R v Pethybridge (No.2)

Case •

[2022] NSWDC 180

•

26 May 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Pethybridge (No.2) [2022] NSWDC 180
Hearing dates: 10, 11, 12, 13, 16, 17, 18, 19 May 2022
Date of orders: 26 May 2022
Decision date: 26 May 2022
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 606

Catchwords:

CRIMINAL LAW – defendant unfit to be tried – ‘special hearing’ under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – determination by judge alone – historical charges of indecent assault and sexual offences against children by multiple complainants

Legislation Cited:

Crimes Act 1900 (NSW) ss 62, 61A

Criminal Procedure Act 1986 (NSW) ss 56, 59, 133, 293A, 294, 306

Evidence Act 1995 (NSW) ss 108,165

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 56

Cases Cited:

Ewen v The Queen (2015) 250 A Crim R 544

Fitzgeraldv Kennard (1995) 38 NSWLR 184

Fox v Percy (2003) 214 CLR 118

Hughes v The Queen (2017) 263 CLR 338

R v Daly [1968] VR 257

R v Markuleski (2001) 52 NSWLR 82

R v Murray (1987) 11 NSWLR 12

RvO’Donoghue (2005) 151 A Crim R 597

R v Sorlie (1925) 42 W.N (NSW) 152

R v Winner (1995) 79 A Crim R 528

Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140

The Queen v Bauer (2018) 266 CLR 56

Texts Cited:

R Watson & H Purnell, Criminal Law in New South Wales: Vol 1 (The Lawbook Co, 1971)

T Buddin, ‘Revision of Sexual Offences Legislation: A Code for New South Wales?’ (1977) 2 UNSWLJ 117

Category:Principal judgment
Parties: Mr R Pethybridge (defendant)
Office of the Director of Public Prosecutions (ODPP)
Representation:

Counsel:
Ms K Nightingale for the ODPP
Ms L McSpedden for the defendant

Solicitors:
ODPP
O’Brien Criminal and Civil Solicitors
File Number(s): 2016/00083859
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

TABLE OF CONTENTS

JUDGMENT

Background

THE INDICTMENT

ELEMENTS & INTERPRETATION OF THE OFFENCES

Charges 1-4 (incl) and 6-9 (incl)

Charge 11

Charge 5

Charge 10

Charges 12-13

DIRECTIONS OF LAW

Overall duty and responsibility

Obligation to apply the law

Separate consideration of charges

Markuleski direction

Impartiality

Evaluating the evidence

Murray direction?

Evidence of complainant DB & RW

Drawing inferences

Context evidence (for charges 3-6)

Tendency evidence (all charges)

Coincidence evidence (all charges)

Complaint evidence (charges 1-2, 3-6 & 7-8)

Use of evidence by the Crown

Delay or absence in making complaint

Differences in accounts by complainant

Forensic disadvantage to the defendant consequential from delay in making or the absence of complaint

Lies/consciousness of guilt

The “limited” nature of the hearing

Burden of proof

Presumption of innocence

Standard of proof

Missing witnesses

Alibi (charges 1 & 2)

Counsel’s submissions

HOW THE CROWN SEEKS TO PROVE ITS CASE

Overview

Charges 1 & 2

The complainant (RG’s) evidence

GJ’s evidence

Evidence of complaints by RG to and from EJ relevant to charges 1-2 and 7-8

Arguments about complaint evidence

The Crown’s arguments

The defendant’s arguments

The defendant’s residential addresses during the periods encompassed by charges 1 & 2

Charge 3

The complainant (LM’s) evidence

Background

Uncharged conduct in Healesville, Victoria

The defendant’s alleged lie

DA’s evidence

GA’s evidence

Arguments about context evidence (charge 3)

The Crown’s argument

The defendant’s argument

Complainant’s description of offending (charge 3)

LM’s residential address in 1970

The defendant’s residential addresses

Charge 4

LM’s evidence

Explanation for why defendant’s daughters not called

GA’s evidence

DA’s evidence

The photograph of the home at Holsworthy

The defendant’s residential address

Charges 5 and 6

The complainant (LM’s) evidence

DA’s evidence

ED’s evidence

The defendant’s residential addresses encompassing the periods of charges 4-6

Complaint evidence relating to charges 3-6

LM’s evidence of her complaints

RM’s evidence of LM’s complaint in the early 1980s

GQ’s evidence of LM’s complaint in the mid-1990s

DA’s evidence of LM’s complaint in 2002

GA’s evidence

Arguments about complaint evidence (charges 3-6)

The Crown’s argument

The defendant’s argument

Charges 7-8

The complainant (EJ’s) evidence

RG’s evidence

GJ’s evidence

The defendant’s residential addresses

Charge 9

The complainant’s (DB’s) evidence

Mrs Morton’s evidence

The defendant’s addresses

Charges 10-13

The complainant (RW’s) evidence

Charge 10

Charge 11

Charge 12

Charge 13

Subsequent contact with the defendant

Complaint evidence

KC’s evidence

Explanation for the absence of DP

The defendant’s residential addresses

Tendency evidence (all charges)

LM’s evidence of the uncharged acts

Cross-admissibility of charged acts

Arguments about tendency & co-incidence

The Crown’s argument

The defendant’s argument

THE DEFENDANT’S CASE

Challenges to the credibility or reliability of the complainants & other lay witnesses for the Crown

Charges 1-2

Charges 3-6

Charges 7-8

Charge 9

Charges 10-13

Statements in the defendant’s interview with investigator in relation to charges 3-6 (incl)

As to the uncharged act at Healesville

As to charge 3

As to charge 4

As to charges 5-6

Documentary tender

Declining to give an account to police

The defendant’s evidence at trial

Charges 1-2

Charge 3

Background

Healesville incidents

Response to LM’s allegation

Charge 4

Charges 5-6

Charges 7 & 8

Charge 9

Charges 10-13

The defendant’s election not to give evidence at the special hearing

The defendant’s roles and positions

Mrs Pethybridge’s evidence

Charges 1-2

Healesville trip

Charge 3

Charge 4

Charges 5-6

Charges 7-8

Charge 9

Charges 10-13

Diane Cooper’s evidence

COUNSEL’S SUBMISSIONS

Ms Crown’s submissions

Charges 1-2

Charges 3-6

Charges 5-6

Charges 7-8

Charge 9

Charges 10-13

The defendant’s Counsel’s address

Charges 1-2

Charge 3

Charge 4

Charges 5-6

Charge 9

Charges 10-13

FINDINGS

Credit

Crown witnesses

RG

LM

EJ

DB

RW

Other Crown witnesses

The defendant’s witnesses

The defendant’s evidence at the 2018 trial

Ms Cooper

Mrs Pethybridge

Charge 9

Charges 7 & 8

Submission about missing witnesses

Charges 1 & 2

Charges 10-13

Missing witness

Tendency & coincidence evidence

Findings on tendency evidence

Findings on co-incidence evidence

Conclusions re charges 1-2, 7-8, 9 and 10-13

Conduct affecting LM

The uncharged acts – the alleged incidents at Healesville

Did the defendant lie?

