course that good character provides the accused with some kind of defence. Obviously enough people commit crimes for the first time and people with prior good character can and sometimes do commit serious crimes. But good character is nonetheless one of the many factors which I am entitled to take into account in determining whether the Crown can satisfy me beyond reasonable doubt as to his guilt in respect of any count. Like everything else concerning assessments of the facts in this matter, this is something for me to assess using my common sense and experience of world and human behaviour.

CLOSING ADDRESSES

Both the Crown and Ms McSpedden for and with the accused put arguments to me about the evidence.
The closing addresses are not evidence. However, I should have and I have had regard to each closing address and the arguments made.
It is a matter entirely for me as the tribunal of fact as to whether I accept or reject those arguments. I have had the advantage of the transcript of closing addresses and whilst I have had close regard to them, I do not propose to set out in argument the submissions made on behalf of the parties in my judgment simply because of the length already of the document.

INDIVIDUAL COUNTS IN THE EVIDENCE OF THE COMPLAINANT’S

In the case of each count the Crown’s primary witness was the complainant himself. There is nothing corroborative of the complainant’s evidence in any individual case.
Accordingly, the central features of these matters before me which are affectively discrete trials being heard together for convenience, is that in order to convict on any one count I would need to be satisfied beyond all reasonable doubt of the truthfulness and accuracy of the particular complainant to whom that count relates.
There is no evidence in support of the allegation of each of the complainant’s, save for the generally obvious physical descriptions of where they say things occurred and the generally daily routine of the Bexley Boys’ Home.
There is no eyewitness and no physical evidence that one might expect or sometimes at least see. There is no complaint evidence that might fortify an assessment of the credibility or reliability of any one of the complainant’s in the way evidence of that type may work.

FORENSIC DISADVANTAGE

As noted by the Crown and I have noted this is a case where the forensic disadvantage caused by delay is significant.
The officer in charge of the investigation, Detective Sergeant Nigel Warren, engaged in a thorough, exhaustive and careful attempt to gather all available evidence that might be relevant to the prosecution or defence of the allegations.
As the Crown submitted, Detective Sergeant Warren left no stone unturned in trying to locate witnesses and physical evidence. Notwithstanding his considered and considerable efforts after a lapse of at least four decades and in some case closer to five, it has been impossible to avoid the consequences that are inevitable through the loss of evidence.
There are records missing that might have assisted one side or the other. For example, school reports, hospital records, rosters of the Bexley Boys’ Home and possibly other records for example, Salvation Army records. Numerous witnesses have died, some of them potentially of considerable significance including Mr Stan Morton and Mr Lionel Bray, both former managers of the boys’ home as well as other former officers, employees and residents of the home.
Alongside the loss of evidence in the manner just described above, there has been of course the inevitable fading of memory that necessarily accompanies the passage of so much time between the relevant events in their hearing in a court of law such as this. That fading memory has been a feature of the evidence of every witness called in each of the matters including of course the accused.

IDENTIFICATION AND RECOGNITION

Each of the complainants identified the accused as the perpetrator by name based upon their stated familiarity with him at the time.

Each purported to recognise the accused at the time of the alleged conduct based upon previously knowing him by appearance and name. Other observations by other former inmates were alleged to have been made of the accused.
There are only about six or seven male officers or staff members employed within the institution during the relevant periods being Mr Bray, Mr Stan Morton, Mr Ken Beer, Mr Chris Cole, Mr T Smith, a relieving member who could not be identified by name, but was possibly known as Uncle Col and the accused and possibly another person by the name of Wilson or Wilkinson.
It was submitted on behalf of the accused that a direction on identification was required when considering the evidence of the complainants. It was submitted that the complainants have made an erroneous identification.
A witness may err when purporting to recognise a person previously known to them and a special caution should be exercised before accepting recognition evidence as it falls within s 116 of the Evidence Act. See for example R v Trudgett [2008] NSWCCA 62 and Williams v R [2019] NSWCCA 53.
In considering this special caution the experience of criminal courts over the years has demonstrated that identification evidence may turn out to be unreliable.
I must carefully consider the circumstances in which each witness made observations purportedly of the accused, as the circumstances in which the witness made his or her observations can affect reliability of identification evidence.
This includes giving consideration to the familiarity prior to the observed incident, the circumstance of the occasion of the observation and any discrepancies in the description.
In undertaking this task and mindful for the need for caution, I note that the description provided by witnesses was provided well after the alleged interaction.
It was not challenged that the accused would have been known to some extent to each of the relevant witnesses, given his employment at the time at the institution that they were resident at the Bexley Boys’ Home and therefore each complainant could have described him even based on innocent interaction. This requires consideration of the possibility to misattribution.
The evidence at trial concerns a period of time over 45 years ago. This is a considerable passage of time.
The accused did have a very detailed memory of the Bexley Boys’ Home, its staff and daily routines, which was reflected in the two police interviews and his evidence before me.
The accused suffered at the time of both the police interviews and trial from health issues. The Court sitting times were flexible to accommodate his needs.
Nonetheless those health issues did not seem to impact upon his cognitive functions or hamper his ability to answer when questioned by police or to participate in the trial.
In the first ERISP which was on 2 November 2016, the accused complained repeatedly that he was taken from his home before he could eat a substantial enough breakfast. He maintained throughout the first interview that his answers were possibly compromised due to his lack of nourishment. I note however that police gave the accused regular breaks and sustenance throughout the interview and asked repeatedly if he was able to continue. No request to exclude the interview was made to me.
The accused through this counsel asked for and sought adjournments throughout the course of the trial. In his evidence before me the accused appeared very capable of speaking up for himself. The responses in both ERISPs and in his evidence before me very much confirmed that he was not adversely impacted by any particular difficulty when interviewed or when in the witness box.
I accept that the accused has an imperfect memory of some aspects from the late 60s and early 70s as would be anticipated after such delay.
I am satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay. This focus on the consequences of the delay is distinct from mere delay. This issue depends on the nature of the complaint and the extent of the delay in the circumstances of the case.
As noted in the evidence of Detective Sergeant Warren, a number of potential witnesses are deceased or not locatable.
The rosters are not available and nor are the punishment records.
I accept that their absence has caused a significant forensic disadvantage and that I need to take that disadvantage into account when considering the evidence. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or bringing forward evidence himself to establish reasonable doubt about his guilt or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been. Had the allegation been brought to light and the prosecution commenced much sooner, it would be expected that each complainant’s memory for details would have been clearer.
This may have enabled the evidence to be checked in relation to those details against independent sources so as to verify it or disprove it. Each complainant’s inability to recall precise details of the circumstances surrounding incidents makes it difficult to throw doubt on the evidence by pointing to circumstances which may contradict it.
Had the accused learnt of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel as noted above in cross-examination of the complainants.
Another aspect of the accused’s disadvantage is that had he learned of the allegation at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
Exhibits 1, 2 and 3 record the layout of the Bexley Boys’ Home apparently at the relevant time to the counts on the indictment.
Exhibit 1 is a site map of the home.
Exhibit 2 is accepted as a generally consisted diagrammatic representation of the internal layout of the home and the grounds at the relevant time.
Exhibit 3 is a bundle of photographs of the home and some residents at relevant times.
Many of the former employees and some of the former residents at the boys’ home are deceased. This includes Mr Morton, Mr Beer, Major Bray, Mr Cole and I note also Mr Cole.
There are some documents about concerning the career of the accused within the Salvation Army and various postings he held throughout that time. There is some documentary material available as to placements of the boys residing in the home, though incomplete.
I accept that not all documentary material is still available.
The accused has been put in a position of significant disadvantage. He has been prejudiced in the conduct of his defence, as a result as noted above; before I convict the accused I must give the case the most careful scrutiny.

