R v Pethybridge - [2022] NSWDC 180 - NSWDC 2022 case summary — Zoe

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R v Pethybridge

[2022] NSWDC 180

District Court of NSW|2022-05-19

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Source facts

Court

District Court of NSW

Decision date

2022-05-19

Source

Original judgment source is linked above.

Judgment (171 paragraphs)

[1]

TABLE OF CONTENTS JUDGMENT Background THE INDICTMENT ELEMENTS & INTERPRETATION OF THE OFFENCES Charges 1-4 (incl) and 6-9 (incl) Charge 11 Charge 5 Charge 10 Charges 12-13 DIRECTIONS OF LAW Overall duty and responsibility Obligation to apply the law Separate consideration of charges Markuleski direction Impartiality Evaluating the evidence Murray direction? Evidence of complainant DB & RW Drawing inferences Context evidence (for charges 3-6) Tendency evidence (all charges) Coincidence evidence (all charges) Complaint evidence (charges 1-2, 3-6 & 7-8) Use of evidence by the Crown Delay or absence in making complaint Differences in accounts by complainant Forensic disadvantage to the defendant consequential from delay in making or the absence of complaint Lies/consciousness of guilt The "limited" nature of the hearing Burden of proof Presumption of innocence Standard of proof Missing witnesses Alibi (charges 1 & 2) Counsel's submissions HOW THE CROWN SEEKS TO PROVE ITS CASE Overview Charges 1 & 2 The complainant (RG's) evidence GJ's evidence Evidence of complaints by RG to and from EJ relevant to charges 1-2 and 7-8 Arguments about complaint evidence The Crown's arguments The defendant's arguments The defendant's residential addresses during the periods encompassed by charges 1 & 2 Charge 3 The complainant (LM's) evidence Background Uncharged conduct in Healesville, Victoria The defendant's alleged lie DA's evidence GA's evidence Arguments about context evidence (charge 3) The Crown's argument The defendant's argument Complainant's description of offending (charge 3) LM's residential address in 1970 The defendant's residential addresses Charge 4 LM's evidence Explanation for why defendant's daughters not called GA's evidence DA's evidence The photograph of the home at Holsworthy The defendant's residential address Charges 5 and 6 The complainant (LM's) evidence DA's evidence ED's evidence The defendant's residential addresses encompassing the periods of charges 4-6 Complaint evidence relating to charges 3-6 LM's evidence of her complaints RM's evidence of LM's complaint in the early 1980s GQ's evidence of LM's complaint in the mid-1990s DA's evidence of LM's complaint in 2002 GA's evidence Arguments about complaint evidence (charges 3-6) The Crown's argument The defendant's argument Charges 7-8 The complainant (EJ's) evidence RG's evidence GJ's evidence The defendant's residential addresses Charge 9 The complainant's (DB's) evidence Mrs Morton's evidence The defendant's addresses Charges 10-13 The complainant (RW's) evidence Charge 10 Charge 11 Charge 12 Charge 13 Subsequent contact with the defendant Complaint evidence KC's evidence Explanation for the absence of DP The defendant's residential addresses Tendency evidence (all charges) LM's evidence of the uncharged acts Cross-admissibility of charged acts Arguments about tendency & co-incidence The Crown's argument The defendant's argument THE DEFENDANT'S CASE Challenges to the credibility or reliability of the complainants & other lay witnesses for the Crown Charges 1-2 Charges 3-6 Charges 7-8 Charge 9 Charges 10-13 Statements in the defendant's interview with investigator in relation to charges 3-6 (incl) As to the uncharged act at Healesville As to charge 3 As to charge 4 As to charges 5-6 Documentary tender Declining to give an account to police The defendant's evidence at trial Charges 1-2 Charge 3 Background Healesville incidents Response to LM's allegation Charge 4 Charges 5-6 Charges 7 & 8 Charge 9 Charges 10-13 The defendant's election not to give evidence at the special hearing The defendant's roles and positions Mrs Pethybridge's evidence Charges 1-2 Healesville trip Charge 3 Charge 4 Charges 5-6 Charges 7-8 Charge 9 Charges 10-13 Diane Cooper's evidence COUNSEL'S SUBMISSIONS Ms Crown's submissions Charges 1-2 Charges 3-6 Charges 5-6 Charges 7-8 Charge 9 Charges 10-13 The defendant's Counsel's address Charges 1-2 Charge 3 Charge 4 Charges 5-6 Charge 9 Charges 10-13 FINDINGS Credit Crown witnesses RG LM EJ DB RW Other Crown witnesses The defendant's witnesses The defendant's evidence at the 2018 trial Ms Cooper Mrs Pethybridge Charge 9 Charges 7 & 8 Submission about missing witnesses Charges 1 & 2 Charges 10-13 Missing witness Tendency & coincidence evidence Findings on tendency evidence Findings on co-incidence evidence Conclusions re charges 1-2, 7-8, 9 and 10-13 Conduct affecting LM The uncharged acts - the alleged incidents at Healesville Did the defendant lie? Charge 3 Evidence of complaint Charge 4 Charges 5 & 6 Reconsidering charges 3 & 4 VERDICTS ANNEXURE A

[2]

Background

This case concerns the defendant [1] who, at all material times, was an officer of The Salvation Army. He is charged on indictment with multiple charges of indecent and sexual assault offences, ranging over many decades, against five complainants whose families were closely involved in The Salvation Army.
The case is conducted as a 'special hearing' under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the 'MHCIFP Act'). On 21 May 2021 Woods QC ADCJ found that the defendant was unfit to be tried in accordance with normal procedures. The nature and conduct of a special hearing must conform to the requirements of s 56 of this legislation. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding. It is to be done on the "limited evidence available" having regard to the fact that a person unfit to be tried is not able to participate in a special hearing to the same extent that an accused can normally participate in a normal criminal trial. By reason of s 56(9), and in the absence of an election, the question whether the defendant committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.
By reason of s 56(5), the defendant is taken to have pleaded 'not guilty' to the offences with which he is charged. In this case, the defendant was represented by Counsel who participated through cross-examination of Crown witnesses, calling witnesses and supplying written submissions in support of the defendant's defence.
By reason of the nature of the offences, the complainants' names and those witnesses names whose names would likely directly, or indirectly, reveal the complainants' names will be anonymised.
Because of the large number of charges, the number of complainants and lay witnesses, and the anonymising of the names of witnesses, to assist with the fluency of the reading of these reasons, annexed to these reasons are separate schedules indicating the connections of the main witnesses in respect to the charges. Where someone has given evidence, their initials are in bold.

[3]

THE INDICTMENT

The charges on the indictment are set out in the following table. Charge The offending The offence 1 Between 8 January 1958 and 8 January 1959 at Speers Point in NSW, the defendant assaulted RG, a female under the age of 16 years, namely 5 or 6 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 2 Between 8 January 1958 and 8 January 1959, at Speers Point in the State of NSW, the defendant assaulted RG, a female under the age of sixteen years, namely 5 or 6 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 3 Between 14 January 1970 and 18 January 1973, at Croydon Park in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 4, 5, 6 or 7 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 4 Between 25 April 1973 and 16 January 1975, at Holsworthy in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 8 or 9 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 5 Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of NSW, the defendant attempted to commit the crime of rape upon LM. Crimes Act 1900 (NSW), s 65 6 Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of NSW, the defendant assaulted LM, a female under the age of sixteen years, namely 11 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 (as alternative to charge 5) 7 Between 13 January 1971 and 26 April 1973, at Wangi Wangi in the State of NSW, the defendant assault EJ, a female under the age of sixteen years, namely, 9, 10 or 11 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 8 Between 13 January 1971 and 26 April 1973, at Wangi Wangi in the State of NSW, the defendant assaulted EJ, a female under the age of sixteen years, namely 9, 10 or 11 years and, at the time of that assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 9 Between 1 January 1972 and 31 December 1973, at Campsie in the State of NSW, the defendant assaulted DB, a person under the age of 16 years, namely 10 or 11 years and, at the time of the assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 76 10 Between 19 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under the age of 16 years, namely 10 years. Crimes Act 1900 (NSW), s 66C(1) 11 Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant assaulted RW, a person under the age of 16 years and under the defendant's authority and, at the time of the assault, committed an act of indecency upon her. Crimes Act 1900 (NSW), s 61E(1A) 12 Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under 16 years, namely 10 years, and under the defendant's authority. Crimes Act 1900 (NSW), s 66C(2) 13 Between 29 April 1986 and 14 January 1987, at Orange in the State of NSW, the defendant had sexual intercourse with RW, a person of or above the age of 10 years and under 16 years, namely 10 years, and under the defendant's authority. Crimes Act 1900 (NSW), s 66C(2)

[20]

Context evidence (for charges 3-6)

As will be seen, the Crown relies upon two incidents concerning the complainant and defendant in Healesville to provide context for the charges involving LM.
The law permits a complainant to give an account of the alleged sexual history between herself or himself and an accused person in addition to the evidence given in support of the charges in the indictment. If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant alleges was an ongoing history of the accused's conduct toward her, then what might appear to be a curious feature of the complainant's evidence - that she did not complain about what was done to her on a particular occasion - would disappear. It is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. LM's account of other acts by the defendant in Healesville allows her to more naturally, and intelligibly, explain her account of what allegedly took place in relation to the charged conduct.
The Crown can therefore lead evidence of other (uncharged) acts of a sexual nature between the defendant and LM to place the alleged actual charged conduct (giving rise to charges 3 to 6) into the context of the complainant's account of the whole of the defendant's alleged conduct. However, I must give myself some important warnings with regard to the use of this evidence of other acts. I cannot act on the basis that the defendant is likely to have committed the offences charged because LM made other allegations against him. The evidence cannot be used as evidence that the particular allegations contained in charges 3-6 (incl) have been proved beyond reasonable doubt.
Secondly, I must not substitute the evidence of the incidents in Healesville for the evidence of charges 3 to 6 in the indictment. I am concerned with the particular and precise occasion alleged in each individual charge. I must not reason that, just because the defendant may have done something wrong to the complainant in the two particular incidents in Healesville, he must have done so on charge 3 - 6 (incl) in the indictment. The defendant cannot be punished for other acts attributed to him by finding him guilty of the charges in the indictment.

[21]

Tendency evidence (all charges)

Part of the Crown case is that the defendant had a tendency to have a particular state of mind and a tendency to act in a particular way. Each of these tendencies are relied upon as circumstances relevant to the defendant's guilt of all offences. The Crown identified these tendencies as (a) having a state of mind, namely, a sexual interest in female children he accessed through The Salvation Army, and (b) a tendency to act upon that particular sexual interest by touching female children in a sexual manner opportunistically and in circumstances where there was a significant risk of detection. The Crown says proof of these tendencies makes it more likely he committed the offence(s) charged in the indictment.
I cannot consider evidence of the defendant's alleged tendencies as a relevant circumstance in the Crown's case unless I make several findings. First, I must find that one or more of the acts relied upon by the Crown to establish the tendency evidence actually occurred as an act of the defendant. In determining whether I should make that finding, I need not consider each of the acts in isolation, but should consider all of the evidence to determine whether each of the acts relied upon actually occurred.
In this regard, with the exception of the conduct the subject of charges 5 & 6, part of the conduct that the Crown relies upon to establish these tendencies is the charged conduct complained by the multiple complainants itself. But part of the evidence the Crown relied upon to prove the alleged tendencies concerns the two incidents alleged to have occurred in Healesville, Victoria (involving the complainant LM), that are not the subject of any charge in the indictment. As to that part of the Crown's case on tendency, if I am not satisfied that these incidents occurred, then the evidence relating to those two incidents should be put aside. To the extent that the Crown relies upon evidence of uncharged conduct, I must not substitute the conduct of the defendant on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.
If I decide that all, or at least some, of the conduct (charged [11] or uncharged) occurred, I then need to consider whether it enables the inference to be drawn that the defendant had the tendencies as they are alleged by the Crown. That is, I will have to determine whether the acts which I am satisfied occurred prove that the defendant had: (a) the sexual interest in female children and (b) the tendency then to act upon such interest by touching them in a sexual manner in circumstances where there was a significant risk of detection.
I remind myself about what I said earlier regarding the care that needs to be applied to the drawing of inferences. I have to consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In such circumstances, I must put the whole issue of tendency to one side and confine myself to considering the other parts of the Crown's case.
But if I am satisfied that the acts relied upon to sustain the alleged tendencies have been proved and that the tendencies posited by the Crown have been proved, then I can use the proven tendencies when considering whether the Crown has proved the defendant's guilt beyond reasonable doubt.
However, I bear in mind that just because a person has a tendency to have a particular state of mind or to act in a particular way, does not mean that he must have had the state of mind, or must have acted in the particular way, on the occasion in issue. I also keep in mind that I should not give disproportionate weight to the tendency evidence.
In short, finding the defendant did have the tendency or tendencies which the Crown alleges is not enough to prove the defendant's guilt. The question is whether it makes it more likely the defendant conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. That is the only way the alleged tendencies, if proven, may be used.
Ultimately, I must decide whether the specific offences with which the defendant has been charged have been proved. That decision must be based upon all the evidence relevant to each of the charges. This includes the evidence of each of the complainants about what the defendant did. It will also include the tendencies alleged by the Crown, provided I am satisfied it has been established in the circumstances I have described.
The evidence the Crown relies upon to establish that the defendant had this tendency is of a type that might provoke some people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. Though a Judge and lawyer by training, I remind myself to be careful to avoid allowing any emotional response or prejudice to distract myself from a calm and objective assessment of this issue.

