McIver v R

Catchwords

(2006) 80 ALJR 497 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283[2011] HCA 2 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577[2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Ford v R [2020] NSWCCA 99 Gaudie v Local Court (NSW) [2013] NSWSC 1425(2013) 235 A Crim R 98 Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 Isbester v Knox City Council (2015) 255 CLR 135[2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488[2000] HCA 48 Libke v The Queen (2007) 230 CLR 559[2007] HCA 30 Livesey v New South Wales Bar Association (1983) 151 CLR 288[1983] HCA 17 M v The Queen (1994) 181 CLR 487 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504[2008] NSWCA 209 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507[2001] HCA 17 Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300(2009) 170 LGERA 162 Pell v The Queen [2020] HCA 12(2020) 94 ALJR 394 R v McIver [2019] NSWDC 672 R v McIver [2019] NSWDC 834 SKA v The Queen (2011) 243 CLR 400

Judgment (26 paragraphs)

[1]

Background to the complaints

The applicant was a Salvation Army officer who was for two discrete periods a member of staff at the Bexley Boys' Home. Those periods were from 18 July 1968 to 14 November 1971 and from 20 January 1972 to 17 January 1974. The resident boys at the Home were either wards of the State or had been left in the care of the Home by their families because they were unable to look after them.
The alleged offending involved four boys. However, the offences in respect of which a guilty verdict was returned involved three boys.
The alleged offending may be summarised as follows: Count 1 was alleged to have taken place between 17 July 1968 and 15 January 1971. It was alleged that the applicant pushed AM over in the shower area causing him to fall on a wash trough and lacerate his eye which required stitches. Count 2. This occurred between 17 July 1968 and 15 January 1971 involved the applicant making AM bend over in the shower and grabbing AM's buttocks cheek. Count 5. This occurred between 6 July and 5 December 1973. It involved the applicant making DC bend over and part his buttocks cheeks. The applicant then moved his hand over DC's anus. Count 6. This was alleged to have taken place between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974. The applicant is alleged to have assaulted CN when CN was annoying the applicant's dog by playing a mouth organ. Count 8. This occurred between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974. The applicant inserted his penis into CN's anus in the officer's cottage. Count 10. This occurred between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974. The applicant inserted his penis into CN's anus in the locker area of the Boys' Home.

[2]

Count 1

Counts 1 and 2 concerned AM. AM was resident at the Home from 10 September 1965 until 17 December 1971. He was aged between 6 and 11 years when he was there.
Count 1 was alleged to have occurred in the shower block. AM said that as he was getting ready to enter the showers, he felt a shove in his back, and fell in the wash trough, occasioning a cut above his right eye. At the time this occurred the boys were all lined up and naked, waiting for their turn in the shower. A man known as Uncle Terry (Terry Smith) was supervising in the locker room where the boys undressed. AM said that the applicant had come to the doorway and said words to the effect, "Come on, move along", before AM was pushed. He alleged it was the applicant who pushed him.
AM said that Uncle Terry administered First Aid, and AM was taken to St George Hospital. He had stitches before being returned to the Home.
The trial judge found the applicant not guilty of count 1.

[3]

Count 2

This count related to a day where AM was expecting his father to come and visit. It was a Saturday, and AM said that he was around eight years of age. He was playing at around 1:30pm to 2:00pm, and was told to have a shower to get ready for his father. His father was coming because AM's brother was in hospital.
AM was in the shower by himself but the applicant subsequently came into the shower room. The applicant told him to turn around and bend over. He said that the applicant touched him on his backside, like a grab. AM said the situation of the applicant touching him on the backside stopped when Major Morton, the head of the Home, and another man and woman walked past the doorway near the shower.
He told his brother about it a few days later and his brother did not say anything in response. He was too ashamed to say anything to anyone else. AM said this incident took place before the death of a boy called TH. The death of TH was a significant event about which evidence was given at the trial. TH died on 3 June 1969.

[4]

Count 5

Count 5 concerned DC. DC was a resident at the Home for five months from 7 July to 14 December 1973. He was approximately 14 years old when he was sent to the Home.
The incident constituting count 5 was said to have occurred on a Sunday evening. DC had been brought back to the Home during the afternoon, following attendance at Church. He was then required to have a shower.
On the day of the incident, DC said that there were fewer staff and fewer boys than usual at the Home. While DC was in the shower he said that the applicant said to him, "Come here, bend over". The applicant then said, "You've got worms". DC then felt a brush of a hand and some prodding around his anus. That caused DC to say to the applicant, "Are you having your jollies there, are you a poofter?" This caused the older boys in the shower area to laugh. The applicant told DC to "get to the office".
DC went and sat in the office area for a long time in the dark. He was very nervous and sucking on his upper arm which caused some bruising. The applicant eventually arrived and they went into the office. The applicant said to DC that he had every right to cane him. DC said, "Well I don't know what you're going to do with me now, but whatever you do I'm going to show your son what you've done and I'm going to show everyone at Rockdale Salvation Army what you've done." DC said that the applicant then told him to pretend that he had been caned and return to the group of boys back in the playroom.

[5]

Counts 6-10

These counts concerned CN. CN was a resident at the Home from 1 May 1964 to 23 February 1974. CN had not turned five when he was put in the home.
CN was initially in the Home with his brothers SN1 and SN2, but they both left the Home when they were fostered out to families prior to CN leaving.
Count 6 involved the offence of common assault. CN recalled that the applicant had a silky terrier dog. He used to see the dog regularly, and he played a mouth organ to the dog to make it howl.
On one occasion when he was making the dog howl the applicant came up and grabbed him by the scruff of the neck. This occurred in an area that was between the officers' quarters and the back area of the steps that led up to the dormitories. The applicant told him to, "Cut it out and stop doing it", and took the mouth organ from him. He then gave CN a clip behind the ears.
The trial judge found the applicant not guilty of count 6.
Evidence was also given about an uncharged act involving CN and the applicant which was said to have taken place in the laundry at the Home. The matter was relevant because it was said to be the first incident of a sexual nature between CN and the applicant. It was also relevant because the account of it given by CN was used by the trial judge as support for CN's credibility, and used in a different way by the applicant to cast doubt on CN's credibility.
CN said that he had been in trouble with Major Morton. He yelled out a number of swear words at him and then took off. The applicant followed him to the laundry. CN tried to hide in one of the clothes baskets under the clothes. The applicant pulled him out of the basket. The applicant then put CN's hand on the applicant's penis. Having done so, he told CN to "get out".