THE EVIDENCE

I turn now to the evidence that was before the Court and of course I cannot attempt to repeat it all and this is just a summary of the important aspects of each complainant’s evidence.

DC was born in March 1959. He was 60 years of age when giving evidence. The complainant was at the home for about five months, from early July until early December 1973.
He gave evidence with respect to count 5 on the indictment, a count of indecent assault which was particularised as the accused fondling his buttocks and directing the complainant to spread his buttocks cheek and the accused then moving his hand around the complainant’s anus.
The complainant DC lived with his father RC and step-mother in Arncliffe. In approximately 1968 or 1970 the Salvation Army came around and asked him if he was interested in joining the cubs. This was followed with a request from a Mr Thornton who came down and spoke to DC’s parents. As a result DC was signed up with the cubs. He was about seven or eight years of age. The complainant started to learn the cornet through his association with the Salvation Army band.
He met Dean Booth and Alexander Anderson, both of whom he described as Bexley Boys on his first night of attendance at the Salvation Army Cubs.
He attended Cubs for a few years until he was about 12 years of age when that discontinued. He did however continue with his band practice which was usually held on a Wednesday and Sunday.
DC still saw some of the people that he knew from those early band days.
DC said that when he was in second form at high school, now known as Year 8, at Peakhurst High School his parents went to an interview with the boys home. He did not know why, but he was moved in to live at the Bexley Boys’ Home for a period of just under six months. He stayed at the boys’ home for the period shown on exhibit 4.
The oldest boys in the home were aged about 16 to 18 years of age. He only encountered those older boys on that Sunday night, the subject of count 5 in the shower area.
He mostly had the same routine as the other boys, save for the fact that he went to a different high school. His daily routine included getting up around 6.30am, washing, having breakfast and then going to school.
He left the boys home at about 7.30am. He did not like it all at the boys’ home. It was a very hard regime and accordingly he came back home as slowly as he could. The boys who went to the boys’ home went to either Bexley North for primary school and Kingsgrove High School for the older boys.
When he arrived home it was usually about 4.30pm. The boys would have free time until dinner and then after dinner he would usually practice the Cornet.
As to the routine at shower time DC identified various positions on exhibit 2. He said the boys would be called out of the locker room where they waited until they were summoned into the shower room.
They undressed in the locker room and then they would be called out row by row into the shower area. He understood that they were grouped by rows. When you came into the shower room there were four shower heads for boys who would be in the shower and four boys at the time were usually be towelling themselves dry. He said it involved awkwardness because there was a total lack of privacy in the locker room and in the shower room.
DC said that on Saturday’s and Sunday’s he was mostly at church and didn’t get back to the boys’ home until about 8.30pm. The usual practice was that they showered once a day. His father sometimes came to the boys’ home and he went out with them. On alternate fortnights he might go home with them or go out with them.
He said that Mrs Morton, whose first name was Eva, was married to Stan Morton, who was the head of the boys’ home.
The complainant did not know the accused other than from his dealings with him at the home. He knew that the accused was married with children.
From his involvement with him at the home, he knew that the accused supervised the activities of the boys and supervised them at meals and study times.
He described the accused as generally wearing a white shirt and grey trousers and navy blue trousers on Sunday.
He could not recall any further functions that the accused may have had. He was threatened with the cane by the accused, but as I understand his evidence not actually hit with it.

COUNT 5

The complainant says that the events supporting count 5 in the indictment occurred on a Sunday.
On Sunday there were less staff and fewer boys. This incident occurred after the trip that he had made to West Wyalong on a Rotary program. He was preparing to go into the showers and was naked in the locker room waiting to be called into the shower area. Generally he said he would not be with the boys at all on a Sunday because of his involvement with the church but on this particular occasion Mr and Mrs Morton had another engagement which precluded them from taking him back to evening service at the church. He therefore found himself in the shower with the other boys and the accused on this particular Sunday evening.
The boys were showering. Some boys were towelling off, others showering, four boys at a time. On this occasion the complainant was the only one called through. He recalled being called up by the name ‘Cxxxx’ (phonetic) which was how he pronounced his name at that time. More recently he explained that he adopted the traditional Irish pronunciation of his surname.
He entered the room and the accused said “Come here, bend over”. He was directed to part the cheeks of his bottom. The accused said to him “You’ve got worms”. The accused was behind him. He felt a brush of a hand followed by a prodding of his anus area. The complainant reacted and said to the accused “Are you having your jollies there. Are you a poofter?”
This response from the complainant drew laughter from the older boys.
The accused told the complainant “Get to the office”.
The complainant went to the office. He was dressed in his pyjamas and dressing gown. He sat in the office area. He described by reference to exhibit 2 as an area which was called the vestibule. He sat on a chair there for a long time in the dark. He was very nervous and started sucking on his upper arm. That sucking caused bruises to his arm.
After waiting in the dark for an extended period of time the accused came to the office area. They went into an office area in the general area of the vestibule. The accused said to the complainant “I have every right to cane you”. The complainant replied “I don’t know what you’re going to do to me, but I’ll be telling everyone at Rockdale what you’ve done”.
With that the accused said to the complainant that he had to pretend to have been caned, whereupon he went back to the play room having escaped punishment. At the play room he described himself as mingling with the other people that were there.
There complainant said that there was not really any unpleasantness between him and the accused before that incident. He described an occasion when he was made to clean the grease trap on his own which was a very unpleasant duty. He resisted it. The accused thereupon walked him around the perimeter of the home. They engaged in a heated conversation. The accused said to him “I thought you would have accepted this duty with grace, as you are a junior soldier”. The complainant understood his responsibilities after being told that and he said that he cleaned the grease trap until it “gleamed like gold”.
The complainant left the home in 1973 and did not return as a child. He had kept up his connections with some of the people that he met through the Salvation Army. He had seen the accused once since the time at the boys home, at the funeral of somebody called Herb Epps in 2014. He thought it was early in the year in Wollongong. There were hundreds of people at the funeral and he sort of spun around and saw the accused in the crowd.
In cross-examination the complainant was asked about a notional time line of the various points in his narrative. He could not recall whether he made the statements to Mr Greville before or after Mr Epps’ funeral. It was agreed that he had made a statement to the police on 23 September 2015.
The complainant agreed that he had not said anything to anybody at that time. He described Major Morton, the head of the boys home as firm but fair. He agreed that he did not make any complaint to either him or his wife Eva Morton or to the woman described as Matron. There was no conversation with Matron about worms. He made no complaint to the Coles who were in charge of the small children’s home.
The witness was taken to a document that he had produced called “Truth”. He had written that document just before his interview with Mr Greville. He had spoken to Alison Jones in about 2014, following the commencement of the Royal Commission into Child Abuse. He had discussed the Bexley Boys’ Home with her. Before he spoke to Alison Jones the name of the accused was featuring in the Royal Commission.
He had also been keeping up with the evidence from the Royal Commission and had read articles in the Daily Telegraph and he thought to himself “I have had similar experiences”.
He knew that the Bexley Boys’ Home was going to be a case study and knew that the accused was named. It was after that he created a document “Truth” before he spoke to Mr Greville.
The complainant was cross-examined about the document entitled “Truth” and comments about his views for compensation that he had previously made in that document. He had written there that there was no need for compensation or compensation to pay for counselling as his “life was pretty good at the time”.
He spoke to Phil Inglis from the Salvation Army and asked him “Should I be mentioning what happened to me?” He said that Phil Inglis encouraged him to do that.
The complainant DC denied that his job with the Salvation Army gave him any access to historical records.
In cross-examination he gave some further details with respect to his prior family life before he went to the boys’ home. He had a brother who was born with Cerebral Palsy. He was put into care. His parents subsequently divorced and his mother was killed as he understood in a motor vehicle accident. It kept occurring to the complainant that his mother in some way may have taken her own life.
He was brought up after that by his father. It would appear that they did not get on after his father subsequently remarried. When his father and step-mother went on regular holidays they would leave him with relatives or other acquaintances.
He felt abandoned and described himself as being “dumped” in the Salvation Army home for six months before going back to his father. He could not get away from his father soon enough.
The complainant had been employed at the Salvation Army.
Whilst the complainant had not been to any reunions for former Salvation Army home residents, he did go to an afternoon tea for people needing support as a result of his contact with a network called “Care Leavers Australia Network”, known as CLAN.
He had received some compensation after he was made redundant by the Salvation Army. He was compensated because he did not have sufficient qualifications and could not work for them anymore. He felt he was compensated because when he was in the children’s home his school work went into a decline and adversely impacted upon his education.
He was initially offered $5,000 which he refused. Eventually he accepted $35,000, but refused the additional $5,000 after taking the advice of counsel. He knew Bud and Christine Cole, Major and Mrs Morton and Matron.
He did not know Carl Compton.
It was put to him that he had sought further compensation after the amounts of $35,000 and $5,000. DC rejected that and said that he sought a review of his claim.
DC agreed that whilst he only spent six months of his schooling at the boys’ home, nonetheless this was the commencement of his schooling going into decline.
He agreed that in the “Truth” document there was no mention of the negative impact on his education by virtue of his stay at the Bexley Boys’ Home.
He was taken to the words that he used in the “Truth” document to describe what he had said to the accused after being touched on the anus by the accused. In the “Truth” document he used the words “I think, as I remember” and he was cross-examined as to that expression. He was asked if they were meant to convey a lack of certainty.
The complainant said that he wrote the “Truth” document as his first expression ever made. He agreed that it was a matter of considerable seriousness. He was casting his mind back as best he could. He said that whatever he had written was done without the intention to mislead anyone. He did not recall anybody known as Uncle being in the shower room. The only person he could recall in the shower room was the accused and Stan Morton.