[22]

Coincidence evidence (all charges)

On the indictment there are allegations against the defendant made by five complainants, RG, LM, EJ, DB and RW. What each individual complainants says about what she alleges the defendant did to her is primary evidence relied upon by the Crown to prove the charge(s) in respect of each individual complainant. Ultimately, I have to be satisfied beyond reasonable doubt that each complainant is honest and accurate in her allegations upon which the charges are based.
As explained in my 'separate consideration' direction, although the special hearing in respect of each of the individual complainant's allegations is being heard at the same time, I still have to reach separate decisions on each of the allegations made by each individual complainant.
The special hearing of the charges concerning the five complainants are being heard together because the Crown argues that the evidence given by one of the complainants can be used as evidence against the defendant in respect of the charges involving the other complainants. The Crown argues that, in determining whether it has proved beyond reasonable doubt the allegations made by complainant RG, to take one example, and giving rise to the charges involving her, I can take into account, the evidence given by complainants LM, EJ, DB and RW, and vice versa.
The Crown argues that, because the allegations made by each of the complainants against the defendant are so similar in the particular conduct attributed to the defendant, it is highly likely that each complainant is telling the truth in giving their respective separate accounts. The Crown in effect says that the defendant has a particular and unusual way of conducting himself or a peculiar pattern of behaving which is apparent from the accounts given by each of the complainants RG, LM, EJ, DB and RW when they are considered together. The Crown's argument is that the possibility of each complainant making allegations that are so similar by chance or coincidence is so remote that the only explanation is that the defendant acted in the same way towards all of them and, therefore, their accounts are true. By the schedule attached to its closing written submissions, the Crown alleges that the similarities in the allegations are as follows: RG LM EJ DB RW Defendant known to complainant by reasons of his membership in The Salvation Army X X X X X Defendant had a friendship with the complainants' parents X X X X X Parents of the complainants were also members of The Salvation Army X X X X X Sexual conduct was opportunistic X X X X X Sexual conduct was committed in circumstances in which there was a high risk of detection X X X X X The sexual conduct included digital penetration of the female genitalia X X X X The sexual conduct included touching the breasts X X X The complainants were between the ages of 5 and 11 years X X X X X The defendant told the complainant not to say anything Threat to send to hospital Threat to send home

[28]

Forensic disadvantage to the defendant consequential from delay in making or the absence of complaint [15]

There is a warning I give myself relating to this issue of the delay in or absence of any complaint being made by the complainants.
It is most important to fully appreciate the effects of delay or absence of complaint on the defendant's ability to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
In this regard, I refer to the following specific difficulties, identified in the defendant's Counsel's closing written submissions, encountered by the defendant in testing the evidence of the prosecution or in adducing evidence in his own case:

the delay in instituting the prosecution;
the possibility of distortion in human recollection;
the nature of the allegations and the circumstances in which it is alleged that the offences occurred;
the ages of the complainants at the time of the allegations;
the accused's age at the time he gave his evidence (in 2018); and
the age of Mrs Pethybridge when she gave evidence at this special hearing.

These difficulties put the defendant at a significant disadvantage in responding to the Crown's case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.
The delay means that 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, it would be expected that the complainant's memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainant's inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the defendant to throw doubt on each of the complainant's evidence by pointing to circumstances which may contradict her. Had the defendant learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his Counsel in cross-examination of each of the complainants.
Another aspect of the defendant's disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
Because the defendant has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I find him guilty of any or all of the offences, I must give the Crown case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about - the fact that the complainant's evidence has not been tested to the extent that it otherwise could have been and the defendant's inability to bring forward evidence to challenge it, or to support his defence.

[30]

The "limited" nature of the hearing

I bear in mind that I will have to reach my verdict based on the "limited evidence" available. There are various ways evidence at a hearing of this nature may be 'limited'. For example, the defendant may have been unable to or unwilling to give evidence (even if he had the right to give it), or unable to give adequate instructions to his lawyers about which witnesses might be called to assist his case, or, as to matters on which cross-examination could be based.
However, these limitations concern the defendant's capacity to participate in this special hearing; not his capacity to participate in the earlier trial. It is one thing to accept the limitations in the defendant's capacity to participate in and at the time of that special hearing, which were derivative from his mental or cognitive impairment. It is another thing to say, however, that there were any limitations in the defendant's capacity to participate (such as providing instructions to his Counsel) when the complainants gave their evidence at the trial in late May and early June 2018, or when he elected to give evidence at the trial himself, or when the defendant spoke to The Salvation Army investigator in March 2014. It would not be proper to infer that simply because he was determined to be unfit to stand trial in 2021, his mental or cognitive capacity to participate in an interview in 2014, or in the first trial in late May and early June 2018, was comparably limited. Evidence about any incapacity at these earlier dates would be required.
But towards the conclusion of the special hearing, in oral argument on the appropriate directions and warnings I should give myself, Counsel for the defendant submitted that I could take into account, when weighing the evidence that the defendant, as accused, gave at trial in 2018, his age and the effluxion of time since the alleged incidents. So much may be accepted: this might be regarded as part of the 'forensic disadvantage' direction referred to earlier. But Counsel went further and submitted that I should infer that the current mental or cognitive incapacity that has led to the institution of the special hearing did not emerge 'overnight', but had developed and, so accordingly, my assessment of his evidence in 2018 (or what he said to the investigator in 2014) should have regard to that contextual circumstance. I reject this last submission, as one amounting to a bare invitation to infer, rather than drawing an inference on the basis of evidence. No attempt was made to establish that he was (mentally or cognitively) impaired in 2018 (or when he spoke to the investigator in 2014).

[38]

The complainant (RG's) evidence

RG was born in 1952. She grew up in West Wallsend, which is part of the Lake Macquarie Shire. She was one of a number of siblings, including another complainant in this special hearing (EJ). As part of growing up, whilst she was a little girl, her family attended a church known as the West Wallsend Salvation Army Corps. The defendant was the Minister who led the congregation, with the assistance of his wife. RG remembered him as 'Lefty' which, she recalled, reflected his then rank as a Lieutenant. The defendant and his wife were close friends of RG's parents (who have since deceased). She gave evidence of various social functions organised by or through the Church. This included annual Sunday School picnics, preceded by concerts, which generally occurred in summer, as a celebration of the year that was about to pass.
RG recalled that one such picnic occurred when she was aged between 6 - 9, at Speers Point Park, on the edge of Lake Macquarie. She went there with her whole family. She said that the defendant was there. There was a saltwater pool in the lake. Young children could jump into the pool.
A number of times, RG, like other children, (including a child she recalled whose name was Noel) jumped into the shallow end. But on two occasions, she recalled jumping in at the deep end. This would have been perilous for RG since she could not swim, but on the occasions, she jumped into the defendant's arms. Noel then did the same thing.
On the first occasion, she recalled, whilst she had most of her body under the water, the defendant, using his fingers, put his hand inside her swimming costume and felt her vagina. RG recalled that this was a recently acquired single piece costume which had stretched: she later got into trouble with her mother for that.
On the second occasion, RG recalled that she went back to the wall and had another jump and the defendant touched her again; this time using his finger to penetrate her vagina 'higher in'. After this, RG was horrified and did not want to go back into the water.

[47]

DA's evidence

DA is LM's father. A written transcript of his evidence at the first trial was tendered by consent in the special hearing (Exhibit F).
DA said that he joined The Salvation Army in 1956. His parents had also been officers of The Salvation Army. Whilst attending training college that spanned 10 months, he met the defendant.
After other postings, in January 1970 he was part of the Ashfield Corps for about 12 months, but he fell ill and later that year, he and his wife ceased being officers. They recommenced as officers again in 1986. In the intervening period, they both remained active members. Whilst posted to the Ashfield Corps, he resided at a Salvation Army residence in Forbes Street, Croydon Park, where he remained throughout 1970. He and his family then moved to Cambridge Park, in which suburb, he and his family stayed at two different street addresses through to about 1986.
DA said that he and his wife adopted the complainant, LM through The Salvation Army's adoption services, from the Bethseda Hospital in Marrickville.
DA said that throughout the period of his service as an officer from 1956 to 1970, he and his family became very close to the defendant and his family: they would attend each other's homes and go on outings together.
DA recalled a family trip down to Healesville in Victoria. He had a 'definite' recollection that this occurred in 1970: he temporally connected this trip with the end of his service with the Ashfield Salvation Army, when it was suggested to him and his wife that because of their health, they would be better off away from the 'officership'. He also recalled being sick and attending hospital towards the end of the trip. This was to a place he recalled as Cranbrook Lodge. DA identified a photo of Cranbrook House at Healesville (Exhibit E). He recalled that he and the defendant's families were booked to stay in the lodge, along with another family who were also part of The Salvation Army. He estimated that the 'holiday' part of the trip was 2 weeks before he became ill. He also recalled that the defendant visited him whilst he was in hospital. Whilst he remained in hospital, all the families had returned to Sydney. DA recalled the defendant assuring him that he would look after DA's family in the latter's absence.
In cross-examination, DA accepted that in this trip in 1970 he had tried to commit suicide. He recalled that he and his wife (EA) were, at that time going through a turbulent period. He accepted, also that, in accordance with what he understood was the law in Victoria, he was taken to hospital. He accepted, further, that the defendant attended the hospital and assured him that he would take care of DA's family; including taking his family back to Forbes Street, Croydon Park; whilst he got the train.
When asked about the closeness of the families, DA said that he recalled that LM and the defendant's daughter (D) were close; so much so that on occasions, LM went over to the defendant's place to spend time there.
DA was asked at the trial about his recollections of the homes that the defendant stayed in in the 1970s. But he also recalled "us" (apparently a reference to his family) visiting a Salvation Army residence, known as St Peters Man Care. When challenged again, that he did not see the defendant there, DA was more confident: asserting that he did visit the defendant and his family there; although only on the one occasion. Other places he recalled seeing the defendant at were in Chester Hill and Hamilton.

[54]

LM's evidence

LM said that she understood that the defendant was a military chaplain with The Salvation Army.
LM gave evidence that when aged between seven and eight, her family visited the defendant at the place in Holsworthy. LM was shown Exhibit D. With the exception of the carport, she said it represented a reasonable depiction of the frontal exterior of the home at the time of the incident she was about to narrate.
She recalled going into the girls' bedroom when she saw the defendant's daughter, S, and the defendant. She said that the defendant was lying on one of the single beds in this bedroom. When she came in, S was on the defendant's lap, sitting across him. She gave a detailed account of what the defendant was wearing (shorts with a belt - with a Salvation Army belt buckle - and a collared shirt). She said that she saw S sitting astride him whilst he was going through the motion of bouncing on the bed, simulating a 'pony ride'. She heard S laugh. LM recalled that on closer inspection, she saw that the defendant had the zipper on his shorts opened and his penis was exposed (though, LM recalled, not yet erect at this point).
LM said that the defendant put S down, picked her up and put LM in the same position, straddled across his waist. He took her hands and put them around his penis, with his (hands) over the top of her hands, and continued to do the 'bouncing' motion, forcing her to hold on to his penis which, she recalled, was fully erect at this point. LM believed S was still in the room, standing behind her.
She recalled that the defendant's other daughter, D, came into the room after she (LM) had been on the defendant's lap for a short time. She said that the defendant put her down on the ground. LM then went outside and found boys that she played with.
LM did not tell anyone about this incident at this time. She explained that before getting into the car for the trip home, the defendant had a conversation with her by the side of the house. According to LM, he told her that what had occurred was their secret, and that she needed to be quiet and not tell anybody.

[60]

The complainant (LM's) evidence

When LM was three or four months short of being 12 years of age (i.e. in 1977), LM was living with her family in a street in Cambridge Park, near Penrith. It was in January, during school holidays. (LM's recollection of the timing of this particular incident was tied to her recollection of the Granville train disaster which, it was agreed, occurred on 18 January 1977.) LM recalled that the defendant and his family (including the defendant's wife and daughters) visited her home. A discussion occurred which resulted in a decision that LM would have a holiday for ten days, or two weeks, with the defendant's family who, at that time, were living in the same residence at Forbes Street, Croydon Park which LM's family had previously resided in.
LM recalled that on a Saturday afternoon, the defendant informed his family that he needed to attend his office, at Foster House. For reasons which LM could not now recall, it was explained to her that she would accompany him to the office and he drove her there. Foster House was, apparently, an office building. There was a reception desk on the ground floor and the defendant greeted someone at the desk. LM recalled the defendant and LM walking up some stairs to a small office. According to LM, the defendant locked the door when they entered.
LM recalled that on this day, she was wearing a very small blue and white floral cotton skirt, buttoned down to the front of the hemline and falling below her knee. LM said that the defendant approached her when she was positioned with her back to a wall, next to a filing cabinet. She said that the defendant pulled at her waist and proceeded to undo four or five little white ties that held her shirt together, pulled her bra to one side and began to peak down her shirt before looking at her breasts.
She recalled that, involuntarily, she was taken to the office desk, situated between desk and chair. She felt self-conscious and faced the chair. She said that the defendant lifted up her skirt and put it over her hips, exposing her underwear. She said he then pulled her underwear down.
She recalled that she came to be bent over the desk, with her hands in front of her and, from behind her, she felt that the defendant was attempting to put his penis into her vagina. She said she resisted this, but he kept her in position. She said she felt his penis around the opening of her vagina. She recalled that she spun quickly, and lashed out at him, kicking him in the shins; and telling the defendant that he had to stop. She also recalled 'pummelling' him on the chest to get away from him. After this, she said the defendant shouted at her.
She recalled feeling extremely distraught and crying, embarrassed and ashamed. She said that she did not give permission to the defendant to pull her pants down and insert his penis against the entrance to her vagina.
After pulling up her underwear and straightening her skirt, and tying up her blouse, she left the office. She said the defendant told her to go to the bathroom, clean herself up and stop crying. This, she said she did. She estimated that she had been in the office for half an hour, up to 40 minutes.
She recalled that the defendant and her went downstairs. Nothing was said and he drove back to Forbes Street, where the defendant's wife and daughters were. She recalled that on the drive home, he 'reinforced' that nobody would believe her if she said anything and that if there was any blame or fault, it would be she who carried it.
Asked whether she thought about contacting her parents, LM said she did. But the incident occurred only a couple of days into the visit to the residence at Forbes Street and she felt uncomfortable about the prospect of answering a lot of questions from her parents. Instead, LM indicated that she developed a plan that on the Monday (two days later), she would try to catch a train home. This plan was foiled by the Granville train disaster. In the events that occurred, she was collected at the end of the trip as had been previously arranged, with her parents picking her up the next Saturday afternoon.