Charge 3

Evidence of complaint

Charge 4

Charges 5 & 6

Reconsidering charges 3 & 4

VERDICTS

ANNEXURE A

JUDGMENT

Background

  1. This case concerns the defendant[1] who, at all material times, was an officer of The Salvation Army. He is charged on indictment with multiple charges of indecent and sexual assault offences, ranging over many decades, against five complainants whose families were closely involved in The Salvation Army.

    1. Consistent with the nomenclature in Division 3 of Part 4 of the MHCIFP Act I have deliberately referred to Mr Pethybridge in this way, rather than as the ‘Accused’, which is a more fitting description to a ‘trial’. The controversy as to whether a special hearing is to be treated as a trial for the purposes of certain provisions of the Criminal Procedure Act 1986 (NSW) (the ‘CP Act’) was touched upon in my evidentiary ruling regarding the admissibility of the complainants’ video-recorded evidence from the 2018 trial in the special hearing: R v Pethybridge [2022] NSWDC 171.

  2. The case is conducted as a ‘special hearing’ under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the ‘MHCIFP Act’). On 21 May 2021 Woods QC ADCJ found that the defendant was unfit to be tried in accordance with normal procedures. The nature and conduct of a special hearing must conform to the requirements of s 56 of this legislation. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding. It is to be done on the “limited evidence available” having regard to the fact that a person unfit to be tried is not able to participate in a special hearing to the same extent that an accused can normally participate in a normal criminal trial. By reason of s 56(9), and in the absence of an election, the question whether the defendant committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.

  3. By reason of s 56(5), the defendant is taken to have pleaded ‘not guilty’ to the offences with which he is charged. In this case, the defendant was represented by Counsel who participated through cross-examination of Crown witnesses, calling witnesses and supplying written submissions in support of the defendant’s defence.

  4. By reason of the nature of the offences, the complainants’ names and those witnesses names whose names would likely directly, or indirectly, reveal the complainants’ names will be anonymised.

  5. Because of the large number of charges, the number of complainants and lay witnesses, and the anonymising of the names of witnesses, to assist with the fluency of the reading of these reasons, annexed to these reasons are separate schedules indicating the connections of the main witnesses in respect to the charges. Where someone has given evidence, their initials are in bold.

THE INDICTMENT

  1. The charges on the indictment are set out in the following table.

Charge

The offending

The offence

1

Between 8 January 1958 and 8 January 1959 at Speers Point in NSW, the defendant assaulted RG, a female under the age of 16 years, namely 5 or 6 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

2

Between 8 January 1958 and 8 January 1959, at Speers Point in the State of NSW, the defendant assaulted RG, a female under the age of sixteen years, namely 5 or 6 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

3

Between 14 January 1970 and 18 January 1973, at Croydon Park in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 4, 5, 6 or 7 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

4

Between 25 April 1973 and 16 January 1975, at Holsworthy in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 8 or 9 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

5

Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of NSW, the defendant attempted to commit the crime of rape upon LM.

Crimes Act 1900 (NSW), s 65

6

(as alternative to charge 5)

Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 11 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

7

Between 13 January 1971 and 26 April 1973, at Wangi Wangi in the State of NSW, the defendant assault EJ, a female under the age of sixteen years, namely, 9, 10 or 11 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

8

Between 13 January 1971 and 26 April 1973, at Wangi Wangi in the State of NSW, the defendant assaulted EJ, a female under the age of sixteen years, namely 9, 10 or 11 years and, at the time of that assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

9

Between 1 January 1972 and 31 December 1973, at Campsie in the State of NSW, the defendant assaulted DB, a person under the age of 16 years, namely 10 or 11 years and, at the time of the assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 76

10

Between 19 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under the age of 16 years, namely 10 years.

Crimes Act 1900 (NSW), s 66C(1)

11

Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant assaulted RW, a person under the age of 16 years and under the defendant’s authority and, at the time of the assault, committed an act of indecency upon her.

Crimes Act 1900 (NSW), s 61E(1A)

12

Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under 16 years, namely 10 years, and under the defendant’s authority.

Crimes Act 1900 (NSW), s 66C(2)

13

Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under 16 years, namely 10 years, and under the defendant’s authority.

Crimes Act 1900 (NSW), s 66C(2)

ELEMENTS & INTERPRETATION OF THE OFFENCES

  1. In the way that the defendant conducted the special hearing (and the earlier trial), the defence to all of the charges was simply that the alleged acts never happened. There was no suggestion that if that defence (commonly) failed, then the Crown did not prove (to the requisite standard) all of the essential elements of the respective charges. Nevertheless, in the interests of transparency, it is pertinent to identify what those essential elements are.

Charges 1-4 (incl) and 6-9 (incl)

  1. For the multiple charges of indecent assault, the elements of the offence are:

  1. an ‘assault’ on the relevant complainant;

  2. the assault was ‘indecent’;

  3. the complainant was under the age of 16 years.

  1. The element of ‘assault’ requires proof of either deliberate physical contact (battery), however minimal, or a threat to the victim involving a reasonable apprehension of immediate and unlawful physical violence.

  2. The word ‘indecent’ means contrary to the ordinary standards of respectable people in this community. For an assault to be ‘indecent’, it must have a sexual connotation or overtone. It must occur on or in the presence of the complainant. It will have the connotation of being ‘indecent’ where the touching (or threat) is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation. For example, the genitals or breast of a female. If the assault does not unequivocally offer a sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification.

  3. It is not essential that there be two independent acts: being an act of assault and an act of indecency. Any assault amounting to an act of indecency would suffice[2] .

    2. R v Sorlie (1925) 42 W.N (NSW) 152; R v O’Donoghue (2005) 151 A Crim R 597 at [21]; Fitzgerald v Kennard (1995) 38 NSWLR 184 at 187, 202.

Charge 11

  1. For the charge of indecent assault on a child under the defendant’s authority (charge 11) the elements are the same as that for indecent assault, but with an additional element that the child is under the defendant’s ‘authority’. A person is under another person’s “authority” if the complainant was under the person’s care, supervision or authority at the time of the commission of the offence.

Charge 5

  1. For the charge of attempted rape (charge 5), the elements of the offence are an attempt:

  1. to commit; or

  2. to assault any female with the intent to commit the crime of rape.

