[2019] ACTSC 73

The accused is found not guilty on count 1 and 13. The proceedings are adjourned.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Historical child sexual offences - special hearing due to unfitness to plead - special hearing conducted by judge alone - allegations of indecent assault and commission of an act of indecency - whether proved beyond reasonable doubt that accused "engaged in the conduct required for the offence charged" - evidence of complainants not challenged

Crimes Act 1900 (ACT), ss 79, 81, 92K, 92K(2), 316, 316(1), 316(6), 316(7), 316(8), 316(9), 316(9)(c), 317, 317(3), 317(4), 318, 318(2), 319, 319(2), Pt 3

Crimes Legislation Amendment Act 2013 (No 2) (ACT), ss 441, 441(1), 441(2)

Evidence Act 2011 (ACT), ss 165, 108C, 165B

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 41, 80, 80A, 80B, 80C, 80D, Ch 4, Div 4.4.4

Law Reform (Sexual Behaviour) Ordinance 1976 (ACT), ss 3, 4, 5(a), 5(b), 5(c), 6

Royal Commission Criminal Justice Amendment Act 2018 (ACT)

Supreme Court Act 1933 (ACT), ss 68C, 68C(2), 68C(3)

AK v Western Australia [2008] HCA 8; 232 CLR 438

Fleming v The Queen [1998] HCA 68; 197 CLR 250

R v Ardler [2003] ACTSC 24; 175 FLR 272

R v Ardler [2004] ACTCA 4; 144 A Crim R 552

R v Chute [2017] ACTSC 246

R v Chute (No 6) [2019] ACTSC 53

R v Mulcahy [2010] ACTSC 98

Explanatory Statement, Crimes Amendment Bill (No 2) 2004 (ACT)

1. John William Chute has been subject to a special hearing under s 316 of the Crimes Act 1900 (ACT). That has taken place because he was found unfit to plead: R v Chute [2017] ACTSC 246.

2. On the assumption that these proceedings are "sexual offence proceedings" (as to which see [38] below), s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibits publication of the complainant's identity or a reference or allusion from which the complainant's identity might reasonably be worked out. Because of the potential application of that provision, the names of complainants and witnesses who gave complaint evidence have been anonymised.

3. The accused had a religious name of Brother Kostka. The witnesses referred to him as such. In these reasons he is referred to as the accused or Brother Kostka.

4. The accused faced 16 charges. The charges allege contraventions of ss 79, 81 and 92K(2) of the Crimes Act 1900 (ACT) over the period 1 January 1976 to 31 December 1986. They are as follows.

s 81

s 81

s 81

s 81

s 81

s 81

s 81

s 81

s 81

s 81

s 81

s 79

s 81

s 81

s 81

5. The charges under s 81 allege that the accused indecently assaulted a male person without the effective consent of that person, being a person under the age of 16 years. The charge under s 92K(2) is a charge of committing an act of indecency upon the complainant, being a person of or above the age of 10 years but under the age of 16 years. The charge under s 79 is a charge of buggery without the effective consent of the complainant. The charge under s 79 was not pressed and no evidence was led in support of it.

6. The special hearing has been conducted as a trial by judge alone as a result of an election made by a guardian appointed by the Australian Capital Territory Civil and Administrative Tribunal (ACAT): see R v Chute (No 4) [2018] ACTSC 259 at [6]- [7]. At the special hearing the accused is taken to have pleaded not guilty: Crimes Act, s 316(8). Notwithstanding his unfitness to plead, the accused was legally represented at the special hearing and his unfitness was not taken to be an impediment to that representation: s 316(6)-(7). The purpose of the special hearing as articulated in s 316(9)(c) is to ensure, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, that he should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offences charged.

7. The verdicts available at a special hearing are described in s 317. If the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged then the judge is obliged to find the accused not guilty of the offence charged. On the other hand, if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged, the finding is not a basis in law for recording a conviction for the offence charged and, unless the accused becomes fit to plead after the special hearing, the finding bars further prosecution of the accused for any offence in relation to the conduct: s 317(3)-(4).

8. Prior to its amendment in 2004, the requirement in s 317 for a verdict of non-acquittal was that the accused person "committed the acts that constitute the offence charged". The confusion arising from the use of this form of words and the terms of the relevant explanatory memorandum was described by Crispin J in R v Ardler [2003] ACTSC 24; 175 FLR 272 at [13]- [29]. A reference appeal was brought by the Crown in order to determine the correctness of the approach taken by Crispin J: R v Ardler [2004] ACTCA 4. However, after the appeal was argued, but before it was decided, the Crimes Amendment Act 2004 (ACT) came into effect. That Act relevantly substituted for the words "committed the acts that constitute the offence charged" the words "engaged in the conduct required for the offence charged". It also defined the term "conduct" and "engage in conduct" by reference to the definition of those terms in s 13 of the Criminal Code 2002 (ACT). Those definitions are:

conduct means an act, an omission to do an act or a state of affairs.

...

engage in conduct means-

(a) do an act; or

(b) omit to do an act.

9. The definitions in s 13 of the Criminal Code do not pick up the concept of "physical elements" in s 14 and hence the requirement for voluntariness in s 15. Notwithstanding that, it does appear to have been the legislative intention to incorporate the requirement for voluntariness in s 15. The explanatory statement for the Crimes Amendment Bill (No 2) 2004 provided, relevantly:

The term "engage in conduct" is inserted. The term is derived from the existing definition under the Criminal Code 2002 and shall have the same meaning as that given to the term under the Code. This definition includes only the physical elements of the offence, and includes omissions.

...

Clause 5 substitutes the term "engage in conduct required for the offence charged (or an offence available as an alternative to the offence charged)" for the current phrase "committed the acts that constitute the offence." This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The prosecution is not required to establish intent, or any mental element, of any offence.

10. The reference to physical elements is apt to pick up the requirement for voluntariness in s 15. In the present case I have proceeded on the basis most favourable to the accused, namely that the prosecution needs to prove that the accused did or omitted to do an act and that the conduct was voluntary. Examples of involuntary conduct given in the Criminal Code include spasms, convulsions or other unwilled bodily movement, acts during sleep or unconsciousness or an act done during impaired consciousness depriving the person of the will to act. The prosecution is not required to prove intention or other mental element for the offence.

11. For offences of the type charged in the present case, s 318 describes the powers of the court if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. Section 318(2) provides:

(2) The Supreme Court may make the orders that it considers appropriate, including -

(a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or

(b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

12. It is significant to note that the use of the word "may" indicates that the making of orders is discretionary and that the use of "including" indicates that the range of orders that may be made is not exclusively defined by paragraphs (a) and (b). That contrasts with the provisions of s 319, which relate to non-acquittal at a special hearing in relation to a "serious offence", where the Supreme Court is obliged to make one or other of the particular orders set out in s 319(2).

13. A special hearing is to be conducted as nearly as possible to the manner in which an ordinary criminal trial is conducted and, by reason of the election referred to above at [6] it is to be conducted by a judge alone. Section 68C of the Supreme Court Act 1933 (ACT) requires that in a trial by judge alone the judge include in the reasons given for the verdict "the principles of law applied by the judge and the findings of fact on which the judge relied": s 68C(2). Further, "if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict": s 68C(3). The significance of the inclusion of a statement of the principles of law and the warnings directions or comments that would be given or made to a jury is emphasised by the decisions of the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250 and AK v Western Australia [2008] HCA 8; 232 CLR 438.

14. The combined effect of ss 68C and 316(1) is that these requirements apply to the reasons given by a judge for a verdict at a special hearing: R v Ardler [2003] ACTSC 24 at [9]. I will therefore endeavour to set out the principles of law that I apply and any relevant warnings, directions or comments that would have been made had the proceedings been conducted before a jury.

General directions about the nature of a criminal trial

15. The general directions are those identified by Nield AJ in R v Mulcahy [2010] ACTSC 98 at [13]- [24]. The directions were, relevantly, as follows:

1. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
2. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
3. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
4. The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
5. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
6. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
7. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
8. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
9. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
10. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

1. In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt...

16. I must add that in this case the accused did not give evidence. He was not obliged to do so and no inference adverse to him may be drawn as a result of the fact that he did not give evidence. The burden at all times remains upon the Crown to prove the charges against him beyond reasonable doubt.

17. These principles must be qualified in relation to a special hearing by the matters referred to at [6]-[8] above relating to the nature of the inquiry undertaken at a special hearing.

18. In this case, the Crown case on the critical issues is largely based upon the evidence of each complainant. In those circumstances, I must exercise caution. I must be satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account that he has given. I need to examine the evidence very carefully in order to satisfy myself that I may safely act upon that evidence to the high standard required in a criminal trial. I must do so because the onus and standard of proof placed upon the Crown is a high one.

19. Having said that, it is significant that no challenge was made to the credibility or reliability of any of the complainants, nor was any evidence led that would cast doubt upon the reliability of the evidence.

20. In addition to the evidence led by the Crown in support of each of the individual offences, the Crown has led evidence of other acts of alleged misconduct by the accused to a number of complainants. I will refer to this evidence as context evidence.

