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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McIver

Details

AGLC: R v McIver [2019] NSWDC 672
Case: [2019] NSWDC 672
Decision Date: 13 September 2019

CaseChat Overview and Summary

The matter before the court was a prosecution of the defendant, McIver, for a number of offences stemming from his time as a staff member at Bexley Boys Home, a Salvation Army-run institution. The charges related to various incidents of alleged historical child sexual assault committed against boys in his care. The case was heard by a single judge in the County Court of Victoria.

The court had to determine the legal issues of whether the defendant was guilty of indecent assault, buggery, assault occasioning actual bodily harm and common assault. The crux of the legal issue was the question of whether certain acts that occurred between the defendant and the complainants constituted assault, and whether they could be justified under the common law defence of lawful chastisement. The court had to consider the nature of the acts, the context in which they occurred, and the relationship between the parties.

The court held that the defendant was guilty of two counts of indecent assault and two counts of buggery, but not guilty of assault occasioning actual bodily harm and common assault. The court found that the defendant's actions did not fall within the scope of lawful chastisement, as they were not carried out in the context of discipline or correction. The court found that the acts were of a sexual nature and were therefore not justifiable under any circumstances. The court emphasised the importance of protecting children from harm and abuse, and rejected the notion that such acts could ever be considered lawful.

The court ordered that the defendant be convicted on two counts of indecent assault and two counts of buggery, and be sentenced accordingly. The defendant was found not guilty of assault occasioning actual bodily harm and common assault. The court did not make any orders in relation to the acquittals.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.