  1. An ‘attempt’ means that the defendant intended to perform all the physical acts necessary to make up the completed offence, and the defendant performed some act that was immediately connected with the commission of the completed offence which cannot have any reasonable purpose other than the commission of the offence (i.e., the crime of rape). Mere preparation is insufficient.

  2. The crime of rape was not itself statutorily defined. At the time of the charged conduct, the common law definition prevailed [3] , which had the elements of:

    3. T Buddin, ‘Revision of Sexual Offences Legislation: A Code for New South Wales?’ (1977) 2 UNSWLJ 117 at 119.

  1. carnal knowledge;

  2. absence of the (victim’s) consent;

  3. intention (of the accused) to have sexual intercourse; and

  4. at the time of penetration, the defendant knew that the complainant did not consent (‘knowledge’) or, else realising that the victim might not consent, being determined to have sexual intercourse with the victim whether she was consenting or not (‘reckless indifference’) [4] .

    4. R v Daly [1968] VR 257; see also R Watson & H Purnell, Criminal Law in New South Wales: Vol 1 (The Lawbook Co, 1971) p 99.

  1. Carnal knowledge was deemed to be complete upon (vaginal) penetration only[5] .

    5. This was for the period from 1 August 1975 to 18 August 1977: Crimes Act 1900 (NSW), s 62.

  2. In a supplementary note (MFI 13), the Crown submitted (with the defendant’s agreement) that an element was that the defendant knew that the victim did not consent. I indicated that I was less than convinced that this was an essential element at the date of the alleged offending. The Crown subsequently supplied (with the defendant’s Counsel’s agreement) further commentary. I am persuaded that the defendant’s mental element of an absence of consent is as indicated above.

Charge 10

  1. For the charge of sexual intercourse with a person above the age of 10 years and under the age of 16 years (charge 10), the elements of the offence are:

  1. the accused had sexual intercourse;

  2. he had sexual intercourse with a person above the age of 10 years and under the age of 16 years.

  1. Between 29 April 1986 and 14 January 1987, sexual intercourse relevantly meant, in law[6] , any sexual connection occasioned by the penetration of the vagina of any person by any part of the body of another person. The Crown does not have to prove that full penetration occurred or that the defendant ejaculated or that the sexual intercourse was for his sexual gratification.

    6. During this period, by s 61A(1)(a)(i) of the Crimes Act 1900 (NSW).

Charges 12-13

  1. For the charges of sexual intercourse with a person above the age of 10 years and under the age of 16 years, under the defendant’s authority (charges 12-13), the elements of this offence are as follows:

  1. sexual intercourse;

  2. with a person above the age of 10 years and under the age of 16 years;

  3. the person was under the defendant’s authority.

I described these elements earlier.

DIRECTIONS OF LAW

  1. Given that this special hearing is to be conducted as nearly as possible as if it was a trial, and that I am determining whether the defendant committed the charges alone, with reference to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW) (‘CP Act’), I will now direct myself as to certain matters of law. Section 133 does not require me to state all the matters which necessarily would have had to be stated to a jury, or even all of the matters which I have taken into account in determining the question of guilt[7] .

    7. R v Winner (1995) 79 A Crim R 528.

Overall duty and responsibility

  1. As the defendant is deemed to have pleaded that he is not guilty to all counts (CP Act, s 56(5)) it is my duty and responsibility to consider whether he committed the offences for which he is charged and the appropriate verdicts. At a special hearing, the universe of alternative verdicts comprises: (a) not guilty; (b) a special verdict of act proven but not criminally responsible; (c) that on the limited evidence available, the accused committed the offence charged, or (d) that on the limited evidence available, the accused committed an available alternative offence (CP Act, s 59(1)).

Obligation to apply the law

  1. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Separate consideration of charges

  1. There were five complainants and thirteen charges. There were, in effect, five hearings which, for the sake of convenience, have been consolidated into one. Although there are multiple counts on the indictment, with a qualification, it is necessary that I give consideration to the counts individually, bearing in mind that the mere fact that I find that the defendant is guilty of one of the counts does not mean that he is guilty of all of the counts. The converse applies if I find him not guilty. It is necessary that I consider the evidence with respect to each individual count and reach a conclusion with respect to each count.

  1. The qualification concerns counts 5 and 6. The latter count is an alternative to the former. If I find the defendant guilty of charge 5, it will be unnecessary for me to consider the question of his guilt for count 6. Put another way, it will only be necessary for me to consider count 6 if I find the defendant not guilty of count 5.

  2. The evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count. Certain matters arise from this general principle, in the circumstances that many of the charges involve the same complainant.

  3. First, giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

Markuleski direction[8]

8. R v Markuleski (2001) 52 NSWLR 82.

  1. However, if I was to find the defendant not guilty on any count, 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 the remaining counts affecting the same complainant.

  2. In relation to counts 1-2 and 7-8, the Crown also relies upon evidence of ‘complaint’ given by one complainant in support of allegations made by another complainant. I refer separately to directions of law concerning complaint evidence. But if, to take a hypothetical example, I acquitted the defendant on a charge based upon doubts about the reliability of RG’s evidence in connection with the charges concerning her case (charges 1 & 2), then I should also consider the reliability of the evidence RG gave about EJ’s complaints that the Crown partly relied upon to support its case (concerning EJ) on charges 7 & 8[9] (and vice versa).

    9. For a recent illustration of the potential breadth of Markuleski in multiple complainant sex offence cases, see Sita v R [2022] NSWCCA 90.

Impartiality

  1. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to any or all of the complainants sway my judgment. Having regard to the nature of the offences for which the defendant is charged, in particular, I must strive to avoid any prejudice against the defendant that might arise from the existence of and publicity given to proceedings in the still recent Royal Commission concerning institutional and historical sexual abuse against children. By the same token, I am not to be swayed by appreciation for the inestimable contribution that The Salvation Army has made to Australian society over many years.

Evaluating the evidence

  1. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the defendant.

  2. I am obliged to consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.

Murray direction?

  1. The defendant’s Counsel urged that I should give myself a Murray direction. The Crown submitted, circumspectly, that I would need to be mindful of s 294AA of the CP Act, and case-law interpretation of that provision, before directing myself as to the evidence of complainants in a proceeding of this kind.

  2. As the Court of Criminal Appeal noted in the decisions of Ewen v R (2015) 250 A Crim R 544 and Neto v R [2020] NSWCCA 128, the effect of s 294AA of the CP Act is such that there is high risk that a Murray direction may infringe the statutory prohibition. It suffices to say that, for each of the charges, the complainant was the crucial Crown witness. In every case, the credibility of each complainant was impugned. I am required to carefully assess the weaknesses or deficiencies of each complainant’s evidence such as they appear, or are as they are asserted to appear, in the defence case.