The complainant was taken to exhibit 3, photograph 8, which was a photo of a number of young boys on the trampoline in what was described as the play room. He agreed that in evidence the previous day it was not the first time that he had seen that photograph.
He agreed that he was at the home in 1973 when he was 14 years of age. He understood that the boy known as IM, who was the son of the accused was a similar age to DC himself. He agreed that he had looked at the photo in conference with the Crown Prosecutor. He was asked if he had looked at that photograph with Dean Jones at a CLAN meeting. He could not recall that. He agreed that he could not identify that person on the trampoline as the accused’s son without somebody assisting him, but he could not recall that it was Dean Jones.
It was put to the complainant that he had a vested interest in the outcome and had gilded his evidence to increase the chances of better compensation from the Salvation Army. He denied that he had retained any lawyers for that negotiation process. He denied that he had contacted a firm of lawyers called Kelso’s through the CLAN network.
The complainant was cross-examined as to the differences in the wording between the “Truth” document and his evidence before me. He said that any difference was explained by the fact that the “Truth” document was his first statement and was the first time that he had ever tried to verbalise what had happened to him. He denied the proposition that he was trying to improve the version as he went along.
DC was cross-examined further about what he had written with respect to the grease trap duty where it was described as a punishment. He said it was an unpleasant job and it was not the best of jobs. The way he remembered the grease trap duty was he was given the job and that he made the best of a bad situation. He was cross-examined with respect to his description of being given the job in his police statement on 23 September 2015 at paragraph 38, where he described the grease trap duty as a punishment.
The complainant was asked why he had not complained about the indecent earlier. He said that the time he thought that because he was not caned for what he had said to the accused after the shower incident, he felt that he was let out of a difficult situation. It was only subsequent to that, that he realised what the full nature of the offending was. He described himself as having had a “me too moment”.
He said that albeit the Matron a woman known by the name of Selma Hill was a kindly person he did not think at the time he could have complained to her. Moreover he was thankful that he had been let off the hook for not being caned.

AM was born in September 1959.
He made two statements, one dated 13 January 2015 and the second one in June of 2019.
Both of those statements refer to the incidents at the Bexley Boys’ Home several decades ago.
The complainant was born in Warrnambool, Victoria; his mother and father subsequently separated. He lived on a farm in Leeton with his father when he was aged about five years of age.
The complainant was driven to Sydney and then taken to the Bexley Boys’ Home with his older brother G who was about three or four years older than him.
The complainant was admitted to the boys’ home on or about 10 September 1965 just shy of his sixth birthday. His discharge date was 17 December 1971.
He attended the primary school at Bexley North; he had to repeat sixth class.
By occupation he was a heavy plant operator for some 25 years, mainly in the construction industry. When he was released from the boys’ home he and his brother went to live in Western Sydney.
He had prepared a number of diagrams and was largely familiar with the layout of the boys’ home as represented by the exhibits.
The complainant recalled that his bed was in the upstairs dormitory, the position of which moved during the time that he was at the boys’ home. AM was also able to nominate the position for Trevor Hubbard’s bed during his time. He knew that Trevor Hubbard was the boy who died at the home.
The complainant said that the dormitory changed about 18 months before he actually left the boys’ home. They were starting to put partitions up to create small cubicles, but it was not completed by the time he had left. The complainant described other points of location on the various diagrams. He was familiar with where the bell was, and its purpose, and the number of rings and what they signified. He was familiar with the quadrangle and various other locations on the premises.
The complainant made a number of friends during his years at the home.
He described having duties which included cleaning the floor in the shower, sweeping the quadrangle, looking after the visitors’ area, washing the cutlery and also cleaning out the grease trap from time to time.
The complainant described the daily routine as getting a wakeup call, making your bed, doing duties that were assigned to you, breakfast, completing duties, dressing for school, being given lunch and then going to school.
When the complainant first arrived at the home Major Bray was in charge followed by Captain Morton who became Major Morton.
Major Bedwell was not there for a very long time. Uncle Terry was like a lay staff member who held a position like an officer. There was a person by the name of Uncle Col who he described as “a very tall, skinny kind of bloke with black hair that was worn longer than the boys’ hair”. He described Uncle Col as a smoker. He did not dress in an officer’s uniform, but dressed rather casually.
The complainant knew the accused. He believes that the accused turned up at the boys’ home about two or two-and-a-half years after he had been there.
The complainant was petrified of the accused and described him as a ‘nasty person’, he had felt that nastiness. He was petrified of the accused because the accused had punched, slapped, thrown things at the complainant, pushed him into lockers and pushed him into walls.
The complainant said that you had to bear in mind that he was only a child at the time, around eight years of age. He said this kind of behaviour went on for quite a while. To avoid being treated like that the complainant said, “I tried to do everything I possibly could to keep away from the accused, I was petrified of the person”.
The complainant did not tell anyone on the staff what the accused had done to him because he was fearful of speaking out and of the chances of being further punished.
The complainant understood that the accused was in charge and was basically running the place when Major Morton was not around. He said the accused was quite an intimidating person.
When they came home from school they got changed into play clothes, polished their shoes and then they might be lucky enough to have a chance to play. This would be followed by dinner time, then a shower and maybe homework. Sometimes they spent their time in the recreation room before bedtime.
The complainant said that the accused was one of the officers that supervised the boys. During those routines the accused was always dressed in his Salvation Army uniform minus the hat. This uniform consisted of a white shirt with a Salvation Army insignia; he sometimes wore a tie. He had dark pants and black shoes.
The complainant said he tried to avoid the accused on the weekends; actually he tried to avoid any contact with him at all.
The complainant ranked the officers on a scale of nastiness towards him. The accused was number 1, Uncle Terry was number 2 and Major Morton was number 3. He recalled getting the cane from the accused in the front area of the building in the office near the front entrance.