21. This includes evidence of offending conduct having occurred on more occasions than those charged. It also includes evidence of what can be described as grooming - the establishment of a "special" relationship with a child in advance of the acts alleged to constitute the offence.

22. This evidence was admitted solely for the purpose of placing the complainants' evidence in relation to the particular charges which the accused is facing into what the Crown says is a realistic and intelligible context. The Crown places particular reliance upon this evidence as indicating that the incidents the subject of the charges did not happen "out of the blue" as isolated, improbable incidents and in order to provide some explanation as to the response of the complainant to the events that are alleged by the Crown.

23. Without the evidence of these other acts, the Crown says that I may wonder, for example, about the likelihood of an apparently isolated act occurring suddenly, or why the complainant did not immediately make a complaint to the police or someone else. The evidence is placed before me only to answer questions that might arise otherwise in my mind about the particular allegations in the indictment.

24. However I must give myself two important warnings. Firstly, I cannot use this evidence of other acts to establish a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainant made other allegations against him. While leave has been given to permit the Crown to rely upon the charged acts as tendency evidence in relation to other charged acts, no leave has been granted in relation to evidence led for context purposes. As a consequence, the context evidence has a limited purpose and cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.

25. Secondly, I must not substitute the evidence of the other acts for evidence of the specific allegations contained in the charges. The Crown is not charging a course of misconduct by the accused but has charged particular allegations. I must be concerned with the precise and particular allegation in each charge. I must not reason that just because the accused had done something wrong to the complainant on some other occasion, he must have done so upon the occasion alleged in the indictment. I cannot seek to punish the accused for other acts attributed to him by finding the accused guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of the evidence and would not be in accordance with the law.

26. Witnesses NN, KG, KD and MT gave evidence of complaints made by the complainants to them about sexual abuse perpetrated by the accused. Insofar as evidence of complaint was given in relation to any complainant, I am entitled to use that evidence of complaint as some evidence independent of the complainant as to what occurred. The Crown also relied upon the evidence of each complaint in support of the contention that the time and manner in which the complaints were made to these people about the alleged charges makes the complainant's evidence more believable. I must consider whether each complainant acted in a way that he would be expected to act if he had been assaulted as he said he was. If I think that the complainant has done what I would expect someone in his position to do, then I may place more weight upon the complainant's evidence. However, if I consider that the complainant did not act in a way that he might have been expected to act, then that may indicate that his evidence is unreliable. I must bear in mind, however, that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate.

27. The use of charged acts as tendency evidence was permitted by my earlier ruling in R v Chute (No 6) [2019] ACTSC 53. Evidence that establishes a tendency may be used in assessing whether a charged act occurred. The Crown relies upon the whole of the evidence of offending conduct to prove that the accused had a sexual interest in young boys and was willing to act upon that interest in the way that each complainant alleges. The Crown argues that I should find the accused's sexual interest and willingness to act upon it to be established and therefore I can use the existence of those tendencies to prove the allegations in the indictment beyond reasonable doubt.

28. In this case, the position was unusual in that there was no challenge to the evidence of any complainant. It was therefore not a case where the establishment of a tendency in order to bolster the Crown case was of great significance. In those circumstances, despite what was said in the R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [80], I have only considered as relevant to establishing a tendency those matters established beyond reasonable doubt.

29. I direct myself that I cannot use the evidence to find that the accused is generally a person of bad character and for that reason must have committed the offences charged.

30. In this case, Dr Judith Bragg was called as an expert witness. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

31. I direct myself that the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge.

32. The expert evidence of Dr Bragg was admitted to provide me with general evidence concerning responses to, and complaints of, sexual abuse by children, particularly young boys. The evidence was led so as to support the credibility of each of the complainants because in each case there was a substantial delay before any complaint was made to friends, family or police. By providing an explanation of the psychological reasons for, and empirical evidence in relation to delayed complaints and the failure to make a complaint proximate to the time of the alleged abuse, the evidence is evidence supporting the credibility of each complainant.

33. I direct myself that if, having given the matter careful consideration, I do not accept the evidence of Dr Bragg, I do not have to act upon it. This is particularly so where the evidence is of a general nature and hence may not accord with the facts in relation to the complainants that I find. I am also to a degree, entitled to take into account my own common sense and my own experiences if that is relevant to the issue upon which the expert evidence relates.

34. The expert evidence of Dr Bragg has not been challenged. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it, for example, because it does not fit with other facts which I have found proved.

Statutory directions required about the manner of giving evidence

35. The possible application of the provisions of Chapter 4 of the Evidence (Miscellaneous Provisions) Act was raised in relation to the manner in which evidence was given, closing of the court during the giving of evidence, whether or not leave was required for the editing of a recording of an interview between a complainant and police, the giving of evidence by audiovisual link and the presence of support persons in court or the remote witness room. Those issues arose because:

(a) Complainant 5 gave evidence by video link and had a support person present with him in the remote witness room;

(b) Complainant 2 gave evidence in court but had with him two support persons;

(c) Complainant 4's evidence was given by the playing of a video of his interview with police;

(d) Complainant 6's evidence was also given by the playing of a video of his interview with police; and

(e) Complainant 1's evidence was given by playing the audio recording of an interview with police.

36. So far as the giving of evidence by audiovisual link or with a support person present is concerned, ss 49(5) and 72 require warnings to be given to a jury. Those warnings are to the effect that so far as the evidence given by the relevant complainant was concerned, the giving of evidence in that manner is the usual practice in the Australian Capital Territory (ACT) and I must not draw any adverse inference against the accused as a result of evidence being given in that manner. Nor must I give the evidence any greater or lesser weight than would be the case if the evidence had been given in person in court.

37. I gave myself this direction and have adopted an approach consistent with the direction in addressing the evidence, notwithstanding that there is some doubt as to whether or not the provisions apply in the circumstances of this case for the reasons which I will outline shortly in relation to statutory sexual assault directions.

38. Division 4.4.4 (ss 80-80D) of the Evidence (Miscellaneous Provisions) Act requires certain warnings to be given in "sexual offence proceedings". The only relevant warning that would be applicable in the circumstances of the present case is the warning set out in s 80B of the Act.

39. As with the special measures dealt with previously, there is a question as to whether or not the warning applies in the present case. The provisions of Chapter 4 apply inter alia to a "sexual offence proceeding". That expression is defined in s 41 to mean a proceeding for an offence against, relevantly, "Part 3 (Sexual offences)" of the Crimes Act. So far as the charges involving s 81 of the Crimes Act are concerned, that provision, until its repeal, was contained within Part III of the Crimes Act which was entitled "Offences against the person": see republication 0B. So far as the charge under s 92K is concerned, that was contained within Pt IIIIA of the Act as then in force: see republication 0C. That was entitled "Sexual Offences". When the Royal Commission Criminal Justice Amendment Act 2018 (ACT) was enacted, there were no relevant transitional provisions making clear the application of the provisions of the Act to charges for historical offences. The issue is whether the present offences meet the definition of "sexual offence proceeding", namely "a proceeding for an offence (a sexual offence) against any of the following provisions of the Crimes Act 1900: ... part 3 (Sexual offences) ...". The charged offences in the present case do not fall within a part of the Act identified as being "Part 3 (Sexual offences)" because the description of the parts of the Crimes Act into which they fell either had a different part number or that part had a different name. If the proceedings were not a "sexual offence proceeding" that outcome would be anomalous as the kind of warning required by the section would be all the more important in relation to these historical offences where there has been a substantial delay in making any complaint. However, in the present case it is not of significance as the trial was one by judge alone and there is, in any event, expert evidence specifically directed to the issue of delay in making a complaint. It may be that s 102 of the Legislation Act 2001 (ACT) applies so that the reference to "part 3 (Sexual offences)" can be read as including a reference to the earlier parts in which the relevant provisions appeared. That is not obviously the case. Whether or not it is the case would depend upon a careful analysis of the terms of s 102. That exercise was not engaged in for the purposes of this case, as on relevant issues that would arise in relation to the operation of Chapter 4, the position was that there was no objection to the evidence being given or edited in the manner that it was and that I would give myself the relevant directions in any event because even in the absence of a statutory compulsion, proceeding consistently with the statutory directions would be appropriate in the circumstances and consistent with the evidence given by Dr Bragg.

40. It is on that basis that I give myself a direction that would be required by s 80C that the absence or delay by the complainants in making their complaints does not necessarily indicate that the allegations that they made that the offence was committed were false and that there may be good reasons why a victim of a sexual offence may not make or may hesitate in making a complaint about the offence.

41. Neither counsel for the accused or counsel for the Crown asked me to give myself a direction under s 165 or s 165B of the Evidence Act 2011 (ACT) and for that reason I have not done so.

