Overberg v DPP

Principles governing s18(1) appeals

1. The principles applicable to appeals brought pursuant to s18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) were helpfully set out in paragraph 2 of the "Crown Submissions on Conviction Appeal" (MFI-2). The accused does not challenge the correctness of those Crown submissions, which I gratefully adopt (citations are excluded): "(a) Section 18(1), Crimes (Appeal and Review) Act 2001 provides that the appeal is not an appeal de novo, but a rehearing on the certified transcripts of evidence, supplemented by reference to the exhibits tendered at first instance. Recourse may be had to the magistrate's reasons, since the appellate function could not properly take place without reference to them. (b) The principles governing appeals from judges sitting without a jury apply, in that the appellate judge is to form his or her own judgment of the facts, while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called, and acknowledging the natural limitations stemming from proceeding wholly on the transcript record. (c) An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed. In this context, the term 'error' has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the magistrate was wrong and should be corrected. Put negatively, it means that the judgment of the magistrate will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will differ from case to case. (d) A miscarriage of justice warranting intervention can arise even in the absence of specific 'error' being demonstrated. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance. (e) The requirement that an appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt. (f) An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence in every case, and to thereby form its own view as to the guilt of an appellant regardless of the issues raised on the appeal. The extent of the review required will depend on the circumstances of the case, and the kind of error or errors alleged on the appeal."
2. The principles applicable to such appeals have also been helpfully set out by Haesler SC DCJ in Day (a pseudonym) v R [2022] NSWDC 594 at [10] to [22] which I gratefully adopt and incorporate by reference.

The charges / sequences alleged against the accused

1. Sequence 1 was in the following terms: "[That] between 1 January 1975 and 31 August 1975, at Lane Cove, [the accused] did assault [complainant 1] a male person and commit an act of indecency on him."
2. Sequence 2 was in the following terms: "[That] between 1 January 1975 and 31 December 1975, at Lane Cove, [the accused] did assault [complainant 2] a male person and commit an act of indecency on him."
3. Sequence 3 was in the following terms: "[That] between 1 January 1975 and 31 December 1975, at Lane Cove, [the accused] did assault [complainant 3] a male person and commit an act of indecency on him."
4. I pause to observe that, in the hearing in the Local Court, the prosecution relied, in relation to each of the three sequences, on an alternative charge of assault occasioning actual bodily harm. Those alternative charges were not so relied on in the appeal.
5. As I have already noted, sequences 1 to 3 involve alleged contraventions of (the then) s81 of the Crimes Act. The elements of such an alleged offence (each of which the prosecution must prove beyond reasonable doubt before a finding of guilt could be established) were correctly stated by her Honour (at T2:45-50, 14 July 2023) to be: (a) the accused assaulted the relevant complainant; and (b) the relevant assault was indecent in that it was contrary to the ordinary standards of respectable people in the community.

An overview of non-controversial facts

1. Saint Ignatius' College Riverview ("Riverview") is one of several private schools owned and operated by the Society of Jesus ("the Society"), a religious order of the Roman Catholic Church.
2. At all relevant times, Riverview's students were either day students or boarders.
3. The accused entered the Society on 5 February 1965.
4. In 1973, the accused commenced a placement (on the teaching staff) at Riverview. He was then 27 years old.
5. In 1975, in addition to his responsibilities as a teacher, the accused was appointed the Boarding Master for Year 9, Division 3.
6. As a Boarding Master, the accused was responsible for the management and supervision of the Year 9 boarders in Division 3 of which there were approximately 70.
7. In 1975, three of those boarders were Complainants 1, 2 and 3. These boys in that year were either 14 or 15 years of age.
8. After lights out - not only for Division 3, but all dormitories for boarders at Riverview - there was a strict rule of silence ("the great silence"). A breach of this rule could (and usually would) result in punishment. One accepted method of punishment within Riverview for a breach of that rule was the strapping of a student on his backside with a leather strap - an instrument distributed to members of staff by the school authorities for that very purpose. Her Honour correctly concluded ("…applying community standards as they applied at the time" - cf T6:42-44, 14 July 2023) that such strapping (provided it was moderate and reasonable) fell within the common law defence of lawful chastisement - a defence which the accused called in aid in relation to the first element of each sequence.
9. The administration of punishment by means of strapping on the backside at Riverview at the time of the alleged offences included strapping on the bare buttocks, but that was not a practice followed by all members of staff. That practice came about because some students, in anticipation of a strapping, would wear additional layers of clothing or placing objects under their pyjamas to minimize the impact of a strapping. This topic arose for further consideration in the Local Court and is a matter to which I shall return later in this judgment.
10. As I have already noted, complainants 1, 2 and 3 were the complainants for, respectively, sequences 1, 2, and 3. Each of them complained that, on an occasion in 1975, he was strapped on his bare buttocks whilst in the accused's private quarters (which were immediately adjacent to the dormitory) after dark, and whilst face down on the accused's bed, for a breach of "the great silence" rule. The accused did not dispute those broad allegations. It was the circumstances of that strapping which was the subject of the relevant sequence.

