R v McIver

GENERAL DIRECTIONS

1. To comply with s 132(2) and 133(3) Criminal Procedure Act 1986 and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250 I remind myself of the following principles of law.
2. As the accused pleaded not guilty and elected to have a trial by a judge alone, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return my verdicts according to the evidence. It is for me to assess the witnesses and decide whether they are reliable. I note that reliability depends upon two quite different but sometimes overlapping considerations. One is the witness's honesty and the other is the witness's accuracy.
3. The honesty of a witness involves considering not only what the witness said or perhaps did not say, but also the impression that the witness made upon me.
4. This direction is important in this trial. The events in which it is alleged that these complainants suffered the misconduct charged is said to have occurred between 17 July 1968 and 5 December 1973, between 38 years and 45 years in the past. I accept that the complainants were not before the Court knowingly giving actual evidence, but I must be satisfied of the accuracy of their evidence implicating the accused in the commission of these offences. If there are questions about the accuracy of their assertions sufficient to leave me with a reasonable doubt, in consequence thereof I must return verdicts of not guilty to these charges.
5. I have the benefit of submissions from the Crown and the accused's counsel. I will consider them and give such weight as I think they deserve. I note that they are not evidence in either case.
6. As the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge the importance of matters that I must decide not only for the accused, but also for the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotions sway my judgement. I must not act capriciously or irrationally.
7. This direction is important. The evidence presented sheds a poor light over the management of the home in which these and other children were confined during their young lives. The complainants were children. The dates of birth of the complainants are uncontroversial:

• AM was born on 24 September 1959 and within the time specified for the charge brought in respect of him was between the ages of eight years and 11 years of age.
• DC was born on 27 March 1959 and within the time specified for the charge brought in respect of him was 14 years old.
• CN was born on 24 September 1959 and within the times specified for the charges brought in respect of him was between eight years and 14 years of age.

1. The circumstances in which these children were placed in the home suggest abandonment by their parents and step-parents, and their treatment whilst there according to the standards which prevail today was in my opinion mistreatment, including the use of corporal violence and regimental control of mere children in their day to day lives, albeit with a blend of adequate food, a place to sleep, facilities for maintaining hygiene and play activities within a regimented timetable. I accept that the complainants and other children housed in this institution were provided with adequate food and clothing, but the systems described for their management, including, for example, the herding process adopted for shower time, could hardly be mistaken by an objective observer for appropriate nurturing at critical stages of their young lives.
2. A seminal event disclosed in the evidence, where one of the children, a severe asthmatic, died from an attack of asthma without adult help, notwithstanding the efforts of other boys to rouse the person responsible for their supervision, which the evidence reveals were ignored by the person concerned, if he was present at all, and the steps taken thereafter to remove the child's body, thereby interfering with what would today be identified as a crime scene, causes concern about the management of this home, where the accused as assistant manager and his manager ought to have taken steps and adopted systems to adequately supervise the officers and staff responsible for the care of these children.
3. However, the accused is not charged before this Court with offences alleging neglect, specifically or more generally. He is charged with specific sexual offences against the child complainants and thus I am obliged to determine all relevant issues of fact according to the evidence presented during the course of the trial relevant to those charges. This includes the oral evidence of witnesses and exhibits. My task requires that I put aside my perception of the evidence speaking to the management of this establishment and the children there confined as disclosing characteristics of almost Dickensian proportion in at least some respects.
4. I am not obliged to accept the whole of the evidence of any one witness; I may accept part and reject part of a witness's evidence.

THE JOINT PROCEEDINGS

1. The accused is being tried jointly upon five counts, the fourth of which is the alternative charge to count 3. This course was taken as a matter of convenience. There are four individual episodes of alleged misconduct for which the accused faces contemporaneous trials.
2. Count 1 is in respect of one episode alleged by AM. Count 2 is in respect of another separate episode alleged by DC, and counts 3, 4 and 5 respectively relate to two allegations made by the complainant CN.
3. Generally there is nothing in the law or as a matter of common sense that requires the same verdict in respect of all counts presented in an indictment if at the end of the day the evidence proves guilt in respect of one or other counts but not in respect of another or others.
4. One must not in such a case take a global approach to all of the instances of alleged misconduct. If the accused is found guilty or not guilty of one offence, the Court must not say that the accused is therefore guilty or not guilty of another or other offences on the indictment.
5. Accordingly, I must consider each charge with regard to the evidence relevant to it and will be required to return a separate verdict in respect of each. However, because of the way in which the case was presented and contested in these trials, a verdict of not guilty in respect of counts 3, and in the alternative to count 4, must not be overlooked when considering count 5.
6. Similarly, if my verdict for count 5 is not guilty, then I must not overlook that when considering my verdicts for counts 3 and 4. If my verdict is not guilty in respect of the misconduct alleged of the accused on either occasion by the complainant CN, because of my doubts about the truth or accuracy of the evidence of that complainant I must consider the impact of that upon my consideration of the other event.
7. The Crown does not rely upon tendency reasoning or coincidence reasoning in respect of any of the episodes of misconduct alleged of the accused. Nor does it rely upon any of the specific allegations for the purposes of context or relationship evidence. Therefore I am left to consider each charge with regard to the evidence relevant to it without making use of the evidence in respect of any one count in my assessment of the Crown case advanced upon the other counts.
8. Each episode of alleged misconduct rests upon the assertion made by the complainant. There is no corroboration for any of the specific allegations available from elsewhere in the evidence. In each case the issue joined is whether the Crown has established that the accused engaged upon the misconduct alleged. The accused denies that he did. It remains, however, that I must also be satisfied that the evidence, if accepted, establishes the elements of the offences charged.

THE BURDEN OF PROOF

1. This is a criminal trial. The Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges. The accused denies that the offences occurred. The Crown must prove that they did. It is not for the accused to disprove these charges, but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt. The words "beyond reasonable doubt" are ordinary every day words and that is how I understand them.
2. If at the end of my deliberations I am not satisfied that the Crown has established each offence or any of the elements or essential facts which combine to create the offence beyond reasonable doubt, having taken into consideration the evidence both for the Crown and for the accused, and after also taking into consideration the submission made to me by the Crown and the accused's counsel, then it is my duty to bring in verdicts of not guilty because the Crown will have failed to do what the law requires it to do.
3. It is vitally important I clearly understand that the accused must be found not guilty if the alleged misconduct has not been proven to have been committed by him, or if there was some misconduct proven, if any one of the essential ingredients of the charges has not been proved to my satisfaction beyond reasonable doubt.
4. It follows that if I am left unable to decide whether the Crown has proven its case beyond reasonable doubt in relation to the occurrence of the misconduct or any essential ingredient, even though I might suspect that the accused so engaged, the accused is entitled to the benefit of that doubt and I must find him not guilty.
5. I remind myself that the Crown does not have to prove every single fact arising from the evidence in the case beyond reasonable doubt and I am not required to resolve every conflict arising from the evidence. The onus, which rests upon the Crown, is to prove the ingredients of the offences and that they were committed by the accused.

INFERENCES

1. I remind myself that I may in my role as judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justifiable or unjustified, correct or incorrect. I may draw an inference adverse to the accused from proven facts only if such inference is a reasonable inference that can be properly drawn from the proven facts.
2. This is a criminal trial and as I have already noted I must be satisfied beyond reasonable doubt of each of the essential ingredients and that the accused committed the offences before he may be found guilty. Amongst other things this means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence as to the existence of an essential ingredient or as to the guilt of the accused unless it is the only rational inference available in the circumstances.

