Tasmania v Ferguson
[2008] TASSC 5
•11 November 2005
[2008] TASSC 5
CITATION: Tasmania v Ferguson [2008] TASSC 5
PARTIES: TASMANIA, STATE OF
v
FERGUSON, Gregory Laurence
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 4/2005
DELIVERED ON: 11 November 2005
DELIVERED AT: Hobart
HEARING DATE: 26, 27 and 28 July 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process – Delay in commencing proceedings – Sexual assaults on children – Over 30 years before report to police – Whether proceedings should be permanently stayed.
Jago v District Court (NSW) (1989) 168 CLR 23, applied.
Aust Dig Criminal Law [703]
REPRESENTATION:
Counsel:
Accused: P Byrne SC
State: M A Stoddart
Solicitors:
Accused: Greg Walsh & Co
State: Director of Public Prosecutions
Judgment Number: [2005] TASSC 5
Number of paragraphs: 84
Serial No 5/2008
File No 4/2005
STATE OF TASMANIA v GREGORY LAURENCE FERGUSON
REASONS FOR JUDGMENT CRAWFORD J
11 November 2005
The accused is charged with committing sexual crimes against six male students of Marist College at Burnie where he was a teacher, in 1970 and 1971. There are four counts of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A, and two counts of indecent assault, contrary to s127.
The application for a stay
The accused gave notice that he would seek orders:
1that all of the proceedings on the indictment be permanently stayed on the ground of an abuse of process by reason of the delay that has elapsed since the alleged events;
2that the evidence of the complainant in the first count be excluded because it has been rendered unreliable by the administration of therapy and because of his psychiatric history and his use of drugs and alcohol;
3that each of the six complainants and three other State witnesses be required to give evidence and be subject to cross-examination before a jury is empanelled;
4that there be a determination, before the trial, of the admissibility of certain evidence;
5in the event of all of the proceedings not being stayed, that each remaining count be separately tried.
When the case first came before me it was apparent that the accused was in need of urgent medical investigation of a hypofunctioning nodule towards the upper pole of the right lobe of his thyroid that a scan had detected. It was agreed that I should only proceed to hear and determine the application for a permanent stay and that at the conclusion of the hearing, the accused should be permitted to return to Sydney, where he lives, for any necessary medical and surgical procedures to be carried out. If all of the proceedings were to be stayed, that would obviate the need for the other applications to be heard and determined. The extent of the accused's health problems, still to be determined, were seen as relevant to the outcome of the application for a stay. At the conclusion of the hearing, I agreed not to determine the application for a stay until after at least two weeks had elapsed, in case the medical investigations revealed a disease or other condition that might be relevant to the outcome of the application. Since the conclusion of the hearing I have been provided with relevant information from the accused's solicitors.
The basis of the application for a permanent stay is that there has been such a delay since the alleged events that it is now not possible for a fair trial to be held. The state of the accused's health and particularly, the state of his memory, are relevant. Many other circumstances may be material to the outcome of the application including the nature of the proceedings and the case that is alleged against him; the length of the delay and the reasons for it; the ages of the complainants at the time of the alleged offences and their reasons for not complaining to the police until recently; the nature of the defence; and the extent and degree of any prejudice to the accused which has or may have resulted.
The six complainants were boarders at the school. Between 1964 and 1971, the accused lived there. At the time of the alleged offences he was aged 33 or 34. He is now 68 years of age.
I will refer to the complainants as C1, C2 etcetera, the number coinciding with the number of the count in the indictment concerning the particular complainant. I will draw relevant facts from the Crown papers and other material before me, including oral evidence from the six complainants, Detective Sergeant Steven, the accused and Dr J A Roberts, a psychiatrist.
C1's allegations
Count 1 charges the crime of maintaining a sexual relationship with a young person under the age of 17 years between 1 February 1970 and 30 November 1970 when C1 was aged 12 or 13 years. He is now 48 years old. Like all boarders of his age, he shared a dormitory with a large number of other boys. The accused, like other Fathers at the school, had his own room, which was along a corridor or corridors and upstairs from the dormitory, in another wing.
C1 alleges that one evening he was called to the accused's room for a reason he cannot recall and he went there in the company of C2, who, like him, was a first year boarder. The accused's room had a bed, desk, chair and basin, and also a machine with a vibrating belt. There was a conversation about tattoos. The accused told C1 that he would draw a tattoo on his back and instructed C1 to take off his top and lie on the bed, which he did. The accused then masturbated over him, ejaculating onto his back. The accused wiped the semen from C1's back and the two boys then left the room and returned to their dormitory. C2 had witnessed what occurred, according to C1. However, C2 says that he has no recollection of being present on that occasion, although he recalls a similar incident when the accused masturbated onto his back. That is the subject of the second count and I will deal with it in due course. I suspect that the witness may have in fact been C4, for a reason I will state when dealing with his allegations.
C1 says that within about a week he was called to the accused's room once again. He went there on his own. The accused played with C1's penis and testicles and had him reciprocate. That occurred on about three occasions. On one occasion, the accused had him undress and lie on the bed and the accused rubbed himself against C1. In all, C1 thinks that he went to the accused's room after a study period on possibly six to 12 occasions. He thinks that on a couple of occasions there might have been a couple of other students present. He thinks that C4 may have been there once, but he does not wish to name others who, he says, have not come forward. He says that once or twice he saw the same things being done by the accused with C2 and C4. The sexual activity stopped when C1 was still in his first year as a boarder, as a result of his decision not to go to the accused's room again.