[62]

ED's evidence

A written transcript of ED's evidence given at the trial was tendered by consent (Exhibit H). At the time he gave his evidence, ED was still an officer of The Salvation Army; holding the rank of Lieutenant Colonel. He was another person who grew up in a Salvation Army family.
In 1978, ED was appointed as a director for senior citizen services and for homeless persons services. That year, he met the defendant. ED recalled that the defendant was manager of the Foster House, in Surry Hills. Foster House was the men's hostel, or refuge, for homeless men. It could house about 300 men at any one time. There were multiple levels, with offices on the ground floor. The entrance was on the corner of Foster Street and a lane. There was also an exit at the back of the building. But he said that women visitors were permitted entry. Clients lived upstairs where there was a dormitory. Visitors would come through the ground floor section, but they were not permitted to go upstairs into the dormitory areas of the men. Visitors were confined to the rooms which were on the ground floor.
He recalled the defendant having an office in Foster House, on the ground floor. He recalled that the office was small, with a passageway past it and a window onto Foster Street. At this time, ED worked in a building in Elizabeth Street, nearby (whose proximity may be seen in Exhibit 1). He supervised the defendant, as director (with the defendant as manager). He estimated that this was for a period of 5 years.
ED said that female visitors, and family members were allowed to attend. When asked in cross-examination as to whether there was any rule that females were not allowed to come into the building, he said his understanding was that generally females could come into the building, but were not allowed to work, or to move into the dormitory areas. When he was probed about the position at the time that the defendant was manager, he disputed any policy or rule imposed by his headquarters about women working in the building. He did not know that there was any rule about not allowing women into the building at all. ED said that although the manager was responsible for setting the rules for Foster House, they would have 'fitted' with the traditional rules used for all places and he reaffirmed that he did not know of any rule which forbade females from attending Foster House.
He referred to a pattern of his occasionally visiting either on a Sunday or mid-week, by invitation, although as administrative issues arose, that might also require him to go there. He thought this was about every 2 or 3 months on average.
In cross-examination, ED recalled that there was a booking office; though could not recall any security officer being at the entrance, except where men were being admitted for the night. He said, in re-examination, that most managers had the rule that there was no security during the day; security personnel would return at night.
He was shown a document (Exhibit 1). He recalled that there was a passageway between the four offices, but that aside, ED thought that this was a reasonably accurate diagram of the ground floor. He identified that what was written as 'manager's office' was the defendant's office; although ED thought it was closer to the entrance than what was depicted in the diagram. It had a window looking out to Foster Street.
ED recalled seeing the defendant's wife, on occasions, in Foster House, but had no specific recollection.
He also recalled that, at the time the defendant was manager, there was a chapel and hospital ward with beds occupied by patients probably attended by doctors. There was also an office on one of the upper floors, which had been used for counselling. ED thought that this was likely to have been on the third floor.

[66]

GQ's evidence of LM's complaint in the mid-1990s

The written record of transcript of GQ was tendered by consent (Exhibit G).
GQ grew up in a Salvation Army family. After her marriage (to RQ) in 1960, in the early 1970s, she and her husband started as cadets, and then became officers of The Salvation Army. One posting that they received was Papua New Guinea. In that period they met a couple, BM and EM. One of the children of BM and EM was RM, who later became the husband of the complainant, LM.
GQ and RQ were also family friends of LM's parents, who she met in the early 1980s when working at St Mary's.
GQ and RQ attended the wedding between RM and LM. She said that over the years, she had often had contact with LM and RM.
GQ said that after leaving The Salvation Army, she and her husband started working at Katoomba. But they had also acquired a home in Grafton and for four weeks in the middle of the year and then around the Christmas holidays, they would stay in their home in Grafton.
GQ recalled a conversation with LM in Grafton in about the mid to late 1990s. By this time, LM and her husband had young children. GQ said that by this time, she had treated LM like a daughter and considered that LM treated her like a mother. She has remained, for many years, a friend to LM, although with the passage of time and distance, they were not now as close.
The conversation occurred whilst others were out the back of the house, swimming or playing. It was private. GQ said that LM had told her that when she was young, she had been inappropriately touched or molested by the defendant. She also recalled LM saying that because they (the defendant and his wife) were good friends of her parents, she had not talked to her own parents, as they used to go on holidays together, as couples. GQ recalled LM giving this account in a distressed state and perceived that she had wanted to get the matter "off her chest".
At the time of this conversation, GQ knew the defendant's name (which, she said was well-known in The Salvation Army), but said that she did not personally know him; and had not met him.
GQ recalled advising LM to write to the Territorial Commander, who was the number 1 Salvation Army Officer in the Eastern Territory of Australia and report what had happened to her.
In cross-examination, GQ said that LM's disclosure was only made to her. GQ's husband was not present. She was referred to her statement to police which recorded LM telling her (GQ) that she had "not told anyone because her family were close to his (the defendant's) family". She accepted that LM had not disclosed details, such as when, how or at what age she had been 'molested', although she recalled LM referring to the 'People's Palace'. She also said it took a long time before she told him about her conversation with LM.

[67]

DA's evidence of LM's complaint in 2002

I referred to aspects of DA's evidence earlier. To repeat, DA is LM's father.
In the late 1990s, DA's wife (LM's mother, EA) was very unwell. DA took an early retirement to look after her and they moved to a small home in Kempsey.
In 2002, he received an unexpected visit from the defendant and his wife, where they stayed for a couple of hours. Following that visit, DA (and his then new wife "I") went to Longreach, in Queensland, where LM was living at the time with her husband. It was then, DA recalled, that LM opened up to them about what had occurred. He could not specifically recall what was said but understood that there had been "inappropriate behaviour" by the defendant against his daughter.
In cross-examination, DA was asked why he did not think to ring the defendant. DA said he felt too shocked at the time. He accepted that he did not confront the defendant. He justified this by not wanting to upset his daughter. In re-examination, he elaborated: "It was such a difficult time for (LM) with her going through all of this, I know some reactions of fathers would be to you know, have it out with the person concerned. I've always been more of a peaceable person. I'm a committed Christian with a deep faith in God and I don't, I'm not one to go stirring up a lot of trouble. And we kept, I guess we kept this to ourselves knowing what had happened from what we've been told, but we kept it to ourselves and I guess that was up until the time the investigation started and our thoughts were well, let the investigation take its course."
He accepted that he continued to send Christmas cards to the defendant for years after his daughter's disclosure to him in 2002.
He said the next time he saw the defendant was at a Salvation Army training college reunion in 2006. DA explained that because there were a lot of people around, he refrained from saying anything to the defendant as he did not want to spoil the occasion.
DA said that around this time, he received a telephone call from the defendant. The defendant asked him about LM's date of birth. He recalled telling the defendant that the family trip to Melbourne was in 1970 when LM was 5 years old. This statement, he also recalled, was in response to an observation by the defendant that in 1970, LM had not even been born at that time. DA recalled that the defendant responded "Oh", before terminating the conversation.
In cross-examination, DA could not recall whether the defendant had asked him whether or not LM had complained about him. It was put to him that he told the defendant that his then wife (EA), and not LM, had told him things. That is, that it was his wife who was the source of his information and not LM. DA said he had no recollection of LM disclosing what had occurred to his first wife (EA), as distinct from his second wife (I).
DA recalled that LM had told him, apparently at another time, that what happened to her with the defendant at Foster House was the worst experience.

[71]

The complainant (EJ's) evidence

The complainant EJ was the complainant RG's younger sister. EJ had known the defendant as a friend of her family since as long as she could remember as he was the Minister at West Wallsend. The defendant's daughter (D) was about her age and the defendant's son (K) was about the age of EJ's brother (G). EJ also knew the defendant's other daughter (S).
EJ gave evidence of regular family camping holidays at Wangi Wangi, which was on Lake Macquarie, particularly during school holidays.
When she was aged 10 or 11, which would have been 1971 or 1972, she recalled one such camping holiday when it was only she, her brother (GJ) and her parents who went camping (RG was then about 19 years of age). She recalled that the defendant, his wife and children attended at Wangi Wangi. EJ recalled that the defendant's wife and their youngest daughter was in the tent with her parents speaking to the defendant whilst EJ was playing with D, and GJ was playing with K.
EJ said that her father decided to take them prawning. This was something commonly done in such trips (the father having bought a net for prawning) and necessitated a car drive to a bay on the other side of the peninsula. The defendant, his daughter (D) and son (K) went with them on the drive with GJ.
EJ recalled that her father drove a Holden Belmont motor vehicle. He was the driver. The defendant was a front seat passenger. EJ recalled that GJ, D and K were seated in the back. She also said that the defendant asked her to sit on his knee. She said she agreed to this since, at that age, she always wanted to sit in the front of the car. There was no one sitting in the front seat in the middle. EJ recalled, specifically, that she sat on the defendant's right knee (although just touching his left knee), inclining slightly towards the centre of the vehicle.
EJ said that during the drive, the defendant touched her with his fingers on the outside of her vagina on her underpants. She recalled that she believed that this was an accident. But then, she recalled that he tried to get his finger inside her underwear and eventually he did. This caused her to wiggle and jump. This response by her prompted her father, driving the car, to yell at her to be quiet, sit still and stop wiggling and to hit her across her head with his left hand.
EJ said that after being struck in this way, whilst trying to sit still, the defendant put his finger back into her vagina. She said she just sat there, but jumped out of the vehicle as soon as she could open the door.
After returning to camp, she said that she did not tell her father what had happened to her. She explained that she was scared of him; he hit his children all the time. She added the following observation: "In my family, adults and ministers in particular, were held in higher esteem than everybody else. And I didn't think - I thought I would be in trouble. I thought I'd done something wrong."

[73]

GJ's evidence

GJ was EJ's older brother (by about 3 years) and also RG's younger brother (by about 6 years). He was born in 1958. He recalled the defendant conducting church services (which, he humorously noted, he generally tried to avoid) when he was aged 10 to 12 years of age. He recalled the defendant's family being very friendly with his own family: each family visiting each other's family's home. He was about the age of the defendant's son; and used to play with him.
GJ recalled travelling to a place at Holsworthy base on one occasion: when he was young, he had aspirations to get into the Army. He recalled playing with the defendant's son on this occasion, and looking for an Army base. He recalled seeing the defendant dressed in a military-style uniform. But generally, he could not specifically recall other homes of the defendant that he visited.
GJ recalled regular camping holidays at Wangi Wangi, nearly every Christmas, until he was about 17. He described the large tents that were constructed: so large that there were separate spaces for his parents, his sisters and himself.
GJ was asked about RG's attendance in camping holidays involving the family at Wangi Wangi. He recalled that this tended to drop off when she began to work. He did not recall her attending once she was married nor whilst she was pregnant. He said he did not recall her being present when he was aged about 12 (when RG would have been aged about 18).
GJ recalled the leisurely and sporting pursuits he engaged in at these camping holidays. This included prawning, which occurred at a bay that was south of Wangi Wangi. He recalled his father's prawning net. He recalled playing with other family friends, but did not recall participating in any prawning activities associated with the defendant, or the defendant's son, K.
GJ recalled the family's Holden Belmont car and, specifically, recalled its external colour (brown or tan) and the colour of the seats in the car (red). GJ was asked whether he recalled seeing the defendant in this vehicle. He initially answered no, but then he corrected himself: he recalled an occasion when he saw the defendant in the passenger seat of the vehicle with EJ on his lap, when he was about 8 and he estimated that EJ was about 3 or 4 (T 43.9 - 43.19). Counsel for the defendant challenged GJ on this evidence. GJ accepted that he had not mentioned this particular recollection to anyone previously. He acknowledged that this recollection had only just "popped into" his head when giving evidence but said that nobody had previously asked that question of him before. He denied EJ having mentioned this to him.
He described his father as being very strict; even administering beatings to his children.

[75]

The complainant's (DB's) evidence

The complainant, DB, was born in 1962. Her parents were soldiers of the Campsie Salvation Army. She grew up in The Salvation Army, participating from a young age as a 'young soldier'.
She recalled that through the church, there were functions held at her home. These were mainly Bible studies on Friday nights, although they also included the occasional supper. DB explained that the practice was for people coming to the home to bring a plate for supper after the bible study session. But generally, she was not at home when these bible study sessions occurred: she usually went out on Friday nights, participating in singing company and practising the timbrel in Campsie.
DB described her home and drew a diagram of it (Exhibit K). She described a three-bedroom freestanding federation home. She gave a very specific description about features of her room, including the wallpaper, flooring and furniture.
On one occasion where there was a bible study at home on Friday night, when she was aged 11, she recalled that she happened to be home. She was sick, with a temperature and a sore throat. (Her sister still went to the singing company and timbrel practice). She was staying in her bedroom, with the door closed, and was watching television.
She said she recalled the voices of persons she recognised. One of those was the voice of the defendant who, at that time, was the Minister of the Church, who played the trombone for the Branch and who held the rank of Major. She heard his voice in the dining room, saying "the girls (an apparent reference to her and her sister) should be home soon", and she heard her mother respond "Oh, no, (DB)'s already home". She then heard him, the defendant, say "I might go and give her a visit".
She then heard a knock on her bedroom door and, to her shock, the defendant entered. Although the main bedroom light was off, she said she recognised the defendant from the light emitted from the television. She was lying on her back, on her bed with her head on her pillows.
She said that he stood beside her bed, stating "You're not feeling well?" and she responded "no". She said that he then placed his hand on her forehead. The next minute, she said he moved his right hand down her pyjama top and touched her right breast and squeezed it for about two seconds. Thereafter, she said he moved his same hand over her left breast and squeezed that breast, for two seconds.
After this, DB recalled telling the defendant to get out. She recalled him telling her not to say anything. He then left the room and closed the door.
DB said that she did not tell anyone at the time because of her belief that the defendant was "high up" with the Church, at the time, and she did not think that she would be believed because of her age and, with the amount of people in the house, she perceived that it would be his word against hers. She did not even tell her parents, both of whom had since passed away at the time she gave evidence.
The first time she told anyone about the incident was when she made her statement to police on 10 April 2018.