Legislative requirements for charges under 81, 92K of the Crimes Act

42. Up until its repeal in 1985, s 81 of the Crimes Act provided:

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

43. From 8 November 1976, the Law Reform (Sexual Behaviour) Ordinance 1976 (ACT) (the 1976 ordinance) excluded from the scope of s 81 consenting acts of a sexual nature in private unless the persons were related: s 3. However, consent to such acts could not be given by a person under the age of 16 years and consent to an act of a person 16 years who has not turned 18 was not effective unless the defendant proved that he had reasonable grounds for believing and did believe that the person was 18 years old: s 4. In proceedings alleging a breach of s 81, the burden remained upon the Crown to prove that the alleged victim did not give an effective consent to the commission of the act (s 5(a)); that the person was related to the defendant (s 5(b)); or that the act was not committed in private (s 5(c)). The 1976 ordinance also imposed a 12 month limitation period for proceedings alleging a breach of s 81: s 6.

44. The Crimes (Amendment) Act (No 5) 1985 (ACT) removed s 81 from the Crimes Act and inserted s 92K which provided, relevantly:

92K Act of indecency with young persons

(1) ...

(2) A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

(3) It is a defence to a prosecution for an offence under sub-section (2) if the defendant establishes that -

(a) he or she believed on reasonable grounds that the person upon whom the offence is alleged to have been committed was of or above the age of 16 years; or

(b) at the time of the alleged offence, the defendant was not more than 2 years older than the person upon whom the offence is alleged to have been committed,

and that the person consented to the committing of the act of indecency.

45. The Act also repealed the 1976 ordinance. These amendments commenced on 28 November 1985.

46. On 10 December 2013, the Crimes Legislation Amendment Act 2013 (No 2) (ACT) came into effect. This inserted s 441 into the Crimes Act and removed any limitation period that operated in relation to s 81 of the Crimes Act. Section 441 made it clear that proceedings may be begun as though the limitation provisions in the 1976 ordinance were never in force: s 441(1) and that it abrogated any right acquired by a person not to be prosecuted for such an offence: s 441(2). This meant that after that date it was open to bring the present charges of breach of s 81. However, it was a requirement of any charge alleging a breach of s 81 that it allege that it was committed in the circumstances provided for in s 5(a) or s 5(b) of the 1976 ordinance, that is, the provisions referred to above about consent being ineffective or the victim being related to the defendant.

47. Therefore, up until 27 November 1985 the relevant charge was of a contravention of s 81 of the Crimes Act. From 28 November 1985 the relevant provision was s 92K.

48. The two charges involving Complainant 6 are alleged to have occurred in the year 1976. In order to accommodate the possibility that they occurred after the 1976 ordinance came into effect on 8 November 1976, both counts (count 15 and count 16) allege that the act occurred without the effective consent of the complainant because he was under the age of 16 years.

49. Having regard to what has been said earlier in relation to the meaning of the expression "the accused engaged in the conduct required for the offence charged" in s 317, in the circumstances of this case, the elements that need to be established in a special hearing involving a charge of contravention of s 81 are:

(a) The accused committed an assault.

(b) The assault was the result of a voluntary act of the accused.

(c) The assault is indecent according to the standards of morality and decency held by ordinary members of the community.

(d) The assault was committed on a male.

(e) The assault was without the effective consent of the other person.

50. It is sufficient for an "assault" to have occurred that there be any touching that was not lawful (s 81 element (a)). In relation to indecency (s 81 element (c), s 92K element (c)) the assault or act must have a sexual connotation or overtone. In this case the touching was of or by a part of the complainant's or accused's body which had such a connotation or overtone, that is, the genital area of a male.

51. In the circumstances of this case the elements required to be proved in a special hearing involving a charge of a contravention of s 92K are:

(a) The accused committed an act.

(b) The act was voluntary.

(c) The act was indecent according to the standards of morality and decency held by ordinary members of the community.

(d) The act is committed on another person.

(e) The other person is over the age of 10 years but under the age of 16 years.

52. I record here that even though it is not required to be established as an element of either offence, I am satisfied in relation to each count where I ultimately found the conduct to have been proved beyond reasonable doubt that it was not merely voluntary but was intentional conduct on the part of the accused.

53. The evidence of Complainant 1 was given by the tendering, without objection, of the audio recording of a conversation between Complainant 1 and police officers conducted on 11 February 2016. A transcript of the recording was also tendered. Edits to the audio and redactions from the transcript were agreed between the parties. In summary the evidence was as follows.

54. Complainant 1 started at Marist College in 1980 when he was eight years old. Brother Alfred was his teacher. Complainant 1 lived close to the school and he would hang around the school because he did not need to catch a bus home. He sort of made friends with the Brothers and would do errands for them.

55. He first came to know Brother Kostka because he had a pet Labrador called Jason and Complainant 1 would play with the dog. It was through this contact that the abuse started. Complainant 1 said:

Like, um, firstly it started with, um, for example I'd be, um - an example of what happened, I'd be patting the dog and then he'd come up behind me, um, rub up against me, ah, and then from there it went to hands down your pants touching you to, um, wanting, um, me to touch him. And that - that was the extent. There wasn't anything, um, penetrative or anything like that, it was just general, ah, touching up.

56. He described the first time any abuse happened. He said "I remember distinctly the first time it happened I was down patting the dog. Um, he got extremely close to me. At the time I didn't really understand what it was or how it was - what it was about". He recalled Brother Kostka's expression "the way he'd sort of nearly roll his tongue and sort of sway backwards and forward". He was wearing his white tunic with a rope like tie round the waist. Complainant 1 just thought he was being friendly. At the time he liked the attention. He "just thought he was being close in my personal space and being friendly" and "wasn't alerted to the fact of what was going to progress". This gives rise to count 1 on the indictment.

57. Complainant 1 said that his parents were shift workers and he was "a bit of a lost soul". He tended to hang around a bit. His parents had erratic hours and he was not required to be home at a certain time because they would not be home.

58. Complainant 1 would run errands for the Brothers. He would get petty cash and go to the ShopRite in Mawson to buy things. Being able to do that made him feel pretty special because the monastery (where the Marist Brothers who taught at the school lived) was the Brothers' domain. There were eight or nine brothers in the monastery. Sometimes he had to run errands during school hours, sometimes before school.

59. He would purchase things like milk from the shops and as a reward he might get a soft drink or something like that.

60. As to when he was introduced to the Brothers it was not long into his primary school and at about the time of Ash Wednesday. He gave a description of and drew a plan of the layout of the school which became Exhibit 5.

61. After the first incident his encounters with Brother Kostka became more frequent. He would ask Complainant 1 how he was going and "was generally an awesome guy". He then progressively increased his physical attention, generally coming up behind him rather than approaching him face-to-face. "It was a bit like a hug for prolonged periods, not just a hug and let go kind of thing." Complainant 1 stated that he enjoyed the attention. As the year progressed, he went down to the monastery and he could recall being in the common area of the monastery where he was with all of the Brothers and they were "being affectionate" with him. After that it wasn't uncommon for Brother Kostka to get him to do chores in Brother Kostka's room or in the chapel area. Complainant 1 thought it was "pretty amazing, pretty special" to be allowed into those places because no one else was allowed there. Progressively, Brother Kostka began to do things like sit beside him, put his hand on Complainant 1's leg and get Complainant 1 to put his hand on Brother Kostka's leg. Then he started to touch Complainant 1 by putting his hand firstly on his pants and then down Complainant 1's pants. Then Brother Kostka began to expose himself to Complainant 1. That was the extent of what happened and it happened quite regularly. Complainant 1 estimated at least once a week, usually on a Wednesday.

62. He was then asked to describe the first time that occurred. He said that was in the chapel. Brother Kostka put his hand on Complainant 1's leg, "a solid sort of... thump on my leg" and then he kept it there. Complainant 1 was not distressed, was enjoying the attention and it didn't raise an alarm in his mind. They were sitting one seat back from the front of the chapel on the right-hand side. Brother Kostka put his hand over his pants. His hand was on his crotch touching his genitals (from the outside of his pants) for a short period of time. Complainant 1 thought it was a mistake and reacted. He jumped at that and Brother Kostka made as though it was a mistake. Complainant 1 accepted it was a mistake and he wasn't distressed by it.

63. Complainant 1 then said that "many, many, many months after" the previous incident Brother Kostka would get Complainant 1's left arm and put it onto Brother Kostka's lap and hold it there. Complainant 1 recalls it as "nearly a joke - like how he did it". Brother Kostka would conduct a general conversation unrelated to what was happening. Complainant 1's hand was over Brother Kostka's robe and he could feel that Brother Kostka was excited by what was happening because his penis was hard. This gives rise to count 2 on the indictment.

64. He described a course of conduct which as a child he thought was quite random but at the time of the interview thought was more systematic. He gave as an example events not in the chapel but out in an area between the secondary school and the primary school, seeing the dog and having Brother Kostka "push up against you... and just rub against you ... on purpose". He described it as happening around once a week but sometimes it would happen more often and sometimes it would not happen.