C1's complaints
C1 remained at the school for another three years. He says that he told no-one at the school of what had happened because he was embarrassed and ashamed, adding "who is going to believe a kid". He says that he did not tell his parents, because they would not have believed him, and that the first person he told was his wife when he met her some six or seven years after the events, when he was 19 years of age.
Father Jago was a teacher at the school at the time of the alleged assaults. In a statutory declaration he has related an incident to which C1 made no reference. Father Jago said that his room was next to the accused's room. In mid-1971, he heard through an adjoining wall the accused talking to what seemed to be two to three boys in his room for about five or 10 minutes. Father Jago then heard a scuffle for one or two minutes. Shortly after, C1 knocked on Father Jago's door. He said words to the effect that the accused had touched him between his legs. Father Jago thought it a very serious matter and reported it to the school principal, telling C1 that he would do so and that the principal would most likely want to speak to C1 and the accused.
C1 also alleges that he was sexually assaulted by another teaching Father at the school and by the caretaker of a nearby football oval. He considers that the assaults by the two Fathers affected him severely throughout his life and caused him to turn to alcohol and illicit drugs. He would often break down and cry about what had happened. In the early to mid-1990s he consulted a doctor for help and was referred to a psychiatrist in 1995 and to psychologists. (In 1995 he was suffering from a severe depressive disorder that had a number of causes.) He went to Centrecare on possibly four or five occasions and spoke there to a nun and a priest. According to what he told the police, they tried to persuade him to forget about what had happened.
Eventually C1 went to the police and reported his allegations against the three men who had sexually assaulted him. He says that he did so because "I just got sick of it eating away at me and crying and bawling about it all the time". His evidence was that he was not sure, but thought that he did so in about 1995 or 1996. However, it appears likely that he did so in March 2002, when he made a statement to Detective Inspector Lathey at the Bellerive CIB office.
C1 then wrote letters to four fellow ex-students, presumably about whether they recalled being sexually abused. One of them was C2. C1 received no response from any of them.
C2's allegations
Count 2 charges an indecent assault on C2 between about 1 November 1971 and about 30 November 1971, when C2 was aged 13. He is now 47 years old.
C2 does not believe that the accused was his teacher. His evidence was that he was asked to go to the accused's room one evening, apparently to talk about some schoolwork. In a statutory declaration made for the police, he says that C1 told him that the accused wanted to see him in his room about some schoolwork. He alleges that when he arrived at the room he was on his own, and the accused complained of a sore shoulder, or something similar, and asked C2 to rub his back. It appeared that he was not rubbing the correct spot, whereupon the accused asked him to take off his shirt and he would show him where to rub. He laid C2 on the bed, climbed on top of him and started to rub his back. C2 felt a liquid on his back and realised that the accused had ejaculated onto him.
C2's complaints
C2 says that on leaving the accused's room it was after hours and he went to have a shower. A senior student, Christopher Bartlett, who C2 described as the senior dorm master, came out and asked what he was doing and he explained to Bartlett what the accused had done to him and why he was having a shower. C2 said that Bartlett was on his own and that he complained to no-one else because Bartlett said he would take the matter further.
In the Crown papers there is a statement of Christopher Bartlett who is well-known to me as a practitioner of the Court. Mr Bartlett confirmed the incident. He thought it occurred in mid-1971. He would have been aged about 17 at the time. He said he was a member of the Student Representative Council and that one evening, at about 9.30 or 10pm, he came across C2 in the shower block, sitting on a bench and crying. He asked what had happened and after some initial hesitation, C2 told him what the accused had done. According to Mr Bartlett's statement, while he was talking to C2 or shortly thereafter, another student, Leigh Barrenger (who was the school captain and would have been aged 17 or 18) came along. They tried to settle C2 down and they agreed that the matter would be reported to the school principal. It is Mr Bartlett's recollection that they reported it to the principal, Father Hosie, in his office one evening and that the principal said that he would deal with the matter. Within a few weeks, maybe a month, the accused had been transferred to New South Wales.
I will not give all of the details but note that there also appears to be available evidence of Mr Barrenger and also of a Martin Flanagan, who was the deputy school captain, which, particularly in the case of Mr Flanagan, confirms that C2's complaint was made. In Mr Flanagan's statement to the police he said that he was present when the matter was reported to the school principal. Mr Flanagan placed the date of the event as not long before the end of the 1971 school year.
C2 says that he had no further relevant communication with anyone until early 2002, when he received a letter from C1 informing him that C1 had made a statement to the police about being sexually assaulted by teachers at the school and asking him if he remembered being with C1 when the accused masturbated onto C1's back. C2 says that he destroyed the letter and did not respond to it. He claims that he has no recollection of the incident involving C1. In December 2003 Detective Sergeant Steven approached him and asked if he recalled witnessing the incident with C1. He said that he did not and then volunteered what the accused had done to him and made a statement about it.
C3's allegations
Count 3 charges the crime of maintaining a sexual relationship with a young person under the age of 17 years between 1 February 1970 and 30 November 1971. C2 was aged between 15 and 17 at the time. He is now 51 years of age.