[6]

Counts 7, 8, 9 & 10

The Crown prosecutor opened the case that counts 7 and 8 occurred together with count 9 being in the alternative to count 8. CN had been "mucking around by himself" in an out of bounds grassed area near the assistant manager's quarters. The applicant arrived and took CN to one of the officer's quarters. They went through an office door that led to a room with a desk, a dresser, set of drawers and a cot or a bed to the side. The Crown opened by saying that the evidence would be that CN was told by the applicant to drop his pants and the applicant "started fondling his penis and scrotum" (it was not clear whether this was a reference to CN's penis and scrotum or the applicant's). The Crown then said that count 8 immediately followed which was that the applicant inserted what the complainant believed was the applicant's penis into CN's anus.
When CN gave evidence, he said nothing about the fondling of the penis and scrotum that constituted count 7. In those circumstances, on the Crown's application, her Honour found the applicant not guilty of count 7.
In his evidence, CN was asked what caused the pain he felt and he said, "Well I don't know, I presume it was either his penis--". At that point counsel for the applicant objected. No further evidence was given about the matter. Presumably because CN did not see what was inserted into his anus, count 9, being an indecent assault on a male, was pleaded as an alternative to count 8 being a charge of buggery. The trial judge found the applicant guilty of count 8.
Count 10 occurred in the locker rooms. CN said that he was in the locker rooms trying to see what he could steal from the lockers. The applicant came into the locker area so CN tried to hide himself. He said the applicant grabbed him by the arm and turned him around to face the locker. CN said that the applicant then penetrated his anus with the applicant's penis.
The trial judge found the applicant guilty of count 10.

[7]

The trial judge's judgment

The trial judge first set out the warnings and directions she was required to give in a judge alone trial. No complaint was made about those portions of the judgment. Her Honour found that the applicant had suffered a significant forensic disadvantage because of the consequences of delay. A number of witnesses were deceased or were not able to be located. Rosters and punishment records from the Home were no longer available. Her Honour concluded in that regard: The accused has been put in a position of significant disadvantage. He has been prejudiced in the conduct of his defence, as a result as noted above; before I convict the accused I must give the case the most careful scrutiny.
In the section of her Honour's judgment headed "Findings", the trial judge said this: The accused was an unimpressive witness. He presented as controlling, domineering and argumentative in the witness box. He insisted on continuing his answers even when he was reminded by me on a number of occasions that his answers were unresponsive. He spoke over counsel and argued with counsel. He ignored my requests for him to limit himself to a responsive answer. He tried to shift blame for his answers onto the Crown for skewing questions and even to his own counsel, suggesting that she was not being robust enough in objecting. In my view the accused was a witness who lacked candour. He appeared vague when answering questions which were neither complex nor demanding, for example, his recollection of the complainant, CN, who was one of the youngest boys who ever came to the home, remained for the longest terms and, on his own admission, one of the most difficult or naughty boys at the home. The accused had, at best, a vague recollection of this complainant. The accused was unwilling to make concessions in cross-examination. His evidence of what he wore whilst on duty at the boys' home was unpersuasive and appeared contrived to defect blame away from himself. His lack of reliability on important issues causes me to reject his denials of offending. I must stress, however, that just because I do not accept parts of the accused's evidence does not mean that I would necessarily find him guilty of one or more counts in the indictment. I repeat, before I could find the accused guilty I must be satisfied beyond reasonable doubt that the complainant, whose evidence I am considering, is an honest and accurate witness. In assessing the reliability of each complainant I must have regard to other evidence that may support the complainant's account that I find established. I therefore disregard his evidence and am required to focus on the other evidence. Whilst called as a Crown witness I also consider that the witness Terry Smith was also unreliable. His manner of responding to questions was combative, arrogant and rude. His recollection was selective. His recollection of the traumatic events of the death of TH was inconsistent with many other witnesses; I thought it was self-serving. I do not accept Mr Smith as a reliable witness.

[8]

Count 1

In relation to count 1, her Honour found that the incident as described by AM occurred. However, her Honour held that the Crown had not ruled out that the applicant was acting in lawful correction of AM pursuant to s 61AA of the Crimes Act.

[9]