65. So far as incidents in the chapel were concerned, Complainant 1 came to expect that Brother Kostka would put his hand on Complainant 1's leg and over his crotch. After the first incident, Complainant 1 was prepared for the next occasion. Brother Kostka would put his hand on his crotch for brief periods of time, no more than a minute, and Brother Kostka would "always have this goofy look on his face". Sometimes Complainant 1 would become aroused. He liked the feel of it and didn't discourage it. He said that Brother Kostka would "put his hand on your crotch and manipulate your crotch until I think you became aroused, and then once that happened he - he backed off." He described that when the progression to this form of touching on the crotch occurred it was probably October or November of the year in which he was in Year 4.

66. He explained his lack of reaction by reference to the fact that he was "brought up to have these people in such high respect that we weren't to question what they were doing" and that he was "quite a submissive little kid". He did not feel distressed at the time. He accepted what was happening and assumed that it was normal.

67. He said that early in Year 5 (February 1981), he was in a remedial class and "feeling pretty down about that". After school he was hanging around and came across Brother Kostka who took him for a drink to his room in the monastery. Complainant 1 went into the room and he could feel Brother Kostka behind him pressing into his back. Complainant 1 turned around. Brother Kostka didn't make any comment he just smiled and they kept on doing what they had to do. Complainant 1 turned around again and Brother Kostka reached over his shoulders in a "V motion" and put his hands into Complainant 1's shorts, under his underwear and physically put his hands for a brief time onto his genitals. He touched his scrotum and his penis. It was done jokingly. It startled Complainant 1. Brother Kostka withdrew his hands quickly and went back to normal chitchat. These events are alleged to give rise to the offence charged in count 3.

68. Complainant 1 didn't tell anyone about the incident. Once again he explained this as being because he enjoyed the attention and saying something would probably take that attention away. His relationship with his dad was not great and Brother Kostka was "like a mentor kind of guy".

69. So far as visiting the teachers' rooms was concerned, this was not normal but being permitted to do it made Complainant 1 feel that he'd been singled out and made him feel special. In the interview he said "I know it's a bit twisted, but that's how you felt at the time".

70. He was then asked again about any other incidents in the walkway between the primary and secondary school he said:

Oh, I mean there were always random incidences. Um, it was always a thing of opportunity for him.

...

Um, you'd be, um, seeing him, and then he'd call you over or, you know, he'd put his - he always had this thing where he put his, um, hands on his hips and sort of did this swinging motion, um, and then he'd call you over, and then you'd go over and then, you know, he might just do something random like, um, be in your personal space, and then another time he'll rub up against you.

... Um, you know, another time he'll push your hand into his crotch. So it was all very random, it wasn't---

...

---um, yeah, specific.

71. He said it went on through Year 6 and part of Year 7, a period of nearly three and a half years in total.

72. By the time Complainant 1 got to secondary school he was aware of what was right and what was wrong and he knew that it was wrong.

73. He was then asked about the next time that Brother Kostka touched his genitals. That happened out in the playground towards the end of Year 5. Complainant 1 was playing handball. The ball went out of play and Brother Kostka stopped the ball. He was reprimanding everyone about letting balls go down the driveway. Complainant 1 got the ball from him. Brother Kostka grabbed the ball again and pretended to throw the ball to the other students and in doing so he grabbed Complainant 1. He put his hands down into his shorts, underneath his underwear and touched his scrotum and penis again. He used one hand, turned Complainant 1 towards him, released him and then let him go. The incident took about 30 seconds. It is these facts that are alleged to give rise to the offence charged in count 4. While it was in view of everyone in the playground "it was obviously discrete enough for people not to raise the alarm and say, 'What happened there?'". Nobody else said anything about what happened. By this stage Complainant 1 was becoming aware that what was happening was not correct.

74. MT's evidence was given by her police statement dated 15 April 2016 being read onto the transcript. This course was consented to by counsel for the accused.

75. Her evidence was that she and Complainant 1 were married in 2002 and had been a couple since 2000. She said that there had been a number of conversations with Complainant 1 over the years about what happened at Marist College although he never told her the specifics of what happened to him, just that he was abused. He had mentioned the names "Father Kostka and Chute" and that they were involved in the abuse. The first time he told her about the events was on the night of his youngest sister's wedding or the next day although the statement does not disclose when that was.

76. Complainant 2's evidence in chief was given, without objection, by the reading of his police statement dated 4 July 2008 and some additional oral evidence. He was not crossexamined.

77. Complainant 2 and his family had lived in Canberra before relocating to Victoria and then Indonesia. In mid-1984 his family returned to Canberra and he started school at Marist College in Pearce. He repeated half of Year 6 at Marist College in 1984. In 1985 he started Year 7 at Marist College. Brother Kostka was the Year 7 and 8 religion coordinator, ran the Marist movie club, the school canteen and coached rugby. He was popular with the kids. He had a golden Labrador named Jason. His office was at the end of the Year 7 corridor on the first floor of the high school.

78. Sometime in Year 7 he recalled walking past Brother Kostka's office when he was called in. Brother Kostka talked to him and lent him a Billy Connolly cassette. Complainant 2 took the cassette home and listened to it. It was funny but contained a lot of swearing.

79. A few days later he went back to Brother Kostka's office and returned the Billy Connolly cassette. Brother Kostka asked him to put it in the cassette holder in the back area of the office. While Complainant 2 was returning the tape to the back office, Brother Kostka followed him and gave him a bear hug. He held him in a bear hug for some time before he placed his hands inside his pants (under his underpants) and began to fondle his genitals. This lasted for a few minutes. Brother Kostka just stopped after a while. This evidence gives rise to count 5. Complainant 2 was unsure of what had occurred and the incident ended without a word. He was very confused by what had happened and was upset that he would do that to him. As to when this occurred he said that it was cold in Canberra and that it was in April or May.

80. Brother Kostka's office was a drop-in place for students. While he was in Year 7 he remembered going to Brother Kostka's office almost every day. He estimated that Brother Kostka molested him between 20 and 30 occasions throughout the year "however it was probably much more". He said that the abuse was sporadic, sometimes he would touch him three times a week and some weeks it would not happen at all.

81. At some stage during 1985, Brother Kostka invited several students to work in the "pie wagon" during a rugby carnival being held at the school. This provided an opportunity for students to get out of class for the morning so Complainant 2 said yes. The pie wagon was set up on the side of the main oval. Complainant 2 was in the pie wagon alone with Brother Kostka and Brother Kostka again gave him a bear hug and placed his hands down his pants, fondling Complainant 2's genitals inside his underpants for a few minutes. When the other boy who was working on the pie wagon returned, Brother Kostka stopped. This gives rise to count 7 on the indictment. Similar conduct happened a few times on that day.

82. Complainant 2 also recalled Brother Kostka touching him inappropriately when he was in the classroom. Brother Kostka walked around the classroom between the desks and would lean against him and rub his genitals against Complainant 2's arms and elbows. This evidence gives rise to count 6. That would happen two to three times every time he had a class with him. He also recalled seeing Brother Kostka rubbing his groin, masturbating and pulling his genitals both in the classroom and in his office.

83. In 1986, Complainant 2 was in Year 8 at Marist College. During that year Brother Kostka offered to take him to dinner. It was not unusual for Brother Kostka to take students out for a special dinner. Brother Kostka invited him to the Tang Dynasty restaurant in Kingston. Complainant 2 thought there would be a group of students going to dinner that night but he was the only student there. After dinner Brother Kostka suggested that he go back to Marist College with him and have a look at the new buildings that were being built. Once at the school Complainant 2 recalls walking in the dark with Brother Kostka and stopping to look over the oval. Brother Kostka stood behind him and placed his arms around him. He then placed his hands down his pants and started to fondle his penis. This gives rise to count 8 on the indictment. Complainant 2 stood there for a short time before saying "You can't keep doing this to me. I'm too old, it isn't right". Brother Kostka said "We can still have a friendship". He then removed his hands from Complainant 2's pants.

84. After Complainant 2 returned home his parents asked him about the dinner. He was very despondent and said he did not want to talk about it. After that incident he started trying to avoid Brother Kostka. His parents noticed that he wasn't spending any time with Brother Kostka and his father asked about. He told his father that he disliked Brother Kostka and that he did not want any further contact with him. They asked Complainant 2 whether he had abused him, referring to rumours that they had heard about Brother Kostka abusing kids. Complainant 2 told them that he had not touched him. He gave this response because he was embarrassed and could not admit that it had happened to him.

85. In 1987, Complainant 2's father accepted an overseas posting and he moved to become a boarder at Canberra Boys Grammar school. In his evidence he described the effect that he perceives the incidents had on his behaviour both as a child and as an adult.

86. The evidence from his statement was supplemented by some additional oral evidence, the effect of which has been incorporated above.

87. KD gave evidence in person. Her evidence in chief was given by the reading of her statement dated 17 May 2015. This was done without objection. She was not crossexamined.