C3 says that he was first assaulted by the accused in 1970 when they were returning from a visit to a horse ranch at Wynyard. The accused was driving a school vehicle. The accused was sitting next to him and another student, Geoff White, was sitting next to C3. As he drove, the accused put his hand on C3's leg and rubbed the area of his groin. (The evidence of Detective Sergeant Steven at a committal hearing was that he had been unable to locate or identify Geoff White.)
C3 says that he went to the accused's room on a number of occasions, when the accused would embrace and touch him. On one occasion, at the end of 1970, the accused also made physical advances to him in a matriculation schoolroom, by touching him on the groin and then taking C3's hand and placing it on the accused's groin. He describes withdrawing and being very traumatised and the accused telling him that "you won't learn, will you". He says that the accused instructed him to go to the teacher in charge of discipline, Father Burns, to get the cane, and to tell Father Burns that he had been reading a comic book in the study. When C3 complained that he did not have a comic book, the accused said "but only you and I know that".
C3's statements and his evidence before me were lacking in specific detail with regard to sexual assaults on him by the accused, apart from the two incidents to which I have referred. However, he says that there were numerous incidents that were similar. I infer that he means similar to the second one he described.
The final incident he relates did not in fact involve a sexual assault on him. He says that it took place in November 1971 when he and Leigh Barrenger, who was a friend but older, went to the accused's room one evening, between 7 and 8pm approximately. The purpose of the visit was some tuition for biology, with which it was intended that Barrenger would assist him later. C3 says that outside the accused's door they could hear noises inside. He knocked on the door, which was opened by a younger boy, possibly from primary or first year secondary school. There were at least two other young boys in the room as well. The accused appeared to be chasing them round the room. He was wearing only a white T-shirt. He had an erection. C3 says he will never forget the incident. He is unable to identify the younger boys because he did not know their names. C3 says that he was in the company of Leigh Barrenger at the time. In his oral evidence he said that he believed Barrenger was in a position to see what he saw, but accepted that Barrenger may have stood back. However, in a statutory declaration he made for the police on 30 March 2004 he said: "We got the boys out of the room." Mr Barrenger says that he has no recollection of witnessing such an incident and claims that he only learned of it from young students telling him about it.
C3's complaints
C3 says that he was so concerned that next morning, at about 8.30am, he attended on the school principal, Father Hosie, and reported what he had seen the previous evening. The principal's response was that C3 was lying. He struck C3 with a book and told him that if he ever spoke ill of the accused again he would leave school without his end of year results. He was told that the only reason he was not being expelled was because of who his father was. (There is no need for me to explain that.) C3 says that he had wanted to tell Father Hosie about the accused's sexual abuse of him but had no opportunity to do so.
Father Hosie now lives in California. He told a member of the San Diego Police Department, when interviewed last December at the request of Interpol, that although he received reports that the accused had been involved in inappropriate activity with students, the information had come from members of the Student Representative Council. He claimed not to be able to remember the detail of the reports. There is evidence of a letter written by Father Hosie on 18 November 1971, in which he said he had reports of about eight boys with whom, it was claimed, the accused "has been fooling around with in his room".
C3 says that it is his recollection that the accused was not seen on the school campus again. There appears no doubt that he had left the school by the end of that year, which was not long off, as a result of the reports to Father Hosie. C3 says that shortly after, once examinations were over, he told his father that he would never be going back to the school and he explained to his father what he had witnessed in the accused's room only two or three weeks before. He then went on to say what had happened to him. His father was very reluctant to listen to him and accused him of "Catholic bashing". Thereafter, his relationship with his father was poor for over 30 years.
The only other person C3 spoke to about the events, according to him, was a friend, the brother of C5. C3 says that he was sexually assaulted by another Father and also, on one occasion, by the caretaker of the nearby football ground. In late 2002 he made a statement to police about the other Father. His evidence is that he mentioned to them that he had been the subject of sexual abuses at the hands of the accused at the school. That was not taken further at the time. Asked why he had not provided information to the police concerning the accused at an earlier time, he says that he did not know, commenting that he had spent 30 years being upset by it but had not been game enough to do anything about it.
The name of C3, as a person to whom Detective Sergeant Steven might be interested in speaking, was provided to him by Sister Angela Ryan of Sydney. How that came about is not clear. Detective Sergeant Steven obtained C3's email address and communicated with him in about December 2003. As a result, C3 agreed to assist and made a statement to the detective concerning the accused on 30 March 2004.
C4's allegations
Count 4 charges the accused with an indecent assault on C4. The particulars are imprecise concerning the date of the alleged offence, but it was in 1971. C4 was 13 at the time. He is now 47.
He says that late one afternoon he and C1 when to the accused's room, where the accused offered a pipe to them, which they smoked. He says that the accused sat next to him, on what he recalls was a two-seater couch, took hold of his hand and pulled it towards his crotch. In response, C4 pulled his hand away. The alleged indecent assault was an extremely minor one and arguably, amounted to an attempted indecent assault.
C4 says that the accused then went over to C1, who was sitting on the bed, and told C1 that he would draw a tattoo on his back. He had C1 remove his shirt and lie on the bed on his stomach. The accused started to draw the tattoo and while he did so he masturbated himself, ejaculating onto C1's back. The accused invited them both to return another time for a smoke. In a statutory declaration, C4 says that the accused told them not to say anything. C4 describes himself as being embarrassed and distressed by what had taken place.
I have already related C1's version of a strikingly similar incident. A major difference is that C1 said that C2 was in the room with him (which C2 denies) whereas C4 says it was him. There is every likelihood that they were describing the same incident and that C1 is mistaken as to the identity of the boy who was with him. C4 said that since leaving the school about a month or so later he has not spoken to C1.
