McIver v R

1. [1]

   JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of Davies J. I agree with his Honour's reasons and proposed orders.

2. [2]

   With respect to Ground 2, the trial Judge encountered an unusual development, partway in the trial, arising from her recognition of a crucial Crown witness, CN and her prior association with that witness. The reasonable bystander would be aware of the nature of the prior association between her Honour and the witness and the need for the trial Judge to determine important issues concerning the credibility and reliability of CN as a witness in the trial. Applying the relevant principles concerning apprehended bias which have been summarised by Davies J, I agree that her Honour should have disqualified herself from further involvement in the trial of the applicant.

3. [3]

   With respect to Ground 1, I have considered the evidence adduced at the trial of the applicant. The question posed by this ground of appeal is whether the applicant has demonstrated that the trial Judge must, as opposed to might, have entertained a reasonable doubt concerning the applicant's guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [45]. The applicant has not demonstrated that the trial Judge must have entertained a reasonable doubt with respect to his guilt of the offences of which he was convicted. I do not entertain a reasonable doubt that the applicant was guilty of the offences contained in Counts 2, 5, 8 and 10.

4. [4]

   Accordingly, as Davies J has found, the appropriate orders include an order that there be a new trial of the applicant.

5. [5]

   DAVIES J: The applicant stood trial before Judge Williams in a judge-alone trial charged with the following offences:

6. [6]

   The applicant was found not guilty by direction in respect of counts 3, 4 and 7. He was found not guilty of counts 1 and 6. He was found guilty of counts 2, 5, 8 and 10: R v McIver [2019] NSWDC 672.

7. [7]

   On 20 December 2019 Judge N Williams sentenced the applicant to an aggregate sentence of imprisonment for nine years and six months commencing 13 September 2019 and expiring 12 March 2029 with an aggregate non-parole period of five years and eight months and 28 days expiring 9 June 2025: R v McIver [2019] NSWDC 834.

8. [8]

   The indicative sentences were as follows:

9. [9]

   The applicant now seeks leave to appeal against his conviction on two grounds:

10. [10]

    The applicant also seeks leave to appeal against his sentence as follows:

Background to the complaints

1. [11]

   The applicant was a Salvation Army officer who was for two discrete periods a member of staff at the Bexley Boys’ Home. Those periods were from 18 July 1968 to 14 November 1971 and from 20 January 1972 to 17 January 1974. The resident boys at the Home were either wards of the State or had been left in the care of the Home by their families because they were unable to look after them.

2. [12]

   The alleged offending involved four boys. However, the offences in respect of which a guilty verdict was returned involved three boys.

3. [13]

   The alleged offending may be summarised as follows:

Facts concerning the offending

1. [14]

   Counts 1 and 2 concerned AM. AM was resident at the Home from 10 September 1965 until 17 December 1971. He was aged between 6 and 11 years when he was there.

2. [15]

   Count 1 was alleged to have occurred in the shower block. AM said that as he was getting ready to enter the showers, he felt a shove in his back, and fell in the wash trough, occasioning a cut above his right eye. At the time this occurred the boys were all lined up and naked, waiting for their turn in the shower. A man known as Uncle Terry (Terry Smith) was supervising in the locker room where the boys undressed. AM said that the applicant had come to the doorway and said words to the effect, “Come on, move along”, before AM was pushed. He alleged it was the applicant who pushed him.

3. [16]

   AM said that Uncle Terry administered First Aid, and AM was taken to St George Hospital. He had stitches before being returned to the Home.

4. [17]

   The trial judge found the applicant not guilty of count 1.

5. [18]

   This count related to a day where AM was expecting his father to come and visit. It was a Saturday, and AM said that he was around eight years of age. He was playing at around 1:30pm to 2:00pm, and was told to have a shower to get ready for his father. His father was coming because AM’s brother was in hospital.