88. In 2007, KD was working at the Department of Immigration and Citizenship. Complainant 2 worked under her. In mid-2008 she was telephoned by Complainant 2 on Friday afternoon asking if he could come over and see her. Complainant 2 came over with a newspaper article. It was a newspaper article about sexual abuse proceedings arising out of what had occurred at Marist College. Complainant 2 said to her: "This happened to me, I was one of these boys". He said "it was bad but it wasn't as bad as some of the boys". Complainant 2 went on to say that he was alone when the incidents happened and that the abuse started when he was in Year 7 and it was a repeated thing. Complainant 2 didn't give a lot of detail. He said "you are the first person I told about this". He told her that he had considered putting off having children as he thought his own abuse might have made him a perpetrator. It was either in this conversation or subsequent conversations that Complainant 2 told her that he had been abused by Brother Kostka. She took steps to arrange for some counselling to be available. In 2015 she made a statement to police.

89. Complainant 3 gave oral evidence. His evidence in chief was given, without objection, by him reading his statement dated 28 October 2016. He was not cross-examined.

90. He was around 10 years old when he started attending Marist College in Pearce. The school had a primary school as well as a secondary school.

91. In 1979 he was 12 years old and had entered Year 7 at the secondary school. Within the first weeks of attending the school, the accused approached him and said words to the effect "I'm watching you". Complainant 3 believed that this was because two of his older brothers had been students at the school and had "caused Brother Kostka grief". Over the next few months the accused commenced engaging in behaviour towards him and other students that he described as "extremely confronting and invasive". He recalled that during classes the accused would wear a cassock over his clothing but on more than 12 occasions he recalled the accused not wearing pants or underwear underneath his cassock. He recalled Brother Kostka approaching him while he was sitting at his desk in class. Brother Kostka would lean over him and place his arm around his shoulder so he obtained a secure grip. Brother Kostka would then rub his erect penis against Complainant 3's shoulder and upper arm for a period of time. At the same time he would talk about whatever question he had for Complainant 3 to do with his schoolwork. This gives rise to count 9 on the indictment. Complainant 3 also observed this behaviour occurring in relation to other students. He recalled Brother Kostka on most occasions making a noise almost like a groan as he acted in this way. When this activity was occurring with other students, he would never look up because he said that if you made eye contact with Brother Kostka he would approach you and "you would be next".

92. Complainant 3 felt powerless to stop what was happening as the accused was a Brother and in charge of what was occurring within the school. He said that if the Brothers power within the school was questioned, it would result in physical discipline and he received many canings during his time at the school.

93. Complainant 3 described himself as being "extremely vulnerable", his father having moved out of the family home, and his father and older brother physically assaulting him. He felt that he could not speak to anyone about the abuse that was occurring to him at home.

94. Friday nights at the Marist College were the nights where movies would be shown to the younger students attending the school. During the winter of 1979, Complainant 3 attended these theatre nights. Brother Kostka started taking an interest in him by sitting on Complainant 3's left side and placing his hand on his upper thigh for a period of time. Complainant 3 initially found this non-threatening as Brother Kostka was "always a touchy feely guy". However, it progressed so that Brother Kostka moved his hands up and started to place his fingers underneath the waistband of Complainant 3's jeans and his underwear. It continued to the point that on one occasion Brother Kostka placed his hand down Complainant 3's pants and grabbed his penis and started to fondle it. As a result of this Complainant 3 "freaked out" and jumped up. He was told to sit down but he can't recall who said this. He was trapped between a wall and the chairs in the theatre. He started to hit his head against the wall in an attempt to get Brother Kostka to stop. He hit his head very hard against the wall and started to repeat the words "leave me alone" continuously. This seemed to be sufficient to disrupt the theatre event. The lights were turned on and several people had to assist in carrying Complainant 3 out of the theatre. This evidence forms the basis for count 10 on the indictment.

95. About a week after the incident, the school counsellor contacted him to discuss what had happened in the theatre. The counsellor was a male lay teacher employed by the school and Complainant 3 told the counsellor that Brother Kostka had touched him. Complainant 3 recalls the counsellor telling him that he believed that Complainant 3's action of hitting his head against the wall was to do with his parents divorcing. Complainant 3's impression was that the counsellor completely disregarded what Complainant 3 had told him about Brother Kostka. Complainant 3 attended about five sessions of counselling and Complainant 3 ultimately told him what he perceived the counsellor wanted to hear, namely that the incident was because his parents had caused him to be upset. He did this because "I had tried to tell people about what had happened and no one would listen to me". After he had agreed that it was his parents' separation that caused him to be upset, he was no longer required to go to counselling.

96. He disclosed minimal details about being touched by another person whilst at school to his wife approximately 14 years ago. He did not go into detail because he understood that she had her own experiences that she needed to deal with.

97. When he was 12 years old he attended Woden police station to report his experience but was turned away and told that he was making it up, that the Marist Brothers do not do things like this and to stop wasting police time. When he was turned away he recalls walking around the Woden Plaza shops for a few hours.

98. His mother moved with him to Brisbane in 1981 and he attended Marist College in Ashgrove in Year 9. Although he largely kept to himself at school, he befriended NN and disclosed what had happened to him at Marist College in Pearce when he and NN were in their early 20s.

99. He records in his statement his understanding of the impact that the events with Brother Kostka had on him. He made his complaint to police in October 2016.

100. NN gave evidence in person. His evidence in chief was given by reading the statement he made to police in January 2017. He was not cross-examined.

101. NN attended Marist College in Ashgrove from Year 5 in 1977 until Year 12 in 1984. He has known Complainant 3 since he was 14 years old. They went to the same school together and rode to school along the same route. Although Complainant 3 was a year older than him, they were in the same year at school and shared most classes. In about 1994 and 1995 he was with Complainant 3 in Sydney along with another friend who is now deceased. They were in an apartment on Ithaca Road in Elizabeth Bay, sitting around having drinks late one evening. The friend mentioned in passing that he had been raped when he was a child. That prompted Complainant 3 to say, "I was touched and fiddled with and abused by a priest (or Brother) at school in Canberra". When he said this he appeared to NN to be angry and holding back the details. NN recalled being shocked about what he had been told.

102. He also gave evidence about the changes that he had observed in Complainant 3's behaviour in about 2015 and gave evidence about the terms of a discussion with him after he had made his complaint to police.

103. An audiovisual recording of an interview between police and Complainant 4 was tendered. There was no objection to Complainant 4's evidence being given in this way. The interview took place on 13 January 2017. The interview had been edited so as to remove portions of the interview agreed by the parties. Complainant 4 was not required for cross examination and was not cross-examined.

104. Complainant 4 said that he was abused by Brother Kostka in 1981 when he was in Year 7. He said that occurred on a regular basis, two or three times a week on average during most of the year. The first instance occurred in about the fourth or fifth week at school. Complainant 4 was upset at roll call and asked Complainant 4 to come to his office and tell him what was wrong. Complainant 4 told him that his mother had caught him masturbating and said that it was filthy and dirty. Brother Kostka touched Complainant 4's penis through his pants until Complainant 4 got an erection, Brother Kostka said it was natural that he got an erection, that it was okay and it was not dirty and sent him back to class. It is this evidence which gives rise to count 11 on the indictment.

105. He said that he was always getting into trouble and was always in the special classes at the school. Brother Kostka used to pull him out of class and say that he was going to work with him on religion or something. He would take Complainant 4 to his office. He said that Brother Kostka would want to have sex with him. He said that in Year 7 the activity with Brother Kostka included oral sex.

106. In order to get him out of class, he would tell him things such as that he wanted him to look after his dog which was called Jason. Complainant 4 felt good about this because Brother Kostka would tell him that he was "doing good in the school". Complainant 4 didn't tell his father about what happened. He said: "I wanted to tell my dad, but my dad was such a violent man ... I knew he would have killed him."

107. He also gave evidence that on a couple of occasions he was with Brother Kostka in the chapel and masturbation occurred. That involved Brother Kostka masturbating him or both masturbating each other. Complainant 4 said Brother Kostka "was telling me that even God doesn't mind this, and to prove that we can do it in the chapel, like, some boys need help with turning into men..."

108. He also said that an incident happened in Brother Kostka's dormitory which was "the first time he wanted me to have oral sex with him". Brother Kostka hit him with a big purple Bible. Then the "house lady" who cleaned and cooked for the Brothers started talking in the corridor and told Complainant 4 to not come back because he was not supposed to be in there.

109. Complainant 4 said that notwithstanding that oral sex did not occur on that occasion "I ended up doing it, but not there". This evidence forms the basis of count 12 on the indictment.

110. He said there were several times when he was hit by Brother Kostka but the more he hit him, the less it hurt Complainant 4 and that made Brother Kostka "crankier".

111. Complainant 4 said that he hadn't spoken to anyone about it until about three years prior to the interview when he started to going to SAMSSA (Service Assisting Male Survivors of Sexual Assault). However, later in his evidence he said that he had first disclosed this to anyone was at City Mental Health at the Canberra Hospital a bit over three years ago to a psychiatrist. He could not remember the name of the psychiatrist.

112. He said that he attended Marist Brothers from Year 4 to Year 10 and that he was not allowed to do Year 11 or 12 because he was "too uncontrollable by that stage". The abuse only occurred in Year 7. The last incident occurring about a month before the Christmas holidays in Year 7. Complainant 4 had punched Brother Kostka a couple of weeks before that and that's when "he started to lay off me".