Count 2

In relation to count 2, her Honour said this: This charge is "That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales the accused did indecently assault AM, a male" pursuant to s 81 of the Crimes Act 1900. The allegation supporting this count was that the accused made the complainant bend over in the shower area and grab the complainant on the buttock cheek. AM provided a detailed and consistent account of what happened with respect to the incident supporting count 2. The complainant alleged that when he was around eight years of age he was touched on the bottom by the accused in the shower. He had been told that his father was coming to see him. No doubt for a boy in AM's situation as a long term resident of the boy's home, that of itself would have been memorable. This visit was outside of the usual visitors' routine because the complainant's brother was in hospital. I pause to note that both GM in exhibit 7 and RG gave evidence of an occasion when GM was in fact in hospital. AM said he was told to have a shower by the accused and get dressed in his khakis. He was in the shower area by himself. It was around 1.30 or 2 o'clock in the afternoon. He was reluctant to leave playing, but when he was told he was to see his father he was excited. He was hoping that it would be good news, that he was going to go home. This evidence particularly rang true given the age of AM and the fact that he had been in the home for some considerable time. He was on his own in the shower area for a while before the accused turned up. He had left the room and then came back. He was told to step forward and turn around. The complainant was then touched on the bottom by the accused. He said, "As I've come forward in the shower room I was told to turn around and bend over. I was touched". He said it startled him. He described it as like a grab, just a grab on the backside with the right hand side of his buttocks cheek being touched by the accused. Major Morton walked past the doorway near the shower with a lady and another man. He believed that that is why the situation stopped. This was the only time that it ever happened. He said he was petrified. He did not say anything at that time or after. He told his brother a couple of days later, but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the accused. His brother did not say anything in response. I was watching the witness closely and observed the earnestness with which he approached his response to each question posed to him. This was not studied nor contrived. It was completely natural and complimented (sic) the very positive view I have formed with respect to his credibility and reliability. His demeanour did not change between evidence-in-chief or cross-examination. He remained polite and co-operative throughout. As noted above, the complainant gave evidence that he thought the accused was nasty. He explained that this was because of the repeated hostile acts that the accused had inflicted on him. He tried to avoid contact with the accused as a result. The complainant gave considerable detail in his account of what happened including: • when it happened; • why he was there; • the extraordinary nature of the events that caused him to be showering at that particular time; • 1.30 or 2 o'clock in the afternoon; • his hopes that he would be taken away by his father that day; • only he and the accused were present until Major Morton walked by with two others; • the careful details of what he was told to do directly before the assault; • the significant details of the actual indecent assault; • how he felt after this happened; • his feelings of shame and: • why he did not complaint. AM described the area where this happened with accuracy which was consistent with exhibit 2. His stated age of eight years at the time coincided when Mr Morton and the accused would have both been at the boys' home and the approximate length of time that the accused had been present at the boys' home. I have considered his evidence very carefully. I have had close regard to all of the directions that I have given myself and remind myself again of those warnings and directions. I do not consider that AM was mistaken as to the identity of the accused. He knew him very well and gave compelling evidence as to his knowledge of the accused and his behaviour towards him over a considerable period of time. His identification of the accused was reinforced as effectively the accused was in loco parentis of AM. I do not consider that any misplace (sic) or misconceived animus that may have been held by AM towards the accused for the tragic death of TH had caused him either consciously or subconsciously to mistakenly identify the accused. I remind myself that "indecent" means contrary to the ordinary standards of respectable people in the community. For an assault to be indecent it must have a sexual connotation or overtone. I am accordingly satisfied that in all of the circumstances involving an actual naked boy in a shower area who was told to turn around and bend over and then grabbed on a naked buttock cheek, I am satisfied beyond reasonable doubt that satisfied the meaning of indecent. I found AM to be a credible and reliable historian and witness. Even after reflecting again on the warnings that I must give myself, and based on the compelling and reliable account of AM, I accept that the accused did in fact touch AM on the bottom in the manner alleged. In all of the circumstances I am satisfied of the accused's guilt beyond reasonable doubt with respect to count 2 and accordingly find him guilty of count 2.

[10]

Count 5

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

[11]

Count 6

In relation to count 6 her Honour found, as with count 1, that the Crown had not ruled out that the applicant was acting in lawful correction in admonishing CN, although she accepted that the incident occurred as CN related.

[12]