THE ACCUSED DID NOT GIVE EVIDENCE

1. The accused did not give any evidence in response to the Crown's case, although documents were tendered and became exhibits. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. The accused bears no onus in respect of any fact that is in dispute. Although the accused was entitled to give or call evidence, there was no obligation to do so. He is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore it follows that the accused was entitled to say nothing and make the Crown prove his guilt to the high standard required.
2. The accused's decision not to give evidence cannot be used against him in any way. That decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. I cannot use that fact to fill any gaps that might exist in the evidence tendered by the Crown. It cannot be used in any way of strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence or another person had been called by the accused as a witness in the trial.

THE ACCUSED'S INTERVIEWS

1. The accused participated in two interviews with police. I remind myself that all of us in the community have the right to refuse to answer questions put to us by the police, but in this instance it is the fact that the accused participated in the interviews alone and responded to extensive questions put to him by the investigating police officers.
2. The accused's exculpatory assertions are thus before the Court, disclosed in evidence by the Crown's tender of the video recordings. These were not sworn testimony and were not against the accused's interests and were not tested by cross‑examination, although the interviews were of some length and the interviewers went into detail when asking about the background and putting the specific allegations.
3. The weight to be attributed to the accused's responses is to be determined in the light of the whole of the evidence. Bringing these matters to bear, the answers given by the accused in the interviews and the information provided in response to the questions probing the circumstances of his service in the Salvation Army, including his time at the boys home, must be given consideration, and if the responses leave a reasonable doubt in respect of the allegations made against him or any one of them, he is entitled to the benefit of that doubt and consequently a verdict of not guilty must be returned to the count in respect of which the doubt is established.
4. However if I have not been persuaded that the responses leave a reasonable doubt, it does not follow that the accused must be found guilty. It is not the case that I must accept his assertions before he is entitled to be acquitted, nor is it the case that the responses must leave a doubt in my mind before the accused is entitled to acquittal. If I reject entirely his responses, it remains that the Crown cannot succeed in this prosecution unless I am satisfied by the evidence in the Crown case that the accused is guilty. If I do not accept what the accused said to the police, I simply put that to one side and decide whether the evidence in the Crown case proves the accused's guilt. If it does not, he must be found not guilty.

DELAY

1. There has been considerable delay in the complaints bringing forth these allegations and consequently in the authorities bringing these prosecutions, leaving forensic disadvantage to the accused. The delay extends back from the present time to between 47 and 53 years. The confrontation between the police and the accused began on 2 November 2016, when police approached him, followed by an interview on that day, and then a second interview on 8 June 2017. This constricts the period to between 42 years and 48 years, but this is still substantial.
2. There is a large body of evidence that is no longer available and was not available at the time of the interviews. Witnesses have died, others not found, and document and records are incomplete or could not be found. Witnesses who were called have compromised memories through the effluxion of time.
3. Examples of what might have been available if these allegations were disclosed closer to when they were said to have occurred include the rosters for those officers and staff members employed at the home at the material times, and the record of punishments administered to the boys. Important in this trial was the layout of the buildings on the property where the home was located and use to which the buildings were put at various times.
4. It is accepted by the Crown that closer to the times alleged, material beyond that which was presented would have been available to assist the analysis of facts surrounding the allegations made against the accused, and the absence of this material or of any reliable secondary source has the accused at a significant forensic disadvantage.
5. The primary issues in the trial were the accuracy and truthfulness of the complainants, and, if they suffered as they alleged, whether the complainants respectfully identified the correct person as their assailant.
6. There is a warning I must bring to account relating to the delay in the complaint. I must consider fully the effects of delay on the ability of the accused to defend these allegations by testing prosecution evidence and bringing forward evidence in his case to establish a reasonable doubt about his guilt.
7. I have brought to account the specified difficulties encountered by the accused in testing the evidence of the prosecution and adducing evidence in his case. The delay for which the accused has not been responsible requires consideration of the following:

• The delay in making any complaint;
• The consequent delay in the prosecution;
• The possibility of distortion of human recollection;
• The nature of the allegations and the circumstances in which it is said that the offences occurred;
• The age of the complainants at the time of the allegations; and
• The prosecution case relevant to the issues upon which the trial was contested is confined to the evidence of the complainant in each case.

1. I accept that these features put the accused at a significant disadvantage in responding to the prosecution case, in testing the prosecution evidence and then bringing forward evidence to establish a reasonable doubt about his guilt.
2. The evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, the complainants' memories for detail would have been clearer to enable their evidence to be checked in relation to those details against independent sources so as to verify it or disprove it. The complainants' inabilities to recall precise details of the circumstances surrounding incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict them. Had the accused learned of the allegations at a much earlier time, he might have been able to recall relevant detail which could have been used by his counsel in cross‑examination of the complainant in each case.
3. The accused might have been able to find witnesses or items of evidence to either contradict the complainants or support his case or both. He might have been able to recall it with greater precision what he was doing and where he was at particular times on particular dates and have been able to bring forward supporting evidence. I accept that the accused has been prejudiced in the conduct of his defence and therefore I must give the prosecution case in respect of each complainant the most careful scrutiny, bearing in mind that the complainants' evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it or to support his defence.
4. The limitations provided in s 165A and s 165B Evidence Act 1995 with regard to directions concerning the evidence of children do not apply as this is a trial before a judge alone. Moreover, the complainants are now adults in the later stages of life. The assessment of their evidence must be with regard to their representations made at stages of their lives asserting their respective memories of their perception of events that befell them when children, aged respectively between eight years and 11 years, 14 years and between eight years and 14 years.
5. Their general reliability has been put in issue as adults representing their memory of a perception of conduct many decades ago when they were children. If they were to give evidence as children of the events when they would have been recent, I could not overlook that, just as with adults, some children will provide truthful and accurate testimony and some will not. Children are not miniature adults, but children would be treated and judged for what they are, not what they would in years ahead grow to be.
6. In this case the Court must assess their evidence as adults about events they allege occurred when they were children and in doing so assess their evidence describing their memories of their perception of events experienced by them as children. It is appropriate, I believe, that due allowance must be made in the trial process for the fact that they were children at the material times, with the attendant risk that the effluxion of time and infection from sources external to the specific events they allege might reduce the reliability of their evidence of those events given as adults so long after.

CHARACTER

1. The accused has advanced that he is a person of good character, having served the entirety of his working life as a member of the Salvation Army, performing good works without any antecedent record of criminal misconduct. The evidence has not been challenged by the Crown and thus I accept that the accused is a person of good character. The Court is entitled to take evidence of an accused's good character into account in his favour on the question of whether the Crown has proven guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offences alleged.
2. The Court can take into account the accused's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Further, the Court can use the fact that the accused is a person of good character to support his credibility when assessing the interviews in which he participated. The Court may reason that a person of good character is less likely to lie or give a false account when asked a question by the police.
3. Good character though is not some kind of defence. It is but one of the many factors to take into account in determining whether one is satisfied beyond reasonable doubt of guilt.