COUNT 1

The complainant recalled an incident in the shower block where he sustained injury to his face. This is the evidence which supports count 1 on the indictment.
The boys were getting ready for shower time. He got what he described as “a bit of a hurry on, a push in the back” and as a result he lost his footing and went straight into the wash trough. The impact resulted in the top of his right eye being “busted open”.
The complainant said it was the accused that pushed him in the back; there were other boys around. All the boys were lined up, all naked and they were just waiting for their turn in the shower.
The complainant was shown exhibit 2. He marked on it with a degree of accuracy the doorway near where the incident took place. Everybody was around. Uncle Terry had been supervising the boys in the locker room when they took their clothes off. This would have occurred at about 5.30pm or thereabouts in the afternoon. He was seven or eight years of age.
The accused had come into the doorway, which the complainant marked as between points 25 and 8 on exhibit 2.
He had not seen the accused when he came in. The accused said something like, “Come on. Move along”. He then lost his footing and fell into the sink. The top part of his right eye, just under his eyebrow, split open.
Uncle Terry administered first aid. The complainant was taken to the St George Hospital about an hour later where he had stitches inserted into his right eye. He returned home later that night.
The complainant said he knew it was the accused that had pushed him in the back. This was because:

He recognised the accused’s voice.

He saw the accused’s shoes, and

After he got up from the floor he saw the accused quite clearly.

The accused said that this incident distressed him quite a bit.

COUNT 2

The complainant gave evidence about another incident which occurred in the shower area with the accused, giving rise to count 2. The complainant alleged that he was touched on the bottom by the accused.
The complainant said that this occurred on a weekend, it was a Saturday. He believes that he was around eight years of age at the time when it happened.
The complainant had received word that his father was coming to see him. He was told to have a shower and get dressed in what he referred to as his khakis.
On this occasion he was in the shower area by himself. He understood that his father was coming over and visiting that day outside of the usual visitor routine because the complainant’s brother was in hospital.
The complainant believed that he was taking a shower at around 1.30 or 2 o’clock in the afternoon. He had been reluctant to leave playing, but when he was told he was going to see his father he was excited, he was hoping that it would be good news, that he was going to be going home.
The complainant was directed to have a shower by the accused. There was a period of time when he was on his own in the shower area before the accused turned up, he had left the room and then came back. He was told to step forward and turn around. The complainant said when he was being showered he was touched on the bottom by the accused, “As I’ve come forward in the shower room I told to turn around and bend over. I was touched”. The complainant said it startled him. He described it as “like a grab, just a grab” on the backside with the right‑hand side of his cheek buttocks being touched by the accused.
The complainant said that when he was touched on the bottom in the shower Major Morton walked past the doorway near the shower, he was accompanied by a lady and another gentleman. He believed that is why the situation stopped. He said that was the only time it ever happened.
The complainant said he was petrified when this happened and did not say anything at the time nor did he say anything to anybody after it had happened. He said that he told his brother a couple of days later, but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the accused. He said that his brother did not say anything in response to that and that was the end of the conversation.
The complainant knew Trevor Hubbard and he knew that Trevor Hubbard had a brother called Ian Hubbard. He got along with Trevor Hubbard and he knew that Trevor Hubbard suffered from asthma. One particular evening he heard Trevor Hubbard struggling to breathe. This was the night Trevor Hubbard was in the toilet block on the right-hand side of the dormitory. The complainant noted a position with respect to a toilet at the right-hand end of exhibit 2. He said that Trevor Hubbard was not very far away from him, only 6 to 10 metres.
It was very quiet. He could hear Trevor Hubbard struggling to breathe. The complainant thought that he was around eight or nine years of age. He saw the accused near Trevor Hubbard and standing over him; he could see it from his position in bed. He described the accused as being dressed in uniform.
The complainant said that the incident when he was touched on the bottom occurred before Trevor Hubbard passed away. Trevor Hubbard’s date of death was recorded in his death certificate, which was before the Court, dated 3 June 1969.
The complainant was cross-examined by Ms McSpedden and he agreed that a lot of time had elapsed since he was in the Bexley Boys’ Home more than 45 years prior.
He agreed that he had made a statement to police at Coffs Harbour Police Station on 13 January 2015. He had spoken to people from an organisation called Bravehearts.
He had made contact with Bravehearts because he had heard, and become aware, that the Bexley Boys’ Home was mentioned in the Royal Commission. He had read about evidence given there in the newspapers but he was not following up with great detail. He had become aware that the accused’s name had been reported.
He said he was not aware that Uncle Terry was residing in the dormitories at the time Trevor Hubbard died. He agreed that he had described Uncle Trevor (as said) as a person who could be violent. It was customary for an officer to sleep in one of the dormitories to supervise the dorm; however, he was certain that around that time Trevor Hubbard died there was the officer who slept in the room that night.
He agreed that both Col and Uncle Terry would ask the boys to bend over in the shower. He agreed that Uncle Terry had a practice of abusing the boys in performing something that was referred to as a horse slap.
Uncle Terry was a big fellow and he could be pretty brutal and he had copped a flogging from him in the past. This included being pushed into lockers, slapped and punched, with a couple more hits as well. This could occur in front of other boys. It could occur for any reason, for example punishment.
The complainant was cross-examined about a statement that he had made to police on 13 January 2015 and said that there were different forms of punishment that he was subjected to. He said, “I would get the cane, hit and punched and backhanded and slapped. Things will get thrown at me, get pushed into a locker or pushed over in the shower area”. He agreed that he was speaking in general terms about things that would happen to him at the boys’ home.
When asked specific questions the complainant agreed the accused had caned him in the office. He understood that those canings were recorded in an A4 sized big black book. The complainant also said that he received the can when he was outside the doorway of the office as well. The complainant insisted that the accused also punched, slapped and backhanded him. The accused had thrown a cake of soap at him in the shower out of anger. He insisted that he got pushed and landed in a washbasin. He insisted that it was the accused when it was put to him that he was mistaken as to the identity of the person who pushed him in the back.
With respect to the death of Trevor Hubbard the complainant agreed it was something that had upset not only him but all of the boys. In cross‑examination it was suggested to the complainant that on the night that Trevor Hubbard died it was, in fact, Terry Smith who was in the dormitory. The complainant said he was not certain of that.
He did not recall any boys going to speak to an officer to get medication for Trevor Hubbard. The complainant insisted that it was the accused actually standing over Trevor Hubbard. He could not see Trevor Hubbard on the ground, but he could make out the accused standing over someone on the ground.
The complainant denied that he blamed the accused in some way for Trevor Hubbard’s death and that he wrongly held the accused accountable for Trevor Hubbard’s death. The complainant denied that any such belief had influenced the way he had recollected other events, particularly the time in the bathroom when he was pushed and cut his head.
The complainant denied that his willingness to believe that the accused was involved in Trevor Hubbard’s death had made him more ready to conclude that the accused was the person who grabbed him on the cheek of his bottom in the shower.
The complainant said in cross-examination that he knew what had happened and that was all he could say. He insisted that he knew it was the accused who had grabbed him on the bottom.
He maintained that he did not approach Major Morton to complain about the conduct because of his fear of punishment. The complainant said that whilst he had tried to get in touch with CLAN he did not have any luck and accordingly had never been in contact with them.