C4's complaints
C4 says that on the night following the incident he approached a prefect and that in fact there were two prefects present at the time when he told them what had happened. He describes one as a boofy, blond-headed prefect and says that his name may well have been Barrenger. In a statutory declaration he says that it was the head prefect, who was in fact Leigh Barrenger. In the statutory declaration he says that the other one was Victor Kubiak, but in his evidence he was uncertain. In fact, Kubiak was not a prefect and he denied hearing of any sexual activity. There is no evidence that Mr Barrenger remembers the occasion.
C4 only attended Marist College for part of 1971. He was expelled, he believes because he broke a window. Subsequently, he got into trouble with the law and spent time in Ashley Boys Home and Risdon Prison. However, eventually his life improved following marriage in the 1980s and then employment. In his statutory declaration he says that the incident with the accused affected his trust in adults, teachers, schools and religion and he believes that it contributed greatly to his wayward behaviour in his early years. He decided to make a complaint to the Catholic Church about the accused in 2002. In evidence he said that he told his wife about what happened about four years ago and she urged him to approach the church. He spoke to a nun and a priest and accepted a cash payment in compensation through a program called Towards Healing.
He was approached by Detective Sergeant Steven after Towards Healing provided his name to the police. He made a statement for the police on 5 February 2004. He says that apart from speaking to his wife about four years ago, he had not spoken to anybody about it for roughly 30 years, as I understand him not since he left the school.
C5's allegations
Count 5 charges maintaining a sexual relationship with a young person under the age of 17 years between 1 February 1971 and 30 November 1971. C5 was aged about 13 years at the time. He is now 47 years of age. He attended Marist College as a boarder in 1970 and 1971.
He says that he went to the accused's room on a number of occasions. When he entered the room on the first or second of those occasions, the accused was wearing a towel and was using his vibrating machine, with its vibrating belt around his waist. The towel fell off. The accused then fondled C5's genitals and masturbated him and had C5 reciprocate at the same time.
C5 says that he returned to the accused's room on a number of other occasions. In his statutory declaration of 17 March 2004 he says definitely on four or five occasions but probably six or seven. The accused would want to talk about C5's sex life, which C5 says in his statutory declaration was nil. There is an obvious conflict between C5's version of the events in his statutory declaration and his evidence before me. In the statutory declaration he says: "I continued to go to his room and I can remember the talks about sex continuing but I can't say defiantly[sic] that the fondling continued although I believe it did and I've just shut it out." He also says that he went to the room alone on most occasions but can remember another boy, whose identity he cannot recall, accompanying him once. He recalls running from the room on one occasion which he thinks was the last time he went there. However, in his oral evidence he says that on the occasions he went back to the accused's room, his touching of the accused was involved and that the accused took hold of his hand to cause him to do so. He says that on the last occasion he went to the accused's room, the accused took his hand, wanted him to touch the accused's penis and then at some stage reached for C5's penis. He does not say that he ran from the room, but that may be because the questions asked of him did not seek that information. However, another conflict with his statutory declaration is his oral evidence that no-one else was around when the incidents between him and the accused occurred.
C5's complaints
He says that on one or two occasions, he cried at night, I understand because of the incidents, but he did not tell anyone at the school about what had happened. Asked why not he says that he was too scared. Asked of what he was scared, he says "embarrassed, my parents, the priests and just myself". In his statutory declaration he says that he pleaded with his parents not to send him back to Marist and he left at the end of 1971 and continued his education at another school, but he did not tell his parents about the sexual assaults.
In his statutory declaration he says that since leaving school he was in trouble with the police on numerous occasions, resulting in prison terms. His oral evidence is of being imprisoned on two occasions in Queensland. He also had problems with alcohol and drugs. He believes those problems stemmed from the assaults committed on him by the accused and that the accused "took away my belief in myself, self-respect and dignity along with my respect for authority".
Between his statutory declaration and his oral evidence, disclosure of his complaints appears to have come about in the following way. The first person to whom he gave details was a girlfriend in 2002 when, because of some personal difficulties he was having, she asked him if he had been abused as a child. He also mentioned it to his mother on a couple of occasions and he gained the impression that she did not believe him. However, within about two months she had spoken to C3 about it, because he had been at Marist and was a friend of the family. As a consequence, C3 telephoned him on two occasions, possibly two weeks to a month apart. Also in 2002, he reported the abuse to the Catholic Church's Towards Healing program and subsequently received $60,000 in compensation.
It is not altogether clear how the police came to first hear of C5 but it was not from him. It may have been from someone in the Towards Healing program, but I note that his brother also had some contact initially with Detective Sergeant Steven. A statutory declaration made by C5 with the assistance of that officer is dated 17 March 2004.
C6's allegations
Count 6 charges maintaining a sexual relationship with a young person under the age of 17 years between 1 February 1970 and 30 November 1970. C6 was aged 12 years at the time. He is now 47 years old.