THE ESSENTIAL ELEMENTS

1. The accused is charged with five counts. Counts One and Two allege an offence of indecent assault, the first between 17 July 1968 and 15 January 1971, the second between 6 July 1973 and 5 December 1973, all contrary to s 81 Crimes Act 1900, since repealed. This provided that it was an offence to commit an indecent assault upon a male person of whatever age with or without the consent of the person.
2. The Crown must prove in respect of these allegations that the accused touched the complainant and that the touching was indecent according to ordinary community standards and that the complainant was a male. The Crown is not burdened with proving that the complainant did not consent to the indecent touching.
3. The allegation founding Count One is made by AM, who alleges that at shower time, when all the boys were lined up naked, the accused had the complainant bend over, whereupon he grabbed the complainant on the bottom. The accused denies this occurred at all. If the evidence is true and correct such conduct, regardless of how passing it might have been, could constitute an indecent assault in contravention of this provision.
4. The allegation by DC found in Count Two is that the accused called him when he was lined up waiting to take his shower, called him into the shower room out of turn, said that the complainant had worms, told him that he would check, had the complainant bend over and spread his buttocks, and thereupon placed his hand on the complainant's buttocks and anus and told the complainant he had a big tape worm. In response to this, the complainant made a comment in terms asking whether the accused was "enjoying himself" and whether or not he was homosexual.
5. The accused denies this occurred at all. If the evidence is true and correct such conduct would constitute an indecent assault in contravention of this provision.
6. There has been nothing advanced to suggest that the elements of these offences would not be established if the evidence by the complainants is accepted.
7. Count Three, with Count Four in the alternative, alleged that between 17 July 1968 and 15 January 1971 the accused either committed buggery upon CN or indecently assaulted him in contravention of respectively s 79 Crimes Act 1900 and s 81 Crimes Act 1900. Section 79, as it was at the material time has been repealed and was replaced in due course through amendments to this Act whereby anal penetration or anal intercourse is now at law a style of sexual intercourse. At the material times the section provided that it was a felony to commit the crime of buggery with mankind or bestiality with an animal, attracting 14 years penal servitude. A felony by definition was a crime that attracted punishment in the form of penal servitude according to the law as it then was. Upon amendment the section had excised from it reference to buggery.
8. To succeed in Count Three the Crown must prove that the accused penetrated the complainant's anus with his penis; penetration using another item is not sufficient. Penile penetration to the slightest degree is sufficient. The Crown need not prove that this was without the consent of the complainant. The Crown need not prove that there was ejaculation.
9. The complainant alleges that when found crawling underneath one of the buildings at the home, the accused called him to accompany him to one of the cottages there. In a bedroom the accused told him to drop his pants. The complainant pulled down his pants and underpants. The accused told him to turn around and began to touch his penis and testicles. After a short time he felt what he believed was the accused's penis around his anus, though he could not see it. He felt part of the object in his anus but not all of it, and he felt a sharp shooting pain as if his anus was ripping. The complainant screamed, pulled up his pants and ran out to a hiding place in the laundry area. His anus was sore for a number of days.
10. Proof of this offence requires proof of penetration by the accused using his penis, but if the complainant's evidence is accepted with a question remaining about the accuracy of the complainant's perception that the accused used his penis, the offence of indecent assault would be established regardless of what the instrument or device used might have been. Once again, though, the accused denies that this occurred. It is not said that if the incident occurred as alleged that this could not have been an offence of indecent assault.
11. Count Five has specified two periods because of the uncertainty as to when the alleged conduct occurred. The periods are 17 July 1968 to 15 January 1971, and 19 January 1972 to 18 January 1974. This is an allegation of buggery in contravention of s 79 Crimes Act 1900, now amended as earlier described.
12. CN claims that one afternoon he was rifling through the lockers in the room near to the shower room to see what he could steal. The accused entered and the complainant tried to hide between two lockers, but the accused grabbed him and held him against one of the lockers. His pants were down. The accused had his chest against the complainant. The accused turned him around so that he was against the locker; the accused was positioned behind and "jammed" his penis into the complainant's anus, causing sharp stabbing pain. Afterward the complainant was wet around his anus. The accused pulled his pants up and left without speaking. CN went to the toilet to clean himself. He could not walk properly for a few days and suffered pain around his anus and difficulty when using the toilet in days following.
13. The accused denies that this occurred. It is not said that the elements would not be established if the complainant is accepted as truthful and accurate in his description. Though there is no evidence that he saw the accused penetrate him using his penis, the circumstances he described could leave no other conclusion if the evidence given is true and correct.

COMPLAINT

1. The Crown does not rely upon evidence of complaint in respect of any of these trials. Upon the evidence before the Court there was no complaint forthcoming from any of the complainants until the evolution of the Royal Commission examining the abuse of children within institutions. In cases of sexual assault the Crown often relies upon what the complainant said to others about the alleged assault by the accused as evidence that such an assault had occurred.
2. Section 66(2) Evidence Act 1995 provides for such evidence and for such use of the evidence, though the provision is not, by its terms, confined to cases such as this. Evidence is then available to the tribunal of fact, who is called upon to decide whether the complaint was made and what its contents were. If the complaint was made substantially to the effect of what the complainant alleges, the evidence of what was said in the complaint can be used as some evidence, independent of the evidence given by the complainant that such an assault did occur. It thus may be used as evidence of the truth of what the complainant alleged. The court would be entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was less likely to have been fabricated and more likely to be accurate. Other matters that could also be taken into account include evidence of distress in the complainant.
3. The Crown would also contend that the fact that the complainant raised the allegation against the accused at the time and in the manner that they did, would lead one to accept their evidence as more believable than if they had not raised the allegation as they did. If satisfied that complaint was made, the question is did the complainant act in the way one would expect if they had been assaulted as alleged. Is what they did the sort of conduct one would expect of a person who had been assaulted in that way?
4. If the complainant has done what one would expect someone in their position to do, that may support the Crown because of consistency between the complainant's conduct and the allegation against the accused.
5. If the complainant has not acted in the way one would have expected someone to act after being assaulted as described, then that may indicate that the allegation is false. However one must bear in mind that when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean of itself that the allegation must be false.
6. In this case it is important to note that when the alleged incidents occurred the complainants were children in a controlled environment, where they had no access to others outside of the home other than in limited circumstances and always with the spectre of their continued residence within the institution. Moreover, this was at another time in a history when societal attitudes were significantly different, with reticence in some to accept that members of the clergy and others responsible for the care of children would stoop to behave against them in such an egregious manner, perhaps discouraging early and spontaneous complaint.
7. Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become reliable just because it is repeated.
8. These are prescribed sexual offences as defined in s 3 Crimes Act 1900 and thus if there is a difference between the evidence describing the sexual assault alleged and what is recalled of it on other occasions, including in the course of complaint. The Court is often asked to consider: 1. People may not recall all details of a sexual assault or may not describe it in the same way each time; 2. Trauma may affect people differently, including affecting how they recall events; 3. It is common for there to be differences in accounts of a sexual offence; 4. Both truthful and untruthful accounts of a sexual offence may contain differences; and 5. That it is for the tribunal of fact to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.
9. As I said, the Crown has no evidence of complaint at all and thus the evidence the Crown relies upon is confined to the assertions by the complainant in each case. However, the fact that there was no complaint made in a timely fashion or in an appropriate manner near to the alleged events does not of itself lead one to conclude that the events as described did not occur.