STATEMENT OF GM

AM had an older brother, GM. GM made a statement which was exhibit 7 before me. I turn now to the statement of GM and make a brief reference to the evidence set out therein.
GM was the older brother of the complainant, AM. He went to live in the Bexley Boys’ Home when he was young and he left the home when he was 14 years old. He was there for about seven years. He and his brother AM entered the home and left the home at the same time.
He accurately described the way the main building of the boys’ home appeared as represented in exhibits 2 and 3. He also gave what seemed to be an accurate account of the daily routine of the boys’ home.
He recalled a number of officers working at the boys’ home including Uncle Terry, Uncle Bud, Uncle Carl, Major Bedwell, the accused and Major Bray. He described the accused as tall, white skin and solid build. He lived at the home in one of the houses. He did not think he had a family there and was not sure when he arrived. He described the accused as having given him the cane as he was an officer.
GM never witnessed any sexual or physical assaults by officers upon boys at the home. He and his brother never spoke about any problems that he had with any of the officers, nor had they discussed with each other what happened to them in the home.
GM could not recall AM going to hospital.
He recalled that there was a time when he himself did go to hospital because he had contracted hepatitis. He went to the hospital near Long Bay Prison, which I assume was likely to be Prince Henry Hospital. He thought he was in hospital there for about three weeks.

JAM

I turn now to the evidence of JAM.
JAM had made a statement to police on 15 October 2015 about the time he had spent in the Bexley Boys’ Home. He confirmed that he had drawn some diagrams of his recollection of the main building, the parade ground, the recreation hall and so forth. He agreed that exhibits 1 and 2 were reasonably accurate reflections of the way the buildings and the other surrounds were set out when he was there.
JAM agreed that he was at the home for two periods from 7 January 1964 through to 30 June 1969. He said that he recalled leaving the home when his father came and picked him and his two brothers up from the home.
He confirmed that Major Bray was in charge of the home the whole time that he was there; he did not know the accused or Stan Morton. He confirmed that the sleeping arrangements were in a first floor dormitory, as shown on exhibit 2, in particularly the second page of exhibit 2.
He recalled that with respect to night time supervision of the dormitory that was performed during the years that he was there by Terry Smith; he was the only one he could recall. JAM said the boys called him Uncle Terry.

I therefore disregard his evidence and am required to focus on the other evidence.
Whilst called as a Crown witness I also consider that the witness Terry Smith was also unreliable. His manner of responding to questions was combative, arrogant and rude. His recollection was selective.
His recollection of the traumatic events of the death of Trevor Hubbard was inconsistent with many other witnesses; I thought it was self-serving.
I do not accept Mr Smith as a reliable witness.
I turn now to consider the evidence of the complainants. I will consider the complainants in order as they appeared on the indictment.

COUNT 1

“That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales the accused did assault AM thereby occasioning to him actual bodily harm” pursuant to s 59(1) of the Crimes Act 1900.
The allegation supporting count 1 is that the accused pushed the complainant, AM, over in the shower area at the Bexley Boys’ Home causing him to fall on a wash trough and lacerate his eye which required stitches. He was aged about seven or eight years of age. There were other boys around, lined up, all naked and waiting for their turn in the shower. This occurred at about 5.30pm. Uncle Terry had been supervising the boys in the locker room when they took their clothes off.
He said he got a bit of a hurry on, a push in the back. As a result he lost his footing and he went straight into the wash trough. The impact resulted in the top of his right eye being “busted open”. The complainant nominated the accused who had pushed him in the back.
The complainant marked exhibit 2 with a considerable degree of accuracy, particularly the doorway near where the incident took place. The accused had come into the doorway which the complainant marked as between positions 25 and 8 on exhibit 2.
He had not seen the accused when he came in. The accused said something like, “Come on, move along”. He lost his footing and fell into the sink. The top part of his right eye, just under his eyebrow, split open.
Uncle Terry administered first aid. The complainant was taken to the St George Hospital about an hour later. He had stitches inserted into his eye and returned to the home later that night.
The accused was the person responsible for pushing him in the back because AM said he recognised the accused’s voice, he saw the accused’s shoes and after he got up from the floor he saw the accused quite clearly.
I accept that this incident occurred as described.
I found AM to be an accurate witness doing his very best to recount his evidence. He was thoughtful in his responses, humble, polite and courteous.
He was able to place the events on plan exhibit 2 with considerable accuracy. He was able to provide significant detail of the incident in the shower. This detail included:

his approximate age;

the time of day;

the location of the incident

who else was present;

other staff who were present;

what was said just prior to the push in the back;

what happened as a result of the push;

the injury he sustained;

how he felt as a result of the incident and;

the reasons why he nominated the accused as the person who pushed him.