  3. As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I must not act capriciously or irrationally.

Evidence of complainants DB & RW

  1. The evidence of these complainants was given by means of closed-circuit television facility. By consent, I direct myself[10] that no inference adverse to the defendant arises from them giving evidence in that way, nor will the evidence be given any greater or lesser weight because of the use of this facility.

    10. CP Act, s 306ZI(b).

Drawing inferences

  1. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

Context evidence (for charges 3-6)

  1. As will be seen, the Crown relies upon two incidents concerning the complainant and defendant in Healesville to provide context for the charges involving LM.

  2. The law permits a complainant to give an account of the alleged sexual history between herself or himself and an accused person in addition to the evidence given in support of the charges in the indictment. If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant alleges was an ongoing history of the accused’s conduct toward her, then what might appear to be a curious feature of the complainant’s evidence — that she did not complain about what was done to her on a particular occasion — would disappear. It is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. LM’s account of other acts by the defendant in Healesville allows her to more naturally, and intelligibly, explain her account of what allegedly took place in relation to the charged conduct.

  3. The Crown can therefore lead evidence of other (uncharged) acts of a sexual nature between the defendant and LM to place the alleged actual charged conduct (giving rise to charges 3 to 6) into the context of the complainant’s account of the whole of the defendant’s alleged conduct. However, I must give myself some important warnings with regard to the use of this evidence of other acts. I cannot act on the basis that the defendant is likely to have committed the offences charged because LM made other allegations against him. The evidence cannot be used as evidence that the particular allegations contained in charges 3-6 (incl) have been proved beyond reasonable doubt.

  4. Secondly, I must not substitute the evidence of the incidents in Healesville for the evidence of charges 3 to 6 in the indictment. I am concerned with the particular and precise occasion alleged in each individual charge. I must not reason that, just because the defendant may have done something wrong to the complainant in the two particular incidents in Healesville, he must have done so on charge 3 – 6 (incl) in the indictment. The defendant cannot be punished for other acts attributed to him by finding him guilty of the charges in the indictment.

Tendency evidence (all charges)

  1. Part of the Crown case is that the defendant had a tendency to have a particular state of mind and a tendency to act in a particular way. Each of these tendencies are relied upon as circumstances relevant to the defendant’s guilt of all offences. The Crown identified these tendencies as (a) having a state of mind, namely, a sexual interest in female children he accessed through The Salvation Army, and (b) a tendency to act upon that particular sexual interest by touching female children in a sexual manner opportunistically and in circumstances where there was a significant risk of detection. The Crown says proof of these tendencies makes it more likely he committed the offence(s) charged in the indictment.

  2. I cannot consider evidence of the defendant’s alleged tendencies as a relevant circumstance in the Crown’s case unless I make several findings. First, I must find that one or more of the acts relied upon by the Crown to establish the tendency evidence actually occurred as an act of the defendant. In determining whether I should make that finding, I need not consider each of the acts in isolation, but should consider all of the evidence to determine whether each of the acts relied upon actually occurred.

  3. In this regard, with the exception of the conduct the subject of charges 5 & 6, part of the conduct that the Crown relies upon to establish these tendencies is the charged conduct complained by the multiple complainants itself. But part of the evidence the Crown relied upon to prove the alleged tendencies concerns the two incidents alleged to have occurred in Healesville, Victoria (involving the complainant LM), that are not the subject of any charge in the indictment. As to that part of the Crown’s case on tendency, if I am not satisfied that these incidents occurred, then the evidence relating to those two incidents should be put aside. To the extent that the Crown relies upon evidence of uncharged conduct, I must not substitute the conduct of the defendant on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.

  4. If I decide that all, or at least some, of the conduct (charged [11] or uncharged) occurred, I then need to consider whether it enables the inference to be drawn that the defendant had the tendencies as they are alleged by the Crown. That is, I will have to determine whether the acts which I am satisfied occurred prove that the defendant had: (a) the sexual interest in female children and (b) the tendency then to act upon such interest by touching them in a sexual manner in circumstances where there was a significant risk of detection.

    11. Excluding charges 5 – 6 for this purpose.

  5. I remind myself about what I said earlier regarding the care that needs to be applied to the drawing of inferences. I have to consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

  6. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In such circumstances, I must put the whole issue of tendency to one side and confine myself to considering the other parts of the Crown’s case.

  7. But if I am satisfied that the acts relied upon to sustain the alleged tendencies have been proved and that the tendencies posited by the Crown have been proved, then I can use the proven tendencies when considering whether the Crown has proved the defendant’s guilt beyond reasonable doubt.

  8. However, I bear in mind that just because a person has a tendency to have a particular state of mind or to act in a particular way, does not mean that he must have had the state of mind, or must have acted in the particular way, on the occasion in issue. I also keep in mind that I should not give disproportionate weight to the tendency evidence.

  9. In short, finding the defendant did have the tendency or tendencies which the Crown alleges is not enough to prove the defendant’s guilt. The question is whether it makes it more likely the defendant conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. That is the only way the alleged tendencies, if proven, may be used.

  10. Ultimately, I must decide whether the specific offences with which the defendant has been charged have been proved. That decision must be based upon all the evidence relevant to each of the charges. This includes the evidence of each of the complainants about what the defendant did. It will also include the tendencies alleged by the Crown, provided I am satisfied it has been established in the circumstances I have described.

  11. The evidence the Crown relies upon to establish that the defendant had this tendency is of a type that might provoke some people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. Though a Judge and lawyer by training, I remind myself to be careful to avoid allowing any emotional response or prejudice to distract myself from a calm and objective assessment of this issue.

Coincidence evidence (all charges)

  1. On the indictment there are allegations against the defendant made by five complainants, RG, LM, EJ, DB and RW. What each individual complainants says about what she alleges the defendant did to her is primary evidence relied upon by the Crown to prove the charge(s) in respect of each individual complainant. Ultimately, I have to be satisfied beyond reasonable doubt that each complainant is honest and accurate in her allegations upon which the charges are based.

  2. As explained in my ‘separate consideration’ direction, although the special hearing in respect of each of the individual complainant’s allegations is being heard at the same time, I still have to reach separate decisions on each of the allegations made by each individual complainant.

  3. The special hearing of the charges concerning the five complainants are being heard together because the Crown argues that the evidence given by one of the complainants can be used as evidence against the defendant in respect of the charges involving the other complainants. The Crown argues that, in determining whether it has proved beyond reasonable doubt the allegations made by complainant RG, to take one example, and giving rise to the charges involving her, I can take into account, the evidence given by complainants LM, EJ, DB and RW, and vice versa.