[85]

KC's evidence

KC is RW's mother. She was called to give evidence.
She confirmed her active involvement with The Salvation Army in Orange, especially after 1981 or 1982 and her children's participation in such things as Sunday church attendance. She recalled an earlier Minister (Captain Strong) being succeeded by the defendant. She recalled the defendant living at two separate premises in Orange, one at Hill Street; the other at Phillip Street; the latter being much more modern.
In particular, she recalled a granny flat at the Phillip Street residence. She believed that she went in there whilst the defendant resided at the place. She also said that she recalled seeing Ms Diane Cooper in there on one occasion.
KC was challenged about her recollections about the granny flat. It was put to her that at the time she (and the defendant) were there, it had not been fully constructed, but rather was being used as a general storage area. KC disagreed.
She confirmed participating in money collections weekly on Friday nights, very often with the defendant's wife. She recalled that this occurred when RW was about 8 or 9 years of age. She recalled leaving both RW and her son with the defendant, whom she trusted. It was put to her that this did not occur.
She explained the practice of monies which had been collected being sent back to the defendant's place. Sometimes, she recalled, Diane Cooper was involved in counting the money. She recalled that Ms Cooper acted as a secretary.
KC said that she left Orange at the end of 1986 and lived in Ingleburn for a year, before returning to Orange. She recalled that the defendant and his family left Orange in January 1987.
She also recalled that after January 1987, she stayed at the defendant's place in Kogarah. She described the layout of that place. She thought RW would have been in high school by this time. She also recalled the defendant coming back to visit her in Orange. She recalled that she was not attending church on Sundays at the time.
KC was challenged that neither of these visits after January 1987 actually occurred.

[95]

Charges 3-6

As to the complainant, LM, LM gave evidence about a report or complaint to her father in 2002, but had not disclosed such report when interviewed by police. LM herself accepted that she gave a different account of where the defendant touched her in the uncharged incident at Healesville in her evidence and what she had informed police. LM also acknowledged that she was a difficult child who told lies. It was put to LM, though she denied, that she took that character trait into adulthood. LM was questioned why she did not report the incident at the dinner table to her parents. It was suggested that there were discrepancies between her evidence in the trial and what she told the investigator, on such matters as whether the place at Holsworthy was separate to or part of a military base; whether, for that incident (charge 4) the defendant's other daughter (S) was in the room at the same time, whether she actually saw the defendant's hands clasping his daughter's (S') hands on the defendant's penis when he was engaged in giving a 'pony-ride' to the daughter; whether the other daughter (D) came into the room or had always been in there; whether she had been driven by the defendant to the Forbes Street Ashfield address or by her own family. It was also put to her that, notwithstanding her evidence of what occurred when she was much younger, she did not protest going to stay at the Forbes Street address when she was aged 11. She agreed with that. When it was then suggested that it did not occur to her to use this moment to complain to her mother about what she said the defendant had done, the complainant said the following: ".. I literally did not have the language to explain to my mother. I grew up in a house where we did not use the term penis and vagina. I grew up in a very conservative, Christian home with very conservative Christian parents and I realised now it might sound preposterous that at no point during any of these instances, did I come home and disclose to my parents what was happening. I simply did not have the language skills as a child to be able to find the words to explain to my parents what was happening".
She was asked, but could not recall details of the car she travelled in to get to Foster House and was pressed on her recollection of how she entered through the building. She was also pressed on how she perceived that the defendant locked the door once (immediately) entering into the office. She accepted that earlier she had told the investigator that the defendant did certain things (attending paperwork) before locking the door. She also accepted that when, in cross-examination, she said that the defendant had fondled her breasts during the incident at Foster House, this conduct had not been referred to in her evidence in chief. She accepted further, that the account that she had given to the investigator was inconsistent with her evidence in chief about how the offending, including whether she saw the defendant's penis.
LM was also challenged about some of her evidence about complaints to others. She did not tell the investigator that she had made a disclosure to her fiancé, prior to their marriage. She was cross-examined about warnings that she said the defendant gave her about not telling anyone of the incident at Holsworthy, about where and when in those premises the warning was made.
In re-examination, LM explained, in effect, that she could not really complain or describe the incidents the subject of charges 3 and 4 given her age and lack of understanding. In relation to charges 5-6, when she was about 12 and had such understanding, she lashed out. As to the incident at Holsworthy, she was referred to a statement contained in her police statement in which she said that it was after the (other) girls (the defendant's daughter) left her bedroom that the defendant told her not to tell anybody as to what had occurred and (implicitly) threatened her that she would not be able to stay with her parents if she spoke.
As to DA, LM's father, on the face of the transcript, there had been no real challenge to his credibility or reliability; even if there was implied criticism of him for not confronting the defendant after receiving LM's reported disclosure.
As to GA, LM's husband, I found his evidence to be credible and reliable. I did not regard what the defendant's Counsel appeared to criticise as GA's passivity after LM had disclosed the defendant's alleged abuse of her as discreditable: although minds might differ as to what was morally an appropriate response, it was not unreasonable for him to be guided by, and respect, LM's wishes in the timing for the raising of complaint or reporting. As he rightly said, there was nothing that he might say to the defendant which would have made any difference. Further, the possibility that GA might have omitted in his statement to the investigator other reports of disclosure by LM to him as to what the defendant had done to her was neither here nor there when he did nothing, in his evidence, to categorically indicate a certain number of disclosures.
As to GQ, who regarded herself as LM's surrogate mother, on the face of the transcript, there had been no real challenge to her credibility or reliability.
As to ED, the officer with The Salvation Army, there was no real challenge to his credibility or reliability.

[109]

Healesville incidents

The defendant accepted that he went on holidays with LM's family. He recalled one occasion, being in 1965 (although was not sure of that), but was informed (apparently by his wife) that there were two. At the trial, he conceded that it could have been in 1970; and after being referred to his stationing at Goulburn in the Agreed Facts, agreed that his trip to Melbourne had occurred after having left Goulburn (which occurred in January 1970).
About the trip to Healesville, the defendant remembered that LM's father had gone missing, ending up in hospital. His recollection was that LM was a very small baby at the time. He also recalled other families being at Healesville: he mentioned the Clanfields and the Dunsters.
In cross-examination, the defendant accepted that LM was there. He accepted that she was not a small baby but was "running around". But aside from what happened to LM's father, and going out on day trips to different places, he had no particular recollection of any event.
But he accepted a usual 'routine' of families having dinners, and participating in games. It was suggested that children might join them, but the defendant recalled that they were happy playing, on the floor, amongst themselves. Asked if the kids would come and sit on adults' laps, he answered "No. No." They might have sat next to the adults but did not sit on their laps. The defendant was challenged that children sitting on the adults' laps did happen and, specifically, that LM did. But the defendant then said: "I never saw (LM) sitting at the table. I can remember .. once my son came and sat next me to, right, but, no, I never encouraged (LM) to come and sit next to me. She had her own parents and we would encourage her, if she wanted to do that, to go and sit with her parents, not to sit with us."
The defendant was referred to information he gave to the investigator (see below) and it was suggested that he had brought up an incident at Healesville notwithstanding that he had no obvious reason for doing so - it not being referred to in a notice that he had received from The Salvation Army in advance. This was where the defendant emphasised that because of his understanding of LM's date of birth, and his own belief about the visit in Healesville occurring in 1964, no 'incident' could have occurred there. It was put to the defendant, but he denied, that he did so attempting to distance himself from LM. It was also put to him, and again he denied, that he specifically rang LM's father for the purpose of ascertaining LM's date of birth.
He recalled that Healesville was a single storey building; with no stairs. In cross-examination, he was asked how many bedrooms there were. He said that there were many, though he could not recall how many. He did not recall whether the adults' bedrooms were separated from the children's bedrooms.

[112]

Charges 5-6

The defendant and his wife lived at Forbes Street, Croydon Park for a period of 6 years. The defendant denied LM's family visiting him whilst he lived at Forbes Street, Croydon Park. Asked whether LM ever visited this place, he said "Never, never". He accepted that he had visited DA and his wife in Cambridge Park. The defendant recalled DA demonstrating his organist skills and indeed, he said that he, himself, "often" got his trombone out of his car and they would "do music together". He recalled taking his children with him to see DA in Cambridge Park.
The defendant denied taking LM to Foster House. He said he was the manager there. He indicated that it was inculcated in him as part of his training that no women or children could enter Foster House "under any condition". This was reiterated in a letter he said he received from the secretary when he commenced duties as a manager. He recalled that he needed to obtain special permission for his wife to work with him. (There was also a female nurse who worked on the first floor with a female secretary). The defendant explained that the rationale for the rule was the demographic of the people in the hostel: amongst the homeless people, some were violent ex-prisoners and others were psychiatric patients. The defendant added that there were two security officers at the front door, at all times, 24 hours of the day. One of them was on the ground floor.
He accepted that that, as Manager to Foster House, he had access to it, even after hours and that he had access to anywhere in the building, including any office on any floor.
The defendant identified the sketch diagram of the layout of the ground floor, which he had created (Exhibit 1). On the floor above, he said that there was a chapel and an open plan hospital ward, with beds in it.
The defendant recalled the Granville train disaster. He recalled being sent out there and was occupied from 7am until 7pm. He recalled being there, every day, for 10 days. He said his wife did not come with him. He recalled that she stayed at home.
In cross-examination, the Prosecutor pointed out that he had recollection of spending 10 days after the Granville disaster helping out but was, yet, unable to recall what happened in the three or four days which preceded the disaster (which occurred on a Tuesday). But he accepted that it was his general practice to be at Foster House nearly every day, and this included weekends at times.
After leaving Forbes Street, Croydon Park, the defendant admitted having subsequent contact with LM's family, including family meals. He recalled attending LM's wedding and conducting (GA's) wedding.
The defendant recalled dropping in to see LM's parents when they were in Campsie. Her mother was not well. He believed that they continued to have a good association over the years. However, he recalled ringing DA one day. This was after complaints were made about him. The defendant asked DA whether LM had complained about him and DA responded that LM had not, but rather, had complained to LM's mother (EA) and that EA had told DA.
The defendant denied ever having molested or sexually assaulting LM.

[115]

Charges 10-13

The defendant agreed that he succeeded a Minister with the surname Strong.
The defendant confirmed that when stationed at Orange, he lived initially at Hill Street, before living at Phillip Street. As to the latter premises, he recalled a granny flat. He said he did not use the granny flat: he only went into it as part of his inspection of the property ahead of its purchase. He stated that he had heard that it had been used as an office, but only after he and his wife left. His wife told him that she had received a report from the Orange secretary to this effect. (He did not specify when he received such report). The prosecutor put to him that he made this evidence up but the defendant denied doing so. At any rate, at the trial, the prosecutor challenged the defendant's evidence that in the period of about seven and a half months, he never went into the granny flat.
He confirmed knowing RW (by her original name) and her mother (also by her original name). He agreed that he knew of KC because she was one of the people who attended church in Orange, and through her connection with The Salvation Army. He said that they "never" came to either Hill Street or Phillip Street. He said he had not babysat RW.
In cross-examination at trial, the defendant agreed that as part of the fundraising (for which he, as head of the Corps at Orange, was responsible) there were Salvation Army officers who attended pubs to collect money. He agreed that this occurred, in effect, on his 'watch', whilst he was at Orange. But the defendant said he did not recall his wife collecting out in the pubs at Orange; even though she had done so at other locations (St Peters and Windsor. The defendant denied her collecting at Man Care, Foster House or Lambton). Asked whether he was sure she did not collect at Orange with RW's mum, he answered "No. No, never". Indeed, he asserted that RW's mum (KC) had "never" collected at all.
The defendant said that Diane Cooper helped him with administrative and/or secretarial type work. He said he did not recall her ever attending his home. He said in re-examination that whilst staying in Orange, he had an office at the Citadel, which was just off the main street in the town.
The defendant denied molesting or sexually assaulting RW.

[117]

The defendant's roles and positions

It is an agreed fact that in the periods 20 March 1956 to 7 October 1983 (incl) and 17 January 1985 to 1 May 1997 (incl), the defendant was employed by The Salvation Army, holding various roles and ranks throughout his career. They are as follows: Dates Role Rank 20/03/1956 Commenced training with The Salvation Army Cadet 10/01/1957 - 08/01/1958 Corps Officer at Holland Park Corps Pro-Lieutenant 09/01/1958 - 07/01/1959 Crops Officer at West Wallsend Cops Lieutenant 08/01/1959 - 11/01/1961 Corps Officer at Windsor Corps Lieutenant 12/01/1961 - 09/01/1963 Corps Officer at Thornleigh Corps Captain 10/01/1963 - 08/01/1964 Corps Officer at Woodburn Corps Captain 09/01/1964 - 11/01/1967 Corps Officer at Chester Hill Corps Captain 12/01/1967 - 17/05/1967 Corps Officer at North Rockhampton Corps Captain 18/05/1967 - 15/01/1969 Corps Officer at Penrith Corps Captain 16/01/1969 - 14/01/1970 Corps Officer at Goulburn Corps Captain 15/01/1970 - 13/01/1971 Corps Officer at Willoughby Corps Captain 14/01/1971 - 19/01/1972 Corps Officer at Umina Corps Captain 20/01/1972 - 25/04/1973 Corps Officer at Lambton Corps Captain 26/04/1973 - 15/01/1975 Officer at Red Shield Defence Services Captain 16/01/1975 - 08/10/1980 Manager at Foster House Complex Major 09/10/1980 - 09/01/1982 Manager at Sydney Peoples Palace Major 10/01/1982 - 06/10/1983 Chief Commissioner AHQ Canberra at Red Shield Defence Services Major 11/01/1982 - 06/10/1983 Manager at St Peters Mancare Major 17/01/1985 - 13/01/1987 Assistant Officer at Orange Corps Major 08/03/1985 - 13/01/1987 Associate Chaplain in Orange in NSW Rural Fire Services Major 15/01/1987 - 13/01/1988 Corps Officer at Hamilton Corps Major 14/01/1988 - 30/06/1988 Administrator at Pindari Mens Hostel Major 01/07/1988 - 11/01/1989 Administrator at Moyne Aged Care Centre Major 12/01/1989 - 30/04/1997 Chaplain at Court & Prison Chaplaincy, Downing Centre Sydney Major

[119]

Charges 1-2

Mrs Pethybridge said that whilst her husband was posted to West Wallsend (9 January 1958 to 7 January 1959) she recalled that an annual picnic was arranged for around Christmas time; an awareness stemming from information contained in a handover brief left over to the defendant from his predecessor.
She recalled that the picnic was scheduled for 1 November 1958. She identified an extract from the Wallsend West Corps history book which referred to a picnic at Belmont Park (Exhibit 4). However, this was the date of her son's birth (Exhibit 3). Further, she said that her husband was with her, from the night before, and then again on the next day, from the morning until later in the afternoon.
In cross-examination, Mrs Pethybridge was referred to evidence she gave in the trial, when she said that she believed that the picnics for the West Wallsend Corps had been at Speers Point. In this special hearing, however, she said that the situation had changed: given that the defendant was the incoming officer, he was at liberty to change the date or venue. It was put to Mrs Pethybridge that there was an annual Sunday School picnic at Speers Point during the school holidays, but she denied this. Indeed, she said, initially that she had never been to Speers Point, and was certainly not there in 1970, but then accepted that she was. She accepted that her evidence about this last matter was inconsistent with evidence she had given at the earlier trial where, on multiple occasions, she denied ever having been there. It was put to her, and she denied, that she was trying to use the date of her son's birth to demonstrate that the defendant could not have been there.
In her evidence in chief, she said she knew the family of RG and EJ. Under cross-examination, it was suggested that she had been family friends with them, but Mrs Pethybridge appeared to hesitate: she thought that they were friends, but that they did not keep up with them and could not remember her children playing with the other family's children. She did not recall visiting their home or a picnic in Mt Sugarloaf.
She denied ever visiting Speers Park whilst she and her husband were with the West Wallsend Corps.