He did not seek to embellish or exaggerate any aspect of his evidence. I found his evidence credible, reliable and accurate. He gave his evidence frankly.
Notwithstanding that AM said he was taken to hospital and received stitches there was no medical record to substantiate this. This was in contrast to other available medical evidence with respect to tetanus injections. Nonetheless, the failure of the Crown to produce a medical certificate to support the injury did not detract otherwise from the overall positive impression that the witness made on me in terms of his accuracy and reliability. Given the passage of many decades this is not unsurprising.
AM explained that he did not like the accused. He described him as “nasty”. He had felt that nastiness in repeated demonstrations of physical abuse directed at him from the accused. He said he went to great lengths to avoid having anything to do with the accused. This was poignant evidence and a stark reminder of the vulnerable positions that those young boys in the home found themselves in.
The accused was in the position of “loco parentis”. His duties involved supervising a large number of boys of different ages in a confined area of the showers. There were no doubt time constraints to ensure that all of these, up to 90 boys were showered with efficiency.
I have turned my mind to the defence of lawful correction pursuant to s 61AA of the Crimes Act 1900, as set out in MFI 15, which was provided to me by the parties.
This section provides a defence to what may otherwise amount to an offence if the application of physical force to a child by a parent or a person in loco parentis was for the purpose of punishment of the child, but only if the force was reasonable having regard to the age, health and maturity or other characteristics of the child and the nature of the alleged misbehaviour or other circumstances. The force is not to be applied to the head or neck area of the child or to any other part of the body of the child in such a way as to be likely to cause harm, which is not transient.
I accept that the accused admonished AM to hurry him along and accompanied that with a push in the back. There is no evidence that the accused was acting with any animus directed at AM on this occasion. This does not appear to be unreasonable in all the circumstances at that time.
Given these circumstances and the fact that the floor was no doubt slippery from the water from the shower, I am of the view that the fall was no doubt an unintended consequence of the push to the back to AM to hurry him along.
I am of the view that the Crown has not ruled out that the accused was acting in lawful correction.
Accordingly I find the accused not guilty on count 1.
I now turn to count 2.

COUNT 2

This charge is “That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales the accused did indecently assault AM, a male” pursuant to s 81 of the Crimes Act 1900.
The allegation supporting this count was that the accused made the complainant bend over in the shower area and grab the complainant on the buttock cheek.
AM provided a detailed and consistent account of what happened with respect to the incident supporting count 2.
The complainant alleged that when he was around eight years of age he was touched on the bottom by the accused in the shower. He had been told that his father was coming to see him. No doubt for a boy in AM’s situation as a long term resident of the boy’s home, that of itself would have been memorable. This visit was outside of the usual visitors’ routine because the complainant’s brother was in hospital. I pause to note that both GM in exhibit 7 and RG gave evidence of an occasion when GM was in fact in hospital.
AM said he was told to have a shower by the accused and get dressed in his khakis. He was in the shower area by himself. It was around 1.30 or 2 o’clock in the afternoon. He was reluctant to leave playing, but when he was told he was to see his father he was excited. He was hoping that it would be good news, that he was going to go home. This evidence particularly rang true given the age of AM and the fact that he had been in the home for some considerable time.
He was on his own in the shower area for a while before the accused turned up. He had left the room and then came back. He was told to step forward and turn around. The complainant was then touched on the bottom by the accused. He said, “As I’ve come forward in the shower room I was told to turn around and bend over. I was touched”. He said it startled him. He described it as like a grab, just a grab on the backside with the right hand side of his buttocks cheek being touched by the accused.
Major Morton walked past the doorway near the shower with a lady and another man. He believed that that is why the situation stopped. This was the only time that it ever happened.
He said he was petrified. He did not say anything at that time or after. He told his brother a couple of days later, but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the accused. His brother did not say anything in response.
I was watching the witness closely and observed the earnestness with which he approached his response to each question posed to him. This was not studied nor contrived. It was completely natural and complimented the very positive view I have formed with respect to his credibility and reliability. His demeanour did not change between evidence‑in‑chief or cross‑examination. He remained polite and co‑operative throughout.
As noted above, the complainant gave evidence that he thought the accused was nasty. He explained that this was because of the repeated hostile acts that the accused had inflicted on him. He tried to avoid contact with the accused as a result.
The complainant gave considerable detail in his account of what happened including:

when it happened;

why he was there;

the extraordinary nature of the events that caused him to be showering at that particular time;

1.30 or 2 o’clock in the afternoon;

his hopes that he would be taken away by his father that day;

only he and the accused were present until Major Morton walked by with two others;

the careful details of what he was told to do directly before the assault;

the significant details of the actual indecent assault;

how he felt after this happened;

his feelings of shame and:

why he did not complaint.

AM described the area where this happened with accuracy which was consistent with exhibit 2.
His stated age of eight years at the time coincided when Mr Morton and the accused would have both been at the boys’ home and the approximate length of time that the accused had been present at the boys’ home.
I have considered his evidence very carefully.
I have had close regard to all of the directions that I have given myself and remind myself again of those warnings and directions. I do not consider that AM was mistaken as to the identity of the accused. He knew him very well and gave compelling evidence as to his knowledge of the accused and his behaviour towards him over a considerable period of time. His identification of the accused was reinforced as effectively the accused was in loco parentis of AM.
I do not consider that any misplace or misconceived animus that may have been held by AM towards the accused for the tragic death of Trevor Hubbard had caused him either consciously or subconsciously to mistakenly identify the accused.
I remind myself that “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.
I am accordingly satisfied that in all of the circumstances involving an actual naked boy in a shower area who was told to turn around and bend over and then grabbed on a naked buttock cheek, I am satisfied beyond reasonable doubt that satisfied the meaning of indecent.
I found AM to be a credible and reliable historian and witness.
Even after reflecting again on the warnings that I must give myself, and based on the compelling and reliable account of AM, I accept that the accused did in fact touch AM on the bottom in the manner alleged.
In all of the circumstances I am satisfied of the accused’s guilt beyond reasonable doubt with respect to count 2 and accordingly find him guilty of count 2.