Some relevant principles

1. Although sequences 1-3 were heard together in the Local Court (and on appeal), they were in fact three separate hearings which were heard together for convenience. It was, and is, necessary (subject to one exception) for the evidence in relation to each sequence to be considered separately to that of the other sequences. In this context, it is appropriate to note that tendency was not relied upon in any of the three prosecution cases.
2. The exception is that there is an aspect of complainant 2's evidence which is of some significance to sequence 3 and to which I shall later make more specific reference.
3. Before considering whether the prosecution has proved beyond reasonable doubt the relevant elements of each sequence - the second of which I shall consider first, consistently with the submissions of the parties in the appeal - it is necessary for certain preliminary findings of fact to be made in relation to the circumstances in which complainants 1 and 3 were strapped on their bare buttocks.
4. In this context, three general principles need to be noted.
5. First, in any criminal trial where the Crown case relies solely or substantially on the evidence of a single witness (which is the case in relation to each of the three sequences, but, in this present context, especially sequences 1 and 3), the relevant tribunal of fact must be satisfied of that witness's evidence beyond reasonable doubt because of the onus and standard of proof placed upon the Crown.
6. Secondly, as part of the process of assessing the reliability of any such single witness, the relevant tribunal of fact must consider whether that witness has given an honest account and whether that witness has given an accurate account. Just because a witness genuinely believes the evidence which he is giving does not necessarily mean that it is accurate.
7. Thirdly, it is appropriate to note that, if the relevant tribunal of fact in any criminal hearing: (a) positively believes the exculpatory evidence of an accused, he must be found not guilty; (b) does not positively believe the exculpatory evidence of an accused but is of the opinion that it might reasonably be true, he must be found not guilty; or (c) positively rejects the exculpatory evidence of an accused, it (the tribunal) must put that evidence to one side and look only at the evidence in the prosecution case in determining whether it has been proved beyond reasonable doubt.