[120]

Healesville trip

Mrs Pethybridge accepted she and her husband knew LM's family well. Asked if she recalled having a close relationship to her family, she conceded only that they were friends and disputed that they were 'close'. Indeed, she appeared to insinuate that DA and the defendant only became friends because of a verbal request she had received, from DA's mother, in about 1963 or 1964, arising from the mother's concern for DA's welfare. She later said she was aware that the defendant helped GA to get married.
Mrs Pethybridge acknowledged going to the Healesville camp and also going there with LM's family. She described Healesville as being an old, single-story homestead.
She accepted that she had always maintained that there were two trips with LM's family to Healesville, probably in 1965 and the second time in 1970. It was put to her that she conveyed this message to the defendant before his interview with Mr Greville in 2014, and that she had reiterated this to him, again, before he gave his evidence at trial in 2018. She did not dispute these possibilities.
She accepted that at Healesville, families would eat together, would socialise and play games in the common area. There were tables for games with chairs around. She recalled there being four to six steps up to the house, but did not recall anything other than a step or two inside the house.
There were occasions when children sat upon the laps of adults. But Mrs Pethybridge recalled that LM only sat on her own mother's lap; not the defendant's. It was only her children who sat on the defendant's lap. Mrs Pethybridge was pressed on this evidence. Asked how she could categorically rule out that children other than the defendant's children sat on the defendant's lap, she uttered the curious answer "if you'd been in my position, you'd remember it too". She briefly went to on say something about her two daughters being aware of how "manipulative" LM used to be.
Mrs Pethybridge was pressed on evidence she had given at trial in 2018, when she spoke of being a constant presence alongside her husband. This was in the context of Ms Crown asking here if she ever saw her husband walk off in the direction of the bedrooms. It was put that she was simply saying that to protect him with the awareness of an allegation by LM that something had happened in the bedroom.

[123]

Charges 5-6

Mrs Pethybridge accepted that her husband was posted to Forbes Street, in Croydon Park (January 1975 to October 1980). She denied that LM, or her parents, visited them at this address.
She acknowledged that whilst posted in Forbes Street, the defendant was the manager of Foster House. She recalled that it was an old 6-storey building, with no fire escape and a single entrance at the front door. In cross-examination, it was put to her, but denied, that she only thought to mention the absence of a fire escape because of her understanding that LM had given evidence about using stairs outside the building.
She also recalled that on the first floor there was an open area with hospital beds, divided by a chapel. Above this floor were dormitories for the homeless men. She later said, in re-examination, that above the first floor, there were about 60 beds on each level and said that there were no offices above the first floor. She said that access to the floors above the first floor was by stairs.
She recalled that, as a woman, she needed permission to attend the building. She recalled that this was indicated in two documents that were received at about the time that the defendant was about to commence managing Foster House: one was the defendant's own letter of appointment; the second being a separate notice to her that Foster House was a 'men's institution' in which she was not to be granted access. But she said she obtained special permission to be there.
Mrs Pethybridge was asked about other women who had access. It was suggested that Sarah Case/Cox was there as a receptionist. Mrs Pethybridge did not recall that. It was suggested that there was also a female nurse and female assistant who worked there. Mrs Pethybridge conceded that it was possible that they may have worked there; with permission. But it was put to her that, given that he was the manager, if the defendant wanted to take a female into the building, there was nothing to stop him from doing so.
She said that she helped manage the place when her husband could not and that she was his assistant. She suggested that she was there day to day, or '24/7'. She explained that when she was required at the home, she would get her mother to look after her children.
Mrs Pethybridge was referred to her evidence in the trial when she agreed with the proposition that she was at Foster House "every day" in the period that the defendant worked there (from January 1975 to October 1980). It was put to her, but she denied, that she had simply made this evidence up.
She recalled that after the Granville train crash, the defendant went out, with others to the station. She went to Foster House to fill in for him; again calling her mother and enlisting her help to look after her children. In cross-examination, she was referred to her evidence in chief (in the special hearing) when [17] she did not actually answer the question about her recollection of where she was on the Tuesday to Friday of that week. At any rate, she said she was looking after Foster House, for as long as was needed - which she estimated was 3-4 days. It was put to her that she was hesitant to positively say how often she went to Foster House because she was conscious of the defendant's evidence, at trial, which was to the effect that she "never" went there.
She accepted, though, that at the trial in 2018, she never said anything about her mother caring for her children at the time of the Granville train disaster. It was put to her, but she denied, that she was making up her evidence and implied that she would not have left her children alone.

[126]

Charges 10-13

Mrs Pethybridge said that after the defendant was posted to Orange, they stayed in two houses there: in Hill Street, and then Phillip Street. She indicated, in her evidence in chief, that she and the defendant moved from Hill Street to Phillip Street in September 1987 (T 100.10), but in cross-examination, she said that she had been "confused" when she said this. It was effectively put that she believed KC had given evidence of having left Orange after September 1987 [18] , and that her confusion stemmed from a desire to tailor her evidence to make it appear that RW could not have attended their house in Phillip Street. Mrs Pethybridge denied this. She did not cavil, however, with the agreed fact that she and the defendant had moved into Phillip Street in April 1986.
She described the granny flat at Phillip Street, as a big shed which the defendant and she used simply to store boxes. It was "never" used as an office: the defendant performed his work elsewhere. But Mrs Pethybridge conceded that he might occasionally go in there.
She recalled KC engaging in collections at pubs on Friday nights. She said that she did them as well (but not with KC). Further, she said the defendant did them - not at Orange, but elsewhere in the country. The defendant's Counsel conceded (even if Mrs Pethybridge did not) that when she gave evidence at the trial in 2018, she did not mention the defendant himself collecting monies from pubs on Friday nights.
Mrs Pethybridge disputed that she went on collections with KC. She said that when the monies were collected, they were taken to another place where they were counted by Ms Diane Cooper. Mrs Pethybridge was challenged on this. She maintained that Ms Cooper did not come to Phillip Street. She maintained that "we" (including the defendant) dropped off monies collected directly in the safe in a hall in Kite Street, Orange, which Ms Cooper would lock on a Friday night. That is to say, her position was that the monies collected were never dropped off at Phillip Street. It was put that she never said at the trial that monies were delivered directly to Kite Street. The retort, from the defendant's Counsel, was that Mrs Pethybridge had not been asked. Nor, it was said, was she asked about the defendant's whereabouts on Friday nights.
Mrs Pethybridge accepted that she had spoken to Diane Cooper on 2 April (2022). Asked if they discussed the evidence Ms Cooper might give, Mrs Pethybridge accepted that "we" had asked Ms Cooper to give a statement about material events in Orange. She accepted that she "could" have mentioned to Ms Cooper the allegations of the offences against the defendant.
Mrs Pethybridge disputed the evidence of KC that she and the defendant visited her in Orange and that KC and RW stayed with her and the defendant whilst they stayed in Kogarah. She said, in re-examination, that there was no room for accommodation off the garage.

[127]

Diane Cooper's evidence

Ms Cooper's evidence was relevant to charges 10-13. Ms Cooper knew the defendant and his wife from January 1985. She was a soldier in and secretary of the Orange Corps of The Salvation Army. But her involvement was part-time: she worked for Westpac Bank for 17 years.
Ms Cooper recalled that the defendant and his family first moved to a residence in Hill Street, in Orange, and believed that in the period that they were there, they may have moved into another residence in Phillip Street, in Orange. She said, more than once, that she believed that the Hill Street residence was sold in 1987. In cross-examination, she accepted that it may be right that he moved into Phillip Street in April 1986.
As to the residence in Phillip Street, Ms Cooper recalled that there was a granny flat out the back. But she disputed that it was used. She did not go into the flat herself. She said that the defendant used another office, in a different street in Orange. Under cross-examination, she was tested on this, but she adhered to her evidence that the granny flat had not been used as an office in the defendant's times.
She was familiar with local fundraising, through the collection of monies from hotels, but her recollection of what occurred was that the defendant would collect the monies, place them in a bag, to be stored in a safe. It was her role to count the money on Tuesday nights.
In cross-examination, she accepted that collections occurred on Friday evenings (which was a matter curiously omitted from her evidence in chief) throughout 1985 and 1986 and accepted that they were taken to the defendant's home and thereafter dealt with by the defendant. But she accepted that when she received the monies on Tuesday night, there was no indication to show how, or in what way, the monies (i.e. cash and coins) had been dealt with: they were simply put in a bag; with no indication of having been sorted in any way.
Ms Cooper said that she recalled RW's family in the mid-1980s and knew KC; though she could not recall KC's collections activity. She assumed that children could not have been left with the defendant for babysitting: she thought that the defendant was out collecting too.

[140]

Charges 5-6

The defendant submitted that doubt attaches to the complainant's account as to what occurred at Foster House. By this time, the complainant was substantially older. She did not protest to her mother about staying with the defendant's family at Forbes Street notwithstanding what she alleged had been previously done to her when she was much younger.
There was further doubt about her evidence of her and the defendant going upstairs. The defendant and Mrs Pethybridge said that on the floor above the ground floor, there was only a chapel and an open hospital ward - there were no offices on that floor nor the other floors above that (which comprised dormitory accommodation). ED's evidence differed about the existence of offices on floors above the ground floor. But he estimated that the office was probably on the third floor. LM never said that she and the defendant walked three flights of stairs.
There was doubt about her account as to when the defendant was said to have locked the door. In her evidence in chief, she said he did so upon entering the room, but in cross-examination, she recalled him shuffling paperwork and thereafter locking the door.
As to the description of the offending, not having mentioned this particular matter in her evidence in chief, she mentioned the defendant fondling her breasts. Nor, when she gave evidence in Court, did she say anything about the defendant stroking her vagina, which she said to the investigator. There was also conflict between whether she saw the defendant's penis or merely felt it.
There was general doubt whether at about this time, LM was staying at Forbes Street, under the supervision of the defendant and Mrs Pethybridge. Once the Granville train disaster occurred (on a Tuesday), the defendant was fully occupied at the station. So, too, was Mrs Pethybridge. The latter could not have been looking after her. There was no acknowledgement in LM's evidence about them being out at Granville.
When she got home, LM did not complain to her parents. The defendant's submissions about complaint evidence is referred to earlier.

[149]

The defendant's evidence at the 2018 trial

The defendant's evidence at trial was only reproduced in a written transcript. This was, as indicated, not something for which he was responsible in any way. But it had the effect that I did not have the opportunity to hear and see him when he gave evidence and therefore to assess his demeanour when he gave evidence in June 2018. This did not mean that I was unable to assess his evidence. My position, in his respect, was analogous to that of a Judge of this Court hearing an appeal from a conviction in the Local Court, or an appellate judge in a rehearing; the difference being that I did not have the advantage available to judges acting in those alternative capacities of credit findings being made about a witness at first instance. But although I have considered, at some length in this section of my reasons, the credibility of other witnesses who appeared at this special hearing, affected as that might have been by my observations of their demeanour when they gave evidence, I do not mean to overstate the significance of demeanour, in relation to its effect on assessment about the truthfulness or reliability of a witness' evidence. In Fox v Percy (2003) 214 CLR 118 at [30], the plurality cited, with approval, the following observation [20] : "… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour".
As the plurality said (at [31]), judges at first instance have, in more modern times, been encouraged to: ".. limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."
As invited by his Counsel, I take into account the forensic disadvantage to the defendant arising from the delayed (or in some cases absence of) complaints being made against him. I accept that he was elderly and he was forced into a position of having to turn his mind to specific allegations brought to his notice in 2014 (in relation to LM) and later.
A fundamental problem with the defendant's evidence was its adamant nature. So often, his evidence that events 'never' happened was controverted by actual evidence to the contrary and the inherent probabilities. To have a distinct recollection that a five-year old girl of a family friend did not sit on his lap in 1970, that bible study sessions never occurred on a Friday night in Campsie in 1972 or 1973, or that there was never occasion for him to enter into a granny flat at a home in Orange in the mid-1980s was implausible and needlessly categorical.
At least in one instance, it was also foolish. This is where he adamantly said that LM's family could say where he lived at Holsworthy in the confident expectation that the military would not release information about it. I will address the suggested lie separately, but it was also foolish (at least) to express so much confidence that he could not have committed the uncharged acts at Healesville because of his definitive recollection of when he went there (1964) and an understanding of LM's age that year.
Another problem was the discussions between himself and his wife, which the latter freely agreed to. It is not necessary to impute any malign intent in this regard (it is not uncommon for spouses, in a loving relationship, to guilelessly confide in each other when placed in threatening situations however imprudently) and as was sometimes pointed out in the Crown's submissions, there were even occasions where the evidence of the defendant and Mrs Pethybridge diverged, but there was a clear danger in one person's recollections contaminating the other's. I agree, further, with the Crown's submission that, between the two of them, the defendant and Mrs Pethybridge were at pains to minimise the closeness of their associations with the families of the complainants; which I took to be undertaken with the transparent purpose of presenting a deliberately distorted picture of those associations.
Reminding myself that no onus of proof falls upon him, I generally exercise considerable caution in accepting what the defendant says in response to the allegations.