THE EVIDENCE FROM THE COMPLAINANTS

1. Because this was a re-trial, evidence that came from the complainant in each case was by way of an audio visual recording that was played to this Court. This evidence was recorded in the earlier trial that was the subject of a successful appeal to the Court of Criminal Appeal. This procedure is one that is now available by force of the law governing the conduct of such proceedings. It obviates the need for a complainant in such matters to repeatedly appear in Court and face the trauma that arises from the obligation to do so. The Court has the benefit of seeing the witness by video recording and is able to hear questions put, both in examination‑in‑chief and cross‑examination, and to assess the presentation of the witness as each question is answered.
2. There is nothing unusual in this course and I must be careful not to attribute any greater or lesser weight to the evidence given by the complainants presented in this fashion. Moreover, I should not hold any view adverse to the accused from the mere fact that evidence in the Crown case from the complainants was presented in this fashion.

MOTIVE FOR THE COMPLAINANTS' INACCURACY OR UNTRUE ALLEGATIONS

1. In the Crown case, as I said, each case depends upon the evidence of the complainant, and the evidence of each must be examined without reference to the support that might have been otherwise gleaned from the evidence of the other allegations as I earlier explained.
2. In the accused's case, the accused denies any such misconduct on his behalf. It was submitted that there were reasons why the complainants might well have been mistaken about who perpetrated the misconduct, if it is accepted that there were incidents such as they have alleged. It was submitted that there was evidence upon which one could conclude that there was a measure of resentment toward the accused because of his role, including the administration of discipline by caning amongst other things.
3. The accused does not have to prove anything in this trial, including a reason why the complainants might be mistaken or untruthful about what occurred to them, and, importantly in this case, about the identity of the person responsible for what befell them.
4. The premises underpinning the submissions have merit, but if they did not, it does not follow that the complainants are correct in what they have said of the accused. There might be a reason or reasons for their evidence which no one knows about. If I do not accept the propositions advanced on behalf of the accused, I must not overlook that the absence of evidence or a reason for inaccuracy or for lying is not proof that there was no reason. Absence of evidence as to a reason for inaccuracy or lying is irrelevant and adds nothing to the reliability of the complainants or evidence of the Crown case. The accused cannot be expected to see into the complainants' minds and be held accountable for failing to discover whatever reason there might be for their evidence if they were inaccurate or were lying.

THE EVIDENCE

1. The evidence consisted of a number of documents which were of significant age, including photographs of the boys' home. Among them is an image of part of the dormitory where the boys slept. It is difficult to know precisely when these photographs were captured, but I note that in the photograph showing part of the dormitory that is before me it depicts part of the room with an aisle down the centre, on each side of which there are two rows of beds close together.
2. There is an image of boys swimming in the pool that was installed on the property. There are images of boys apparently at play in the grounds. There is an image of the wash basins in the wash room.
3. There is an image of the locker room in which it is alleged that one of the offences occurred. This once again shows a central aisle, on each side of which there are lockers without doors. The evidence concerning these was that they were used for the boys to have their clothes stored, and at shower time they would be required to congregate there at their locker, remove their clothes and remain naked until they were called in groups to partake their shower. The first group would go under the shower, soap themselves up aside from the shower while the next group trailed in to go beneath the shower. After they would leave the shower to soap up, the boys who had before them soaped themselves up would then rinse off and then take steps to dry themselves down to return to get their clothes.
4. There is an image of one room with a trampoline with two boys watching television and three on the trampoline. There are a number of images showing the home itself on the property. At best one can have a general appreciation of what the premises and property was like when these images were captured, but without knowing precisely when they were recorded.
5. There were diagrams showing the layout of the property and the positioning of buildings. There was a diagram produced by a witness, Allan Anderson. He, relying upon his memory, prepared a diagram of the internal features of the home, showing the upper level where the boys slept and where the person responsible for their care overnight also occupied a room, and depicting the lower ground. He also provided a schedule of the features of the diagram and, notwithstanding that it was not a document produced in respect of any specific point in time other than the occasion when he recalled his memory of the building for the purposes of preparing the document, he provided a reasonably reliable presentation of the layout of the premises.
6. There were agreed facts put before the Court showing the birthdate and service of the accused, and the times when he and his family were living at the boys home. There were facts provided with regard to the operation of these premises as a boys' home between 1915 and 1979. It was also admitted that the home admitted boys who had been abandoned or relinquished by their parents, or had been committed to care by a Children's Court for the purposes of the Child Welfare Act 1939 (NSW) as it was.
7. There is information regarding the Bexley Post Office; the number of boys at the home, being 60 to 85 during the time that the accused was there; there are particulars of the complainants DC, AM and CN; there was the death certificate published upon the passing of the boy, Trevor Hubbard, the severe asthmatic to whom I earlier referred.
8. In addition to their recorded interviews and the transcripts of their interviews, there were documents generated by each of the complainants that were also an exhibit before me.
9. Evidence led viva voce came from Allan Anderson, who prepared the diagram to which I earlier referred, and John McWhinney, who went to the boys' home in about 1962 and 1963 at the age of seven or eight. He described his placement in the home in two separate periods. He gave a description of his memory of the arrangements for the boys held there, the layout of the sleeping area, including the supervising officer's room which was opposite another room used as a store room.
10. The arrangements for their schooling were discussed; it is uncontroversial that the boys went to primary school and high school in the area where the home was located.
11. Another former resident as a boy at this home was Ronald Green. He was another unfortunate child who, upon his evidence, was relinquished by his parents.
12. Terry Smith was a former Salvation Army officer, but was before that one of the people responsible for the supervision and care of these boys and the person on duty at the time of the death of Trevor Hubbard. There was some controversy regarding the events surrounding the death of that little boy. Smith was not Salvation Army officer and therefore not a member of the clergy at the time of that little boy's passing, but later became one. He was thus known as Uncle Terry in the years preceding his appointment to the clergy. This was a usage that was adopted for the lay members of the organisation who provided care, so-called, for these children.
13. The controversy surrounding Mr Smith was that he was said to be in the supervisor's bedroom at the time Trevor Hubbard was in distress because of an asthmatic attack, and notwithstanding the efforts of at least two of the boys to rouse Smith to provide whatever assistance he could have provided to Trevor Hubbard, he did not come out of the room. There was evidence regarding an inhaler that might have been available for the boy that was said to have been under the control of Smith, although the evidence is not entirely clear on that point. It was also said that there was some oxygen, a facility which he had the skill to use, but the children clearly did not. Notwithstanding the efforts by the boys attempting to raise his attention to get him out to look after this child, he failed to do so and the child died.
14. The evidence was also that after that the accused came and picked up this little boy and carried him to another part of the building. The accused described this event in the interview with the police. As I recall his description it was with regard to an attempt if it was at all possible to revive the boy after the attack.
15. The evidence regarding this from Terry Smith I found implausible. He acknowledged in response to my questions that there had been no other occasion when a child had been lost in such circumstances. He claimed that the boy was found on the toilet, at which point he was removed to be taken elsewhere. He was asked about his memory of any of the other boys attempting to rouse him to come to the assistance of the boy, to which his response in each case was I find carefully presented, denying any recollection of any such event. There was no clear denial that there was some effort by other boys to raise the alarm and gain his attention.
16. I found it implausible, as I said, that he would not have remembered the detail of such an event. I found the evidence by the boys describing what occurred as persuasive and I have no doubt that Smith, the person Uncle Terry, either was not present in the room, or, if he was, he chose to ignore the calls for help that were made urgently when the deceased was found by other boys in the dormitory.
17. Other evidence came from Ms Jocelyn Morton, the daughter of the manager, Major Morton, appointed to the home on 16 January 1969. She gave evidence speaking of her association and relationship with the boys. She played with them in the grounds after school. She perceived the circumstances to be as if she was their de facto sister. She spoke of the accused. Of him, she said at p 130 line 33: "My recollection was that he had a good relationship with the boys. He was a sporting sort of person and so I know the boys used to like playing football and cricket et cetera, but I know that John was readily out in there - out in the, the yard either playing sports with them or supervising the sports. So I think that their relationship was fine."
18. She had a perception that her father was firm, but would not class him as a disciplinarian. She could not say one way or another regarding the accused, but said she had no reason to presume that he did not enjoy a similar reputation. She spoke of Allan Anderson and Dean Jones, another witness called, who both attended her father's funeral. She spoke of the efforts made by her father as manager, with the assistance of the accused as assistant manager, to humanise the circumstances of the home, including the abandonment of the system whereby the boys were allocated numbers for the purposes of identifying their clothing, to thereafter be known by their names.
19. Her evidence was relevant to the circumstances of the home, but also spoke to the perception she had of the accused's character, which was in positive terms.
20. Dean Jones was one of the other boys who were at the school from February 1965. He gave evidence of his memory.
21. Christene Cole gave evidence. She was the wife of Bud Cole, known as Uncle Bud, one of the staff members who were not members of the clergy. She described where they lived on the property and described the layout of the grounds as she recalled them.
22. Then there was the evidence of a police officer, Detective Inspector Nigel Warren at this stage of his career. I note that the transcript of his evidence begins correctly identifying his family name at the foot of the page, but when his evidence resumed on 30 September 2021 from p 169 of the transcript the name is recorded incorrectly, nominating as his family name his given name Nigel.
23. I do not propose to provide any closer analysis of the evidence because I found that the submissions provided by counsel for the Crown and for the accused succinctly identified the important aspects of the evidence of each of the witnesses.
24. Before I continue I announce that I've come to the view that I cannot be satisfied beyond reasonable doubt of the accuracy of the assertions by the complainants; at the end of this judgement I shall be returning verdicts of not guilty to each of the charges.
25. I add though that this is not because I'm not satisfied that the witnesses were being truthful. It is simply that I cannot be satisfied beyond a reasonable doubt that they are accurate as to the identity of the person who committed these egregious acts upon them.