6. [19]

   AM was in the shower by himself but the applicant subsequently came into the shower room. The applicant told him to turn around and bend over. He said that the applicant touched him on his backside, like a grab. AM said the situation of the applicant touching him on the backside stopped when Major Morton, the head of the Home, and another man and woman walked past the doorway near the shower.

7. [20]

   He told his brother about it a few days later and his brother did not say anything in response. He was too ashamed to say anything to anyone else. AM said this incident took place before the death of a boy called TH. The death of TH was a significant event about which evidence was given at the trial. TH died on 3 June 1969.

8. [21]

   Count 5 concerned DC. DC was a resident at the Home for five months from 7 July to 14 December 1973. He was approximately 14 years old when he was sent to the Home.

9. [22]

   The incident constituting count 5 was said to have occurred on a Sunday evening. DC had been brought back to the Home during the afternoon, following attendance at Church. He was then required to have a shower.

10. [23]

    On the day of the incident, DC said that there were fewer staff and fewer boys than usual at the Home. While DC was in the shower he said that the applicant said to him, “Come here, bend over”. The applicant then said, “You’ve got worms”. DC then felt a brush of a hand and some prodding around his anus. That caused DC to say to the applicant, “Are you having your jollies there, are you a poofter?” This caused the older boys in the shower area to laugh. The applicant told DC to “get to the office”.

11. [24]

    DC went and sat in the office area for a long time in the dark. He was very nervous and sucking on his upper arm which caused some bruising. The applicant eventually arrived and they went into the office. The applicant said to DC that he had every right to cane him. DC said, “Well I don’t know what you’re going to do with me now, but whatever you do I’m going to show your son what you’ve done and I’m going to show everyone at Rockdale Salvation Army what you’ve done.” DC said that the applicant then told him to pretend that he had been caned and return to the group of boys back in the playroom.

12. [25]

    These counts concerned CN. CN was a resident at the Home from 1 May 1964 to 23 February 1974. CN had not turned five when he was put in the home.

13. [26]

    CN was initially in the Home with his brothers SN1 and SN2, but they both left the Home when they were fostered out to families prior to CN leaving.

14. [27]

    Count 6 involved the offence of common assault. CN recalled that the applicant had a silky terrier dog. He used to see the dog regularly, and he played a mouth organ to the dog to make it howl.

15. [28]

    On one occasion when he was making the dog howl the applicant came up and grabbed him by the scruff of the neck. This occurred in an area that was between the officers’ quarters and the back area of the steps that led up to the dormitories. The applicant told him to, “Cut it out and stop doing it”, and took the mouth organ from him. He then gave CN a clip behind the ears.

16. [29]

    The trial judge found the applicant not guilty of count 6.

17. [30]

    Evidence was also given about an uncharged act involving CN and the applicant which was said to have taken place in the laundry at the Home. The matter was relevant because it was said to be the first incident of a sexual nature between CN and the applicant. It was also relevant because the account of it given by CN was used by the trial judge as support for CN’s credibility, and used in a different way by the applicant to cast doubt on CN’s credibility.

18. [31]

    CN said that he had been in trouble with Major Morton. He yelled out a number of swear words at him and then took off. The applicant followed him to the laundry. CN tried to hide in one of the clothes baskets under the clothes. The applicant pulled him out of the basket. The applicant then put CN’s hand on the applicant’s penis. Having done so, he told CN to “get out”.

19. [32]

    The Crown prosecutor opened the case that counts 7 and 8 occurred together with count 9 being in the alternative to count 8. CN had been “mucking around by himself” in an out of bounds grassed area near the assistant manager’s quarters. The applicant arrived and took CN to one of the officer’s quarters. They went through an office door that led to a room with a desk, a dresser, set of drawers and a cot or a bed to the side. The Crown opened by saying that the evidence would be that CN was told by the applicant to drop his pants and the applicant “started fondling his penis and scrotum” (it was not clear whether this was a reference to CN’s penis and scrotum or the applicant’s). The Crown then said that count 8 immediately followed which was that the applicant inserted what the complainant believed was the applicant’s penis into CN’s anus.