Counts 8, 9 and 10

In relation to counts 8, 9 and 10, her Honour said this: COUNT 8 "Between 17 July 1968 and 15 January 1978, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900, and in the alternative to count 8; COUNT 9 "That between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did indecently assault CN, a male" pursuant to s 81 of the Crimes Act 1900. CN was mucking around in the 'out of bounds' area of the grassed area near the assistant manager's quarters. He was not allowed there. It was daylight. The accused took him down to the officer's quarters. He was dressed in his normal white shirt and black pants that is the accused. They went into a room. The accused told CN to face the wall. In one of the rooms there was a desk, a dresser set, drawers, a cot or a bed. He was told to turn around and face the wall. He did as he was told. The next minute he "just felt some shooting pain in my behind". He was wearing his play clothes which were taken down to his knees. He then felt a sharp pain in his rear end. The next minute he turned around. He uttered "a few obscenities and took off out of the room". He was pulling his pants up as he was going. He felt a sharp ripping pain in his bum. He felt pain, he panicked and he fled. He pulled up his pants as he went. He yelled abuse at the accused. He then hid himself under the pavilion. He noticed blood spots on his underpants and in the following days his bottom was sore. He did not tell anybody about what happened to him. He described feeling pressure in his bottom. CN gave a detailed account of the anal penetration by the accused. I found his account compelling for a number of reasons. The complainant has provided a relatively detailed account of where this happened. He described: • he was initially in an out of bounds area which he described as a grassy area; • it was daylight; • he was able to describe what the accused was wearing being normal white shirt and black pants; • he himself, CN, was wearing his play clothes; • these were taken down to his knees; • he was able to describe some of the furnishings in the room including a cot or a bed; • he described very frankly what the pain felt like; • he described what he did and where he went immediately after the act of anal penetration; • he saw blood on his underpants and; • his bottom was sore for a few days after this. I found support for CN's account in the fact that the accused's accommodation was in accordance where CN had nominated the assault as occurring. Both the accused and Mrs McIver confirmed that there was a cot in both their bedroom which moved subsequently into the second bedroom at another time. There was also evidence to suggest that there were times that Mrs McIver who also lived at those premises would be absent either when she herself went to work or when she would be taking Bradley to a doctor's appointment or visiting her mother in the northern beaches. I have turned my mind closely to the question of proof with respect to what was used to support this act of buggery on count 8. To satisfy the elements of count 8 I must be satisfied and satisfied beyond reasonable doubt that the accused penetrated the anus of CN with his penis. I found CN's evidence honest, accurate and compelling. As I have said that with respect to general details there was a substantial part of his evidence that was corroborated by other witnesses. His description of the laundry was I find largely confirmed as accurate by what the accused described in his ERISP of June 2017. I find for example that CN was accurate with respect to many aspects of his evidence, for example: • the daily routine of the boys' home; • the showers routine; • the appearance of the accused; • his particular recollection that the accused wore glasses, which no one else said, which was in fact confirmed by the accused in the June ERISP and; • what the accused wore in general. I find accordingly his evidence to be accurate. I found his account very real. As I have said, his evidence had a ring of truth about it which was impossible to discount. His description of the pain and the sensation he felt upon his anus being penetrated was detailed and graphic. He saw blood on his underpants and felt pain in his backside area for a number of days. All of that evidence is consistent with an act of anal penetration. I am satisfied in all of the circumstances that the accused used his penis to penetrate the anus of the complainant. I am so satisfied simply because there was no other evidence of the presence of any other object in that room capable of penetrating the complainant's anus. I remind myself that I do not leave my common sense at the door when I am deliberating. I am satisfied beyond reasonable doubt that the accused performed the act of buggery upon CN which supports count 8. I find that proven beyond reasonable doubt and I find the accused guilty of count 8. I therefore do not need to turn to the alternative count 9 which subsumed in count 8. COUNT 10 "Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900. CN said that the third incident happened in the locker rooms. He had been in the locker rooms trying to see what he could steal from the lockers. The accused came in. He said he tried to hide himself behind the lockers. He said you could hide behind the end of the row of lockers. The complainant explained how that might be possible with reference to exhibit 3, photograph number 9. He said the accused grabbed him by the arm and they were standing chest to chest. He turned him around to face the locker. The accused penetrated the complainant and "stuck his dick in my bum. He just moved his pelvis". He said that that seemed to last for an "…eternity". He then was told to get out. He said that his bottom was sore and had a spot of bleeding. As I have noted above, I found CN to be both honest and accurate. He gave clear details with respect to the layout of the locker room. He gave a clear sequence with respect to the narrative of this third assault, count 10, the act of buggery, as to: • where it happened; • what happened and; • that he and only he and the accused were present. He gave a compelling account of this occasion. His evidence was attacked on the basis that the reason for being in the lockers was flimsy as there was nothing of value to steal. That suggestion fails to take into account that these boys in the home had very little in the way of worldly possession. That submission or suggestion fails to take into account the fact that toys, books or clothes were items of value and worth stealing to indigent boys. CN's self-critical account of reasons why he was in the locker, i.e. looking for something to steal, ring (sic) true for a boy who had effectively nothing. It also fits in with his earlier evidence that he was not the best behaved boy in the home. His evidence was also criticised on the basis that the lockers would have provided no place for him to hide. Having seen the photographs and understanding the layout I am satisfied that that would have been at least an opportunity to attempt to hide behind those locker structures. For all of the above reasons I find CN an honest and accurate witness. I accept beyond reasonable doubt his evidence with respect to count 10, the act of buggery which supports count 10, and I therefore find the accused guilty with respect to count 10. I find that act proven beyond reasonable doubt and accordingly find the accused guilty on count 10.

[13]

Ground 2: Apprehension of bias

Where a ground of apprehended bias is raised along with other grounds of appeal, the Court must first consider the issue of bias, because bias strikes at the validity and acceptability of the trial: Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577; [2006] HCA 55 at [117].

[14]