[150]

Ms Cooper

I regarded Ms Cooper as presenting as a witness with an ostensibly sharp recollection. She was precise as a witness, which might have reflected the circumstance that she worked in the banking industry for a significant period of time. But I formed the impression that sometimes she was over-confident and was prone to make assumptions about what had occurred. This was demonstrated when she was confident, to the point of being adamant, that KC could not have left her children in the care or custody of the defendant; when she could not have had any personal knowledge of the matter. So too, she assumed that monies deposited at the defendant's home on Friday nights could not have been counted.
Generally, I find that Ms Cooper was closely associated with the defendant's defence. A revealing passage in the cross-examination of Mrs Pethybridge [21] was as follows: "Q. Do you know a lady by the name of Diane Cooper? A. I do Q. You've spoken to her recently? A. I spoke to her on 2 April. Q. You've discussed with her evidence? A. On that date, no. Q. But you've talked to her about evidence haven't you? A. No, I just ask her, or we ask her, if she would give a statement to the Court of events of the year that we were in Orange. Q. Did you tell her about the allegations? A. I could've. Q. Did you tell her what would happen or might happen if your husband was convicted? A. No" (emphasis supplied)
I find that it is likely that Mrs Pethybridge who, as I have found, was very assiduous in reading the evidence in the trial and the testimony of the complainants and Crown witnesses, did speak to Ms Cooper, specifically about the evidence of RW and KC. The highlighted part of the passage above suggests, by implication, that Mrs Pethybridge spoke to Ms Cooper about the evidence; just that it did not occur on 2 April. I consider, further, that the content of Ms Cooper's evidence was contaminated by discussions with Mrs Pethybridge.
I also formed the strong impression that her closeness to the defendant did not make her an independent witness but rather indicated a partiality towards him: she accepted (in the current tense) that she was a friend of the defendant. She was a former secretary to him and in the quasi-military operations of The Salvation Army, it may be expected (and I say this with no criticism) that she was and would remain loyal to him. Hence assumptions she made would, if true, have helped the defendant's case. I therefore approach her evidence about contentious issues with some care and would be reserved about accepting them at face value unless corroborated or consistent with other objective evidence or the probabilities.

[151]

Mrs Pethybridge

I did not have confidence in Mrs Pethybridge as a witness, whilst making full allowance for the difficult predicament she was in, in having the man she had been married to for decades being accused of serious crimes. For someone like Mrs Pethybridge, a devoted servant of The Salvation Army with a strong religious bent, I formed the impression that if the charges against her husband were made good, she would feel a great sense of shame (if she hasn't already). But she came to give evidence in circumstances where she had been assiduous in reading the witness statements of the complainants and the transcripts of their evidence (and other witnesses) at the earlier trial (including her own). She freely admitted discussing that evidence with the defendant and, as I noted earlier, I consider it very likely she discussed the (relevant) evidence with Ms Cooper.
I formed the impression that she came to court determined to tell a narrative of events. But the confidence she demonstrated when she gave her evidence in chief, featuring adamant, even combative, denials that events and circumstances could have happened (punctuating many answers with an emphatic "never" [22] ), tended to dissipate in cross-examination: she began to get evasive about matters and I formed the impression that she was trying to minimize the closeness of relations she had with the complainants' respective families. I further formed the impression that she was astute to and was very preoccupied with the effect of her answers upon the defendant's case. Sometimes, she sparred with the cross-examiner. She was there to doggedly defend her husband.
This gave rise to multiple instances of glaringly improbable evidence and also shifts in her evidence, which I considered were tailored to an understanding either of what the defendant had said or otherwise was perceived as supporting his case. A good example was her account of what she was doing during the aftermath to the Granville train disaster. She was anxious to corroborate the defendant's evidence about a strict policy against the entry of women within Foster House. For the times that this evidence addressed, there was some intrinsic plausibility to this. But I considered that she overreached when suggesting, as she said she did at the trial in 2018, that she was more or less at Foster House every day over a nearly 5 years period. She said in her evidence in chief in this special hearing that on special occasions, when she needed to go in to Foster House, she could get her mother to care for her children (two of whom, in 1975, were under the ages of 10 and 14). But her evidence in the earlier trial indicated that there was nothing special at all about it: she was there, at all times (including even weekends) at Foster House. If that was so, it might have been expected that there was nothing special at all about her mother being asked to assist her children. Faced with this dilemma, she most unconvincingly tried to dig herself out, by attributing to her 17-year-old son (who she said, at various points, was studying for the HSC, was working, or had a part time job) responsibility for looking after his much younger sisters in her absence. Then, during the aftermath to the Granville train disaster, she gave conflicting evidence about the extent of her participation in what she said about it at trial and what she said in her evidence in the special hearing, about what she did, in the consciousness of the defendant having said that she did not go out to Granville at all.
She was also caught between giving materially conflicting accounts of her, and the defendant's motivations, for stopping off at Wangi Wangi in about 2013 or 2014, given at the trial and in this special hearing. At the trial, the effect of her evidence was to say that she and the defendant were there for forensic purposes: to assist the defendant to consider and if appropriate respond to a complaint about his conduct there. But in this special hearing, Mrs Pethybridge was at pains to convey the impression that she was, with the defendant, spontaneously, to reminisce about an earlier camping trip with another family in 1971.
Her demeanour showed a nervousness. At least once, under pressure on a particular topic she was being cross-examined on [23] , I noticed a furtive glance from her in the direction of the defendant's Counsel and, separately I noticed her fiddling with her hands. Often her answers were non-responsive and on most such occasions, I did not attribute this to a lack of understanding as to what was being asked. She was intent on supplying explanations for straightforward questions which she perceived would not assist the defendant's case.
There were periodic instances where it appeared to me that Mrs Pethybridge was trying to prove too much, by seeking to cast doubt upon the Crown's witnesses. Thus, about DA, she said that the defendant only became friends with him because of the former's mother's request of her. She asserted that DA's then wife (EA) had mental problems. She described LM as being "manipulative". These references were gratuitous and designed to cast a shadow over their credibility and reliability. At the trial, the defendant's Counsel suggested that character traits about LM whilst she was a teenager had carried over well into her adulthood.
I regret to say that by the end of her evidence, I formed the view that Mrs Pethybridge would say anything if she felt that it would assist the defendant's case. Accordingly, on contentious factual questions, absent independent corroboration, or alignment of her evidence with objective facts and probabilities, I was unable to rely on the faith of her evidence.

[153]

Charges 7 & 8

To repeat, I found EJ to be a good witness. Her evidence about the offending event occurring as part of an episode involving a car trip for prawning activities at a camping holiday in Wangi Wangi was plausible and supported by the evidence of her family members.
I accept the evidence of EJ, with RG and GJ, about the strong friendships with the Pethybridge family, whose daughter (D) was about EJ's age, and whose son (K) was about GJ's age. A visit by the Pethybridges to Wangi Wangi, even if it was not accompanied by actual camping overnight, was the kind of thing that might occur.
Even Mrs Pethybridge accepted that the defendant had been at Wangi Wangi in or about 1971 with her and their children; albeit that her recollection was that it was with another family. I accept, also RG's evidence of her being present at about the time when she was pregnant (evidence of recollection supported by the birth certificate) and seeing the defendant at Wangi Wangi at the time.
I reject the evidence of the Pethybridges to the extent that it conveyed a lack of a strong family connection with EJ's family at the time.
I accept EJ's evidence recalling the defendant's presence on a car trip undertaking for prawning on the other side of the bay. I also accept her evidence, supported by the evidence of GJ, of her sitting on the defendant's lap.
On the occasion in question, EJ was only 10 or 11 years of age.
I accept her evidence that the defendant touched her, on her underpants, causing her to wiggle and that her initial thought was that this was an accident, but that it happened again; again causing her to wiggle. Prior to the involvement of her father in the episode, EJ appeared to suggest that the defendant's finger actually moved inside her vagina, but this evidence was not clear to me. I am not convinced that his finger went inside her vagina.
I accept further, her evidence that her father struck her with his left hand and effectively silenced her. That last event, by itself, may have been the sort of thing that would be recalled by a 10 or 11-year-old girl. Her sister (RG) and brother (GJ) similarly both referred to her father beating his children. I accept EJ's evidence that she did not complain, there and then, because she was scared of her father. But I also find that she did not complain there and then because of the defendant's position of authority. I found the evidence (referred to in paragraph 218, above) to be compelling.
It was not surprising that following being struck by the father, she was told to keep quiet and to stop wiggling and in circumstances of her being touched by a person in a position of authority such as the defendant was then placed, that EJ would not complain. None of the children in the backseats were likely to be in a position to see (or were on the lookout to see) what was going on in the front passenger seat.
This, then, provided the defendant with effective impunity and I accept her evidence that the defendant touched her again, this time with his finger in her vagina.
The attack on EJ's credit, such as it was, was not effective in diminishing the force of her evidence. I find that she did report the assault on her to her sister, RG, in Merewether in 1993 or 1994, at about the time their mother went into the nursing home. I expect that this would have been an emotional time for EJ and RG (who was, when she gave evidence, close enough to refer to EJ by a nickname [24] ) and a natural opportunity to divulge personally sensitive information about events in her childhood, to RG who appeared to also be involved in arrangements concerning their mother. It matters not what the precise extent of the revelation was, as the disclosure dispelled any doubt as to whether EJ's evidence of the assaults was a recent invention.

[155]

Charges 1 & 2

I have indicated my favourable view of RG as a credible and reliable witness.
I accept her evidence, supported by GJ's evidence, that she attended a Sunday School picnic at Speers Point in the summer holidays. RG said that it was around the end of the year. GJ said it was around Christmas time. Both identified Speers Point as the place where, ordinarily, the Sunday School picnics were to occur.
I find that the Crown has negated as a reasonable possibility that the offending against the complainant occurred at Belmont Park on 1 November 1958, on which date the defendant had an alibi. That date was not, obviously, around 'the end of the year'.
I have considered Exhibit 4 with its reference to "Y.P (Young People) Picnic at Belmont Park". Contrary to the submission of the defendant's Counsel, I do not accept the argument that the publication (the Wallsend West Corps History) could be expected to set out details of end of year picnics for children of Salvation Army families who attended Sunday School, like RG who, at that time, was 5 or 6 years of age. The position might have been different if the entry was altered so that it read "Annual" picnic, or some other indication that the occasion was, in substance, an annual celebration. But on its face, the entry did not do that: it was confined to the bland description of a picnic. Further, the description "Young People" was not explored in evidence but on the face of Exhibit 4, other entries in the document using that same description appeared to suggest that this particular expression or term denoted a certain status within the hierarchy of the particular corps; which appeared qualitatively different from the children of Salvation Army families who attended Sunday School.
Further, and as the Crown submitted, even when allowance is made for the forensic disadvantage the defendant laboured under at trial, he and his wife were only stationed at West Wallsend for a single year. He, and his wife, were not in any real position to contradict the evidence of RG and GJ regarding the practice of the annual Sunday School clinics occurring, at the end of the year, around the Christmas holidays, at Speers Point. In this last respect, although Exhibit 4, an extract, contained entries only from January 1958 to 31 May 1959, there was no suggestion that other earlier entries could not be adduced. This is not to say that the defendant was bound to adduce the proof. It is only mentioned in answer to the 'forensic disadvantage' point.
I do not accept Counsel for the defendant's challenge to RG's credibility. In particular, I accept as persuasive RG's explanation as to why, when asked by her mother about the stretching of her swimsuit, she did not complain. Back in 1958, she reflected, children were to be "seen and not heard. And it wasn't easy to speak about anything to adults". This must have been especially so in a household where the father regularly administered beatings to his children.
I accept, further, that RG did complain to her younger sister, at Merewether. This was not pre-planned but occurred spontaneously in a context of settling her mother into a nursing home and was responsive to EJ's disclosure of the defendant abusing her. I accept that, for a self-contained or laconic woman of the kind that impressed me when giving evidence, it was this emotional context which led her to disclose to EJ that she, RG, had also been abused. The fact that she complained when she did would answer any submission that she only recently fabricated her complaint.
I reject the submission of Counsel for the defendant that RG acquired a detailed awareness of what had happened to EJ from reading the latter's witness statement. RG gave evidence that she had never seen such a police statement and, contrary to the defendant's Counsel's submission, the account which she gave about what EJ had disclosed to her was not especially detailed. In my view, the circumstance that RG gave evidence of what EJ conveyed to her which contained more detail than EJ's evidence of what she conveyed to RG tended to show that RG's account of the extent of disclosure should be preferred to EJ. The differences (which did not amount to inconsistencies) in the accounts of what EJ disclosed to RG tended to show that the two witnesses did not collaborate in their evidence, such that there was any risk that their recollections may become contaminated.
As indicated in relation to charges 7 & 8, and for the reason earlier expressed, I draw no inference adverse to the Crown case that the Crown did not call RG (and EJ's) other sisters to give evidence.
I accept RG's detailed account of what she said the defendant did to her. I provisionally find that the conduct by the defendant which sustain charges 1 & 2 occurred.