C6 was a boarder at the school in 1970 and 1971. He says that he was sexually assaulted by the accused in 1970. It started when he was caught smoking by the accused. He went to the accused's room after study. He was dressed in pyjamas and a dressing gown. The accused asked him to sit on the bed and asked what they were going to do about C6's smoking. C6 replied that he did not know, he supposed he would have to go to Father Burns (for the cane). The accused said no, he could fix it up. He playfully punched C6 in the stomach, pushing him back onto the bed, and rolled him over. (In a statement C6 said that the accused put his hands inside his pyjamas and fondled his penis.) The accused then lay on top of C6 who had his face into the mattress. The accused pulled C6's pyjamas down and unsuccessfully tried to force his penis into C6's anus. C6 says that it hurt to start off with and then the accused ejaculated onto his back. The accused said "sorry, sorry", gave him a towel to wipe his back and sent him off to the dormitory.
He says that he was required to go back to the accused's room on other occasions. In the main his oral evidence was not specific as to particular incidents. He says that he would walk into the room and the accused would have his shirt unbuttoned and would be sitting in the chair and would have C6 sit on the end of the bed. In his oral evidence he refers to a particular occasion when the accused grabbed him by both ears, but then spoke in generalities as to occasions by saying that the accused had a habit of grabbing him by the ears, forcing his head down into his lap and making him perform oral sex on him. However, in a statutory declaration he refers to such an event as occurring on a particular occasion. Also in the statutory declaration he refers to an occasion when the accused rubbed his penis in his buttocks and ejaculated and he describes what he said was the last occasion on which he saw the accused in his room, when the accused was quite vicious, grabbing and painfully squeezing his penis, putting his finger into C6's anus and ejaculating onto his body.
He says that no-one else was present in the accused's room when the sexual assaults occurred. After two or three months he stopped going to the room. However, in his statutory declaration he refers to an occasion when the accused followed him into a toilet and held his penis while he tried to urinate. He also refers to other occasions when the accused would fondle him in a bathroom or when he was cleaning his teeth.
According to C6, he was the subject of other sexual assaults at the hands of one of the other teaching Fathers at the school. He refers to hearing other boys being called out of their beds to go to the rooms of the accused and the other Father and he says that he deliberately wet his bed so that if they came for him, they would not want him to go to their rooms when they saw the state of his bed. At the end of his statutory declaration he adds that the accused's abuse of him consisted of fondling, masturbating, ejaculating over him, making him masturbate the accused, urinating on him and forcing him to have oral sex with him.
C6's complaints
C6 says that when he was going back to the dormitory after the first occasion he was upset and crying. As he walked towards his bed, the teacher-in-charge of the dormitory came up to him and asked where he had been and he responded by saying that he had been to the accused's room. The teacher told him to get into bed and stop blubbering.
He says that he was never able to tell anyone about what had happened. He once tried to tell his mother, but he was not specific with her, complaining only that things were bad at school and that "they do things". She told him to "stop being so silly" and sent him back to school.
He had no contact with anybody who had been at Marist College after he left in 1971. Earlier this year he saw newspaper and television reports that the accused, and the other teacher who had sexually abused him, had been charged with sexually assaulting other students at the school. When he and his wife were travelling in a car, he broke down, crying. He told her what had happened to him. That was the first disclosure he had ever made. She persuaded him to see a doctor and in turn he was sent to counselling at Towards Healing. After a few counselling sessions, he went to the police at the counsellor's suggestion. She told him that it would help towards healing.
Lost records
Affidavit evidence of Gregory Alexander Walsh, the accused's solicitor, establishes that he enquired of the school and ascertained that due to the passage of time and in particular, flooding of an area in which records were stored, a number of the school's records relating to each of the complainants no longer exist. I accept that. However, I do not understand the way in which the accused may have been prejudiced as a result. To put it another way, I do not understand how it can be said that the records may have assisted the accused in his defence of the allegations. To a large extent, proof of the allegations depends on the memories of those who were present at the material times. It does not appear to be a case for which it is likely that records would have been helpful. It can be contrasted with a white collar fraud case, in a business setting, for which the existence and contents of documents might be extremely material.
The evidence of the accused
The accused refused to be interviewed by the police. He gave limited evidence before me. He said that he was charged in relation to the first five counts on 9 December 2003 and recently in relation to the sixth count. He denied that he did any of the things that the complainants allege against him and maintained that it is within his memory that he did not do so. He said that he has no recollection of any of the complainants as students or otherwise or of any interaction he had with them in 1970 or 1971 and in fact, that he could not recall any student's face or name specifically.
The accused said that he had looked at the school magazines for 1970 and 1971 but they did not assist him to recall the events of that time. I infer that he was referring to events that may be relevant to the charges. He said that he had also visited the school and that was of no assistance. He did not locate his old room because of changes that had been made. It appears that he has not spoken about relevant matters to anyone who may have been at the school in 1970 or 1971, or to anyone else other than his lawyers and Dr Roberts.
At the request of his legal practitioner, psychological tests of the accused were carried out by a psychologist, Dr Gilandas, and he was examined by a psychiatrist, Dr Roberts. The accused gave evidence that he cooperated with Dr Gilandas as best he could and that he answered questions asked of him by Dr Gilandas and Dr Roberts honestly and to the best of his ability.
Medical complaints and memory loss
It appears that the accused suffers from a number of physical illnesses. According to the psychiatrist, Dr Roberts, he has a history of cardiac disease and underwent cardiac bypass surgery and aortic value replacement in 1999. Like many of his age, he takes an anti-coagulant, Warfarin, and to control his cholesterol level, Lipitor. Since 1985 he has been known to suffer from diabetes which was reasonably controlled by the injected administration of insulin four times a day until his recent thyroidectomy, about which I will say more shortly. He is said to have an enlarged prostate, but that is not surprising given his age. He has had cataract surgery in his left eye and is expected at some time to have cataract surgery in his right eye. He has dealt with multiple skin cancers and hyperkatoses. He has complained of a history of diarrhoea for 18 months or so, but no diagnosis of any related illness has been made.