113. He gave a description of what Brother Kostka looked like and how he dressed at the time. He said that Brother Kostka was his religion teacher and that in every religion class Complainant 4 would go to his office. They had religion three times a week. Sometimes Brother Kostka would just talk to him. Sometimes he would give him praise or get him out of trouble with other teachers because he was the form master. Complainant 4's evidence was that he then owed him favours.

114. He made no disclosures to the teachers because he was too scared to tell any of them. He had been corporally punished by each one of them. There were only three lay teachers and all the rest of them were Brothers.

115. He said that he separated from his wife because he hadn't originally told her about his sexual abuse.

116. He said that after he left school his only contact with Brother Kostka was at the Year 10 formal. He was not supposed to attend the formal but did anyway. He took a hardwood tomato stake and gave it to him. Brother Kostka said "What's that for?" Complainant 4 said "Try and hit me now with this you mother fucker". At that point he was told that the police would be called and he left.

117. He said he saw Brother Kostka on the newspapers and on television and that brought the issue of abuse up again for him. He said "And I thought I've dealt with that, I'm done with it, I'm okay with that. Like, nobody knows, nobody has to know like ... You can't live with it ... I couldn't live with it".

118. He said that in the first few months he didn't even realise that what was happening was wrong. He said: "it was like [Brother Kostka] went to some school or something to learn this crap...".

119. Complainant 5 gave evidence by video link with a support person present. His evidence in chief was given, without objection, by him reading his police statement dated 23 August 2017. He was not cross-examined.

120. Complainant 5's parents were teachers and as a result the family moved around a lot according to where his parents worked. His family moved to Canberra when he was repeating Year 5. He attended Weston Creek High School and then in fourth form (Year 10) he transferred to Marist College in Pearce. He had seen Brother Kostka around the school and knew who he was.

121. The incident the subject of count 14 occurred when Complainant 5 had run away from home. He went to what he thought was the safest place that he could go, namely the chapel at Marist College. He went through the front doors of the chapel and to the left towards the confessionals where he went to sleep on the carpet on the floor. Sometime during that night he felt someone kicking his feet. He looked up and recognised Brother Kostka. Brother Kostka asked what was going on and Complainant 5 told him that he had run away and was sleeping there because he thought it would be safe. Brother Kostka said that he wanted to have a series of meetings with him, starting the next day at recess or lunch. Brother Kostka left him in there and he went back to sleep.

122. The next day he attended Brother Kostka's office. He sat in a chair to the left of Brother Kostka who began inquiring about what happened to make him run away. He spoke to Brother Kostka about the reasons and Brother Kostka was very understanding and calm. About five minutes into the conversation Brother Kostka put his left hand on Complainant 5's right thigh. Complainant 5 said he was "pretty sure" that Brother Kostka was writing things with his right hand at the time. Each time Brother Kostka turned around from his desk to ask another question, he would put his left hand further up Complainant 5's leg until his hand was massaging Complainant 5's penis over his school pants. Brother Kostka's hand was not just resting there, it was opening and closing and massaging his penis. Complainant 5 remembered thinking that this was not normal. Brother Kostka continued doing this for another five minutes until it was time for Complainant 5 to go back to class. Complainant 5 described Brother Kostka as smooth and confident in his actions and that he continued to talk to him the whole time while he was touching him. Prior to leaving the office, Brother Kostka made arrangements for Complainant 5 to see him the next day, although Complainant 5 made sure he did not. Brother Kostka attended his class and told the teacher that he had to go and see him during the next break but Complainant 5 did not do so. Brother Kostka never came back to see him and that was the last time that he ever spoke to him. The only person that he told about the incident was his partner who he told in about 2009.

123. The reason that he did not tell anyone at the time was he did not think that they would support him. He described things as being hard around the family home and that his mother and father got divorced at around this time. He thought that if he told anyone at school, things would get worse for him. On the evening after the incident, he did not feel safe to stay at the chapel anymore and he went to stay at a friend's house for that night.

124. The police statement of KG was, by consent, read out by the prosecutor. Her evidence was that she is the partner of Complainant 5 and that in about 2011 he had disclosed to her that "he was dealing with something that happened to him when he was 16 years of age at some Catholic Church" although he did not tell her any further information. In 2017 she made a statement about this to police.

125. Complainant 6's evidence was, by consent, given in the form of an audiovisual recording of an interview with a police officer made in February 2017. The video had been edited so as to remove portions that had been agreed between the parties. He was not required to be available for cross-examination and was not cross-examined.

126. He gave evidence that he started at Marist College in Year 4 when he was nine years old. In Year 5 he was 10 years old. He said that Brother Kostka was the headmaster of the primary school at Marist College. During that year Brother Kostka would play a "motherly role". He would get Complainant 6 into his office and touch him on the neck, cuddle him and put his hand on his head. Complainant 6 thought that he was just trying to show a bit of affection. However, as the year went on things progressed and Brother Kostka picked him out. Sometime when he was in Year 6, he recalled that he was getting pulled out nearly every week to Brother Kostka's office and he "upped the ante". He said that there was a lot of touching and Brother Kostka started fondling his genitals from the outside of his clothing. Although Complainant 6 said that this happened at least a dozen times, the charged act (count 15) relates to an occasion when Complainant 6 said to him, "My old man wouldn't like what's going on here" and Brother Kostka said, "Your father is never going to know is he" or "Your father doesn't have to know does he".

127. Complainant 6 viewed his father as being "a hard tradesman" who, if he told him what had happened, may well have gone to the school and caused trouble. Complainant 6 knew he would have to go to school the next day. He did not tell his father and mother until 2015.

128. He described that Brother Kostka had a leather strap about 15 inches long and 3 inches wide and that he would punish Complainant 6 if he didn't do what Brother Kostka wanted him to do. He said that Brother Kostka would make him stand up and touch his toes and then Brother Kostka would feel his genitals between his legs while pushing his legs apart and telling him to spread his legs. He would also fondle his bottom while telling him to bend over more. Complainant 6 feared that he would be strapped on the bottom, but after Brother Kostka had finished "his little caressing over your bum" he would strike him with a leather strap across the back of the knees. All of this fondling was outside the clothing. It is this fondling at the time of applying corporal punishment which gives rise to count 16.

129. Complainant 6 did tell his grandmother, who is now deceased, about what had happened to him but she never spoke to his mother about it so that at the time that he disclosed what had happened to him to his parents she had no prior knowledge of it.

130. He described that in order to avoid further abuse he used to "go the other side, be a rogue" and as a result was caned.

131. Complainant 6 left Marist College in Year 10.

132. In his evidence he described the reaction of his father when in 2015 he told him that he had been abused. That evidence was consistent with his reluctance to make any complaint to him at the time when the incidents were occurring.

133. Complainant 6 reported his allegations to the police in 2017 at the age of 51.

134. The expert report of Dr Judith Bragg dated 4 October 2017 was tendered without objection. Dr Bragg was not required for cross-examination. Her evidence was admissible by reason of s 108C of the Evidence Act. It was evidence based upon her specialised knowledge derived from her training and study and experience relevant to the credibility of the complainants. It was general evidence concerning child behaviour in relation to continuing sexual abuse by an adult and the patterns of reporting of sexual abuse. This was led to bolster the credibility of the complainants in circumstances where each only made a complaint about the abuse many years after it occurred. Of particular significance in relation to this issue is her evidence in response to the question "What are the patterns of reporting of abuse by children (and in particular boys) [who are] sexually abused?" In response she said:

Delayed disclosure of sexual abuse is more common than disclosure by children and adolescents around the time that the abuse occurs. This is a consistent finding in the literature. London et al found that only about one third of child victims of sexual abuse disclosed to anyone during childhood.

Smith examined a number of variables and concluded that very few of these variables predicted disclosure behaviour in children. This means that in any given case it is difficult to estimate or predict the likelihood of disclosure.

Boys are even less likely to disclose sexual abuse than girls. In a phone survey of 1145 men and 1481 women aged over 18 years, 42% of males had never disclosed their sexual abuse to anyone compared with 33% of females. In one study only around a quarter of males who had been sexually abused as boys or adolescents disclosed around the time of the abuse compared with nearly two thirds of females. Almost half the men disclosed 20 years or more after the abuse compared with a quarter of women.

Similar findings have emerged from the 2014 Royal Commission into Institutional Responses to Child Sexual Abuse. On average it has taken victims 22 years to disclose abuse. On average men took longer to disclose than women.

Characteristics of the child are associated with delayed reporting. Older children are more reluctant to disclose than younger children and boys are more reluctant than girls. When boys and adolescents do disclose, they are less likely than girls to do it at the time of the abuse and when they disclose boys take longer to do so, and make fewer disclosures and more selective disclosures.

...