COUNT 5

“That between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales the accused did indecently assault DC, a male” pursuant to s 81 of the Crimes Act 1900.
This allegation was that in the shower one Sunday the accused made the complainant bend over and part his buttocks then moved his hand over the complainant’s anus.
The complainant was the only one called through to the shower. The accused said, “Come here, bend over”. He was told to part the cheeks of his bottom. The accused said to him, “You’ve got worms”. He felt a brush of the hand followed by a prodding in his anus. The complainant said to him, “Are you having your jollies there? Are you a poofter?” The older boys laughed.
The accused told the complainant, “Get to the office”.
After waiting in the dark for an extended period of time the accused came to the office area. They went into an office area in the general area of the vestibule. The accused said to the complainant, “I have every right to cane you”. The complainant replied, “I don’t know what you’re going to do to me but I’ll be telling everyone at Rockdale what you’ve done”.
DC was only at the boys’ home for a relatively short period of time being less than six months when he was in second form at high school. He was 14 years of age at the time of the allegation. The allegation is set in this discrete period of time of five months between July and December 1973.
DC had a very detailed recollection of the incident, describing why he was there on that evening and the events both before and after the alleged incident in the shower. He was able to recall conversations, he remembered that the reason he was not at band practice that Sunday evening was because the Mortons had another engagement.
The sense of humiliation that was a part of this event was palpable. For a 14 year old boy whilst naked to be directed to separate his buttock cheeks for inspection for worms in front of older boys was clearly designed, and I find was designed, to make DC a figure of mockery for that instant. The accused is then alleged to have prodded DC around the anus which caused DC to respond somewhat feistily, “Are you having your jollies there? Are you a poofter?” causing the older boys to laugh. This in turn caused DC to be subjected to the threat of punishment in private but he was able to deflect that because he threatened to expose the accused to others.
DC’s evidence was attacked on a number of bases including suggested animosity held towards the accused, exaggerating his abuse to enhance claims for compensation, contamination with other witnesses and inconsistencies between his “Truth” document and his evidence and a failure to make complaint.
I accept that there was no complaint at the time. However, given the situation that existed at the boys’ home, that DC’s explanation that he thought he was lucky to have escaped the cane that night and the Court’s understanding of the reasons and the directions that I give myself as to the many reasons why complainants delay in complaining, I accept the reasons why there was no complaint at the time.
The failure to complain, I do not accept that as a reason otherwise not to accept the evidence of DC.
It was suggested that the punishment that the accused had given DC when he was at the boys’ home with respect to the grease trap duty was the reason that DC held a long borne animosity to the accused. It was suggested this animosity fuelled the false allegation against the accused.
I accept that the accused had directed DC to clean the grease trap and he found it a distasteful exercise which may have been seen as a punishment. Nonetheless, DC gave a very compelling rider to that incident and said that as a result of speaking with the accused he accepted that punishment and made the grease trap “gleam like gold”. He understood that there was a reason why there needed to be discipline within the boys’ home and he accepted the punishment that he was given by the accused. Ultimately he found it redemptive.
Moreover, DC has maintained a lifelong involvement with the Salvation Army and has many friends in the army. In the way he gave his evidence it was apparent that he still had a close affiliation with the army, and in many ways it had defined significant aspects of his life. This too in many ways spoke against animus being a motivation for making a false complaint against the army or any of its members. I did not find that DC was motivated by male fides to make a false allegation against the accused.
I do not find any basis to the suggestion that DC’s evidence was contaminated with speaking to other CLAN members or any conversation that he may have had with other former residents at the boys’ home.
I do not find that his attempts to obtain compensation from the Salvation Army in any way compromise his credibility and reliability. Equally, I find that any apparent inconsistencies between his evidence and the “Truth” document which was not before me, only referred to in passing, are not such that I would be minded to doubt the complainant’s evidence.
DC was an impressive, reliable and considered witness. He did not seek to gild or embellish his answers. His demeanour remained constant throughout the entirety of his testimony. He did not give his evidence in a manner suggestive that it was anything less than scrupulously honest.
DC provided significant details in his account of what happened to him in the shower.
The shower incident I accept as submitted by the Crown was an attempt by the accused to humiliate DC in front of older boys.
The details of the conversation and the responses by the complainant have a ring of truth about them that has rippled through the many decades since the incident happened.
Even after reflecting on the warnings that I have given myself I accept DC’s account. I accept that he was an honest and accurate witness, and I accept his evidence with respect to count 5 beyond reasonable doubt.
I find count 5 proven beyond reasonable doubt. Accordingly, I find the accused guilty of count 5.

COUNT 6

“Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did assault CN” pursuant to s 61 of the Crimes Act 1900.
This allegation was that the accused kicked the complainant, CN, in the shins and grabbed him by the scruff of the neck on an occasion when the complainant was annoying the accused’s dog by playing a mouth organ. The accused came up and grabbed him by the scruff of the neck. He told him to “cut it out and stop doing it” and took the mouth organ from him. He then gave him a clip behind the ears.
This happened between the officers’ quarters and the back area of the steps that led up to the dormitories.
It should be noted that the complainant gave evidence that the assault was a clip under the ear.
CN was one of the youngest boys ever admitted to the boys’ home. He spent a very long time in the home before he was discharged to the care of a foster family at St Ives when he was about 13 or 14 years of age.
In later life he has been troubled by a myriad of health problems associated with drug and alcohol abuse and PTSD. He has been prescribed a number of medications that he was taking at the time of his evidence.
I accept the evidence of Dr Jenkins that he could not see any particular problems with CN’ giving evidence given his present medical and psychiatric issues.
CN gave very detailed evidence about many aspects of life at the boys’ home. He recalled details both small and large. He recalled that there were horses kept in the nearby paddock.
I accept that on hearing accounts of other boys in that era there were horses kept in that paddock. CN remembers going to pat the horses. For an extremely young boy who was abandoned at the home and whose brothers left at some later stage, the fact that this complainant could remember patting the horses was a visceral and compelling memory of an otherwise sad, lonely and vulnerable childhood.
CN was clearly mistaken with respect to the name of Trevor Hubbard who as I have noted tragically died at the home on 3 June 1969. He remembered his name as Ian Hubbard, whereas it was in fact Trevor Hubbard. This was indeed a mistake. However, in the scheme of things the mistake of a name and the incorrect attribution of his brother’s name given the effluxion of time is not one which causes me to revisit any positive assessment that I might otherwise make of CN’s credibility and reliability.

CN was cross-examined with respect to his recall of timing and other details. He could not place the allegations he made in any particular year save for ruling out 1964. CN gave a very detailed account of the layout of the boys’ home which was supported by both exhibits 2 and 3.
His detailed description of the laundry and the hidey hole which he had made with other boys and used as a place of retreat and solitude was compelling and powerful. It was in this laundry space that CN alleged that the context incident, the uncharged act in the laundry of the indecent assault between him and the accused occurred. CN had been misbehaving, possibly swearing at the accused and Major Morton. He ran away towards his hidey hole in the laundry. He was pursued by the accused. When he reached the laundry he had insufficient time to get into the hidey hole but hid himself in the clothes basket. He was discovered by the accused. The accused then grabbed his hand and placed it on his penis.
This evidence was led as context evidence as I understand it to place the substantive allegations of sexual indecent assault in context.
CN recalled that the accused had a small silky terrier sort of dog. This was in fact confirmed both by the accused and his wife who said that they did have such a dog, described as an Australian terrier, on their first posting at the boys’ home. It was subsequently put down when it contracted mange.
The existence of this dog is a pivotal fact with respect to count 6. CN was, on his evidence, annoying the dog with his mouth organ, causing the dog to howl. This in turn angered the accused who came and grabbed the complainant by the scuff of the neck, clipping him under the ears and told him to “cut it out and stop doing it”. CN apparently took this with a grain of salt and carried on.
As I said I have considered the evidence of CN very carefully and closely when he was giving his account.
He did not dissemble. What you saw is what you got. He had no artifice, nor did he demonstrate any contrivance in giving his evidence.
He appeared to be giving a truthful account of his recollections. As I have noted, his recollections of the daily routines of the boys’ home, the layout and the personnel have been largely borne out by other evidence from other witnesses.
I have considered CN’s evidence with respect to count 6 against the submissions concerning issues affecting his reliability and other submissions made by the defence.
CN’s evidence rang true. He was self-effacing and freely admitted that he was a troublesome child and unruly. His account of causing the dog to howl with the mouth organ and finding that a source of amusement was visceral and real. His evidence was easy to relate to.
I accept beyond reasonable doubt that this occurred in terms as described by CN. I accept that the accused did react to CN playing the mouth organ, causing the dog to howl. I accept that the accused did give CN a clip under the ear.
Nonetheless, the fact that the infliction of force seemed relatively minor, the fact that the accused was in a position effectively of loco parentis given the entirety of the circumstances, and given the law with respect to lawful correction which I have previously set out with reference to count 1, I am of the view that the Crown has not ruled out that the accused was acting in lawful correction in admonishing CN.
Accordingly, I find the accused not guilty of count 6.
I move now to counts 8 and count 9 in the alternative.
The allegation supporting count 8 was that the accused inserted his penis into the complainant’s anus in the officers’ cottage, and count 9 in the alternative that the accused inserted something other than his penis into the complainant’s anus.