In 1963 he had a partial thyroidectomy performed, involving the removal of the left lobe of his thyroid gland because of a goitre. Leading up to the time of the hearing before me, he was complaining of respiratory difficulties affecting speech and breathing. A CT scan disclosed a large retrosternal thyroid mass which had displaced the trachea towards the side. Particularly for that reason, I only heard the application for a permanent stay and then adjourned the proceedings to allow the accused to have urgent medical and if necessary, surgical treatment. Since then the accused's solicitors have supplied me with the result of the treatment, and I understand that the same information has been provided to the office of the Director of Public Prosecutions. The cause of his problems was a large retrosternal goitre which had created a life-threatening situation because of marked tracheal compression. He underwent surgery on 14 September 2005 for removal of the goitre. He was discharged from hospital on 20 September, to be reviewed over the following two or three weeks. Most recently, I was advised on 18 October that the accused's solicitors were seeking updated reports from the various medical practitioners who had treated the accused and that a report of his general practitioner, dated 11 October 2005, had advised that his convalescence from the thyroidectomy was complicated with hypocalcaemia, requiring twice weekly checking of his calcium level, and paralysis of the right recurrent laryngeal nerve, as a result of which he had been unable to speak since the thyroidectomy. Another complication was that his diabetes had become very brittle, a matter that was to be discussed with a specialist for the purpose of stabilising his blood sugar level. The general practitioner expressed the opinion that the accused will not be able to attend a trial until early 2006. There is no suggestion that he will be permanently unfit.
Counsel for the accused submitted that it should be presumed that prejudice has been suffered by the accused by reason of the fact that any trial will necessarily take place about 35 years after the relevant events, because the complainants made no report to the police or other prosecuting authorities until recently, and that the accused has been particularly prejudiced by significant loss of his capacity to remember through a physical cause. It was a major focal point of the application for a permanent stay and I must deal with it at some length.
Although the accused claims to have lost much of his memory of the events of 1970 and 1971 and of the complainants and some other persons who were at the school in those years, he did not give evidence that he has noticed a loss of cognitive ability or of his capacity to remember. His case in that regard is based largely on the evidence of Dr Roberts, the psychiatrist who was engaged by the accused for forensic purposes and who had a consultation with the accused for about an hour on 18 July 2005 and a fairly brief consultation, for certainly less than half an hour, a few days later. Dr Roberts found significance in the reports of the psychologist, Dr Gilandas, dated 9 June 2004 and 18 July 2005. The results of psychological testing by Dr Gilandas on the latter date included that the accused had a Verbal IQ of 119 (90th percentile), a Performance IQ of 111 (77th percentile) and a Full Scale IQ of 117 (87th percentile), scores falling within the high-average range. He had reading skills at tertiary level (91st percentile) which amounted to further evidence of high-average premorbid intelligence. His visuospatial functioning appeared to be generally adequate and his language ability was intact. However, Dr Gilandas reported a general memory index of 98 (45th percentile) which he said was discrepant with the accused's estimated high-average premorbid intelligence. The general memory index result was derived from the following test results:
"· Auditory Immediate Memory Index was 99 (47th percentile; average)
·Visual Immediate Memory Index was 103 (58th percentile; average)
·Immediate Memory Index was 102 (55th percentile; average)
·Auditory Delayed Memory Index was 99 (47th percentile; average)
·Visual Delayed Memory Index was 100 (50th percentile; average)
·Auditory Recognition Delayed Memory Index was 95 (37th percentile; low – average)
·Working Memory Index was 105 (63rd percentile; average)."
Dr Gilandas reported having conducted tests designed to reveal whether the accused was malingering and they indicated that he was not. He also reported no relevant change in test results over a 12-month period, indicating that there had been no deterioration in the mental processes. The results of the tests were adjusted for the accused's age (68), so that although the tests show the accused's general memory index is in the 45th percentile, and therefore not far below average for a 68-year-old, his memory is deficient if compared to a younger general population.
A question that arises is whether, at some time since 1970 and 1971, the accused's brain has suffered some form of insult that has brought about what Dr Gilandas described as below expected memory sub-tests when compared with high-average general intelligence results. Dr Gilandas is not persuaded of that, considering that the memory sub-test scores "were not sufficiently deteriorated enough for a confident diagnosis of brain pathology/dementia". However, Dr Roberts expressed the opinion that an injury to the brain in the course of heart surgery in 1999 may have caused the apparent memory deficit.
Dr Roberts' opinion is based on the following matters. On 3 September 1999, the accused underwent surgery involving the replacement of an aortic valve with a St Judes valve and two coronary artery bypass grafts. An attempt at the operation was made the previous day but was abandoned because of "extreme difficulty intubating him", according to the operation report. It also stated that as the anaesthetic wore off there was "severe respiratory obstruction requiring breathing and anaesthesia again". Dr Roberts said that if a person suffers severe respiratory obstruction, hypoxia could develop and the brain might suffer an injury. Next, Dr Roberts referred to the results of two MRI scans of the accused's brain, one on 16 June 2004 and the other on 19 July 2005. There was no significant change between the two, which is suggestive, although it is not conclusive, that there is no ongoing degenerative disease. However, he said that visible on the scans is a degree of loss of brain mass, which according to Dr Roberts provides an explanation for the discrepancy between intelligence and memory functions revealed by the psychological tests. He said that it is irrefutable evidence of brain damage. He described it as cerebral atrophy, or brain shrinkage and that the evidence of that, which is provided by the scans, is unarguable.