[156]

Charges 10-13

It is agreed that in the period from 17 January 1985 to 13 January 1987, the defendant was the Assistant Officer of the Orange Corps. (For most of that time, he also served in the capacity as Associate Chaplain for the Orange branch of the Rural Fire Services).
KC (as she eventually became known) was at the material time, a single mother, with two children, RW and DP. RW was aged 10 (being born in February 1986). DP was then aged about 9 (being born in October 1977). She was a regular church-goer in the years before the Pethybridges arrived in Orange. She was committed to a range of church-related activities as well, including involvement in the Sunday School, and volunteering in a 'shop' associated with The Salvation Army.
I accept RW's evidence, supported by KC, that from 29 April 1986 to 14 January 1987, there was a practice of members of The Salvation Army in Orange attending hotels for fundraising ('collections') activities on Friday nights. Neither the defendant nor Mrs Pethybridge disputed that. I also find that KC was involved in those collections activities. This was not disputed; even if Mrs Pethybridge recalled that KC did not undertake collections with her.
I accept that KC developed a close association with the defendant and his wife. I prefer her evidence (supported in this respect by RW) over Mrs Pethybridge's account, to the effect that she had visits and indeed stays with the defendant and his wife after she had initially left Orange and the Pethybridges had left there in January 1987. That was a broad indication of the nature of the association at the time of the (earlier) events the subject of the charges.
Being committed to Friday night collections naturally meant that someone would need to supervise her children. As KC said, generally, she could not take her children to the hotels, or at least inside them. I accept KC's evidence that, barring exceptional circumstances, she looked to someone she could trust to look after her children and, more specifically, she entrusted the defendant with that task. I also find that Mrs Pethybridge was herself involved in collections. Further, I prefer KC's evidence that on Friday nights, she generally did the collections with Mrs Pethybridge.
I find that KC left her daughter, RW (as she later became known), and her younger brother, DP, with the defendant for 'babysitting', or at least his care and supervision, at his place in Orange. For the brief period from 29 April 1986 to 4 June 1986, that was at Hill Street. For most of period in which the Pethybridges were in Orange, that is, from 4 June 1986 to 14 January 1987, it was at Phillip Street.
RW and KC each gave evidence that when at the defendant's place (whichever it happened to be), monies that had been collected on the Friday night were taken back to the defendant's place. Although Diane Cooper said that preparations for banking the money were made on a Tuesday night in a hall down in Kite Street, she accepted that the monies collected that night were delivered to the Pethybridge home. Mrs Pethybridge's recollection differed: she recalled the monies collected on the Friday nights being directly sent to Kite Street without the intermediation of the monies being delivered, on an interim basis, to her and the defendant's place in Orange. I prefer the evidence of RW and KC and find that on Friday nights, monies collected, were, at least to some extent, delivered to the defendant's home in Orange.
I do not accept Mrs Pethybridge's evidence, to some extent supported by Ms Cooper (although this appeared to be an assumption based on what, I consider, Mrs Pethybridge informed her [25] ), that the defendant was himself involved in going to hotels on Friday nights and participating in collections. The defendant's position was that Mrs Pethybridge herself was not involved in collections at Orange. The defendant did not say that he ever collected monies himself; which is not to say that I would have expected him to give evidence on that, or (for that matter) any other topic.
So, to this point, and to recapitulate, I find that RW (with her younger brother) was generally left by her mother at the defendant's residence in Orange on Friday nights, that she did engage in collections of money elsewhere in the company of Mrs Pethybridge and, as a general rule, the defendant was at home, entrusted with the supervision of RW and her younger brother.
The next disputed factual issue was what activities occurred. RW said that she (and to some extent her brother) counted money.
Ms Cooper rhetorically asked, when the proposition was put that the monies so deposited to the defendant's home was counted twice (the first time at the home; the second time by Ms Cooper in Kite Street) "why count it twice?" The asking of the question was an act of advocacy which evinced a partiality of Ms Cooper towards the defendant's interests.
I prefer RW's evidence that there was counting of money on the occasions when she said she attended the defendant's residence. This is not to say that there needed to be any great rigour to the activity. RW was not questioned as to any methodology she deployed when counting [26] . The purpose may have been as aimless as an activity which provided occupation for children aged 9 and 10 to do, whilst under the defendant's supervision; or to provide a basic estimate of what had been received. In an evidentiary vacuum in this respect, it would not be appropriate to speculate and it is unnecessary to determine the purpose or method of the counting.
There is no dispute that in the period, there was a granny flat at the back of Phillip Street. One dispute is whether, as the defendant categorically denied, he ever went into it. On this matter, I reject his evidence of denial. This was one of many instances of categorical denials which reduced my faith in the defendant's general credibility or reliability. In addition to RW's account when describing the offending for charge 10, KC said she saw him go into it a few times. Even Mrs Pethybridge said that she recalled that he went into the granny flat, if only for storage purposes.
In my opinion, a positive finding that the granny flat was used as an office is not indispensable to proof of the commission of the offence for charge 10. RW's evidence concerning charge 10 did not assert that at the time that she entered into the granny flat, the defendant was working in the granny flat, set up as an office; even though she had earlier described the use of the granny flat for that purpose. Her evidence was simply that she went directly there, after being dropped off, after school. Nevertheless, as to the use of the granny flat as an office, I prefer the evidence of RW (and KC) over the conflicting accounts of the defendant and Mrs Pethybridge. Ms Cooper's evidence, aside from its partial nature, was less reliable, particularly having regard to the general confusion she evinced as to the dates when the Pethybridges occupied the property.

[157]

Missing witness

As occurred with charges 1-2 and 7-8, in the written closing submissions for the defendant a submission was again made (paragraph 81) that the Crown's omission to call Ms Elizabeth Brains, who, the Crown contended, received complaint by RW in 2014 (about two years before her police statement) led to the inference that her evidence would not have assisted the Crown case. Consistent with what I said earlier, I do not propose to speculate on what she might have said.
Challenge was made to RW's credit. In particular, it was suggested that she had the opportunity to complain to her mother, even to resist, entreaties by her that the defendant continue to look after her. I accept her evidence that after the conduct the subject of charge 10, the defendant told her to keep what had happened as a 'secret', and impliedly threatened her, by saying that "otherwise I'll go to a children's home". Although there was no evidence of repeated threats after the conduct the subject of charges 11, 12 or 13, there was no need: the initial threat was continuing in its nature. I consider that the effect of the threat upon RW, who was a young girl generally looked after by her (single) mum, coming as it did from a person of considerable authority within the local community, would have instilled significant anxiety and trepidation. I remind myself of my earlier direction (relating to s 294 of the Criminal Procedure Act) about the care that needs to be taken when drawing inferences from delayed complaint.
I also take into account the forensic disadvantage to the defendant by reason of the delayed complaint.
It follows from the above analysis that provisionally I find that the Crown has negated the reasonable possibility that the defendant may not have been at his home in Orange on the occasions when the Crown alleges he sexually assaulted RW.
To return to the beginning of the findings, I provisionally accept as credible and reliable RW's accounts of the defendant's conduct alleged to comprise charges 10, 11, 12 and 13, respectively.

[159]

Findings on tendency evidence

As a first step, I have found that, prima facie, the defendant's alleged conduct the subject of charges 1, 2, 7, 8, 9 and 10-13 actually occurred.
The second step is to consider whether the conduct manifests the alleged tendencies alleged by the Crown.
I am satisfied, on the probabilities [27] , that it does.
I find that with the exception of RG and EJ, none of the complainants knew each other. There was no risk of contamination, or collusion and I have not accepted that RG was apprised of the content of EJ's police statement.
I accept that the defendant had (a) a sexual interest in female children who were accessible to him through his positions within The Salvation Army and (b) a tendency to act upon that particular sexual interest, generally, by touching female children in a sexual manner opportunistically and in circumstances where there was a significant risk of detection.
As to (a), having regard to the dates of the offences, it may be concluded that the sexual interest in female children subsisted at least from 8 January 1958 to 14 January 1987, a period of nearly 30 years.
As to (b), I accept in particular the opportunistic and risk-laden way (in the sense of susceptibility to detection) in which the defendant had the tendency to act upon that sexual interest in female children: in a public pool (charges 1-2); in a car with children in the back seat (charges 7-8); in a child's bedroom in a family friend whilst other friends were within the house (charge 9); in his own home when, there was the risk of others entering into the rooms where the offending occurred (charges 10-13).
This case is comparable to the case of Hughes v The Queen (2017) 263 CLR 338 (at [57]-[60]), where substantially the same two tendencies [28] were found so that the evidence of each alleged sexual offence (as well as the uncharged act in that case) overall had significant probative value in proof of each other charged offence.
That reasoning applies here. In my opinion, the tendency evidence I have considered, so far, has substantial probative value and fortifies my views regarding the likelihood of the defendant's commission of the acts which constitute the charges 1-2, 7-8, 9 and 10-13.

[160]

Findings on coincidence evidence

I accept the Crown's submission that there were so many similarities in the events described by each individual complainant as to make it improbable that they occurred co-incidentally. In particular, I accept that each complainant was known to the defendant by reason of his membership (or more accurately position and responsibility within) The Salvation Army; and the defendant had a friendship, or close association, with the parents, or carer of each complainant; with those parents or carer also having extensive connection with The Salvation Army; albeit not at the same hierarchical level as the defendant.
All of these circumstances led to an environment in which the defendant was trusted in multiple senses: he was trusted by the parents and carer for the complainants in his oversight of their respective children. He was trusted by the complainants themselves. To the parents and carer in particular, it would have been inconceivable that the defendant would have acted in the manner that he did. The trust that the parents and carer had in the defendant, and respect for his rank and reputation were, in my view, factors which explained why the complainants at the older end of the age range, who had a greater sense of appreciation, or perhaps sense, of the wrongfulness of his conduct than the complainants in the younger age bracket, were reluctant to complain when they did. But a common theme amongst the complainants was their fear in speaking up, that their word would not be believed set against the complainant, even by their own parents who were so immersed in the activities of The Salvation Army in particular and admiring, to the point of being enthralled, by the defendant.
As indicated in my findings on tendency evidence, I find that in all cases considered so far, the defendant's sexual conduct was opportunistic and committed in circumstances where there was a high risk of detection.
I further find that there was a striking similarity in all but two of the charges considered so far (charges 4 and 9), being the defendant's use of his fingers in touching the vagina of the complainants.
The similarities from complainants who (generally) had nothing to do with each other indicates that the possibility of each complainant making allegations that are so similar, by chance or coincidence, is so remote that the only explanation is that the defendant acted in the same way towards all of them and, therefore, strengthens my conviction that the complainants' respective accounts are true.
The coincidence evidence is also strongly probative of the defendant's commission of the charges.

[162]

The uncharged acts - the alleged incidents at Healesville

As is apparent, I did not have regard to the two alleged Healesville incidents involving LM when deciding whether or not the defendant had the tendencies which the Crown relied upon. In view of the findings made on the charged acts, and my view that they sufficed to establish the defendant's posited tendencies, it was unnecessary to do so.
The incidents at Healesville have greater significance in explaining the context in which the alleged offending against LM occurred.
I find that LM's family attended a holiday with the Pethybridges at Healesville in 1970. I did not understand there to be any ultimate dispute about that; although the defendant's position, considered at greater length momentarily, might neutrally (at this point) be said to have evolved. It was ultimately common ground that DA was seriously (mentally) unwell on the trip, to such degree that the families had to cancel the holiday. It was this which enabled DA and, eventually, the defendant to connect the trip to 1970.
Generally, I accept the evidence of each of LM, DA and GA as to the closeness of the family connection with the Pethybridges. I do so in firm preference to the evidence of the defendant and Mrs Pethybridge which had the effect, if not also the design, of minimising the family connection. I note that LM (born in 1965) was particularly close in age to the younger Pethybridge daughter (born in 1966).
I accept LM's evidence of one incident when adults were playing games around a table after dinner. So much was, again only belatedly, accepted by the defendant. I further prefer her evidence over the evidence of the defendant (and Mrs Pethybridge) of her sitting on the defendant's lap on one occasion. He was her "Uncle" (and Mrs Pethybridge her "Aunty"). She was 5 years old. Her father was a mate of the defendant, from training college many years before 1970. There were not enough chairs to go around the table. One envisages a scene of merriment and relaxed atmosphere between family friends. If nothing else was known about the defendant other than his friendly associations with LM's family at the time, a natural bystander, asked to predict the likelihood of a 5-year-old LM sitting on her Uncle's lap, back in 1970, might be inclined to think "why of course". Further, that same bystander would be unlikely to accept the likelihood of a rigid distinction, which Mrs Pethybridge sought to erect, with only the Pethybridge children being allowed to sit on the defendant's lap.
I have generally indicated my favourable view of LM as a credible and reliable witness. I have taken a generally adverse view of the evidence of the defendant and Mrs Pethybridge. Their collective vehemence at the proposition that LM would sit on his lap proved too much.
I accept, as more probable than not, LM's account of sitting on the defendant's lap on the chair at the table and, thereafter, the defendant putting his arm around her slipping his hand inside her clothing and inserting one of his fingers in her vagina.
The second incident concerned the defendant going to the bedroom. LM said that the bedroom was up some stairs. The defendant's Counsel argued that it was a single storey building. However, contrary to the defendant's Counsel's written submissions, Mrs Pethybridge did not exclude the possibility that there may have been a few stairs within the building itself. It was also suggested that LM gave inconsistent evidence: between her evidence in chief (where she referred to the defendant stroking her on the outside of her vagina) and the evidence to the investigator (where she said that he inserted his fingers inside her vagina). Contrary to the submission of the defendant's Counsel, I do not treat those accounts as reflecting any necessary inconsistency: the former may very well have been the prelude to the latter. I remind myself of the warning I gave myself concerning s 293A(2) of the CP Act.
I agree with the Crown that Mrs Pethybridge's evidence that the defendant would not have been allowed to venture towards other bedrooms alone went beyond implausible to absurd. The notion that she was constantly by her husband's side, metaphorically joined at his hip, so that it was not physically possible that the defendant may have wandered into a child's bedroom alone, should be rejected.