A summary of controversial evidence

1. Complainant 1's evidence concerning sequence 1 is set out at [1] to [14] in MFI-3, the salient aspects of which, for present purposes, are as follows: (a) on a particular occasion in 1975, complainant 1 breached the great silence rule and he was told by the accused that he (complainant 1) would be strapped (by the accused) on the buttocks for breaching that rule and that he was to come to the accused's room for that purpose; (b) complainant 1, in anticipation of being struck on the buttocks whilst fully clothed, donned a pair of rowing shorts under his pyjamas to lessen the impact of the strapping; (c) the accused noticed that complainant 1 was wearing those rowing shorts and then told complainant 1 he would be strapped on the bare buttocks; (d) Complainant 1, therefore, was instructed to pull down both his pyjama bottoms and his rowing shorts and these items were lowered to a point between complainant 1's knees and ankles; (e) as complainant 1 was lying facedown on the accused's bed, the accused was standing beside complainant 1 at a point in line with complainant 1's ribcage or armpit; (f) Complainant 1 was not directed to spread his legs and there is no evidence that he did - or could - given the position of the lowered clothing; and (g) Complainant 1 was struck 4 to 6 times by the accused using the strap in a sweeping motion, or in an angled manner, such that the strap came into contact with complainant 1's anus and testicles.
2. The accused did not deny strapping complainant 1 on complainant 1's bare buttocks and whilst complainant 1 was lying facing down on the accused's bed. The accused, however, denied strapping complainant 1 in a way that struck complainant 1's anus or genitals - and, indeed, the accused asserted that such a result would be impossible.
3. Her Honour accepted (necessarily beyond reasonable doubt) complainant 1's version, specifically that, in the accused's strapping complainant 1 across his bare buttocks, the strap came into contact with his anus and genitals.
4. Her Honour, of course, had the considerable advantage of seeing and hearing complainant 1 directly as he gave his evidence and appropriate weight must be given to that advantage.
5. But that advantage is not determinative.
6. I have no reason to doubt that complainant 1 gave an honest account of what he believed occurred, but that does not mean it was accurate.
7. As I mentioned during oral submissions, I have considerable difficulty in understanding and accepting his evidence as to the alleged mechanism of injury. The accused's description of it as being impossible seems to me to be not inappropriate.
8. In the result, I am not satisfied, beyond reasonable doubt, that complainant 1's version of events (that his anus and genitals came into contact with the strap) should be accepted.
9. Furthermore, I positively believe the accused's version / denial.
10. Complainant 2's evidence concerning sequence 2 is set out at [15] to [20] of MFI-3, the salient aspects of which, for present purposes, are as follows: (a) on a particular occasion in 1975, complainant 2 was part of a group of three or four students who breached the great silence rule; (b) Complainant 3 was also part of that group; (c) the group was instructed to line up outside the accused's bedroom for the administration of strapping discipline and, one by one, the members of the group went into the accused's room and lay down on his bed; (d) when complainant 2 was on the accused's bed, complainant 2 was directed to lower his pants to a point below his buttocks; (e) Complainant 2 did not say he (or, to his observation, any other member of the group) was naked at the time of strapping; (f) Complainant 2 was not sure if the accused closed his bedroom door to administer the strapping; and (g) the accused strapped complainant 2 directly across his buttocks four times.
11. The accused did not deny strapping complainant 2 across complainant 2's bare buttocks in the manner complainant 2 described.
12. Complainant 3's evidence concerning sequence 3 is set out at [21] to [29] of MFI-3, the salient aspects of which, for present purposes, are as follows: (a) on a particular occasion in 1975, complainant 3 was part of a group of 3 to 4 students who breached the great silence rule; (b) Complainant 2 was also a part of that group; (c) the lights were on in the accused's room at the time the strappings took place, although complainant 3 was not sure if the door was open, but it probably was left open by the accused; (d) to complainant 3's observation, all of the group was naked at the time that each of them were strapped; and (e) complainant 3 lay naked on the accused's bed and was strapped four times across the buttocks by the accused.
13. The accused did not deny strapping complainant 3 on complainant 3's bare buttocks and whilst complainant 3 was lying face down on the accused's bed. The accused, however, denied directing any student, including complainant 3, to be naked before being strapped.
14. Her Honour accepted (necessarily beyond reasonable doubt) complainant 3's version of events, specifically that, as he was being strapped by the accused, he (complainant 3) was totally naked, that the lights were on and that the door to the bedroom was probably open - and thereby visible to anybody in the vicinity, including those students in the dormitory. This, in my opinion, was an unlikely scenario.
15. Again, I have no difficultly in accepting her Honour's implicit finding that complainant 3's evidence was honestly believed.
16. However, I note that complainant 3 said that all of the members of the group who were disciplined on that occasion were made to be naked. Significantly, one of those other boys was complainant 2 and his evidence does not support complainant 3. Complainant 2 did not say that he was made to strip naked, but, rather, that his pyjama pants were pulled down to a point below his buttocks.
17. This is an inconsistency of some significance, and, in the result, I am unable to be satisfied, beyond reasonable doubt, that that aspect of complainant 3's evidence is to be accepted.
18. Furthermore, I again positively accept the accused's version / denial.
19. However, the fact that I do not accept that complainant 1 was struck to the anus and / or genitals whilst his bare buttocks were being strapped by the accused; and that I do not accept that complainant 3 was totally naked whilst his bare buttocks were being strapped by the accused, does not terminate the enquiry as to whether the second element in sequences 1, 2 or 3 has been proved by the prosecution beyond reasonable doubt.
20. In this regard, her Honour was satisfied that, in relation to each of sequences 1, 2 and 3, regardless of the actual / specific intent of the accused (indeed, her Honour was satisfied and accepted the accused's evidence that the strapping was not done for his sexual gratification), the strapping of each boy on his bare buttocks was inherently indecent and gave rise to "an inescapable inference" (T12:3, 14 July 2023) that the conduct of the accused, in each case, applying an objective standard, had a sexual element or connotation.