A consideration of the report of the MRI scan on 19 July 2005, of Dr M Houang, reveals that what Dr Roberts puts much emphasis on is compatible with the accused's age and that in fact, the radiologist concluded that there was no significant abnormality. There is no support for the suggestion that extreme difficulty in intubating the accused in the course of the 1990 operation resulted in brain damage or that the accused's brain has suffered trauma at all. Dr Roberts accepted that it is speculative whether brain damage did occur in 1999 and I have difficulty understanding why he raised it at all as a serious possibility. At one point in his evidence, when dealing with the reference in the operation report to difficulty in intubating, he said "that would suggest though it's not spelt out that during that period of time hypoxia could well have developed". I was mislead by that answer for some time. I am now satisfied that there is no evidence that hypoxia did develop.
The accused gave no evidence about such matters, but according to Dr Roberts he was told by the accused that in terms of memory and concentration he feels that he has no difficulties. However, the accused said to Dr Roberts that nevertheless he was aware that there had been a change in his cognitive ability which he dated as having occurred after he had undergone the cardiac surgery. He apparently described the change by saying that he felt that he was not as astute, that he felt a slight slowing in terms of his mental processes following the surgery and that he noticed it in the sense of difficulties in following an argument or understanding an essay or book. Whether it is true or imagined I have no way of knowing. It may be a sign of the ageing process.
Upon the basis of Dr Gilandas' findings, I conclude on the balance of probabilities that the accused has a memory function that is close to but a little less than average for his age. His general cognitive ability is reflected by a Full Scale IQ of 117, which is in the 87th percentile and therefore, in the high-average range for a person of his age. The reason for the discrepancy between memory and intelligence function is unexplained. For how long it has existed cannot be determined.
Dr Gilandas and Dr Roberts agree that the accused is mildly depressed and anxious due to the charges against him. That, of course, is not surprising. They are also of the opinion that the accused has a greater difficulty in recalling as an elderly person who is emotionally stressed, with a mediocre memory for his age, and with multiple physical diseases, than would a younger member of the general population without those factors. They both commented that persons with a normal memory would have difficulty recalling the specifics of events that occurred over 30 years ago. That is undoubtedly correct.
I have found it impossible to tell whether the accused's claim not to remember the complainants and to have lost other particular memories, are truthful. If the allegations against him are true, I believe beyond doubt that he would remember enough to know that.
Legal principles
The relevant leading authority is Jago v District Court (NSW) (1989) 168 CLR 23, in particular the judgments of Mason CJ at 25 – 34 and Deane J at 55 – 62. I will summarise the principles that apply. Mason CJ noted that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process. Subject to statutory provision to the contrary, they also possess the power to control and supervise proceedings in their jurisdiction, a power that includes power to take appropriate action to prevent injustice. In the context of delay, the power to prevent an abuse of process is derived from the public interest, first that criminal trials and the processes preceding them are conducted fairly, and secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In that sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed, but it is an important consideration. In safeguarding the interests of the accused, the touchstone is fairness. The common law of this country does not recognise the existence of a special right to a speedy trial, or to trial within a reasonable time, which relies for its operation upon a concept of presumptive prejudice and not actual prejudice or unfairness. Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.
At 33 – 34, Mason CJ said:
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR at 102, 106; Sang [1980] AC at 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24 at 31 – 32 . At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo (1972) 407 US 514; Bell v DPP [1985] AC 937, as explained in Watson (1987) 8 NSWLR at 685, and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256 at 263 – 264.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR at 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'."
Deane J emphasised the central prescript of our criminal law that no person shall be convicted of a crime except after a fair trial according to law. An unfair trial represents a miscarriage of the curial process, and if circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process. As part of a consideration of the various factors that might be relevant to a determination, in a particular case, of whether prolonged and unjustifiable, and therefore, unreasonable delay, has produced the extreme situation in which any further proceedings should be permanently stayed, Deane J said at 60:
"The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (eg, an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process."
Deane J referred at 60 – 61, to five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances:
1 the length of the delay;
2 reasons given by the prosecution to explain or justify the delay;
3 the accused's responsibility for and past attitude to the delay;
4 proven or likely prejudice to the accused; and
5the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.
It was emphasised by Deane J that those factors should not be regarded as a code. This is not a case of delay on the part of the prosecution as it was in Jago's case. The delay came about here because the complainants did not make their complaints to the police for over 30 years after the alleged sexual assaults. The reasons for them not doing so is relevant.
It is clear from Jago that an order permanently staying criminal proceedings for delay will only be made in exceptional circumstances. Further, when exercising its discretion the court should have regard to the powers it undoubtedly has to render a trial more fair, for example by excluding evidence or by directing or warning the jury of the particular risks or difficulties that may have been encountered by the accused in defending the charges after such a long period of time had elapsed.