SUBMISSIONS

1. Both parties helpfully provided appropriately thorough submissions dealing with the issue in the trials.
2. Turning first of all to what the Crown provided, it is noted in respect of the allegation made by AM upon which Count One was preferred, that in the period of time specified when AM was resident at the home there were two managers, Major Lionel Bray up until 16 January 1969, when Major Stanley Morton took over. In the same period there were several assistant managers, Captain Neville Bedwell, Captain Kenneth Judge, the accused and Captain Russell Hawker.
3. In the period of time when DC was present at the home, the manager was Major Stanley Morton and the accused was assistant manager. There was a third Salvation Army officer, Ronald Cotterell, who commenced there on 18 January 1973, and it appears he was also present at that time.
4. When CN was resident, over ten years at the home from 1964, there were three managers, first Major Lionel Bray, secondly Major Stanley Morton from 16 January 1969, followed by Laurence Wilson for a period of five weeks from 17 January 1974. The complainant left there on 25 February 1974. There were several assistant managers in that time, Captain Neville Bedwell, Captain Kenneth Judge, the accused, Captain Russell Walker, and then the accused again from 20 January 1972 to 17 January 1974. There were two other Salvation Army officers who worked there, Captain Robert Hodges and then Captain Ronald Cotterell.
5. The evidence regarding clothing took on some significance because of the description attributed to clothing worn by the person who is alleged to have pushed the complainant AM leading to his injury, and in respect of clothing specified by the complainants in the course of events which befell them. What was clear is that the Salvation Army officers wore a uniform. The accused said to the police I note, that he did not wear his uniform when engaged upon what I might describe as fatigue duty in the management and maintenance of the home. The uniform consisted of a shirt, dark trousers and black shoes. The Crown points to evidence that the accused wore his uniform, perhaps a dressed-down version on occasions, even when engaged on duties outside of his official duties at the home.
6. The Crown reminded me of non-Salvation Army officers' staff engaged as boys' officers. These included Terry Smith who later became a Salvation Army officer; he was a boys' officer from 12 January 1967 until 1 March 1972. He was known as "Uncle Terry" by way of the usage that was adopted for people in his role. So too was another man known as "Uncle Carl", who was there only for a few months and who disappeared suddenly after two boys reported that he sexually assaulted them. It is noteworthy that he was reported to have so engaged by the boys who complained. The report was taken by the accused. When the alleged perpetrator, Uncle Carl, left without further response, the matter was simply left to lie.
7. Boys' officers were Uncle Terry, Uncle Carl and Uncle Bud, a married man who also performed that role and did not wear a Salvation Army uniform. The weight of the evidence appears to be that the boys' officer who supervised the dormitory occupied a bedroom which was located between the two rooms where the beds were located and a second room opposite the bedroom, which one witness suggested was occupied by another officer in fact was used as a store room.
8. The evidence from Smith included his service in the dorm master role, so described, and he also gave evidence of a man from welfare, who came at one stage but was asked to leave because he sexually assaulted a boy. By implication that must have been a reference to Uncle Carl.
9. The Crown identified the features of the evidence of Smith regarding the death of Trevor Hubbard. There was evidence from Smith regarding the arrangements for discipline. He had permission to engage upon battery by slapping but could not cane, though he gave evidence that Major Morton permitted him to cane the boys under his supervision as manager. His evidence was that the manager had the belief, which I must say is completely misguided, that he would thereby gain respect from the boys. In today's understanding of matters that is errant nonsense.
10. There was evidence given that Smith had engaged in misconduct and had boys in the dorm master's room that he occupied so that they could watch television; he denied that. He denied sexually assaulting any of the boys or slapping them on the backside in the shower. He said he only slapped a thigh or hit an arm, which he was allowed to do as part of his role. He said he discovered the dead boy in the toilet and denied that he had been roused by anyone during the night. He said there was no reaction from any of the boys, no anger, and no attack upon any officer. This evidence stands in stark contrast to what was described by the boys, as I earlier commented, at least with regard to the extent to which there was some effort made to rouse him to come to the child's assistance.
11. The accused also denied that he was the subject of any attack by the boys, notwithstanding that it was alleged by them that after the death of Trevor Hubbard, because of their grief reaction, a group of them attacked an officer nominated as the accused.
12. Ronald Green was one of the boys at the time and called to give evidence in this trial as an adult. The evidence is to the effect that he was present at the home when the accused was assistant manager in the first phase of his service there. He said he was caned but only in the office and by the accused.
13. Uncle Carl was committing sexual offences he said. The accused was said to have caught one of the boys cleaning Uncle Carl's room, which caused suspicion in the accused according to the perception of this witness, and that the accused followed through by interviewing the boys, including him, Ronald Green, who disclosed the offending. The accused then reported the matter back to Major Morton, and the man known as Uncle Carl packed his things and fled without any official action being taken. There was no record made of the event until recent times when the Royal Commission had gotten under way.
14. The Crown submits that the evidence would lead the Court to conclude that there was misconduct by the man known as Uncle Carl, drawing upon the evidence given by Ronald Green, and supported by what was said by Smith. Notwithstanding that the accused took an investigative role and made inquiries leading to the disclosure and then action by him, it does not follow that one would conclude that he was therefore unlikely to have committed the offences with which he is charged. The Crown suggests that perhaps hypocrisy would explain these circumstances.
15. I take a different view. If I am correct in my perception that Ronald Green was doing his best to be truthful and accurate in his description of what he remembered, such conduct is somewhat inconsistent with the proposition that this accused was the person who engaged upon the sexual exploitation of these children.
16. Mr McWhinney was called. He was at the home as a resident from 7 June 1964 through to 3 June 1969. His period there included some time when the accused was assistant manager. He did not remember either Major Morton or the accused. He did remember Smith. He remembers that Smith supervised the boys in the showers, gave smacks on the backside for misbehaviour and looked at the boys' genitalia longer than was necessary as if he was leering. He said he witnessed Master Hubbard's death.
17. The Crown suggests that his perception might be seen to be improbable regarding that. Mr McWhinney did recall having seen the deceased. He said it was just before dawn. The alarm was raised. He recalled telling someone to get Terry Smith, but did not recall seeing any adult.
18. The Crown then summarised the evidence of AM. The Crown concedes that the evidence given by AM that he was pushed over by someone whom he concluded was the accused could not be correct, because the hospital records relevant to his treatment at St George Hospital for sutures to be inserted in the wound that he suffered in that event preceded by some significant period of time the employment of the accused at the home, and therefore it must follow that he is mistaken about his identification of the accused in that conduct.
19. AM said the accused was the worst of the officers for meting out violent punishment. He was petrified of him. He was seven or eight at the material times. He described the events upon which Count One is brought. The Crown submits that upon that description from this witness the event is likely to have made a significant impression on his memory and therefore ought to be accepted to be a truthful and accurate account.