Consideration concerning the second element

1. What the prosecution has proved beyond reasonable doubt is that, in relation to each complainant, the accused strapped him on his bare buttocks whilst lying on the accused's bed at night.
2. Her Honour specifically found that, as a matter of subjective intention, that strapping was done as an act of chastisement and not done for any sexual purpose on the part of the accused.
3. However, her Honour in effect held that strapping on the buttocks, per se, objectively had a sexual connotation and that the accused's subjective intention was not relevant.
4. In my respectful opinion, her Honour's conclusion as to the application of an objective test in these circumstances, by reference to authority, was in error.
5. By reference to the authorities cited before her Honour and on appeal, the strapping of each complainant on his buttocks as an act of chastisement did not unambiguously give rise to a sexual connotation to those actions.
6. In this regard, in R v Court [1998] 2 All ER 221, Lord Griffiths (at page 224) held: "…The buttocks are an intimate part of the body in close proximity to the sexual organs and unauthorised handling of that part of the body is certainly capable of being indecent. But the buttocks are also a part of the body in which it is possible to inflict pain without the risk of serious physical damage and have long been recognised as an area of the body to which chastisement may be administered by those having proper authority to do so without anyone thinking it indecent. If a juryman is asked to decide whether a man beating a young girl's bottom is acting indecently, the first question he is likely to ask is: why was he doing it? If the answer is that she had been naughty and he was punishing her, the juryman may well consider that if the man was a stranger he should not have laid hands on the girl and was guilty of assault, but I doubt if he would consider the man's action to be indecent. On the other hand, if the juryman was told that the man was spanking the girl to satisfy a buttock fetish, I would be surprised indeed if he did not think it was indecent. The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent. If evidence of motive is available that throws light on the intent it should be before the jury to assist them in their decision. Suppose, in the present case, the appellant had said to the police, "I thought the girl had been stealing and I beat her to stop her doing it again." Such evidence would surely have been admissible to attempt to persuade the jury that this was an act of chastisement and therefore they should not regard it as indecent. If, on the other hand, evidence is available that shows the spanking was not an act of chastisement but carried out with the intention of obtaining perverted sexual gratification, it would, in my view, be an affront to common sense to withhold that evidence from the jury when asking them to decide if this man had behaved indecently."
7. In the same case, Lord Ackner (at page 230) held: "The assault which the prosecution seeks to establish may be of a kind which is inherently indecent. The defendant removes, against her will, a woman's clothing. Such a case, to my mind, raises no problem. Those very facts devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own personal sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate his victim seems to me to be irrelevant. He has failed, ex hypothesi, to show any lawful justification for his indecent conduct. This, of course, was not such as case. The conduct of the appellant in assaulting the girl by spanking her was only capable of being an indecent assault. To decide whether or not right-minded persons might think that assault was indecent, the following factors were clearly relevant: the relationship of the defendant to this victim (were they relatives, friends or virtually complete strangers?), how had the defendant come to embark on this conduct and why was he behaving in this way? Aided by such material, a jury would be helped to determine the quality of the act, the true nature of the assault and to answer the vital question: were they sure that the defendant not only intended to commit an assault on the girl, but an assault which was indecent; was such an inference irresistible? For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what Parliament intended." (emphases in the original). See also R v Harkin (1989) 38 A Crim R 296.
8. Given her Honour's finding (with which I agree) that the accused's subjective intention was not sexual in intent, the prosecution has failed to prove, beyond reasonable doubt, the second element of the offence charged in each of sequences 1, 2 and 3.
9. That is sufficient to dispose of each appeal in favour of the accused.
10. However, in deference to submissions made by the parties, I shall also address the first element.