The issue as it developed

The complainant CN gave his evidence on the sixth day of the trial, 13 August 2019. After he had been asked by the Crown prosecutor questions in relation to the complaints made by him against the applicant, he was asked about being adopted out at the age of 13 years. He was then asked some questions about his life thereafter. One of those questions asked about him starting work as an apprentice butcher. After some further examination from the Crown prosecutor he was cross-examined for some time by counsel for the applicant.
At one point CN asked for a break, and after he had left the Court the following exchange occurred: HER HONOUR: Does anyone know if CN ever worked in a butcher shop in Paddington in Sydney? MCSPEDDEN: I can ask him. HER HONOUR: If you can ask him then we might have a situation, and he looks vaguely familiar and when I read that he was a butcher. But then because he came from out of state, I didn't make the connection, but it might be just prudent to make the inquiry. CROWN PROSECUTOR: I am just wondering it might be better if it came from your Honour. HER HONOUR: Very well, I'll ask him, if the parties don't mind. I'm just concerned that back in the early 2000s there was a butcher in Paddington that I used to go to and he looks very familiar to one of the butchers, but if he wasn't there then that's a relief in some ways for the trial.
When CN returned to the Court her Honour then asked him some questions as follows: CN, are you okay to bat on for just a little while; hopefully it won't be too much longer? WITNESS: Yep, thank you. HER HONOUR: Can I ask you a question? WITNESS: Yes. HER HONOUR: You have said that you trained as a butcher? WITNESS: Yes, that's correct. HER HONOUR: And did you ever work as a butcher in Sydney? WITNESS: Yes, I did, yes. HER HONOUR: Did you work in the Paddington area? WITNESS: Yes, I did. HER HONOUR: Did you work in a shop that was owned by a fellow on Oxford Street, [XY Butcher] I think it was called? WITNESS: Yeah, that rings a bell, but I don't - I can't remember the street it was on. HER HONOUR: Owned by a fellow called Bill? WITNESS: No, it doesn't ring a bell. 10 HER HONOUR: When did you work there? WITNESS: It would have been in the early 20s, I was working around there then. And I sort of travelled all around Sydney wherever the best money was. HER HONOUR: And you worked there for a number of years? WITNESS: Yes. HER HONOUR: We might have a little break, CN. CLOSED-CIRCUIT TELEVISION DEACTIVATED I did not make any connection because I knew nothing about CN until I was handed VD1 and I read that after he left the home he worked as a butcher and finished the apprenticeship and you know how it takes a long time to percolate things through your mind. And the name CN started to ring a distant bell, and his face was very familiar, and seeing he has been giving the evidence that he did work in a butcher shop in the early 2000s in Paddington it occurs to me that he is the butcher that I used to be served by on a very regular basis which causes me a lot of discomfort and disquiet, and given that this is a judge alone trial I am feeling all the more troubled by that. Were it not a judge alone trial one might have a certain different take on it, but I'm so distressed. Of all of the judges of the District Court, of all the butchers in Sydney. We might have to ask CN to come back so I'm going to have to consider my position because--- MCSPEDDEN: And I need to take some instructions your Honour. HER HONOUR: Indeed, and I think that I'm very troubled by this because my views of people's credibility issues and reliability are so important to the process, and it would appear that it is the same man. And not only should justice be done but there's the perception that the community must see, and I don't think he's connected that I was his customer, but (1), I'm robed and it's very different and it's like 18 years ago or something. We might ask CN to come back tomorrow and we might all regroup tomorrow if that's convenient, so all the parties can consider their respective positions. CROWN PROSECUTOR: Really the decision's very much in your Honour's own hands because your Honour is the only one that was there on the other side of the counter, but I'm just wondering whether it assists to say that, but obviously from the Crown's perspective any rate we can't make any submission until your Honour indicates what effect, if any, it has had on you. I note from what your Honour has said your Honour has listened to his evidence and been assessing him for quite some time before your Honour has twigged to that connection. It's only when you have seen the reference to a butcher. I only have to think of my own local butcher and I know I share tales with him and we have quite an amicable relationship and I have formed a view about him. If your Honour really just remembers the complainant as a butcher and has no feeling one way or another then HER HONOUR: No-- CROWN PROSECUTOR: the Crown's position would be very neutral-- HER HONOUR: As a mother buying a lot of meat over a continued period of time, I've bought a lot of meat from him. And I'm sure he gave me the best cuts. MCSPEDDEN: Kilos and kilos. HER HONOUR: Indeed. CROWN PROSECUTOR: We are not talking about credibility, we are talking about the cuts. HER HONOUR: the cuts and not the cuts of the cane either. I think we might get CN back and just ask him to come back tomorrow and then everyone can consider their respective positions, and particularly myself. CLOSED-CIRCUIT TELEVISION ACTIVATED CN, we're back. Look, something's come up and we won't be able to finish it this afternoon. WITNESS: Okay, your Honour. (The portions in italics do not appear in the official transcript issued to the parties, but were transcribed from the tape recording of the proceedings. Emphasis otherwise added)

[15]

Submissions

The applicant submitted that it is a well-established principle that a judge should not sit if, in all of the circumstances, the parties, or a fair-minded lay observer, might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the matter. Reference was made to Tarrant v R [2018] NSWCCA 21 and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20.
The applicant submitted that the judge took into account two irrelevant factors in arriving at her decision not to disqualify herself. The first was whether or not CN recognised her or remembered that she was a customer in the butcher shop. The applicant submitted that the reality was that the trial judge sitting as the trier of fact, had dealings in the past with CN in ways wholly unconnected with the trial.
The second irrelevant matter was submitted to be the fact that her Honour took into account that she was a judicial officer who had sworn an oath to be impartial. In that regard, the applicant submitted that the application was not one made on the basis of actual bias but on the apprehension of bias.
The applicant submitted that although the connection between CN and the trial judge may have been commercial and not personal, it was obviously one that had continued over a period of years. The applicant submitted that it was one that was important enough for her Honour to recall it many years later and was one that obviously engendered positive feelings about CN arising from her Honour's experience of him as a butcher.
The applicant submitted that it was clear from the transcript that the sense that her Honour knew CN had been troubling her for some period of time and the realisation only dawned as cross-examination was occurring. Apart from anything else, that was potentially very distracting for the trial judge who was bound to listen to and assess the evidence. The matter was particularly important because the primary issues in the trial were said by the Crown prosecutor to be the accuracy or truthfulness of the complainants and whether they identified the right person as their assailant.
The applicant submitted that it was clear from the trial judge's reasons that she found CN's testimony to be quite moving. Accordingly, the fact that reliability and accuracy of the complainants was central to the contested issues in the trial made it even more important that her Honour not only approach the task of fact finding in an objective and dispassionate way, but also be seen to be doing so. There was always a danger that the tragic life story of CN might bring on strong emotional reactions.

[16]

Determination

The assertion in the present case is not that the trial judge was actually biased but that from the time she disclosed that she knew CN there was an apprehension of bias. The test is stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]: … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The judgment went on to say at [7]: The question is one of possibility (real and not remote), not probability.
In McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Basten JA said at [110]: The use of the word "might" in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability: see Ebner at [37]. Similarly Spigelman CJ in the same case said at [14] that the test as expressed in terms of two "mights" sets a low threshold.
The test set out in Ebner was applied in a case involving a judge-alone trial in the District Court: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [1]. [51] and [80]-[85].
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 Lord Hope of Craighead said at [2]-[3]: The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. ... Her approach must not be confused with that of the person who has brought the complaint. ... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. ... Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

[17]

Ground 1: unreasonable verdicts

Notwithstanding the determination concerning apprehended bias and the requirement for a further trial, it remains necessary to consider what if any of the counts charged should be remitted for further trial, by determining whether this ground is made out in respect of any of the four counts where findings of guilt were made.