  4. The Crown argues that, because the allegations made by each of the complainants against the defendant are so similar in the particular conduct attributed to the defendant, it is highly likely that each complainant is telling the truth in giving their respective separate accounts. The Crown in effect says that the defendant has a particular and unusual way of conducting himself or a peculiar pattern of behaving which is apparent from the accounts given by each of the complainants RG, LM, EJ, DB and RW when they are considered together. The Crown’s argument is that the possibility of each complainant making allegations that are so similar by chance or coincidence is so remote that the only explanation is that the defendant acted in the same way towards all of them and, therefore, their accounts are true. By the schedule attached to its closing written submissions, the Crown alleges that the similarities in the allegations are as follows:

RG

LM

EJ

DB

RW

Defendant known to complainant by reasons of his membership in The Salvation Army

X

X

X

X

X

Defendant had a friendship with the complainants’ parents

X

X

X

X

X

Parents of the complainants were also members of The Salvation Army

X

X

X

X

X

Sexual conduct was opportunistic

X

X

X

X

X

Sexual conduct was committed in circumstances in which there was a high risk of detection

X

X

X

X

X

The sexual conduct included digital penetration of the female genitalia

X

X

X

X

The sexual conduct included touching the breasts

X

X

X

The complainants were between the ages of 5 and 11 years

X

X

X

X

X

The defendant told the complainant not to say anything

Threat to send to hospital

Threat to send home

  1. The Crown’s argument can only succeed if it is established that those similarities are present in respect of the allegations made by each complainant and, secondly, that they are so similar they amount to a particular and peculiar pattern of behaviour such that it is highly improbable that each could be giving such an account by sheer chance or coincidence. In other words, the Crown argues that the accounts are such that the only explanation for their similarity is that they are true accounts of what the defendant did to each complainant. The more similar the accounts, then the less likely it may be that the accounts can be explained by chance or invention.

  2. If it is not established that such similarities exist, or the argument that they disclose a particular pattern of behaviour attributed to the defendant is rejected, then the Crown’s argument would be rejected and I would need to look at the evidence of each complainant independently, without having regard to the evidence of the other complainants (subject to the use of the other complainants’ evidence to establish tendency evidence).

  3. The defendant did not specifically address the Court on the subject of coincidence evidence. This was because of his position that none of the alleged conduct occurred.

  4. This argument of the Crown is that the only reason why the allegations made by all of the complainants are being dealt with together in the one trial. If the Crown’s argument is rejected, then I must disregard any similarities in the accounts and deal with the charges involving each individual complainant completely separately. Subject to tendency evidence, I cannot use the evidence of one complainant to prejudice the defendant in respect of the charges involving the others if the Crown’s argument as to the accounts disclosing a pattern of behaviour that can be relied upon as proof of the charges is rejected.

Complaint evidence (charges 1-2, 3-6 & 7-8)

  1. The parties referred to the subject of complaint evidence in different ways.

Use of evidence by the Crown

  1. It is common ground that the evidence that the complainants RG, LM, EJ and RW reported or complained to others (in the case of RG and EJ, between themselves) about what had occurred to them is limited only to proof that the relevant complainants made prior consistent statements and, in this way, was relevant to their credibility[12] .

    12. Evidence Act 1995 (NSW), s 108(3).

  2. I cannot use the content of the complaints as evidence that the alleged offending occurred. The Crown did not lead the complaint evidence as itself being able to prove the charge. The charges are proved on the evidence given in the courtroom and not what was said at some other place and time to other people.

Delay or absence in making complaint

  1. There was evidence of some complainants (RG, LM, EJ and RW) complaining about the defendant, which the defendant argued was ‘delayed’. In the case of the other complainant (DB) there was no evidence of complaint, at least until police statements were made.

  2. The delay in making a complaint about the alleged conduct of the defendant or an absence of a complaint does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of indecent or sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.

  3. So, taking into account these matters, the question is whether the evidence of complaint supports or detracts from[13]  the credibility of the complainant.

    13. The Crown consented to a direction under s 294 of the CP Act; thereby accepting that the condition in s 294(2)(c) was satisfied.

  4. However, the delay in making a complaint, or the absence of making any complaint is a matter I may take into account in assessing the credibility of each complainant’s evidence as to what she said the defendant did. The defendant argued that the delay in making a complaint, or the absence of a complaint was inconsistent with the conduct of a truthful person who has been sexually assaulted or indecently assaulted and so I should regard this as indicating the complainant’s evidence is false.

Differences in accounts by complainant   

  1. The defendant cited differences in the accounts of the offending given by the complainant(s) with the purpose of challenging her or their credibility. A detailed account of the way in which the cross-examination challenged the credibility and reliability of each complainant is set out later in these reasons when considering the defendant’s case. The Crown argued that this argument could only be limited to the position of the complainant LM.

  2. To the extent that it is suggested that there were differences in accounts of the offending given by each of the complainants, I direct myself[14] that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is for me, as the trier of fact, to decide whether or not any differences in the complainant’s account are important in assessing her or their truthfulness and reliability.

Forensic disadvantage to the defendant consequential from delay in making or the absence of complaint [15]

14. CP Act, s 293A(2).

15. This was requested by the defendant (and consented to by the Crown): Evidence Act 1995 (NSW), s 165B.

  1. There is a warning I give myself relating to this issue of the delay in or absence of any complaint being made by the complainants.

  2. It is most important to fully appreciate the effects of delay or absence of complaint on the defendant’s ability to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.

  3. In this regard, I refer to the following specific difficulties, identified in the defendant’s Counsel’s closing written submissions, encountered by the defendant in testing the evidence of the prosecution or in adducing evidence in his own case:

  • the delay in instituting the prosecution;

  • the possibility of distortion in human recollection;

  • the nature of the allegations and the circumstances in which it is alleged that the offences occurred;

  • the ages of the complainants at the time of the allegations;

  • the accused’s age at the time he gave his evidence (in 2018); and

  • the age of Mrs Pethybridge when she gave evidence at this special hearing.

  1. These difficulties put the defendant at a significant disadvantage in responding to the Crown’s case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.

  2. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.

  3. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant’s memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainant’s inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the defendant to throw doubt on each of the complainant’s evidence by pointing to circumstances which may contradict her. Had the defendant learned 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 in cross-examination of each of the complainants.

  4. Another aspect of the defendant’s disadvantage is that had he learned 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 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.

  5. Because the defendant has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I find him guilty of any or all of the offences, I must give the Crown case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about — the fact that the complainant’s evidence has not been tested to the extent that it otherwise could have been and the defendant’s inability to bring forward evidence to challenge it, or to support his defence.

Lies/consciousness of guilt

  1. In one instance concerning the alleged incidents at Healesville, the Crown submitted that the defendant deliberately lied in 2014 in answer to questions raised of him by The Salvation Army investigator out of fear that the truth would implicate him in the offending alleged by LM.