20. [33]

    When CN gave evidence, he said nothing about the fondling of the penis and scrotum that constituted count 7. In those circumstances, on the Crown’s application, her Honour found the applicant not guilty of count 7.

21. [34]

    In his evidence, CN was asked what caused the pain he felt and he said, “Well I don’t know, I presume it was either his penis--”. At that point counsel for the applicant objected. No further evidence was given about the matter. Presumably because CN did not see what was inserted into his anus, count 9, being an indecent assault on a male, was pleaded as an alternative to count 8 being a charge of buggery. The trial judge found the applicant guilty of count 8.

22. [35]

    Count 10 occurred in the locker rooms. CN said that he was in the locker rooms trying to see what he could steal from the lockers. The applicant came into the locker area so CN tried to hide himself. He said the applicant grabbed him by the arm and turned him around to face the locker. CN said that the applicant then penetrated his anus with the applicant’s penis.

23. [36]

    The trial judge found the applicant guilty of count 10.

The trial judge’s judgment

1. [37]

   The trial judge first set out the warnings and directions she was required to give in a judge alone trial. No complaint was made about those portions of the judgment. Her Honour found that the applicant had suffered a significant forensic disadvantage because of the consequences of delay. A number of witnesses were deceased or were not able to be located. Rosters and punishment records from the Home were no longer available. Her Honour concluded in that regard:

2. [38]

   In the section of her Honour’s judgment headed “Findings”, the trial judge said this:

3. [39]

   Her Honour then turned to consider the counts in respect of which she had not directed verdicts of not guilty.

4. [40]

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

5. [41]

   In relation to count 2, her Honour said this:

6. [42]

   In relation to count 5, her Honour said this:

7. [43]

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

8. [44]

   In relation to counts 8, 9 and 10, her Honour said this:

Ground 2: Apprehension of bias

1. [45]

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

2. [46]

   The complainant CN gave his evidence on the sixth day of the trial, 13 August 2019. After he had been asked by the Crown prosecutor questions in relation to the complaints made by him against the applicant, he was asked about being adopted out at the age of 13 years. He was then asked some questions about his life thereafter. One of those questions asked about him starting work as an apprentice butcher. After some further examination from the Crown prosecutor he was cross-examined for some time by counsel for the applicant.

3. [47]

   At one point CN asked for a break, and after he had left the Court the following exchange occurred:

4. [48]

   When CN returned to the Court her Honour then asked him some questions as follows:

5. [49]

   The following morning, 14 August, a discussion took place between the trial judge and counsel as follows:

6. [50]

   Her Honour then delivered a judgment where she declined to recuse herself. In the judgment, her Honour said this:

7. [51]

   Her Honour then dealt with what a reasonable, fair-minded lay observer might reasonably apprehend, taking into account that she was a judge and had been in the legal profession for many years where she was taught to be able to put things from her mind. Her Honour then said this:

8. [52]

   The applicant submitted that it is a well-established principle that a judge should not sit if, in all of the circumstances, the parties, or a fair-minded lay observer, might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the matter. Reference was made to Tarrant v R [2018] NSWCCA 21 and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20.

9. [53]

   The applicant submitted that the judge took into account two irrelevant factors in arriving at her decision not to disqualify herself. The first was whether or not CN recognised her or remembered that she was a customer in the butcher shop. The applicant submitted that the reality was that the trial judge sitting as the trier of fact, had dealings in the past with CN in ways wholly unconnected with the trial.

10. [54]

    The second irrelevant matter was submitted to be the fact that her Honour took into account that she was a judicial officer who had sworn an oath to be impartial. In that regard, the applicant submitted that the application was not one made on the basis of actual bias but on the apprehension of bias.