Children often grapple with the issue of to whom to disclose. Children who disclose in childhood are most likely to disclose to a friend or their mothers. It is not unusual for disclosures of child sexual abuse to occur over time. Children often test the reaction of others before revealing all that has happened to them. A little information may be disclosed and if the child is believed and person to whom the child discloses reacts in a helpful manner, more information and detail is later shared by the child. The response of the person to whom a child discloses may upset the child and contribute to a retraction of the child's disclosure. The response of the person to whom the [child] discloses may be to silence that child and protect the family or the perpetrator. The response may be one of disbelief, blaming or rejection of the child. If children are not believed or if they experience a negative reaction to their disclosure they are more likely to feel blame for the abuse.

(References omitted.)

135. Dr Bragg also identifies a number of reasons why children who have been sexually abused may not report the abuse immediately, for a long period of time or at all. She also identifies that one of the coping reactions of persons who suffer sexual abuse include behaviours which attract negative attention and risk-taking behaviours.

136. Detective Leading Senior Constable Louise Hawke was the officer who investigated the allegations made by Complainant 2. Evidence was led through her the birthdates of Complainant 4 and Complainant 6 and that:

(a) Complainant 4 was first enrolled at Marist College on 2 January 1981;

(b) the accused worked at the Marist College between 1 February 1976 and 16 August 1987 and then again between 1 July 1988 and 31 December 1993;

(c) the accused was known by his religious name of Brother Kostka; and

(d) she had obtained yearbooks from the Marist College which described the operations of the film club and contained a photo of members of the film club and Brother Kostka.

137. The evidence of each of the complainants was given in a credible manner. It was apparent to me that each of the complaints who gave evidence in person, by audiovisual link or whose police video recorded interview was tendered was significantly emotionally affected by the evidence that he gave. This was expressed in different ways consistent with their different personalities. However, the emotional engagement with and effect of their evidence was consistent with them having experienced the conduct of which they gave evidence.

138. In relation to the evidence of Complainant 1, the extent to which any impression of him could be obtained was significantly limited by the fact that his evidence was given in the form of an audio recording. There was nothing in that recording which would indicate that his evidence was other than accurate.

139. It is significant that no complainant was cross-examined and hence their evidence was not challenged. No submission was made that the evidence of any complainant should not be accepted. Indeed counsel for the accused submitted that based upon an acceptance of their evidence the court would find the offences made out.

140. The evidence of Dr Bragg was supportive of the acceptance of the evidence of each of the complainants. There was no cross-examination conducted or submission made to the effect that their evidence was less reliable by reason of their failure to make a complaint (or in the case of Complainant 3, any greater complaint). Nevertheless it is appropriate to take into account the evidence of Dr Bragg. Dr Bragg indicated that lengthy delays in complaints by children, particularly male children, is not unusual and hence not a reason to reject or reduce the weight of their evidence. The statements made in her evidence about the reasons for the absence of complaint or delay in making a complaint, as well as the nature of the relationship between child and abuser were all made at a general level and the extent to which her opinions are applicable vary as between the complainants depending upon the particular circumstances. I have accepted the evidence of Dr Bragg and applied her evidence in assessing the evidence of each of the complainants.

141. In the circumstances of this case, I am able to find beyond reasonable doubt that the events alleged to constitute the offences occurred without regard to any tendency of the accused. However, the evidence is overwhelming that the accused had a tendency to have a sexual interest in young boys to whom he obtained access by reason of his position as a Brother in the Marist Brothers religious organisation and a teacher at Marist College and to act upon that interest. The evidence led in support of each of the charges demonstrates a pattern of conduct that demonstrates a sexual interest in boys in primary or early high school. It demonstrates grooming behaviour on the part of the accused in some cases so as to establish a relationship in which acts of indecency could occur. In Complainant 6's case the accused used his position of authority and the disciplinary powers that he had as a teacher.

142. The only charge where the existence of tendency established by proof beyond reasonable doubt of the other charges is significant is count 12, oral sex between the accused and Complainant 4. The evidence in relation to that count was very limited. The tendency established by the other offending assists in removing any reasonable doubts about the offending arising from the "bare bones" nature of the evidence adduced in support of the charge.

143. In light of the principles of law, directions and evidence summarised above, I now turn to assess whether or not the Crown has proved beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

144. This is a charge of indecent assault under s 81. The Crown submission was that it involved the accused coming up behind Complainant 1, rubbing against him and putting his hands down Complainant 1's pants. I cannot be satisfied beyond reasonable doubt that that is what occurred. That is not because I have a doubt about the accuracy of the evidence given by Complainant 1 during the course of his interview with police on 11 February 2016. Rather it is because the evidence given, taken at its highest, is ambiguous as to whether this incident involved the accused putting his hands into Complainant 1's pants. Although it is been summarised above it is necessary to set out with precision the relevant evidence. The relevant questions and answers in the interview are:

Q 18. Okay. And what happened after that?

A Ah, as in, ah, how did it all happen?

Q 19. Yeah, yep.

1. Okay, alright, sorry. Um, so essentially my first introduction all my first encounter was with a brother called Brother Kostka. I came to know - I came to know him through - he had a pet Labrador called Jason, right? I had a - a, um, a liking the dogs, we had dogs at home, so, um, after school I would tend to, you know, see the dog and want to play with it. Um, as a result of that I created a - a relationship, ah, with the animal, and before the -the brother, and from there, um, the assaults began.

...

Q 23. And then you said that then that sort of lead into the abuse?

1. The abuse, correct. Like, um, firstly it started with, um, for example I'd be, um - an example of what happened, I'd be patting the dog and then he'd come up behind me, um, rub up against me, ah, and then from there it went to hands down your pants touching you to, um, wanting, um, me to touch him. And that - that was the extent. There wasn't anything, um, penetrative or anything like that, it was just general, um, touching up.

Q 24. So you say that in general that would occur. I want you to think about the first time that it occurred and tell me everything about that.

1. Okay, I remember distinctly the first time it happened I was down patting the dog. Um, he got extremely close to me. At the time I didn't really understand what it was or how it was -what it was about. Um, I remember, ah, this expression and his - the way he'd sort of nearly roll his tongue and sort of sway backwards and forward. Um, I also remember he had, like, this white, um, ah, gown or tunic on with a rope, tie rope, um, and I - that's what I remember clearly, and I - I wasn't at that stage, um, you know, completely aware - aware of what - what, um - I just thought he was being friendly, is the key word.

...

Q 29. And you said you didn't know what he was doing?

1. No, I wasn't aware. I just thought he was being close in my personal space and being friendly. So I didn't really - I wasn't alerted to the fact of what was going to progress.

145. At the answer to question 114, Complainant 1 then explained that Brother Kostka would progressively increase his physical attention, generally coming up behind him for a prolonged hug. He then described the progression to increasing contact saying that Brother Kostka:

progressively ... began to ... like sit beside you, put his hand on your leg ... he'd get you to put ... your hand on his leg. Um, and then he'd started to ... touch me ... by putting his hand ... firstly on my pants ... then ... down my pants. Ah and then from there ... he would begin to or start to expose himself to me.

146. In the light of how the answers given in the interview are structured it appears most likely that the answer to question 23 is an overview of the progression of the abuse and that the answer to question 24 which relates to the patting the dog incident was not intended to pick up the reference to Brother Kostka putting his hands down his pants in the answer to question 23. That is made more likely by the answer given to question 29 which referred to the incident as involving Brother Kostka being close in Complainant 1's personal space and the subsequent answers which refer to the progression to hands being on legs and then on his genital area. I certainly cannot be satisfied beyond reasonable doubt that the answer at question 24 necessarily implied that this incident involved Brother Kostka's hands going down his pants. I can be satisfied that it did involve Brother Kostka getting extremely close to him and being close in his personal space. In the absence of being satisfied that the hands of the accused touched Complainant 1's genital area, I am not satisfied beyond reasonable doubt that it involved an act which reasonable people in the community would find to be indecent.

147. I am therefore not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged and under s 317(3) I must find the accused not guilty of the offence charged.

148. Count 2 is alleged to have occurred at some time in the year 1980 or the year 1981. This was when Complainant 1 was in Year 4 or Year 5. The conduct alleged to constitute the offence is the accused placing Complainant 1's hands on the accused's genital area while in the chapel. This led to the accused becoming aroused and his penis hard. The evidence of Complainant 1 was that this occurred "many many many months" after the first incident in the chapel which involved the accused putting his hand on Complainant 1's leg. His estimate was that it occurred in the summer of Year 4 "probably October/November". A subsequent answer to question 189 was consistent with the events having occurred in Year 5. The period specified in the indictment is from the beginning of 1980 until the end of 1981 and hence for the purposes of the indictment it does not matter whether the incident occurred in Year 4 or Year 5.

149. The earlier conduct in the chapel was relied upon as relationship or context evidence so as to put in a proper and realistic context the evidence relied upon as establishing count 2.

150. I accept the evidence of Complainant 1 so far as it relates to the conduct of the accused leading up to the incident charged as count 2. In particular, I find that there was the progression of physical contact between the accused and Complainant 1 during the course of 1980 leading up to the events relied upon for count 2. I am satisfied beyond reasonable doubt that the conduct occurred as described by Complainant 1.