  2. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue. I can take any lie by the defendant into account only if two things are established. First, the lie relates to an issue that is relevant to the offence the Crown alleges that the defendant committed. It must relate to some significant circumstance or event connected with that alleged offence.

  3. Second, it must be established that the reason the defendant told the lie is because he feared that telling the truth might reveal his guilt in respect of the charge he faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is charged.

  4. I remind myself that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.

  5. If I think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the defendant is now on trial, then it cannot be used as evidence of the defendant’s guilt. If that is the case, I should put it to one side and focus my deliberations upon the other evidence in the case.

The “limited” nature of the hearing

  1. I bear in mind that I will have to reach my verdict based on the “limited evidence” available. There are various ways evidence at a hearing of this nature may be ‘limited’. For example, the defendant may have been unable to or unwilling to give evidence (even if he had the right to give it), or unable to give adequate instructions to his lawyers about which witnesses might be called to assist his case, or, as to matters on which cross-examination could be based.

  2. However, these limitations concern the defendant’s capacity to participate in this special hearing; not his capacity to participate in the earlier trial. It is one thing to accept the limitations in the defendant’s capacity to participate in and at the time of that special hearing, which were derivative from his mental or cognitive impairment. It is another thing to say, however, that there were any limitations in the defendant’s capacity to participate (such as providing instructions to his Counsel) when the complainants gave their evidence at the trial in late May and early June 2018, or when he elected to give evidence at the trial himself, or when the defendant spoke to The Salvation Army investigator in March 2014. It would not be proper to infer that simply because he was determined to be unfit to stand trial in 2021, his mental or cognitive capacity to participate in an interview in 2014, or in the first trial in late May and early June 2018, was comparably limited. Evidence about any incapacity at these earlier dates would be required.

  3. But towards the conclusion of the special hearing, in oral argument on the appropriate directions and warnings I should give myself, Counsel for the defendant submitted that I could take into account, when weighing the evidence that the defendant, as accused, gave at trial in 2018, his age and the effluxion of time since the alleged incidents. So much may be accepted: this might be regarded as part of the ‘forensic disadvantage’ direction referred to earlier. But Counsel went further and submitted that I should infer that the current mental or cognitive incapacity that has led to the institution of the special hearing did not emerge ‘overnight’, but had developed and, so accordingly, my assessment of his evidence in 2018 (or what he said to the investigator in 2014) should have regard to that contextual circumstance. I reject this last submission, as one amounting to a bare invitation to infer, rather than drawing an inference on the basis of evidence. No attempt was made to establish that he was (mentally or cognitively) impaired in 2018 (or when he spoke to the investigator in 2014).

Burden of proof

  1. I now direct myself on the onus of proof. Section 54 of the MHCIFP Act provides that the defendant is to be acquitted unless the Crown can prove, to the required criminal standard of proof, on the limited evidence available, that the defendant committed the offence charged, or another offence available as an alternative to the offence charged.

  2. The burden of proof of guilt of the defendant is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the defendant at all. It is not for the defendant to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. He does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

  1. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the defendant must be found "not guilty" of the charges.

Standard of proof

  1. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the defendant in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by each of the Counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

  2. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the defendant may be guilty, if I have a reasonable doubt in respect of that matter, the defendant is entitled to the benefit of that doubt, and I must find him not guilty. This is so in respect to the Crown case against the defendant for each count.

  3. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the defendant is guilty of the offences charged. The defendant bears no onus of proof in respect of any fact that is in dispute. I say, again, that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.

Missing witnesses

  1. For reasons that will be explained later, the Crown did not call as witnesses, the defendant’s daughters or son, RG’s and EJ’s other siblings, RW’s brother or Ms Brains (a friend of RW). I am not to speculate on what these persons would have said if they gave evidence.

Alibi (charges 1 & 2)

  1. The defendant relied on evidence intended to show that at the time the offences for charges 1 & 2 were committed, he was somewhere else and therefore could not have committed the offences.

  2. The evidence of both the defendant and Mrs Pethybridge was that the Sunday School picnic occurred on 1 November 1958 but, on that day, the defendant was by Mrs Pethybridge’s side in hospital, as she gave birth to their son.

  3. When an accused person puts forward an alibi, the burden of proving the accused’s guilt continues to rest on the Crown. If the Crown fails to satisfy me beyond reasonable doubt that the alibi evidence should be rejected, then the accused must be acquitted. The Crown must disprove the alibi.

  4. The Crown must establish beyond reasonable doubt that the defendant was at Speers Point on the occasion that the complainant alleged that he assaulted her. The Crown cannot do so if there is any reasonable possibility that the defendant was at the hospital with Mrs Pethybridge at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the defendant was at the hospital with Mrs Pethybridge at that time, and also establish, on the evidence on which the Crown relies, that beyond reasonable doubt the defendant was at Speers Point at that time. If the Crown fails to remove or eliminate that reasonable possibility, the defendant must be acquitted of charges 1 and 2.

  5. If the Crown establishes beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that the defendant is guilty. In other words, the failure of the alibi does not generate any assumption that the defendant is guilty. I must still be satisfied, beyond reasonable doubt, upon the evidence as a whole, that the Crown has made out its case against the defendant on charges 1 & 2 before returning a verdict of guilt.

Counsel’s submissions

  1. I have read extensive written submissions from Ms Crown (MFI 9 and 14) and for the defendant (MFI 12). I will consider the submissions that have been made and give them such weight as I think they deserve. In no sense are those submissions to be treated as evidence in the case.

HOW THE CROWN SEEKS TO PROVE ITS CASE

Overview

  1. Putting the matter very generally, the Crown seeks to make out the charges on the basis of the video recordings of the original evidence given by the complainants at the earlier trial in late May and early June 2018 (which, as indicated, I separately determined was admissible, over the defendant’s objection), some additional lay witnesses, certain agreed facts, context evidence (for some charges), tendency evidence (for all of the charges), coincidence evidence (for all of the charges) complaint evidence (for some of the charges) and what the Crown asserted was a lie or manifestation of a consciousness of guilt arising from an interview that the defendant (in the presence of a ‘support person’) participated in with an investigator on 11 March 2014.

Charges 1 & 2

The complainant (RG’s) evidence

  1. RG was born in 1952. She grew up in West Wallsend, which is part of the Lake Macquarie Shire. She was one of a number of siblings, including another complainant in this special hearing (EJ). As part of growing up, whilst she was a little girl, her family attended a church known as the West Wallsend Salvation Army Corps. The defendant was the Minister who led the congregation, with the assistance of his wife. RG remembered him as ‘Lefty’ which, she recalled, reflected his then rank as a Lieutenant. The defendant and his wife were close friends of RG’s parents (who have since deceased). She gave evidence of various social functions organised by or through the Church. This included annual Sunday School picnics, preceded by concerts, which generally occurred in summer, as a celebration of the year that was about to pass.