[163]

Did the defendant lie?

I do not accept the Crown's submission that the defendant lied to the investigator Mr Greville about when he went to Healesville. The Crown's submission relied upon a conversation between DA and the defendant, which was said to have occurred and, specifically, preceded the defendant's own interview. The defendant's interview occurred on 11 March 2014.
As the Crown would have it, the sequence of events were that (a) the defendant found out from DA what the date of birth was for LM and was reminded that the family trip to Melbourne occurred in 1970 and (b) thereafter, the defendant made the knowingly false statement that the only trip he made to Healesville was in 1964 (when LM was only a small baby).
The difficulty for the Crown is that, even if the sequence was correct, just because DA informed the defendant that the trip occurred in 1970 whist indicating LM's date of birth did not mean that the defendant was disabused of his belief that a trip had occurred in 1964 or 1965. The defendant's evidence at trial indicated, at least initially, that he maintained a belief that a trip occurred (only once) in 1965 [29] . He may have accepted the truth of what DA said about LM's date of birth (he could hardly do otherwise) but this did not necessitate his automatic acceptance of DA's recollection of when the trip occurred. What DA said about the timing of the trip was a statement of his belief.
As indicated, in his evidence at the trial, the defendant continued to express his belief that his trip to Healesville occurred in 1964. It is true that his position shifted, towards acceptance that it occurred in 1970, but his evidence at trial tended to evince his belief, in 2018, of a trip occurring in 1964, which is what he told the investigator. If that belief was honestly held (if mistaken), as I think it was, then information received about LM's date of birth would have instilled in him further belief that she was only a baby in the year (1964) he (then) believed the trip was undertaken.
The defendant's beliefs may have been falsified, but I am not satisfied that their expression to the investigator amounted to lies.
I accept that, more probably than not, the defendant did go into LM's bedroom and, whilst she was lying on the bed, he pulled down her clothing and touched the outside of her genitals, explaining that he was just checking that everything was okay.
I accept the Crown's submission, firstly, that these uncharged acts place into proper context, the offending which LM later alleged occurred. I do not proceed on the basis that just because I have considered that the uncharged acts probably occurred means that, by reason of the evidence of those acts alone, he is likely to have committed the offending the subject of charges 3, 4, 5 or 6. I do not proceed on the basis that just because he was likely to have done something wrong in Healesville that he must have done so on the occasions which are the subject of those charges. Further, the evidence of these uncharged acts is not to be used in substitution for the evidence of these charges.
Further, these uncharged acts concerning LM are admissible as tendency evidence in relation to the charges 3-6 involving the complainant LM [30] and are highly probative, as will be considered when I deal with those individual charges. They are also admissible (and also highly probative) as further proof of the tendency and coincidence evidence to prove the charges involving the other complainants.
Further, those uncharged acts, in combination with the findings I have made about the defendant's charged conduct concerning the other complainants (charges 1-2, 7-8, 9 and 10-13), fortify the findings I have made about the tendency evidence and coincidence evidence as being substantially probative to proof of each of the charges 3-6 (incl) concerning LM.

[166]

Charge 4

I accept LM's evidence that she visited the defendant's place at Labuan Road Holsworthy, between 26 April 1973 and 15 January 1975, during which period, she was aged 8 or 9 years of age. She confidently identified the home in the photograph in the same way that Mrs Pethybridge did. The source of the photograph, as the OIC explained, was Mr Greville, The Salvation Army investigator. Further, the Disposition of Forces documents for 1973 and 1974 (Exhibit P) indicated a single place where they stayed at Holsworthy, contrary to the defendant's recollection of staying at multiple places in that suburb. Further still, it was not without significance, as the Crown observed, that for most of the period from April 1973 to the beginning of 1975 that the defendant had the role of Red Shield Defence Services.
Although DA's evidence was less convincing on whether he took his family over, the defendant's brother, GA, also recalled attending a place where soldiers were going around. Although he took that to be a place at Moorebank, I consider it most likely he was referring to the defendant's place being actually at Holsworthy.
I do not accept the defendant's evidence, which sought to minimise the association with LM's family generally. I reject his evidence of 3 houses at Holsworthy, supported by Mrs Pethybridge. There was no documentary evidence to provide any evidentiary foundation for that evidence. I consider this evidence to be a fabrication. In this, the defendant was placed in the awkward forensic position of approbating and reprobating: he denied close continuing links on the one hand, whilst trying, on the other hand, to take forensic advantage of the circumstance that he continued to be involved in assisting members of LM's family, including himself in periods where no complaint had been made about him (assistance being rendered to GA in 1979 or 1980 [31] ).
I accept, as generally credible and reliable, LM's allegation of what the defendant did to her in a bedroom at Holsworthy. Subject to two qualifications, it had similarity with the second of the uncharged incidents at Healesville, being the indecent assault in the bedroom.
The first qualification was the nature of the indecent activity. This did not involve the touching of LM's vagina with the defendant's hand or fingers, evident in all the other charges (save for charges 5 & 6 and the other uncharged act). Nevertheless, what the defendant might (with a depraved mental state) have considered 'playful' activity was of a piece with the sense of entitlement of opportunistically violating a very young girl to gratify his sexual interest.
The second qualification, which was productive of much questioning in cross-examination, concerned what LM accepted were inconsistent statements as to what she had seen the defendant do to his daughters S and D, and when she saw him do those things to his daughters, respectively. In my view, influenced by the warning I give myself concerning s 293A of the CP Act, but a matter which I would have found irrespective of that warning, those inconsistencies were not such as to render unreliable or incredible her evidence as to what the defendant did to her. The complainant, naturally, was preoccupied with what the defendant did to her and her recollections were likely to be focussed on what was done to her accordingly. Even so, she was still able to give concise evidence of what the defendant looked like (his shorts, the belt buckle with The Salvation Army logo and his collared shirt). She gave a description of the layout of the room. Her evidence in these other respects was not challenged. She was able to pinpoint the defendant's military role at the time she visited the house. She gave a clear and consistent description about what she said the defendant did to her: bouncing her up and down and clasping her hands around his penis. Her description of what the 'pony ride' comprised was not likely to be quickly forgotten, even for a girl the age of 5.
I repeat what I said in charge 3 about the weight to be given to the complaint evidence.
I allow, again, for the forensic disadvantage faced by the defendant, but that should not be exaggerated. As I noted earlier, no specific loss of opportunity to give or obtain evidence was identified. I have noted, and rejected, the defendant's suggestion of multiple houses in Holsworthy, which has no independent objective evidence to support it. Mrs Pethybridge adopted the defendant's account of three houses. The defendant's evidence that LM was never at his place in Holsworthy rose not much higher than one of bare denial, which I do not accept.
Subject to my consideration of the charges 5-6, to which I will momentarily turn, I am inclined to find that the Crown has established the defendant committed the conduct which is the subject of charge 4.

[167]

Charges 5 & 6

As was apparently acknowledged in the Crown's tendency notice, which excluded [32] these charges from the general matters relied upon to prove tendencies in the defendant, the conduct the subject of these alternative charges was materially different to other offending.
First, the alleged offending did not occur in the warm environment of a family friend, or the defendant's own comfortable home. It occurred in what, for the defendant, was a workplace. (I appreciate that the conduct concerning charges 1 and 2 was also in a 'public' space, but the sexual touching perpetrated there was concealed, being under water). Whatever tendency the defendant may generally have had to engage in opportunistic sexual conduct with a high risk of detection, the other conduct occurred in or about the vicinity of family friends, and even his own children. Perpetrating this alleged offending in a workplace environment in the inner city was an inherently much more difficult proposition. There were likely to be many more strangers, and not family friends, around; who would probably not have had a comparable sense of respect, admiration, or even awe, to the same degree as the complainants' respective parents.
Although it was recalled by LM as occurring on a Saturday, the weekend, it was not explained how that might likely lessen the number of people within the building, or at least the occupants of the various floors, in comparison with other days. This would be especially so for those who occupied the hospital beds; and the (female) nurse or assistant looking after them.
Secondly, the nature of the offending was very different to all the other charges. What is alleged for charge 5 was attempted penile-vaginal intercourse. This involved a level of physical force exerted against the complainant entirely missing from all the other complaints. Further, this offending would have involved a greater degree of planning than the other charged (and uncharged) conduct which, as the Crown characterised it, was 'opportunistic'. On LM's account, the defendant had to drive her to a different place to perpetrate the offending.
These points of distinction materially weaken the capacity of the Crown to rely upon tendency or coincidence evidence arising from the other charged conduct (and the uncharged conduct) to sustain guilt for these charges.
Thirdly, the suggestion of a 'no women' policy had intrinsic plausibility. I accept the likelihood that among the homeless people who occupied the (men's only) accommodation quarters, conceivably there were likely to be numbered some physically violent men; so there was a security basis for such policy. To be sure, there may have been exceptions (as is generally, or at least often, the case with policies) and I take into account the independent evidence of ED, which may have cast doubt upon any universally applicable policy. But ED did not give examples of other buildings operated by The Salvation Army, of a comparable nature to Foster House (a hostel for accommodation), which had no such policy.
I generally took a favourable view of LM's credibility and reliability. Nevertheless, there is force in the defendant's submissions about inconsistencies about her evidence, or evidence which did not match objective evidence in connection with these particular charges.
She did say that she walked up stairs with the defendant; thereby indicating that the offending occurred above the ground floor. But that generated uncertainty as to which floor they walked to, in view of the evidence about the chapel and hospital ward on the first floor with dormitory accommodation above.
There were differences in her account, as to whether the defendant fondled her breasts, and whether she saw or felt the defendant's penis. There was an inconsistency between her evidence in chief and what she told the investigator about whether he stroked her vagina with his fingers. In referring to these matters, I do not overlook the s 293A warning I gave myself earlier. Further, I thought LM's explanation for why she did not complain to her parents after the incident (referred to at paragraph 292, above) was powerful.
The evidence of her complaint to others does not take the case much further, as previously remarked upon, given its generalised nature. I would add that given the generalised nature of the disclosure, it could not confidently be said that what was being complained of was complaint about attempted rape, rather than of indecency.
I am not persuaded that the Crown has established the defendant's guilt beyond reasonable doubt to charge 5.
There is no logical reason why the result should be any different in relation to the alternative charge 6.

[170]

Endnotes

Consistent with the nomenclature in Division 3 of Part 4 of the MHCIFP Act I have deliberately referred to Mr Pethybridge in this way, rather than as the 'Accused', which is a more fitting description to a 'trial'. The controversy as to whether a special hearing is to be treated as a trial for the purposes of certain provisions of the Criminal Procedure Act 1986 (NSW) (the 'CP Act') was touched upon in my evidentiary ruling regarding the admissibility of the complainants' video-recorded evidence from the 2018 trial in the special hearing: R v Pethybridge [2022] NSWDC 171.
R v Sorlie (1925) 42 W.N (NSW) 152; R v O'Donoghue (2005) 151 A Crim R 597 at [21]; Fitzgerald v Kennard (1995) 38 NSWLR 184 at 187, 202.
T Buddin, 'Revision of Sexual Offences Legislation: A Code for New South Wales?' (1977) 2 UNSWLJ 117 at 119.
R v Daly [1968] VR 257; see also R Watson & H Purnell, Criminal Law in New South Wales: Vol 1 (The Lawbook Co, 1971) p 99.
This was for the period from 1 August 1975 to 18 August 1977: Crimes Act 1900 (NSW), s 62.
During this period, by s 61A(1)(a)(i) of the Crimes Act 1900 (NSW).
R v Winner (1995) 79 A Crim R 528.
R v Markuleski (2001) 52 NSWLR 82.
For a recent illustration of the potential breadth of Markuleski in multiple complainant sex offence cases, see Sita v R [2022] NSWCCA 90.
CP Act, s 306ZI(b).
Excluding charges 5 - 6 for this purpose.
Evidence Act 1995 (NSW), s 108(3).
The Crown consented to a direction under s 294 of the CP Act; thereby accepting that the condition in s 294(2)(c) was satisfied.
CP Act, s 293A(2).
This was requested by the defendant (and consented to by the Crown): Evidence Act 1995 (NSW), s 165B.
Some evidentiary references which equated Forbes Street, Ashfield with Forbes Street, Croydon Park are T 44.46; the complainant, LM's evidence at trial (31/5/18, T 78.14 - 78.20, a transcript of which is MFI 3). DA explained that upon his appointment to the Ashfield Corps (in early 1970), he took up residence in Forbes Street, Croydon Park (Exhibit F). In his evidence at the trial, when accused, the defendant said that Forbes Street was in Croydon Park (Exhibit 2, 7/6/18 T 374.47 - 375.9).
At T 97.49 - 98.1
In fact, KC said that her family had left in 1986, after a friend had died in September that year; and said that the defendant had left Orange in 1987 (T 72.29 - 72.39).
This was until the Court raised issues about the elements, which led to the Crown subsequently providing supplementary submissions on the elements of the offences (MFI 13).
Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152
T 158.36 - 159.4
In comparison, the defendant also punctuated many answers with the word "never" when he gave evidence at the trial in 2018
The evidence she had given at trial about "never" having been to Speers Point
MFI 2 (RG's evidence at trial T 30.20)
T 83.24 ("Ray would have been off collecting too, he would have been doing an out-of-town run" (emphasis supplied)
Her evidence at MFI 6 (T 251.24 et seq) was not illuminating.
CP Act, s 161A(1); also Bauer at [80]
Though in that case, the sexual interest in female children was more narrowly described as children under the age of 16. Hughes was cited, in the context of multiple complainant sexual offences cases, in Bauer at [58].
Exhibit 2 (T 333.5 - 333.29).
Bauer at [48].
GA was born in May 1963 (T 52.27) and got married when he was 16 years and 9 months (T 59.10).
The tendency notice was not before the Court in this special hearing.

R v Pethybridge

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Judgment (171 paragraphs)

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Legislation Cited (6)

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Cited By (1)