[18]

Submissions

The applicant submitted that the trial judge unreasonably discounted all of his evidence. Although her Honour did not believe his denials, there was no reason why she should disbelieve everything he gave evidence about. The applicant gave as an example the fact that he said that there was no riot where he was set upon by the boys after the death of TH. The applicant submitted that the fact that there was no riot was supported by all the other witnesses except CN.
The applicant submitted that it was unreasonable for her Honour to take his strong rejection of the allegations of buggery as an indication that he was not being honest in his denials. The applicant submitted that his very firm moral beliefs did not suggest a lack of credibility, and that it was wrong of her Honour to use those responses in that way. The applicant submitted that, in a similar vein, it was unreasonable to discount totally the evidence of Terry Smith for the same or similar reasons.
The applicant submitted that in coming to the conclusion that he was guilty, her Honour ignored or discounted important evidence that contradicted the accounts, particularly that of CN. The following matters were highlighted by the applicant in his written submissions: (a) The uncharged act in the laundry could not have occurred at the time it was alleged to have occurred because the applicant was not at the Home at that time; (b) Her Honour ought to have had a doubt that the applicant was ever asleep in the officer's quarters adjacent to the boys' dormitory at the time TH died; (c) There was no evidence to support the assertion that there was a riot following the death of TH; (d) The applicant could not have pushed AM in the back causing him to fall at the time alleged, because the St George hospital records and other evidence showed that the applicant was not at the Home at that time; (e) CN's evidence regarding the "Sunday parents" was clearly wrong; (f) CN's inability to exclude the possibility that the events he complained of occurred at a time before the applicant arrived at the Home did not factor into her Honour's assessment of CN's credibility or into whether there was a doubt about the applicant's guilt; (g) Given that there were a number of members of staff at the Home who were subsequently convicted of sexual offences involving boys at the Home and other Homes, there was a real danger that the complainants had conflated their hatred of the applicant, their memory of TH's death, and the person who in fact sexually or indecently assaulted them at the Home; (h) Her Honour's reasoning completely ignored the evidence of DJ which tended to contradict the evidence of CN; (i) There was a reasonable possibility that there had been contamination of the evidence of the complainants; (j) CN claimed to remember the boy Ian in the photograph of the boys on the trampoline when the photograph was of TH's brother, IH, who was at the Home from 1960 to 1968 before the applicant worked there; (k) The applicant's evidence, which was said to be uncontradicted, that it was the practice always to have two staff members supervising the boys in the shower with a clear line of sight from the locker area to the shower block, was unreasonably ignored or discounted by the trial judge. That evidence made less likely the truth of the allegation made by AM; (l) In relation to count 8, the Crown was obliged to exclude the possibility of anything but the applicant's penis being inserted into CN's anus. The Crown could not possibly exclude that it was another object because CN did not see the applicant's penis. (m) Her Honour's description of the complainants' accounts as visceral suggested that her Honour allowed emotion to enter into her deliberations.

[19]

Determination

The principles applicable to a ground that verdicts are unreasonable have been set out by the High Court in M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, The Queen v Baden-Clay (2016) 258 CLR 308; [2-16] HCA 35 and Libke v The Queen. These principles also apply to judge alone trials: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In Filippou the plurality (French CJ, Bell, Keane and Nettle JJ) said: [12] Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen: "It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." … [56] Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was "satisfied that the judge's account was correct" but whether her Honour's findings as to the sequence of events were not reasonably open. … (Footnotes omitted.)

[20]

Displacement

It is clear both from senior counsel for the applicant's statement made at the outset of his submissions at the hearing of the appeal, and from the final address on behalf of the applicant before the trial judge, that the significant issue is and was whether there has been substitution of the applicant for another perpetrator or, in the words of the applicant's counsel at trial, whether displacement has taken place in that regard. Reliance is placed on assertions that a number of other persons who worked at the Home were convicted of sexual offences against some of the boys at the Home or at least that allegations were made against other persons. Those persons were said to be Russell Walker, Lawrence Wilson, Terry Smith, and a person called Uncle Carl or Uncle Col.
However, apart from clear evidence from Detective Sergeant Nigel Warren, the officer in charge of the investigation, that Russell Walker was convicted of 23 counts of sexual and indecent assault, the remaining evidence was largely assertion by various persons. Mr Walker was at the Home for two brief periods from 13 January 1966 to 10 June 1966 and again from 14 January 1971 to 12 January 1972. His time at the Home did not correspond with the two periods of time that the applicant worked there. Further, Mr Walker was not working at the Home at any time that the complainant DC was at the Home.
There was evidence from a person who had been at the Home during both periods the applicant worked there, that Lawrence Wilson (who replaced Major Morton), had been charged with offences and had gone to trial. Mr Wilson did not arrive at the home until after both the applicant had left and all of the complainants had left.
There were statements from some of the witnesses about Terry Smith (otherwise known as Uncle Terry) but the evidence was not capable of any conclusion that he had engaged in sexual wrongdoing. Otherwise there was some evidence about a person variously called Uncle Carl or Uncle Col who was said to have had penile/anal intercourse with another boy, RG, on a number of occasions which came to the attention of the applicant. He fled from the Home and the evidence indicated that he was not prosecuted for any sexual offences.
It is also relevant that neither Terry Smith nor Uncle Carl was a Salvation Army officer at the relevant time and neither wore a uniform. On the other hand, the evidence from all of the witnesses (including Terry Smith), but not the applicant and his wife, was that the applicant wore a Salvation Army uniform whenever he was on duty at the home. The applicant's wife said that even when the applicant was not in his official uniform he was in a casual uniform that consisted of an older white shirt, navy trousers or good shorts and golf socks.