20. The unusual nature of the event was said to rest upon his recollection that he was expecting his father to take him out and was hoping to be going home at that stage. He was also told to have a shower in the daytime, which was unusual when there was no-one else around in the showers. He is said, correctly, to have been adamant that it was the accused who perpetrated this offence and he stood fast under cross‑examination. There were no other boys or staff present.
21. There was no complaint made at any time proximate to these events.
22. Submissions on behalf of the accused regarding AM noted his reference to the accused as being cruel and nasty, and that he was afraid of him; that he was punched and slapped and otherwise assaulted by the accused, whom he described as the worst of the staff at the home. The discrepancy between the occasion of the head injury he suffered and the deployment of the accused at the home is noted, such that it could not have been the accused that pushed him over as alleged.
23. Submissions were made on behalf of the accused with regard to the identification of the accused by way of clothing consistent with uniform. The submission made is that his mistaken perception of matters arising from the event where he clearly did suffer a head injury, requiring hospital treatment and suturing, could result in displacement effect in relation to the allegation of sexual assault that he makes founding Count One.
24. There is further doubt raised in respect of his accuracy of recollection with regard to the alleged indecent assault. AM noted that other staff supervised the showers, including Uncle Terry and Uncle Carl; they had also told him to bend over in the same way when he was being showered. He acknowledged that he did not tell anyone, even his own brother who was at the home at the time because of his sense of shame. He said that incident occurred before the death of his friend, Trevor Hubbard. He said the death of Trevor Hubbard caused considerable stress, anger and anxiety. He described his memory of the death and he blamed the accused for what occurred to Trevor Hubbard.
25. He denied that any animosity arising from his perception that the accused contributed to or caused the boy's death had any significance in his recollection of what he said the accused had done to him.
26. As I noted earlier, I had the opportunity to watch AM give his evidence and respond to questions. I found him to be a witness upon whom I could rely as one endeavouring to be truthful when describing his recollection of events, but it is also be the case that I must find him to be accurate about these allegations before I can find that the accused was responsible for what befell him. I am not persuaded that I can reach that degree of satisfaction.
27. There was a significant period of time between when the event is said to have occurred and when he first described it to anyone. He was mistaken clearly about who it was that pushed him leading to the injury to his head requiring hospital treatment. I agree that there is at least the possibility of displacement effect in his subsequent specification of the accused as responsible for the misconduct founding Count One, particularly in circumstances where both Uncle Terry and Uncle Carl, as he describes them, had him bend over in the shower in the same way as he described for the purposes of Count One,.
28. He did not tell anyone, even his own brother, which can be explained by children having a sense of shame, and bearing in mind where they are at the time such an event might have occurred, but it still remains that I am left with doubt as to the accuracy of the evidence of this complainant identifying the accused as the perpetrator.
29. I do not have difficulty accepting that he was being as truthful as he was able to be when describing what occurred to him in the shower, but it follows from my conclusion with regard to accuracy that the accused must be found not guilty of Count One.
30. With regard to Count Two, that presented somewhat of a more difficult task because on any view DC was a compelling witness. He was not in any measure overborne by the task of giving evidence and facing cross‑examination. He was assertive and confident in all that he had to say. Moreover, he is in a different category to the other two complainants. He was older, at 14 years of age, and he was part of the Salvation Army community beyond his status as a resident within this home.
31. A mistaken witness who nonetheless holds confidently to his assertions does not become more accurate because he speaks with greater confidence.
32. I have taken the trouble to look carefully at what he had to say. I have noted what the Crown has said regarding him. The Crown put a submission with regard to the proposition that it could not be said that a supervisor would behave in this fashion if he genuinely believed that the complainant had worms, as was said to have been represented by the person who engaged upon this misconduct. As the Crown noted, the accused put this proposition to rest in his interview because it would not be the appropriate examination to perform to confirm whether a child was burdened with intestinal worms in whatever form. Indeed the accused, I recall, in the interview went to some length to describe what that would involve and what would be the methodology to adopt if there were such concern.
33. My first reaction to his responses regarding that was to be a little suspicious that he would need to go into such detail to perhaps explain why he would not have engaged upon the conduct alleged because of his knowledge and experience of such matters, but ultimately whatever concerns those responses caused for me in the assessment of this matter they were not sufficient to lead me to the view that I should deal with those responses as some statement or statements against his interest.
34. The Crown points to the evidence that the accused perhaps engaged upon this misconduct to either humiliate the complainant or bring him down a peg or two because of his perceived attitudes. As the Crown notes, the boy was only there for a period of six months. He was a junior Salvation officer; he followed a routine different to the other boys. He asserted quite emphatically that there was only ever one officer supervising the shower routine. The allegation he made was that the accused called him to the showers, told him to bend over and part his cheeks, and told him he had worms.
35. Once again he could not put down this event to any particular time, but it had to be within the six months or perhaps five and a half months that he was there. He said it was on a Sunday, it was after he had been to church. He did not arrive back at the home until well after shower time. He spoke of the uniform worn by the accused. He described what is said in the submissions to have been the grease trap incident. Being of my age I am familiar with the grease trap arrangement in homes before our sewerage systems were installed. It is the fact that grease traps needed cleaning regularly and it is a most unpleasant task. He gave evidence of having argued with the accused about being required to clean the grease trap. He said the accused told him that he expected better of him, whereupon he relented and completed the job with some pride.
36. The accused gave a somewhat different description of the arrangements for cleaning the grease trap. Without having a precise memory of what occurred, he said that was a task that he would take on himself in the course of his duties; he spoke about the unpleasant nature of the work, consistent with my memory of having to perform the task myself as a much younger person.
37. He described the event which is said amounted to the sexual assault. He said that there were other boys present, and when he said, "Are you having your jollies there?" and asked him if he was "a poofter", this generated laughter from some of the older boys, who must have been present if their laughter was prompted by such an exchange, whereupon he was told to go to the office. The complainant went there in his dressing gown and pyjamas and waited for what he thought would be some form of punishment. He there sucked upon his arm, causing bruises, and told the accused that he would tell his son and every person in "Rockdale Salvos" what he had done. The sucking upon the arm causing a bruise or bruises was to provide some evidence, as I understood matters, that he had suffered some harm at the hands of the accused. That carries the implication of the capacity at least to some measure to be deceptive in the context which he asserted.
38. He prepared a document known as the truth document, which is exhibited. He agreed that he had seen the accused's name feature in reports from the Royal Commission. He was not, he said, seeking compensation as a consequence of what he said befell him.