COUNT 8

“Between 17 July 1968 and 15 January 1978, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN” pursuant to s 79 of the Crimes Act 1900, and in the alternative to count 8;

COUNT 9

“That between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did indecently assault CN, a male” pursuant to s 81 of the Crimes Act 1900.
CN was mucking around in the ‘out of bounds’ area of the grassed area near the assistant manager’s quarters. He was not allowed there. It was daylight. The accused took him down to the officer’s quarters.
He was dressed in his normal white shirt and black pants that is the accused. They went into a room. The accused told CN to face the wall. In one of the rooms there was a desk, a dresser set, drawers, a cot or a bed.
He was told to turn around and face the wall. He did as he was told. The next minute he “just felt some shooting pain in my behind”. He was wearing his play clothes which were taken down to his knees. He then felt a sharp pain in his rear end. The next minute he turned around. He uttered “a few obscenities and took off out of the room”.
He was pulling his pants up as he was going. He felt a sharp ripping pain in his bum. He felt pain, he panicked and he fled. He pulled up his pants as he went. He yelled abuse at the accused. He then hid himself under the pavilion.
He noticed blood spots on his underpants and in the following days his bottom was sore. He did not tell anybody about what happened to him. He described feeling pressure in his bottom.
CN gave a detailed account of the anal penetration by the accused. I found his account compelling for a number of reasons.
The complainant has provided a relatively detailed account of where this happened. He described:

he was initially in an out of bounds area which he described as a grassy area;

it was daylight;

he was able to describe what the accused was wearing being normal white shirt and black pants;

he himself, CN, was wearing his play clothes;

these were taken down to his knees;

he was able to describe some of the furnishings in the room including a cot or a bed;

he described very frankly what the pain felt like;

he described what he did and where he went immediately after the act of anal penetration;

he saw blood on his underpants and;

his bottom was sore for a few days after this.

I found support for CN’s account in the fact that the accused’s accommodation was in accordance where CN had nominated the assault as occurring.
Both the accused and Mrs McIver confirmed that there was a cot in both their bedroom which moved subsequently into the second bedroom at another time.
There was also evidence to suggest that there were times that Mrs McIver who also lived at those premises would be absent either when she herself went to work or when she would be taking Bradley to a doctor’s appointment or visiting her mother in the northern beaches.
I have turned my mind closely to the question of proof with respect to what was used to support this act of buggery on count 8. To satisfy the elements of count 8 I must be satisfied and satisfied beyond reasonable doubt that the accused penetrated the anus of CN with his penis.
I found CN’s evidence honest, accurate and compelling.
As I have said that with respect to general details there was a substantial part of his evidence that was corroborated by other witnesses.
His description of the laundry was I find largely confirmed as accurate by what the accused described in his ERISP of June 2017.
I find for example that CN was accurate with respect to many aspects of his evidence, for example:

the daily routine of the boys’ home;

the showers routine;

the appearance of the accused;

his particular recollection that the accused wore glasses, which no one else said, which was in fact confirmed by the accused in the June ERISP and;

what the accused wore in general.

I find accordingly his evidence to be accurate.
I found his account very real.
As I have said, his evidence had a ring of truth about it which was impossible to discount. His description of the pain and the sensation he felt upon his anus being penetrated was detailed and graphic.
He saw blood on his underpants and felt pain in his backside area for a number of days.
All of that evidence is consistent with an act of anal penetration.
I am satisfied in all of the circumstances that the accused used his penis to penetrate the anus of the complainant.
I am so satisfied simply because there was no other evidence of the presence of any other object in that room capable of penetrating the complainant’s anus.
I remind myself that I do not leave my common sense at the door when I am deliberating.
I am satisfied beyond reasonable doubt that the accused performed the act of buggery upon CN which supports count 8. I find that proven beyond reasonable doubt and I find the accused guilty of count 8. I therefore do not need to turn to the alternative count 9 which subsumed in count 8.

COUNT 10

“Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN” pursuant to s 79 of the Crimes Act 1900.
CN said that the third incident happened in the locker rooms. He had been in the locker rooms trying to see what he could steal from the lockers. The accused came in. He said he tried to hide himself behind the lockers.
He said you could hide behind the end of the row of lockers. The complainant explained how that might be possible with reference to exhibit 3, photograph number 9.
He said the accused grabbed him by the arm and they were standing chest to chest.
He turned him around to face the locker. The accused penetrated the complainant and “stuck his dick in my bum. He just moved his pelvis”.
He said that that seemed to last for an “…eternity”. He then was told to get out. He said that his bottom was sore and had a spot of bleeding.
As I have noted above, I found CN to be both honest and accurate. He gave clear details with respect to the layout of the locker room.
He gave a clear sequence with respect to the narrative of this third assault, count 10, the act of buggery, as to:

where it happened;

what happened and;

that he and only he and the accused were present.

He gave a compelling account of this occasion.
His evidence was attacked on the basis that the reason for being in the lockers was flimsy as there was nothing of value to steal. That suggestion fails to take into account that these boys in the home had very little in the way of worldly possession. That submission or suggestion fails to take into account the fact that toys, books or clothes were items of value and worth stealing to indigent boys.
CN’s self-critical account of reasons why he was in the locker, i.e. looking for something to steal, ring true for a boy who had effectively nothing. It also fits in with his earlier evidence that he was not the best behaved boy in the home.
His evidence was also criticised on the basis that the lockers would have provided no place for him to hide. Having seen the photographs and understanding the layout I am satisfied that that would have been at least an opportunity to attempt to hide behind those locker structures.
For all of the above reasons I find CN an honest and accurate witness.
I accept beyond reasonable doubt his evidence with respect to count 10, the act of buggery which supports count 10, and I therefore find the accused guilty with respect to count 10. I find that act proven beyond reasonable doubt and accordingly find the accused guilty on count 10.

**********

Amendments

25 November 2019 - coversheet - updated publication restriction

Decision last updated: 25 November 2019

Medium Neutral Citation:	R v McIver [2019] NSWDC 672
Hearing dates:	5 August 2019 – 19 August 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Criminal
Before:	N Williams DCJ
Decision:	Judge alone judgment – Convicted of 2 counts of indecent assault – convicted of 2 counts of buggery – not guilty of 1 count of assault occasioning actual bodily harm – not guilty of 1 count of assault
Catchwords:	Historical child sexual assault; Bexley Boys Home; Salvation Army; common assault; assault occasioning; lawful chastisement
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act
Cases Cited:	R v Trudgett [2008] NSWCCA 62 Williams v R [2019] NSWCCA 53
Category:	Principal judgment
Parties:	Regina (Crown) John Dalziel McIver (Accused)
Representation:	Counsel: Mr K. Gilson (Crown) Ms L. McSpedden (Accused) Solicitors: Ms J. Yates (Crown) Mr E. Rowe (Accused)
File Number(s):	2016/00326970, 2017/00172183
Publication restriction:	Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys Home save for Trevor Hubbard and Ian Hubbard.