[21]

The applicant's beliefs

Another general matter relied upon by the applicant in relation to all of the counts alleged is the applicant's Christian beliefs. When being cross-examined he said of these beliefs: In my day, 50 years ago there was no such thing as paedophilia, it was considered homosexual and the - and my family and The Salvation Army holds a similar view regarding practising homosexuality as Israel Folau's family does. But if you want to inquire of The Salvation Army they will confirm that, although they will express it in much more gentile (sic) terms. So in other words, if you're a practising paedophile or ie homosexual, then you're going to go to hell and so that's what The Salvation Army believed. So there was no way in which I was - I would be involved in that kind of activity.
The applicant submitted that it was unreasonable for her Honour to take his strong rejection of the allegation of buggery as an indication that he was not being honest in his denials. The applicant submitted that his very firm moral beliefs did not suggest a lack of credibility, and it was wrong of her Honour to use those responses in that way.
It is not apparent from anything that her Honour said in her judgment that she used his rejection of the allegation as an indication that he was not being honest in his denials. Her Honour set out problems that she found with the applicant's evidence, and she concluded that it was his lack of reliability on important issues that caused her to reject his denials of offending. In doing so, her Honour did not question his beliefs nor whether they were honestly held by him.
A statement of religious belief which is said to be incompatible with offending is really no more than evidence that a person would not have offended in a particular way because the person is not the sort of person who would do what is alleged. It is entirely self-serving. Her Honour appropriately took into account that the applicant was a person of good character. The fact that he gave evidence of a particular belief does not, in addition to his good character, make it less likely that he would have committed the offences.

[22]

Count 2

The trial judge found that AM provided a detailed and consistent account of what happened with respect to the incident constituting count 2. Her Honour said she formed a very positive view with respect to his credibility and reliability. Her Honour thought it was significant that AM was able to relate the incident to a significant event, namely that his father was coming to see him which meant that he was showering by himself at a time when showers were not normally taken by the boys as a group.
The applicant submitted that her Honour ignored evidence given by AM in relation to the incident constituting count 1. The applicant said that AM could not have been correct in fixing the date of the incident because the records of St George Hospital did not support his account that he had been taken to the hospital after the incident where he sustained an injury near his right eye. That was said to affect AM's credibility in relation to the account he gave of count 2.
The St George Hospital record tendered by the defence, which appeared to have been retained by the Home, showed that AM had been administered a tetanus injection at the hospital in April 1966. That date was derived from a statement in the undated letter from the hospital saying that the patient should return to the hospital for a further tetanus injection on 25 May 1966 which was said to be six weeks after the injection the letter was reporting on. It may be accepted that 1966 was prior to the time the applicant first came to the Home.
The difficulty with this submission is that there is no evidence that the letter from St George Hospital dealing with a tetanus injection in April 1966 had anything to do with the incident concerned. AM did not give any evidence that he had a tetanus injection in relation to the incident in the shower room where he cut his eye. He gave evidence that when he went to the hospital he had stitches inserted in his eye. When asked in cross-examination if he had received an injection at the hospital, he said he could not remember. The only witness who said that he had a tetanus injection was CN, when he was running away from some officers and he tried to get under a fence and cut his eye.
The evidence from Detective Sergeant Warren was that although the police tried to obtain records from St George Hospital, there were no records available from the 1960s and the 1970s.

[23]

Count 5

Her Honour accepted DC as an honest and accurate witness, and she said she accepted his evidence with respect to count 5 beyond reasonable doubt. She said the details of the conversation and the responses by DC had a ring of truth about them. Her Honour found DC to be an impressive, reliable and considered witness who did not seek to gild or embellish his answers. She said he did not give his evidence in a manner suggestive that it was anything less than scrupulously honest.
Her Honour considered a number of challenges to DC's evidence including that his evidence had been contaminated by speaking to other Care Leavers Australia Network (CLAN) members, and by reason of his attempts to obtain compensation from the Salvation Army. DC was also challenged on the inconsistency of his evidence with what was contained in a document headed "Truth". That was a statement which DC prepared in 2014 before he went for an interview with a Mr Greville from the professional standards office of the Salvation Army. The document was not put into evidence, and the matters about which DC was cross-examined from the document did not include anything to do with the particular incident that formed the basis of count 5. Nor was there any suggestion made to DC that the evidence he gave in Court was inconsistent with what was contained in the Truth document. He was cross-examined about his claim for compensation from the Salvation Army, the relationship of that claim to his having worked with the Salvation Army during his adult life, and the fact that he had been made redundant by them.
At the trial, there was a challenge to his evidence on the basis of contamination from the CLAN organisation because DC identified the applicant's son on a trampoline shown in a photograph in exhibit 3. The photograph was said to have been taken in 1969, and DC did not come to the Home until 1974. Although he knew the applicant's son Ian at that time it was suggested that the only way he could have immediately identified Ian in the photograph when shown it in Court was from having received assistance at an earlier time to know who was shown in the photograph.
The only mention of this matter at the appeal is found in paragraph 133 of the applicant's written submissions which read as follows: Similarly, with respect to CN's 'memory' of the boy Ian in the photograph of the boys on the trampoline. This was a photograph of lH, TH's brother, who was at the Home from 1960 to 1968 according to the GANTT record. He therefore left the Home before the Appellant first worked there.