11. [55]

    The applicant submitted that although the connection between CN and the trial judge may have been commercial and not personal, it was obviously one that had continued over a period of years. The applicant submitted that it was one that was important enough for her Honour to recall it many years later and was one that obviously engendered positive feelings about CN arising from her Honour's experience of him as a butcher.

12. [56]

    The applicant submitted that it was clear from the transcript that the sense that her Honour knew CN had been troubling her for some period of time and the realisation only dawned as cross-examination was occurring. Apart from anything else, that was potentially very distracting for the trial judge who was bound to listen to and assess the evidence. The matter was particularly important because the primary issues in the trial were said by the Crown prosecutor to be the accuracy or truthfulness of the complainants and whether they identified the right person as their assailant.

13. [57]

    The applicant submitted that it was clear from the trial judge’s reasons that she found CN’s testimony to be quite moving. Accordingly, the fact that reliability and accuracy of the complainants was central to the contested issues in the trial made it even more important that her Honour not only approach the task of fact finding in an objective and dispassionate way, but also be seen to be doing so. There was always a danger that the tragic life story of CN might bring on strong emotional reactions.

14. [58]

    The Crown submitted that there could be no basis for referring to her Honour’s final judgment because the complaint was one of apprehended bias.

15. [59]

    The Crown submitted that the hypothetical lay observer, acting in accordance with what was discussed in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, would not have taken her Honour’s concern when first expressed as an expression of a conclusion that her Honour might not be able to bring an impartial mind to the proceedings. The Crown submitted that her Honour’s remarks on the following morning would have conveyed to the reasonable lay observer that her earlier remarks did not indicate that her Honour feared she would be unable to bring an impartial mind to bear on the proceedings. Rather, the observer would conclude that her Honour was struck that an issue had arisen that needed to be brought to the attention of the parties.

16. [60]

    The Crown submitted that a reasonable lay observer had to take into account the nature of the relationship between the trial judge and the witness. It was a strictly commercial one involving no more than the trial judge's frequent purchase of meat from a large butchery where the witness worked with many other butchers nearly 20 years ago. The Crown submitted that it was clear from the trial judge’s recusal judgment that their relationship was an ad hoc commercial one that could not reasonably be anticipated to have caused her Honour to feel any undue sympathy for the witness.

17. [61]

    The Crown submitted that a reasonable lay observer had to take into account that her Honour was a judicial officer who had sworn an oath to act impartially.

18. [62]

    The Crown submitted in all the circumstances that there was no danger that the reasonable and appropriately informed lay observer, taking into account her Honour's clarification on 14 August as to the reason for her concern on 13 August, might have had a fear that her Honour might not have been able to bring an impartial mind to bear on the issues before her.

19. [63]

    The assertion in the present case is not that the trial judge was actually biased but that from the time she disclosed that she knew CN there was an apprehension of bias. The test is stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]:

20. [64]

    In McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Basten JA said at [110]:

21. [65]

    The test set out in Ebner was applied in a case involving a judge-alone trial in the District Court: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [1]. [51] and [80]-[85].

22. [66]

    In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 Lord Hope of Craighead said at [2]-[3]:

23. [67]

    In applying the test, the reasonable bystander will have regard to the fact that the person being observed is a professional Judge whose training, traditions and oath or affirmation require the Judge to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson at [12]). However, a judicial oath is not a guarantee of impartiality and a judge’s professional status and experience is but one factor which a fair-minded observer will have in mind when forming an objective judgment as to the risk of bias (Helow v Secretary of State for Home Department at [57] (Lord Mance); Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98 at [103]-[108]).

24. [68]

    In Isbester v Knox City Council, Gageler J said at [59] that the test for apprehended bias in the curial context necessarily involved three analytical steps. He went on to say:

25. [69]

    The governing principle concerning apprehended bias is subject to qualifications relating to waiver, necessity or possibly special circumstances: Ebner at [6]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [146]-[152]. No issue of waiver, necessity or the possibility of special circumstances was raised in this case so as to qualify the application of the apprehended bias principle.