39. The submissions put on behalf of the accused noted that the evidence from this complainant included the proposition that the accused would deliberately mispronounce his name or tease him to trigger his annoyance. His name is such that it could be pronounced two ways in my experience of life. I do not intend to state his family name in this judgement because of the need to retain confidentiality of his identity, but it can be in my experience pronounced acceptably in two ways. I find it an odd proposition that someone who might pronounce it one way could be accused of teasing him or triggering annoyance in him by deliberately pronouncing his name in the way which the complainant did not adopt as appropriate usage.
40. The submissions on behalf of the accused refer to his evidence describing the event, including the routine involved for boys undressing in the locker room and being called out row by row four at a time to shower and then return to towel themselves off. I referred to this earlier, where I said the evidence was in effect that four boys would go in and they would shower, and then step out to soap themselves, and while they were doing that another four boys would enter the shower, after which the first boys would rinse themselves off and then go to dry themselves and dress.
41. The submissions summarised in some little detail the evidence given by this complainant.
42. Another matter of concern with regard to this complainant is that when he made his first statement to police on 23 September 2015 there was no mention of this incident at all. He agreed that he had been following the Royal Commission, and that the accused was featuring in some of the hearings, and that the latter manager, Laurie Wilson, was also the subject of proceedings in the Royal Commission. It was alleged that he had sexually assaulted Dean Jones who was called as a Crown witness in this trial.
43. The complainant said he had been following the Royal Commission pretty much from the beginning and that the first time he had spoken to anyone about his experiences of the home was in 2014, after the Royal Commission commenced. There was reference to the documents prepared entitled "Truth". This was prepared, he said, before his interview with a Mr Greville. He knew at the time that he would be going to speak with someone from the Salvation Army about his experiences and allegations of improper behaviour and abuse. He asserted that he was not in need of compensation.
44. There is another troubling aspect, that he was in due course terminated from his position within the Salvation Army. His perception was that he was redundant because of his lack of tertiary qualification. He had been in communication with Dean Jones regarding their time at the home. He had the image of the boys on the trampoline, to which I earlier referred exhibited in the trial, one of whom was the accused's son whose identification was assisted in conversation with Dean Jones. There was communication between the complainant and others involved in the group of the acronym CARE and also meetings of the group of the acronym CLAN, which he attended.
45. He agreed that he could not identify the accused's son Ian, who was a very young boy at the time the photograph was taken, and he was only able to do so with the assistance given to him in conversation with Dean Jones, whom he had met at one CLAN meeting. He said that the photograph was taken in 1969 when the accused's son was eight or nine years of age.
46. Dean Jones said that the photograph was taken in 1969 when the accused's son was eight or nine years of age. The photograph was obtained from Terry Smith and he provided it to this complainant, whom he had met on a number of occasions through CLAN and Salvation Army employment. The photograph was taken some four years before the arrival of the complainant at the home for his six month period of residence.
47. There was no explanation for his lack of complaint. He did not suggest he was experiencing shame or fear, and one would have difficulty accepting any such assertion, I might say, in light of his description of his response to what he said occurred to him. He accepted that he had the opportunity to complain closer to the event with his access to the matron of the home, someone he described as kindly. He had a good relationship with the manager, Major Morton, and his wife. He said he did not complain because he thought he had been let off a difficult situation by not being caned, and thought that until he read the Royal Commission material upon Laurie Wilson and looked at his mode of operation he had "a Me Too moment".
48. In the case of this witness, his confident presentation notwithstanding, I have some doubt about not only the accuracy of what he had to say, but also whether he is being entirely truthful about what occurred. There is, as it appears to me, at least a possibility that he has evolved a perception of events implicating the accused in some conduct that was experienced in the shower within the presence of other boys, from whom the Court has not heard and who have not ever been identified as potential witnesses in the proceedings.
49. I am not satisfied beyond reasonable doubt that I should accept the evidence given by the complainant to the requisite standard and accordingly the verdict in respect of Count Two will be one of not guilty.
50. With regard to Counts Three, Four and Five, the complainant in this case is an unfortunate person who has had at least a troubling life experience. He spent ten years in this institution. He has significant challenges requiring management with medication as described by a medical practitioner, from whom evidence was called. He could recall Major Bray coming to the home before Major Morton, but could not picture either Major Bray or his assistant.
51. He thought that a person by the name Wilson or Wilkins was involved in the Trevor Hubbard incident. The records do not support the presence of an officer of that name or similar name at the time of Trevor Hubbard's death. Laurence Wilson was present from 17 January 1974 for a brief period, before the complainant left on 23 February 1974 when taken out of the home to a foster family. There was another person, Russell Walker, who was present before the accused arrived in 1966 for some five months and all of 1971 when CN was in his 12th year. The complainant did not recall Uncle Terry, who would have supervised him for several years, nor the person known as Uncle Carl. The Crown concedes this is a strange gap in his memory, given the amount of supervision from Uncle Terry, or Terry Smith as he was correctly known, that must have been provided to him. He was disadvantaged to the extent that his brothers were fostered out whilst but he was left behind in the home. He could not remember any of the details of the accused's private circumstances such as marriage or whether he had children. He must have been there, as the Crown concedes, some four and a half years when the accused was present.
52. Bringing to bear the challenges faced by the witness and the passage of time since the events are alleged to have occurred, there are significant questions over his reliability.
53. He spoke of having blamed the accused for Trevor Hubbard's death. He spoke of beating up the accused the following day with other boys. This was denied by both the accused and Terry Smith. The Crown asked rhetorically, how does this reflect upon the reliability and credit of the complainant? It is implausible the Crown suggests, in terms, that he would be inventing a lie about the accused and admitting so openly to having a motive to make up such a terrible lie as the assaults he alleges he committed.
54. He associates events with the death of Trevor Hubbard.
55. The Crown has drawn upon the records showing where the accused was serving as the material times, and hence, as I said earlier, the structure of the charges alleging two separate periods when these events might have occurred. The Crown suggests that the likelihood of the witness mistakenly identifying the accused should not be considered as a reasonable possibility.
56. I do not agree with that submission in the context of the evidence given by this witness and the assessment that is required of his reliability, at least with regard to accuracy.
57. There was some question over the place where it is said that these offences occurred. Hence there was extensive cross‑examination of witnesses regarding the layout of the premises, the placement of buildings and structures on the property and if and by whom they were occupied at all material times. The assistant manager's cottage and another structure behind were both occupied at all material times and it is implausible, it is suggested on behalf of the accused, that these events could have occurred in any one of those structures as he described.
58. The other point that came to mind in the course of this evidence was with regard to biomechanical considerations that might have justified further exploration, bearing in mind the age of the complainant when it is said these events occurred and that he was at those ages a small child, whereas the accused was a grown man at the time of the events as described. It would have been very difficult to achieve what was alleged with the accused merely standing behind the complainant, particularly with regard to Count Five.