151. I am satisfied beyond reasonable doubt that the accused committed an assault in the sense of a touching of Complainant 1. I am also satisfied beyond reasonable doubt that the act was not involuntary. I am satisfied beyond reasonable doubt that the placing of Complainant 1's hand on the genital area of the accused was indecent according to the standards of morality and decency held by ordinary members of the community. I am satisfied that the acts could not have been committed with the effective consent of Complainant 1 because he was, at that point, under the age of 16. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

152. Count 3 involves the incident in the accused's room during which he put his hands down Complainant 1's pants and touched his penis and scrotum. Complainant 1 described this as being in Year 5. I am satisfied beyond reasonable doubt that the incident occurred as he described in his interview with police. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

153. Count 4 involves the incident in the playground during which the accused put a single hand down Complainant 1's pants. I accept Complainant 1's evidence about what occurred, that it involved touching his scrotum and his penis and that it occurred towards the end of Year 5. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

154. Count 5 is the incident in the office of the accused when Complainant 2 was returning the Billy Connolly cassette during which Complainant 2 said that the accused gave him a bear hug, put his hands inside his pants and fondled his genitals. The indictment alleges that this occurred between 1 January 1985 and 27 November 1985. Complainant 2 was in Year 7 in 1985. The evidence establishes that he was aged 12 or 13 years old. His evidence was that it was cold, probably post-April in Canberra, "April-May". I accept beyond reasonable doubt Complainant 2's evidence about what occurred and when it occurred.

155. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

156. Count 6 is alleged to have occurred in the same period. It involves the rubbing of the accused's genitals against Complainant 2's arm and elbow in the classroom. In order to establish this charge it is only necessary that I be satisfied that it happened on one occasion during the relevant period. Complainant 2's evidence was that it occurred in every class and that he had classes throughout the year. I am satisfied beyond reasonable doubt that the accused acted in the manner described by Complainant 2. In particular, I am satisfied that on at least one occasion in the period 1 January 1985 to 27 November 1985 the accused during a class leant against Complainant 2 and rubbed his genitals against his arm and elbows.

157. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

158. Count 7 also relates to Complainant 2. This is also alleged to have occurred between 1 January 1985 and 27 November 1985. It is alleged to have occurred in the pie wagon and involved the accused giving him a bear hug and placing his hands down Complainant 2's pants inside his underpants. Although the date of the rugby carnival was identified as being 1985, the date within that year was not specified. I take judicial notice of the fact that "rugby" of whichever sort might have been played is a winter sport. I am satisfied beyond reasonable doubt that the events occurred as described by Complainant 2 during the period specified in the indictment.

159. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

160. Count 8 involves Complainant 2 and is alleged to have occurred after the accused took him out for dinner. It is alleged to involve a contravention of s 92K where, upon returning to the school grounds, the accused stood behind Complainant 2 and placed his hand down Complainant 2's pants and fondled his penis. The indictment alleges that this occurred during 1986 and that is consistent with the evidence of Complainant 2. In 1986, the evidence establishes Complainant 2 was 13 or 14 years old. I accept beyond reasonable doubt Complainant 2's evidence about what occurred and when it occurred.

161. I am therefore satisfied beyond reasonable doubt the accused committed an act and that act was not involuntary, that the act was indecent according to the standards of morality and decency held by ordinary members of the community, that the act was committed upon Complainant 2 and that Complainant 2 was at the time over the age of 10 years and under the age of 16 years. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

162. Count 9 alleges a contravention of s 81 in relation to Complainant 3. The accused is alleged to have rubbed his penis on Complainant 3's shoulder and upper arm during class. Complainant 3 gave evidence that he was in Year 7 in 1979 and was 12 years old. I accept his evidence beyond reasonable doubt that, when in the classroom, the accused would lean over him and, with his arm around Complainant 3's shoulder, rub his erect penis against his shoulder and upper arm for a period of time while talking about schoolwork. I am satisfied for the purposes of this charge that it occurred on at least one occasion during 1979.

163. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

164. Count 10 is the incident in the theatre which is alleged to be a contravention of s 81. This is alleged to have occurred between May and October 1979. Complainant 3 gave evidence that he attended these movie nights in winter 1979. He also gave evidence of his complaint to the school counsellor which was ignored. I accept that evidence and the evidence of NN about a complaint in general terms when Complainant 3 was in his 20s. Having regard to the circumstances in it which it was made, notwithstanding the lengthy period since the incident in question and the generality of the complaint, I consider it to be some evidence of the facts alleged in Complainant 3's evidence and also evidence supporting the credibility of his evidence. I am satisfied beyond reasonable doubt that the incident occurred as described by Complainant 3 during the period specified in the indictment.

165. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

166. Count 11 is the incident involving Complainant 4 alleged to be a contravention of s 81 which occurred after Complainant 4 had disclosed he was upset because his mother had caught him masturbating. It involved the accused putting his hand on Complainant 4's genitals until he got an erection. Complainant 4 said that the abuse started in 1981 when he was in Year 7. The evidence of Detective Leading Senior Constable Hawke was that the school records showed that he was enrolled at Marist College on 2 January 1981. The indictment alleges that the incident occurred between 1 January 1981 and 1 April 1981. Complainant 4's evidence was that the incident occurred on the fourth or fifth week of school. I accept Complainant 4's evidence about what occurred and when it occurred. The conduct was entirely consistent with the opportunistic use of the position of the accused to perform indecent acts upon students.

167. I am satisfied beyond reasonable doubt that it was an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

168. Count 12 is an allegation that during 1981 the accused contravened s 81 by having Complainant 4 perform oral sex on him. The evidence about this was limited but unchallenged. It was supported by the tendency referred to at [27] and [141]-[142] above. There is evidence that on the occasion when Complainant 4 was hit with the Bible no oral sex occurred, probably because of the interruption by the "house lady". However Complainant 4 said "I ended up doing it but not there". His evidence was also that abuse by the accused occurred only during Year 7. He said that the last incident occurred a month before the Christmas holidays. Although the evidence is skeletal, it was unchallenged. I accept beyond reasonable doubt that it is accurate. It is not clear whether the reference to "oral sex" involved Complainant 4 performing fellatio upon the accused or the other way round. The evidence of Complainant 4 was more consistent with him performing fellatio. In either case it would amount to an act of indecency.

169. For these reasons I am satisfied beyond reasonable doubt that the accused committed assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

170. No evidence was led by the Crown in support of count 13, the charge of buggery contrary to s 79 of the Crimes Act. It follows therefore that under s 317(3) I am not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged and the accused must be found not guilty of that offence.

171. Count 14 is an allegation of breach of s 81 in relation to Complainant 5 in 1979. This is the incident said to have occurred after Complainant 5 ran away from home. Complainant 5's evidence was that the incident occurred in 1979. He said it occurred sometime between March and probably mid-year. He had turned 16 in March. He said it had probably occurred after his birthday. The complaint evidence given to his partner KG was that something had happened to him when he was 16 years old in the Catholic Church. Whether he was over 16 or under 16 at the time of the incident does not matter as, if he was over 16, it is clear that no effective consent was given for the purposes of s 4(2) of the 1976 ordinance.

172. I am satisfied beyond reasonable doubt that the incident occurred as described by Complainant 5. I am therefore satisfied beyond reasonable doubt that the accused committed assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

173. Count 15 is an allegation of a breach of s 81 in relation to Complainant 6 occurring in 1976. This was the incident involving the accused rubbing the genitals of Complainant 6 from outside his shorts. In Year 5 when Complainant 6 was 10 years old, grooming behaviour commenced. In Year 6 which was 1976 and the year specified in the indictment, Complainant 6 gave evidence that on at least a dozen occasions when sitting in the accused's office the accused put his hand on his leg and then on his genitals through the outside of his clothing. I accept the evidence of Complainant 6 about this beyond reasonable doubt.

174. I am therefore satisfied beyond reasonable doubt that the accused committed an assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

175. Count 16 is another allegation of an offence against s 81 committed on Complainant 6 during 1976. In contrast to all of the other charges this is alleged to have occurred in the context of the accused inflicting corporal punishment. Notwithstanding the differences between the context of the act, the nature of the act involved is similar to that in other incidents involving touching the genitals of a young student. I accept the evidence of Complainant 6 in relation to this incident and that he was fondled on the genitals and had his bottom fondled prior to the infliction of corporal punishment.

176. I am therefore satisfied beyond reasonable doubt that the accused committed assault in the relevant sense, that it was not involuntary, that it was indecent in the sense required and that there was no effective consent. For those reasons I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.

177. In relation to all of the charges except counts 1 and 13, I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. For the reasons given above I was not so satisfied in relation to counts 1 and 13. I therefore find the accused not guilty of the offences charged in count 1 and 13. So far as the balance of the counts are concerned, I adjourned the proceedings so that the parties may be heard in the light of these reasons as to what orders should be made under s 318 of the Crimes Act. The orders of the Court are:

1. The accused is found not guilty on count 1 and 13.

I certify that the preceding one hundred and seventy seven [177] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.