26. [70]

    The present application for disqualification fell within the category of disqualification by association as described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74; [1994] HCA 30 based upon the prior association between the trial judge and a person involved in the proceedings, the critical Crown witness CN: Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 at [53].

27. [71]

    The complaint here is, in effect, that the trial judge’s prior contact with CN might result in unconscious bias which will amount to pre-judgment. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Hayne J said at [185]:

28. [72]

    In considering the present ground of appeal, it is necessary to keep in mind that a judicial officer should not automatically or lightly accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; [1983] HCA 17; Johnson v Johnson at [45]. However, the principle that a judicial officer should not disqualify him or herself too readily is not “a blanket that smothers the effect of disqualification where it has already arisen”: Antoun v The Queen at [35] (Kirby J); Gaudie v Local Court (NSW) at [81];

29. [73]

    Three aspects of the matter cause me to think that the trial judge ought to have recused herself from continuing with the trial.

30. [74]

    First, it was clear by the time the issue arose that the judge would be obliged to reach her verdict in relation to each of the counts charged on the basis of the credibility of the complainants in each case if her Honour did not accept the applicant’s denials or his other evidence. In that type of case it was particularly important that there be no circumstance which might give rise to the possibility of pre-judgment, conscious or unconscious, as a result of a prior association. The position would be the same if the case was a civil case, but the matter is more important in a criminal trial.

31. [75]

    Secondly, it was apparent from what her Honour said that the association with CN, although only one of customer and shop assistant, was a lengthy one where, over what her Honour described as “a continued period of time”, she had bought a lot of meat from him and she was sure that he gave her the best cuts. A fair minded lay observer who, without doubt, would have had similar experiences themselves of establishing rapport with a person at the local shop with whom they dealt, might reasonably think that, where a good relationship existed, there would at least be an unconscious predisposition in favour of that person compared with the stranger on the other side in the proceedings.

32. [76]

    Her Honour’s remarks made on 13 August demonstrate, as the applicant submitted, that her memory of CN as her butcher engendered positive thoughts about him. Those thoughts were enough for her Honour to say that she felt “a lot of discomfort and disquiet, and given this is a judge alone trial I am feeling all the more troubled by that”.

33. [77]

    As Johnson J said during the hearing of the appeal, if this had been a jury trial and it was a juror who remembered the witness as someone with whom he or she had dealt in the way the trial judge, there would be one clear answer which is that the juror should be discharged: Webb v The Queen at 52-53. The only difference between a juror and a judge is that as part of a lawyer’s training and experience they are said to be more able to put matters out of their mind which should be put out of their mind. However, doing as well as a lawyer can in that regard, it does not solve the problem of unconscious bias arising from the fact that the association is established in the judge’s mind.

34. [78]

    Thirdly, her Honour said that when she was handed VD1 and saw that CN worked as a butcher his first name started to ring a distant bell and his face was very familiar. Exhibit VD1 was tendered, some 20 pages of transcript prior to the judge raising the issue. Cross-examination commenced after the argument on the voir dire which led to the tender of exhibit VD1. From what her Honour said, throughout the time where she ought to have been focusing on Ms McSpedden’s cross-examination of CN, the familiar face and name was, as her Honour put it, “taking a long time to percolate things through” her mind.

35. [79]

    Certainly, on the morning following her Honour’s disclosure, after the parties had been given the opportunity to consider the matter overnight, counsel for the applicant moved that her Honour recuse herself. When her Honour called upon the Crown, the Crown prosecutor relevantly said this:

36. [80]

    Although a determination of apprehended bias does not particularly concern the reasons the judge delivered for refusing recusal, it may be noted that, contrary to what her Honour said when she first raised the matter (“and his face was very familiar”), she said in her judgment, “I did not recognise him from his face”. If anything, that tends to highlight the risk of unconscious bias.