Consideration concerning the first element

1. Her Honour held, and it is not in issue, that the strapping of a boy on the (clothed) buttocks for a breach of the great silence rule was an accepted and approved means of discipline at Riverview at the time and, therefore, the use of that form of discipline attracted the common law defence of lawful chastisement.
2. However, her Honour was satisfied, beyond reasonable doubt, that the strapping of a boy on his bare buttocks was not an accepted or approved means of discipline at Riverview at that time and that, consequently, the prosecution had established that the defence of lawful chastisement was not available to the accused in relation to any of the sequences.
3. Specifically, her Honour made the following express finding: "Strapping on the naked buttocks was not the norm, and was outside the usual practice of the school, and was frowned upon by the headmaster, Peter Quinn, at the time." (T6:8-10, 14 July 2023).
4. This finding was fundamental to her Honour's further finding that the accused's "…conduct in strapping [the three complainants] on the naked buttocks on these occasions went beyond the strict limits that enable the defence of lawful chastisement, in that it was both immoderate and unreasonable response to the alleged infraction of talking, laughing and making noise after lights out." (T8:10-14, 14 July 2023).
5. With respect, a review of the evidence does not satisfy me, beyond reasonable doubt, that that finding was properly available to her Honour - and, of course, the evidentiary onus was on the prosecution.
6. Evidence was given in the prosecution case by Father Sinn. In 1975, Father Sinn was teaching at the Society's day school in Adelaide. Father Sinn gave evidence that strappings delivered to the bare buttocks was an acceptable form of punishment - although, it was one that sat at the high end of punishment and was not common. However, Father Sinn was teaching at the time at a day school. He acknowledged that regimes of discipline were different between day schools and boarding schools, because controlling children in a dormitory was a quite different proposition to controlling children in a day school. According to Father Sinn, the range of discipline in a day school started from detention or suspension and moved upwards to corporal punishment, such as strapping on the hand or bare buttocks.
7. Evidence was also given in the prosecution case by Father McCoy. Father McCoy had been the provincial superior of the Society as and from 31 July 2014. Father McCoy gave evidence that strapping on the bare buttocks of boys was an acceptable practice at the time of the alleged offences. This did not mean it was practiced by all, but it was practiced by some as an extreme measure.
8. The evidence of Father's Sinn and McCoy was, in terms of authority figures, the only evidence in the prosecution case.
9. Father Quinn did not give evidence. His attitude was advanced through the evidence of the accused.
10. The accused referred to Father Quinn's attitude at three places during the course of his evidence.
11. The first of those occasions was in his evidence in chief: "Q …During your period at [Riverview], in relation to the tailings that you administered, was there a point in time where you ceased doing that? There was. Q Did that follow upon a conversation that you had with the headmaster or some other incident occurring? A There were two incidents. The first was the headmaster asked me to tail a boy for a misdemeanour. I can't remember the misdemeanour or the, or the boy. So, I punished him, I tailed him. Later, the headmaster asked me, "Have you punished this boy?" I said, "Yes, I did this. I tailed him and I tailed him on the bare backside". And the headmaster said, "I don't think it's right, the bare backside". So, from then on, I made sure the backside was covered in, in deference to his opinion." (T20:30-42, 3 May 2023).
12. The other two pieces of evidence emerged during the accused's cross-examination.
13. The second piece of evidence was as follows: "Q In 1975, did you feel any discomfort about strapping on the backside? A The two, two incidents come to mind. One is when the headmaster said, you know, "I'd rather this didn't - wasn't done this way" (T39:48-50, 03 May 2023).
14. 77. The third and final piece of evidence was as follows: "Q Is it the case that what Peter Quinn had an issue with was that the student's buttocks were exposed at the time of the strapping? A That was my understanding" (T43:13-16, 03 May 2023).
15. These three pieces of evidence are slightly different, particularly the second tranche which was noticeably less than emphatic in tone.
16. What I have taken from that evidence is that there is no evidence that Father Quinn, as headmaster, ever directed the accused (or other members of staff) not to strap boys on the bare buttocks. And that whilst he (Father Quinn) had some apprehension about bare buttock strapping, he wasn't prepared, as headmaster, to issue a direction to staff prohibiting that practice, a practice of which he clearly, on the evidence, was aware.
17. In these circumstances, I am not satisfied that the prosecution has established that strapping a boy on his bare buttocks was not an accepted and approved means of discipline at Riverview at the relevant times. Nor am I satisfied by reference to the matters raised in oral submissions, beyond reasonable doubt, that the method or circumstances of such strapping was not moderate or reasonable.
18. I am, therefore, of the opinion that the Crown has not established that that form of chastisement was not a form of lawful chastisement available to the accused. The prosecution has failed, therefore, to prove, beyond reasonable doubt, the first element of the offence charged in each of sequences 1, 2 and 3.

Disposition

1. Pursuant to s20 of the Crimes (Appeal and Review) Act, the conviction in each of sequences 1, 2 and 3 is set aside. 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: 13 February 2025