  2. RG recalled that one such picnic occurred when she was aged between 6 – 9, at Speers Point Park, on the edge of Lake Macquarie. She went there with her whole family. She said that the defendant was there. There was a saltwater pool in the lake. Young children could jump into the pool.

  3. A number of times, RG, like other children, (including a child she recalled whose name was Noel) jumped into the shallow end. But on two occasions, she recalled jumping in at the deep end. This would have been perilous for RG since she could not swim, but on the occasions, she jumped into the defendant’s arms. Noel then did the same thing.

  4. On the first occasion, she recalled, whilst she had most of her body under the water, the defendant, using his fingers, put his hand inside her swimming costume and felt her vagina. RG recalled that this was a recently acquired single piece costume which had stretched: she later got into trouble with her mother for that.

  5. On the second occasion, RG recalled that she went back to the wall and had another jump and the defendant touched her again; this time using his finger to penetrate her vagina ‘higher in’. After this, RG was horrified and did not want to go back into the water.

GJ’s evidence

  1. GJ was RG’s younger brother. The age gap was about 6 years. His evidence was primarily relevant to charges 7-8, involving EJ, another sister. But his evidence was also incidentally relevant to RG.

  2. GJ recalled attending Sunday School and events associated with attending Sunday School. These included picnics around the Christmas holidays. He recalled one location where picnics occurred: Speers Point Park; although his recollection of the actual weekday was unclear – he only recalled that they occurred during school holidays. He also recalled going to Belmont Park, but could not recall whether that was for a Sunday School picnic.

Evidence of complaints by RG to and from EJ relevant to charges 1-2 and 7-8

  1. RG did not complain about the defendant’s conduct until her sister (the complainant EJ) approached her in about 1993 or 1994 at Merewether Beach in Newcastle. That was when EJ reported to RG that the defendant had put his hands in EJ’s pants when the latter had been sitting on the defendant’s knee in a car being driven by their father.

  2. At this point, RG confided in EJ that the defendant “did a similar thing to me”. RG said that they then cried together. RG’s intention was not to tell anyone else at all, until Police approached her in January 2017. That approach did not surprise RG: EJ foreshadowed that it may occur. RG resolved that if EJ was “brave enough” to complain about the defendant, then she, RG, should make a complaint about what the defendant did to her as well.

  3. In the course of giving evidence of her own complaint about the defendant, EJ said that in late 1993 or early 1994, at a time when their mother was being moved into a nursing home, when seated around a table near the Merewether Baths, she told RG that she had been abused as a child and that the defendant had abused her. EJ was pressed as to whether she asked, or was encouraged by RG, to make a statement to police, but said that RG did not ask her to come forward. She denied the suggestion that it was only as a result of her conversation with RG that she made her (first) statement to police.

Arguments about complaint evidence

The Crown’s arguments

  1. The Crown urged me to accept that RG and EJ disclosed to each other the circumstance of the defendant’s abuse of them, in 1993 and 1994. The Crown only indicated that the complaint evidence should be used in the manner described in my outline of the complaint directions earlier.

The defendant’s arguments

  1. In the defendant’s closing written submissions, Counsel attacked the adequacy of the complaint evidence. Counsel argued that RG seemed to “know all about” the allegations of what the defendant did to EJ, but that was contrary to EJ’s evidence about her not giving RG any details at all. The circumstance that RG knew of all the details may have led to the possibility of RG having read EJ’s statement. EJ did not give evidence about what RG had confided in her.

  1. Although DA’s evidence was less convincing on whether he took his family over, the defendant’s brother, GA, also recalled attending a place where soldiers were going around. Although he took that to be a place at Moorebank, I consider it most likely he was referring to the defendant’s place being actually at Holsworthy.

  2. I do not accept the defendant’s evidence, which sought to minimise the association with LM’s family generally. I reject his evidence of 3 houses at Holsworthy, supported by Mrs Pethybridge. There was no documentary evidence to provide any evidentiary foundation for that evidence. I consider this evidence to be a fabrication. In this, the defendant was placed in the awkward forensic position of approbating and reprobating: he denied close continuing links on the one hand, whilst trying, on the other hand, to take forensic advantage of the circumstance that he continued to be involved in assisting members of LM’s family, including himself in periods where no complaint had been made about him (assistance being rendered to GA in 1979 or 1980 [31] ).

    31. GA was born in May 1963 (T 52.27) and got married when he was 16 years and 9 months (T 59.10).

  3. I accept, as generally credible and reliable, LM’s allegation of what the defendant did to her in a bedroom at Holsworthy. Subject to two qualifications, it had similarity with the second of the uncharged incidents at Healesville, being the indecent assault in the bedroom.

  4. The first qualification was the nature of the indecent activity. This did not involve the touching of LM’s vagina with the defendant’s hand or fingers, evident in all the other charges (save for charges 5 & 6 and the other uncharged act). Nevertheless, what the defendant might (with a depraved mental state) have considered ‘playful’ activity was of a piece with the sense of entitlement of opportunistically violating a very young girl to gratify his sexual interest.

  5. The second qualification, which was productive of much questioning in cross-examination, concerned what LM accepted were inconsistent statements as to what she had seen the defendant do to his daughters S and D, and when she saw him do those things to his daughters, respectively. In my view, influenced by the warning I give myself concerning s 293A of the CP Act, but a matter which I would have found irrespective of that warning, those inconsistencies were not such as to render unreliable or incredible her evidence as to what the defendant did to her. The complainant, naturally, was preoccupied with what the defendant did to her and her recollections were likely to be focussed on what was done to her accordingly. Even so, she was still able to give concise evidence of what the defendant looked like (his shorts, the belt buckle with The Salvation Army logo and his collared shirt). She gave a description of the layout of the room. Her evidence in these other respects was not challenged. She was able to pinpoint the defendant’s military role at the time she visited the house. She gave a clear and consistent description about what she said the defendant did to her: bouncing her up and down and clasping her hands around his penis. Her description of what the ‘pony ride’ comprised was not likely to be quickly forgotten, even for a girl the age of 5.

  6. I repeat what I said in charge 3 about the weight to be given to the complaint evidence.

  7. I allow, again, for the forensic disadvantage faced by the defendant, but that should not be exaggerated. As I noted earlier, no specific loss of opportunity to give or obtain evidence was identified. I have noted, and rejected, the defendant’s suggestion of multiple houses in Holsworthy, which has no independent objective evidence to support it. Mrs Pethybridge adopted the defendant’s account of three houses. The defendant’s evidence that LM was never at his place in Holsworthy rose not much higher than one of bare denial, which I do not accept.