37. [81]

    Her Honour’s initial response was the correct one. She felt discomfort, disquiet and troubled. The Crown reinforced that the following day by saying that he could not see any way out of the problem. The judge ought to have recused herself.

38. [82]

    Accordingly, subject to a determination of ground 1, the appeal in respect of ground 2 should be upheld, and a new trial ordered.

Ground 1: unreasonable verdicts

1. [83]

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

2. [84]

   The applicant submitted that the trial judge unreasonably discounted all of his evidence. Although her Honour did not believe his denials, there was no reason why she should disbelieve everything he gave evidence about. The applicant gave as an example the fact that he said that there was no riot where he was set upon by the boys after the death of TH. The applicant submitted that the fact that there was no riot was supported by all the other witnesses except CN.

3. [85]

   The applicant submitted that it was unreasonable for her Honour to take his strong rejection of the allegations of buggery as an indication that he was not being honest in his denials. The applicant submitted that his very firm moral beliefs did not suggest a lack of credibility, and that it was wrong of her Honour to use those responses in that way. The applicant submitted that, in a similar vein, it was unreasonable to discount totally the evidence of Terry Smith for the same or similar reasons.

4. [86]

   The applicant submitted that in coming to the conclusion that he was guilty, her Honour ignored or discounted important evidence that contradicted the accounts, particularly that of CN. The following matters were highlighted by the applicant in his written submissions:

5. [87]

   Senior Counsel for the applicant conceded at the outset of his oral submissions that when the evidence is taken in totality there are three possibilities. First, the Crown’s allegations are made out beyond reasonable doubt. Secondly, the Court could not be satisfied beyond reasonable doubt that the events occurred at all. Thirdly, although the complainants were giving truthful evidence, there was a reasonable possibility that they had substituted the applicant in their memory for the person who was the true perpetrator.

6. [88]

   The principles applicable to a ground that verdicts are unreasonable have been set out by the High Court in M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, The Queen v Baden-Clay (2016) 258 CLR 308; [2-16] HCA 35 and Libke v The Queen. These principles also apply to judge alone trials: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In Filippou the plurality (French CJ, Bell, Keane and Nettle JJ) said:

7. [89]

   In Ford v R [2020] NSWCCA 99, the Court (Brereton JA, Bellew and Lonergan JJ agreeing) set out the following principles at [55]:

8. [90]

   Justice Brereton then went on to say:

9. [91]

   In the light of those principles, the question for this Court is not whether the judgment of the trial judge was correct, but whether her ultimate findings of guilt in relation to each of counts 2, 5, 8 and 10 were reasonably open to her: Filippou at [56]; Smith v The Queen [2019] NSWCCA 162 at [71].

10. [92]

    In relation to the applicant’s evidence her Honour found that his lack of reliability on important issues caused her to reject his denials of offending. Her Honour went on to say that just because she did not accept parts of his evidence did not mean she would necessarily find him guilty of one or more counts in the indictment. Her Honour said that before she could find him guilty she must be satisfied beyond reasonable doubt that the complainants were honest and accurate witnesses.

11. [93]

    It is clear both from senior counsel for the applicant’s statement made at the outset of his submissions at the hearing of the appeal, and from the final address on behalf of the applicant before the trial judge, that the significant issue is and was whether there has been substitution of the applicant for another perpetrator or, in the words of the applicant’s counsel at trial, whether displacement has taken place in that regard. Reliance is placed on assertions that a number of other persons who worked at the Home were convicted of sexual offences against some of the boys at the Home or at least that allegations were made against other persons. Those persons were said to be Russell Walker, Lawrence Wilson, Terry Smith, and a person called Uncle Carl or Uncle Col.

12. [94]

    However, apart from clear evidence from Detective Sergeant Nigel Warren, the officer in charge of the investigation, that Russell Walker was convicted of 23 counts of sexual and indecent assault, the remaining evidence was largely assertion by various persons. Mr Walker was at the Home for two brief periods from 13 January 1966 to 10 June 1966 and again from 14 January 1971 to 12 January 1972. His time at the Home did not correspond with the two periods of time that the applicant worked there. Further, Mr Walker was not working at the Home at any time that the complainant DC was at the Home.