[24]

Counts 8 and 10

As with the complaints by AM and DC, her Honour determined the outcome of the counts on her assessment of the evidence of the complainant, in this case CN.
Her Honour said that CN "did not dissemble. What you saw is what you got. He had no artifice, nor did he demonstrate any contrivance in giving his evidence". Her Honour said on a number of occasions that she found CN's evidence honest and accurate. Her Honour said that his evidence rang true. He was self-effacing, and freely admitted that he was a troublesome and unruly child. Her Honour said she found his account of the anal penetration in the officer's quarters compelling, particularly because of his evidence of the cot in the room at a time when the applicant and his wife had a very young child.
A number of challenges were raised by the applicant to CN's evidence that were said to throw doubt on his credibility. The first concerned the uncharged incident in the laundry. In his first statement to the police, CN said that the laundry incident occurred the day after his brothers were adopted and left the Home. The brothers were adopted on 7 October 1967 but the applicant did not arrive at the Home until July 1968.
In cross-examination, CN gave this evidence: Q. When you spoke to the police you told them "The first time that it happened was the day after my brothers were taken away to be adopted" Is that what you told the police? A. That's what I told the police and as I explained to them that every day was repetitious, it just rolled into one day after another and I couldn't exactly put that down to that at that time. Q. Sir, you told them that after they came back and asked you further about that statement didn't you? A. No, I don't think so. Q. See it was the case that when you spoke to the police on 15 and 16 December 2015 you were trying to be as accurate as you could? A. Yes. Q. You pinned this event to a time that you told the police was the day after your brothers were taken away to be adopted, didn't you? A. But I rectified that later on with them. Q. Was that because you were told it needed to be rectified? A. No, not at all. Q. Was it because you were told that at the day after your brothers had been taken away to be adopted JM was not at the Bexley Boys' Home and was not there for some six months or so later? A. Not at all.
In her judgment, her Honour noted that CN was cross-examined at great length with respect to his recall of the timing of the incidents. Nevertheless, her Honour accepted CN's evidence as honest and accurate. It was open to her Honour to accept his evidence given in answer to the challenge in cross-examination to the date on which the laundry event was said to have occurred.

[25]

Conclusion

In the light of the outcome of the conviction appeal, it is not necessary to consider the appeal in respect of the sentence.
I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal in respect of ground 2. 3. Quash the convictions entered in the District Court on 13 September 2019. 4. Quash the sentence imposed by Judge Williams in the District Court on 20 December 2019. 5. Order a new trial in respect of counts 2, 5, 8, 9 and 10 of the Indictment. 6. Stand the proceedings into the arraignment list in the District Court at the Downing Centre on 5 February 2021.
ADAMSON J: I have had the benefit of reading the reasons and proposed orders of Davies J in draft, with which I agree. I confirm that I have read the transcript of the evidence and the exhibits. I do not entertain a doubt about the applicant's guilt, much less one that the trial judge might not have been able to resolve, having regard to the advantage which her Honour enjoyed of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence it was open to her Honour to be satisfied of the appellant's guilt beyond reasonable doubt on the charges of which he was convicted. Accordingly, ground 1 has not been made out. Given that ground 2 has been made out, the conclusion on ground 1 requires an order for a new trial to be made.

[26]

Amendments 08 December 2021 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021

Judgment

JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of Davies J. I agree with his Honour's reasons and proposed orders.
With respect to Ground 2, the trial Judge encountered an unusual development, partway in the trial, arising from her recognition of a crucial Crown witness, CN and her prior association with that witness. The reasonable bystander would be aware of the nature of the prior association between her Honour and the witness and the need for the trial Judge to determine important issues concerning the credibility and reliability of CN as a witness in the trial. Applying the relevant principles concerning apprehended bias which have been summarised by Davies J, I agree that her Honour should have disqualified herself from further involvement in the trial of the applicant.
With respect to Ground 1, I have considered the evidence adduced at the trial of the applicant. The question posed by this ground of appeal is whether the applicant has demonstrated that the trial Judge must, as opposed to might, have entertained a reasonable doubt concerning the applicant's guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [45]. The applicant has not demonstrated that the trial Judge must have entertained a reasonable doubt with respect to his guilt of the offences of which he was convicted. I do not entertain a reasonable doubt that the applicant was guilty of the offences contained in Counts 2, 5, 8 and 10.
Accordingly, as Davies J has found, the appropriate orders include an order that there be a new trial of the applicant.
DAVIES J: The applicant stood trial before Judge Williams in a judge-alone trial charged with the following offences: Count 1: Assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is five years' imprisonment. Counts 2, 3, 4, 5 and 7: Indecent assault on a male contrary to s 81 of the Crimes Act (now repealed). The maximum penalty for this offence is five years' imprisonment. Count 6: Assault contrary to s 61 of the Crimes Act. The maximum penalty for this offence is two years' imprisonment. Counts 8 and 10: Buggery contrary to s 79 of the Crimes Act (now repealed). The maximum penalty for this offence was 14 years' imprisonment. Count 9 (as an alternative to count 8): Indecent assault on a male.
The applicant was found not guilty by direction in respect of counts 3, 4 and 7. He was found not guilty of counts 1 and 6. He was found guilty of counts 2, 5, 8 and 10: R v McIver [2019] NSWDC 672.
On 20 December 2019 Judge N Williams sentenced the applicant to an aggregate sentence of imprisonment for nine years and six months commencing 13 September 2019 and expiring 12 March 2029 with an aggregate non-parole period of five years and eight months and 28 days expiring 9 June 2025: R v McIver [2019] NSWDC 834.
The indicative sentences were as follows: Count 2: Two years. Count 5: Two years and three months. Count 8: Five years. Count 10: Six years.
The applicant now seeks leave to appeal against his conviction on two grounds: Ground One: The convictions are unreasonable or cannot be supported having regard to the evidence. Ground Two: A miscarriage of justice was occasioned by the refusal of the trial judge to disqualify herself.
The applicant also seeks leave to appeal against his sentence as follows: Ground Three: Taken together, the sentences imposed were excessive, and a lesser sentence was warranted at law: a. The indicative sentence for count 2 was manifestly excessive; b. The excessive sentence for count 2 resulted in a starting point that was too high for the sentencing process; c. The sentence imposed for count 5 was excessive; d. Her Honour erred, when sentencing the Applicant for count 5, in finding that s 21A(2)(ea) was made out as an aggravating factor; e. Her Honour erred in her assessment of the objective seriousness of counts 2 and 5; and f. Her Honour had insufficient regard for the Applicant's subjective case.

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