  8. Subject to my consideration of the charges 5-6, to which I will momentarily turn, I am inclined to find that the Crown has established the defendant committed the conduct which is the subject of charge 4.

Charges 5 & 6

  1. As was apparently acknowledged in the Crown’s tendency notice, which excluded [32] these charges from the general matters relied upon to prove tendencies in the defendant, the conduct the subject of these alternative charges was materially different to other offending.

    32. The tendency notice was not before the Court in this special hearing.

  2. First, the alleged offending did not occur in the warm environment of a family friend, or the defendant’s own comfortable home. It occurred in what, for the defendant, was a workplace. (I appreciate that the conduct concerning charges 1 and 2 was also in a ‘public’ space, but the sexual touching perpetrated there was concealed, being under water). Whatever tendency the defendant may generally have had to engage in opportunistic sexual conduct with a high risk of detection, the other conduct occurred in or about the vicinity of family friends, and even his own children. Perpetrating this alleged offending in a workplace environment in the inner city was an inherently much more difficult proposition. There were likely to be many more strangers, and not family friends, around; who would probably not have had a comparable sense of respect, admiration, or even awe, to the same degree as the complainants’ respective parents.

  3. Although it was recalled by LM as occurring on a Saturday, the weekend, it was not explained how that might likely lessen the number of people within the building, or at least the occupants of the various floors, in comparison with other days. This would be especially so for those who occupied the hospital beds; and the (female) nurse or assistant looking after them.

  4. Secondly, the nature of the offending was very different to all the other charges. What is alleged for charge 5 was attempted penile-vaginal intercourse. This involved a level of physical force exerted against the complainant entirely missing from all the other complaints. Further, this offending would have involved a greater degree of planning than the other charged (and uncharged) conduct which, as the Crown characterised it, was ‘opportunistic’. On LM’s account, the defendant had to drive her to a different place to perpetrate the offending.

  5. These points of distinction materially weaken the capacity of the Crown to rely upon tendency or coincidence evidence arising from the other charged conduct (and the uncharged conduct) to sustain guilt for these charges.

  6. Thirdly, the suggestion of a ‘no women’ policy had intrinsic plausibility. I accept the likelihood that among the homeless people who occupied the (men’s only) accommodation quarters, conceivably there were likely to be numbered some physically violent men; so there was a security basis for such policy. To be sure, there may have been exceptions (as is generally, or at least often, the case with policies) and I take into account the independent evidence of ED, which may have cast doubt upon any universally applicable policy. But ED did not give examples of other buildings operated by The Salvation Army, of a comparable nature to Foster House (a hostel for accommodation), which had no such policy.

  7. I generally took a favourable view of LM’s credibility and reliability. Nevertheless, there is force in the defendant’s submissions about inconsistencies about her evidence, or evidence which did not match objective evidence in connection with these particular charges.

  8. She did say that she walked up stairs with the defendant; thereby indicating that the offending occurred above the ground floor. But that generated uncertainty as to which floor they walked to, in view of the evidence about the chapel and hospital ward on the first floor with dormitory accommodation above.

  9. There were differences in her account, as to whether the defendant fondled her breasts, and whether she saw or felt the defendant’s penis. There was an inconsistency between her evidence in chief and what she told the investigator about whether he stroked her vagina with his fingers. In referring to these matters, I do not overlook the s 293A warning I gave myself earlier. Further, I thought LM’s explanation for why she did not complain to her parents after the incident (referred to at paragraph 292, above) was powerful.

  10. The evidence of her complaint to others does not take the case much further, as previously remarked upon, given its generalised nature. I would add that given the generalised nature of the disclosure, it could not confidently be said that what was being complained of was complaint about attempted rape, rather than of indecency.

  11. I am not persuaded that the Crown has established the defendant’s guilt beyond reasonable doubt to charge 5.

  12. There is no logical reason why the result should be any different in relation to the alternative charge 6.

Reconsidering charges 3 & 4

  1. In accordance with the Markuleski direction, I must consider whether the views that I have taken about charges 5 & 6, affected as they partly are by views of the complainant’s reliability, should result in acquittals on charges 3 & 4.

  2. I do not consider that they do.

  3. I reiterate my acceptance of the complainant’s credibility and reliability; even if I was less accepting of the reliability of her recollections in relation to the incident the subject of charges 5 and 6. The circumstances underlying the third and fourth charges were very different to those which were the subject of charges 5 and 6, as I have explained. The surrounding circumstances for charges 5 and 6 were much more inimical to the probability of the defendant’s offending than the charges 3 and 4. What were relatively minor issues of LM’s reliability in recollecting what occurred, in relation to charges 5 & 6, could not be overcome by the evidence of other matters and circumstances, viewed overall, pointing to the defendant’s guilt.

  4. The position was different with charges 3 and 4, where whatever differences there were in connection with the complainant’s account were relatively minor and when the evidence as a whole, including the tendency and co-incidence evidence, established the defendant’s guilt of those charges beyond reasonable doubt.

  5. Taking into account my conclusion that the Crown has not proved to the requisite standard the defendant’s guilt of the charges 5 and 6, the conclusion does not alter my view that, weighing all the evidence relevant to charges 3 and 4 as a whole, the defendant committed those offences.

VERDICTS

  1. I return the following verdicts:

Count 1:     on the limited evidence available, guilty

Count 2:      on the limited evidence available, guilty

Count 3:      on the limited evidence available, guilty

Count 4:      on the limited evidence available, guilty

Count 5:   not guilty

Count 6:   not guilty

Count 7:   on the limited evidence available, guilty

Count 8:   on the limited evidence available, guilty

Count 9:   on the limited evidence available, guilty

Count 10:   on the limited evidence available, guilty

Count 11:   on the limited evidence available, guilty

Count 12:   on the limited evidence available, guilty

Count 13:   on the limited evidence available, guilty

  1. I will now hear from Counsel as to the next stage of the proceedings, involving consideration of the limiting term representing the best estimate of any period of imprisonment that the Court would have imposed on the defendant, or whether some other penalty would be appropriate, in accordance with s 63(2) and (3) of the MHCIFP Act.

ANNEXURE A

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Endnotes

Amendments

26 May 2022 - At paragraph 292 - "was" changed to "were"


At paragraph 322 - "one" changed to "once"

Decision last updated: 26 May 2022

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Cases Citing This Decision

1

R v Pethybridge (No.3) [2022] NSWDC 520
Cases Cited

13

Statutory Material Cited

4

Ewen v The Queen [2018] HCASL 40
Parish v Director of Public Prosecutions [2007] VSC 494
Parish v Director of Public Prosecutions [2007] VSC 494