13. [95]

    There was evidence from a person who had been at the Home during both periods the applicant worked there, that Lawrence Wilson (who replaced Major Morton), had been charged with offences and had gone to trial. Mr Wilson did not arrive at the home until after both the applicant had left and all of the complainants had left.

14. [96]

    There were statements from some of the witnesses about Terry Smith (otherwise known as Uncle Terry) but the evidence was not capable of any conclusion that he had engaged in sexual wrongdoing. Otherwise there was some evidence about a person variously called Uncle Carl or Uncle Col who was said to have had penile/anal intercourse with another boy, RG, on a number of occasions which came to the attention of the applicant. He fled from the Home and the evidence indicated that he was not prosecuted for any sexual offences.

15. [97]

    It is also relevant that neither Terry Smith nor Uncle Carl was a Salvation Army officer at the relevant time and neither wore a uniform. On the other hand, the evidence from all of the witnesses (including Terry Smith), but not the applicant and his wife, was that the applicant wore a Salvation Army uniform whenever he was on duty at the home. The applicant’s wife said that even when the applicant was not in his official uniform he was in a casual uniform that consisted of an older white shirt, navy trousers or good shorts and golf socks.

16. [98]

    It is also relevant that AM and DC did not give evidence of having been a victim of sexual abuse by any other persons than the applicant. It is true that CN was the victim of sexual abuse by other persons, but these included other boys at the Home, a person into whose care he was placed outside the Home, and a camp leader at a camp he attended. None of the other sexual abusers of CN were staff members at the Home.

17. [99]

    The evidence does not disclose any basis for the submission that displacement has occurred or that the complainants have mistakenly attributed other persons’ acts to the applicant.

18. [100]

    It was not suggested that any of the complainants might have intentionally sought to blame the applicant for abuse they suffered. It was said to be unconscious displacement.

19. [101]

    In her closing address, counsel for the applicant said this:

20. [102]

    When dealing with DC’s evidence, and suggesting that he had a real sense of grievance against the Salvation Army, counsel for the applicant nevertheless said,

21. [103]

    Another general matter relied upon by the applicant in relation to all of the counts alleged is the applicant’s Christian beliefs. When being cross-examined he said of these beliefs:

22. [104]

    The applicant submitted that it was unreasonable for her Honour to take his strong rejection of the allegation of buggery as an indication that he was not being honest in his denials. The applicant submitted that his very firm moral beliefs did not suggest a lack of credibility, and it was wrong of her Honour to use those responses in that way.

23. [105]

    It is not apparent from anything that her Honour said in her judgment that she used his rejection of the allegation as an indication that he was not being honest in his denials. Her Honour set out problems that she found with the applicant’s evidence, and she concluded that it was his lack of reliability on important issues that caused her to reject his denials of offending. In doing so, her Honour did not question his beliefs nor whether they were honestly held by him.

24. [106]

    A statement of religious belief which is said to be incompatible with offending is really no more than evidence that a person would not have offended in a particular way because the person is not the sort of person who would do what is alleged. It is entirely self-serving. Her Honour appropriately took into account that the applicant was a person of good character. The fact that he gave evidence of a particular belief does not, in addition to his good character, make it less likely that he would have committed the offences.

25. [107]

    The trial judge found that AM provided a detailed and consistent account of what happened with respect to the incident constituting count 2. Her Honour said she formed a very positive view with respect to his credibility and reliability. Her Honour thought it was significant that AM was able to relate the incident to a significant event, namely that his father was coming to see him which meant that he was showering by himself at a time when showers were not normally taken by the boys as a group.