59. With regard to Count Four there is upon what the complainant had to say a very live question about what it was that penetrated him.
60. With regard to Count Five it is difficult to understand how penetration leading to ejaculation, which is the inference one might draw from the description given by the complainant, could be achieved without some adjustment into positioning to allow penetration to occur.
61. The evidence within that context was not tested and there was little said regarding that in submissions, so in the circumstance it takes on less significance, but it was a matter that exercised my mind in the assessment of the evidence given by this complainant.
62. In submissions made on behalf of the accused there is reference to the death of Trevor Hubbard. His initial recall was that the boy's name was Ian Hubbard; he was clearly mistaken. He spoke of a riot after the boy's death the next day, where the accused was punched and attacked. His motivation in that was justice for the deceased because, he said, the accused did not give him his puffer. The rioters also assaulted an officer named Wilson or Wilkinson, described as a fat officer. This was a person who wore glasses, as did the accused.
63. The complainant gave evidence of going to the roof and being coaxed down by Major Morton.
64. The submissions refer to the possible error with regard to an officer named Wilkins or Wilson because there was no‑one of that name at the time, and that the person Wilson in fact replaced Major Morton from 1974. The other possibility was Salvation Army Officer Walker, but he was stationed at the home before the accused was posted there and also was there after the accused left in January 1971, after his first period there.
65. No-one else gave evidence of any such riot or scuffle or assault upon the accused, although it was said there was a measure of chaos, which is hardly surprising bearing in mind what occurred.
66. In evidence he said that Ian Hubbard, incorrectly identifying the boy's given name, was just an acquaintance and that he, the complainant, had no close friends, and yet in the statement he made to police he said that the boy Ian Hubbard was actually his best mate. He said in evidence he had no recollection of a boy named Trevor and could not recall either way whether his best friend had a brother called Ian. He could not recall his best mate Ian having a brother.
67. It is said on behalf of the accused that it would be beyond extraordinary that he would make such a mistake as to the name of his best friend, bearing in mind that the complainant and Trevor Hubbard were at the home together for some five years.
68. The first event described by the complainant was an uncharged act said to have occurred in the laundry room, a two-storey building with no door. There was a hidey-hole there, which the boys used or found after having broken through floorboards. He said he had gotten into trouble with Major Morton, he had sworn and yelled at the major, and was then taken off to the laundry room. He saw the accused in the laundering area, after the accused had followed him there. He could not make it to the hidey-hole in time. He hid in a clothes bin beneath some clothes. The accused pulled him out of that and there is a suggestion that his hand was placed on the accused's penis, put there by the accused. He ran out, and hid under the pavilion. He could not remember in cross‑examination whether this was before or after the Hubbard boy's death.
69. He said that the first time he suffered a sexual act it was the day after his brothers were taken away to be adopted. Upon analysis this placed the laundry room incident on 7 October 1967, which is some nine months prior to the accused's first posting to the home. Upon this description it could not have been the accused who committed that offence.
70. His description of the events leading to Count Three included that the accused took him to the officer's quarters. There was evidence given by Dean Jones regarding that area being converted for storage.
71. There were three structures in the grounds at the time that the accused was there within this period. The description provided by the accused of the assistant manager's cottage is inconsistent with what was described by the complainant. He talked about his recollection of the content of the premises. It could have been consistent with the cottage occupied by the Coles or with the storeroom that had been known as the little boys' bathroom, as was acknowledged by the witness Dean Jones. The evidence from the complainant was such that it is difficult to confirm or find precisely in what premises the event in Count Three occurred.
72. The submissions include what I have already observed, that it cannot be known, accepting the truth and accuracy of the allegation, whether the accused penetrated the complainant's anus with his penis. I need not say anything further with regard to that. He could not say when this event occurred.
73. The submissions then proceed to Count Five. He was unable to approximate his age when it is said that this event occurred, but this event related to the locker room where he had gone to try and steal things; he said he had been successful in doing this on other occasions and in fact done it a number of other times. However, the evidence was that there was nothing of value kept in these structures, which did not have doors to secure them, and anything personal or of any value was kept in another location.
74. He said that he tried to hide behind one of the lockers but was unsuccessful. The layout of the locker room and the lockers within the room do not sit comfortably with that description given by the complainant. There is the penetration, as I described in summary previously, after which he suffered sequelae, including some spot bleeding as he described.
75. There is the possibility, the submissions continue, that if he was there looking to steal something it could have been in another room, the playroom, where items of value could be stored.
76. He had a history of significant drug use. He self-medicated using cannabis, alcohol and amphetamines for some ten years. He had a 30 year history of prescribed medication for post‑traumatic stress disorder and other conditions. He was prescribed anti-depressants, sleeping tablets, analgesics and dexamphetamine, evidence of which was put before the Court by way of the doctor to whom I earlier referred.
77. He said he was separated from his siblings, adopted because they had blonde hair and blue eyes. He spoke of his Sunday parents, a family to whom he would be sent for some family life outside of the home. This led to other alleged instances of sexual assault or attempts at sexual assault.
78. He also gave evidence of two boys at the home who tried to sexually assault him and events at a camp where the manager of the camp sexually assaulted him.
79. As is conceded on behalf of the accused, the complainant has had a tragic life; he engendered a significant measure of sympathy as I observed him give his evidence.
80. However, I cannot find that these offences occurred unless I am satisfied beyond reasonable doubt as to the truth and accuracy of the assertions he has made against the accused, and there is such difficulty accepting his evidence in so many respects, as I have sought to outline, that I have come to the view that I should entertain a doubt about the truth and accuracy of his assertion that the accused sexually assaulted him in the manner he alleges.
81. I do not suggest that he did not suffer such conduct at the hands of someone when he was in the care of this organisation, but I cannot come to the view that I should find that it was the accused.
82. It is for these reasons that I have come to the decision that I could find the accused not guilty of these charges.

VERDICTS

1. Accordingly: In respect of Count One, that the accused between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales did indecently assault AM, a male, I find the accused not guilty. In respect of Count Two, that the accused between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales did indecently assault DC, a male, I find the accused not guilty. In respect of Count Three, that the accused between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN, a male, I find the accused not guilty. In respect of Count Four, in the alternative to Count Three, that the accused between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN, a male, I find the accused not guilty. In respect of Count Five, that the accused between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN, I find the accused not guilty.

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