The exercise of the discretion
No particular prejudice has been proved by the accused. However, it was submitted by his counsel that it is likely and that if the accused is innocent, and he is entitled to the presumption that he is innocent until proven guilty, he will effectively be prevented from relying at the trial on surrounding circumstances that may once have been available to test the reliability and truth of the allegations, because there is simply nobody who can now assist in providing evidence of those surrounding circumstances. In that regard, I note that the accused, on his own admission, has not spoken to any person who was at the school concerning the allegations that have been made. Nevertheless, there may be some degree of merit in the submission, but it invites a response that experience shows that it is usual that sexual acts between offending adults and children take place in private. It is common in such a case for proof of the allegations to rest largely on the credit of the complainant being accepted and the credit of the accused being rejected. As was observed by Deane J in the passage I cited from Jago, the delay may often present difficulties to the prosecution. That may particularly be so if it is largely a case of the complainant's word against that of the accused, because of loss of and distortion in the memory of the complainant and the reduced likelihood that other witnesses will now be able to bring to mind events, evidence of which may once have supported the complainant's allegations. Although after such a long passage of time the only defence open to the accused may be for him to make a general denial of the allegations, with no recourse to the evidence of others, that may well have been the case even if the allegations had been raised by the complainants say, at about the time they became adults.
It is well known that sexual abuse of children is often not reported until long after the events and long after the victim becomes an adult. Frequently, many victims suffer badly, psychiatrically and psychologically, and eventually report what they believe happened to them to prosecuting authorities in the desperate hope that they will achieve relief and find some inner peace at long last. Regard should be had to considerations of that kind and to the public interest in bringing to justice those who may have so cruelly mistreated children. As Jago's case shows, fairness to the accused is not the only consideration when the discretion whether to permanently stay proceedings is considered.
The alleged indecent assault, or attempted indecent assault, on C4 on one occasion, by taking hold of his hand and pulling it towards the accused's crotch, was an extremely minor assault and I consider it as contrary to the public interest and the interest of justice that a charge of such a minor offence, in terms of culpability and seriousness, should go to trial as long as 34 years later. It will be ordered that the proceedings with respect to the charge are permanently stayed. However, the stay will not prevent C4 from giving evidence, particularly concerning the events the subject of the first count.
The accused has failed to persuade me that proceedings on the other charges should be permanently stayed.
Although C1 does not claim it, evidence is available from Father Jago that upon an indecent assault by the accused being reported to him by C1, Father Jago reported it to the school principal. However, prosecuting authorities were not informed. C1 says that he has been deeply affected by the sexual assaults he believes were committed on him by two of the teachers at the school and by the caretaker of the nearby oval. I conclude that it is in his interests and in the interests of the public, that his allegations, which are charged in count 1, should go to trial.
There is available evidence from C2 and Christopher Bartlett that C2, who was aged 13 at the time, complained to a prefect who in turn reported the matter to the school principal. Although the report, along with all the other similar reports Father Hosie appears to have received, may have resulted in the accused being quickly transferred in his employment to another place, with the protection of the school's reputation seemingly gaining prominence, the alleged conduct was not reported to the police as it should have been at the time. There is no evidence that C2 was permanently and adversely affected by the one indecent assault that he alleges took place. Nevertheless, he reported it at the time to a responsible person and it was in no way his fault that his report was not passed on to the police. It is in the interests of the public that his allegations should go to trial.
Although C3 says that he did not report to the school's principal the sexual assaults he says were committed against him by the accused, he reported to the principal on the following morning the incident he witnessed that involved the accused sexually misbehaving in the presence of boys in his room. He says that for his pains the principal accused him of lying. He was deterred from reporting the sexual assaults upon himself. Even his father was reluctant to listen to him. His explanation for not reporting the matters to the police until 2004 was that he had spent 30 years being upset by it but he had not been game enough to do so. It was only as a result of the police contacting him that he eventually told them about what he says occurred. It is in the interests of the public and in his interests that his allegations should go to trial.
C5 says that he made no report of the crimes committed by the accused against him, either to the school, his parents or anyone else for over 30 years. He believes that many of his life problems, such as alcohol and drugs, and his offending, stemmed from the accused's sexual assaults upon him. It was not until 2002 that he told anyone about them. Subsequently, the police approached him, it would seem as a result of his opening up to others. It is in the interests of the public and in his own interests that his allegations should be allowed to go to trial.
C6's allegations are extremely serious ones. They include oral sex, attempted anal sex and urinating on him. He says that he was also the subject of sexual assaults by another teacher. He says that after the first occasion of being assaulted by the accused he was crying in the dormitory and the teacher-in-charge told him to stop blubbering. He was 12 years old at the time. Thereafter the assaults continued for a time and he felt unable to tell anyone of what had happened. It is an all too typical account of child sexual abuse. It appears that his report to the police only came about following his breaking down earlier this year and telling his wife about what had occurred. It is in the public interest and in his interests that his allegations should be allowed to go to trial.
Conclusion
Accordingly, it will be ordered that proceedings on count 4 are permanently stayed. Insofar as the accused's application seeks a permanent stay of proceedings on counts 1, 2, 3, 5 and 6 it will be dismissed. The decision not to stay proceedings on those counts has been made upon the basis of the evidence before the Court at the time of the hearing and on the assumption that the accused will substantially recover from the effects of his recent surgery and in particular, that he will recover his ability to speak. If that assumption is wrong it will be open to the accused, if he wishes to do so, to once again seek to persuade the Court that the proceedings should be permanently stayed.
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