26. [108]

    The applicant submitted that her Honour ignored evidence given by AM in relation to the incident constituting count 1. The applicant said that AM could not have been correct in fixing the date of the incident because the records of St George Hospital did not support his account that he had been taken to the hospital after the incident where he sustained an injury near his right eye. That was said to affect AM’s credibility in relation to the account he gave of count 2.

27. [109]

    The St George Hospital record tendered by the defence, which appeared to have been retained by the Home, showed that AM had been administered a tetanus injection at the hospital in April 1966. That date was derived from a statement in the undated letter from the hospital saying that the patient should return to the hospital for a further tetanus injection on 25 May 1966 which was said to be six weeks after the injection the letter was reporting on. It may be accepted that 1966 was prior to the time the applicant first came to the Home.

28. [110]

    The difficulty with this submission is that there is no evidence that the letter from St George Hospital dealing with a tetanus injection in April 1966 had anything to do with the incident concerned. AM did not give any evidence that he had a tetanus injection in relation to the incident in the shower room where he cut his eye. He gave evidence that when he went to the hospital he had stitches inserted in his eye. When asked in cross-examination if he had received an injection at the hospital, he said he could not remember. The only witness who said that he had a tetanus injection was CN, when he was running away from some officers and he tried to get under a fence and cut his eye.

29. [111]

    The evidence from Detective Sergeant Warren was that although the police tried to obtain records from St George Hospital, there were no records available from the 1960s and the 1970s.

30. [112]

    The other matter relied upon by the applicant to cast doubt on AM’s credibility was an assertion that the evidence showed that AM blamed the applicant for TH's death, and in that way confused the applicant with Terry Smith who was the staff member sleeping near the dormitory where TH had the asthma attack and died. It was put to AM in cross-examination that his belief that the applicant was responsible for TH's death was the reason he was asserting that the applicant was the person who pushed him into the basin and was the person who grabbed him on his backside. AM denied that. Her Honour expressly rejected the notion that AM was wrongly accusing the applicant of the incidents in the shower room. Her Honour said:

31. [113]

    It is not difficult to understand why AM, or CN for that matter, held the view that the applicant was somehow responsible for TH’s death. Although it was not the case that the applicant slept in the dormitory that night, the applicant himself gave evidence that the day TH’s body was discovered was Terry Smith’s day off. It was the applicant who came to the dormitory early in the morning to wake the boys, and he said that he was trying to let Terry Smith have a sleep in. The applicant also gave evidence that he carried TH out of the toilet to the sick bay. It is scarcely surprising that 50 years later a memory was formed by some of the boys that the applicant, who was in the dormitory early in the morning, had actually slept there that night. It was a false memory, but not without some basis. The applicant was in the dormitory when TH was discovered. AM’s error was only remembering that the applicant slept near the dormitory. It does not result in a conclusion that AM or CN wrongly thought the applicant sexually assaulted them, given the other details in their accounts, and their clear recollections of the applicant.

32. [114]

    In my opinion, it was open to her Honour to reach the verdict that she did in relation to count 2. Having regard to all of the evidence, I do not have a reasonable doubt about the applicant’s guilt in relation to count 2.

33. [115]

    Her Honour accepted DC as an honest and accurate witness, and she said she accepted his evidence with respect to count 5 beyond reasonable doubt. She said the details of the conversation and the responses by DC had a ring of truth about them. Her Honour found DC to be an impressive, reliable and considered witness who did not seek to gild or embellish his answers. She said he did not give his evidence in a manner suggestive that it was anything less than scrupulously honest.

34. [116]

    Her Honour considered a number of challenges to DC’s evidence including that his evidence had been contaminated by speaking to other Care Leavers Australia Network (CLAN) members, and by reason of his attempts to obtain compensation from the Salvation Army. DC was also challenged on the inconsistency of his evidence with what was contained in a document headed “Truth”. That was a statement which DC prepared in 2014 before he went for an interview with a Mr Greville from the professional standards office of the Salvation Army. The document was not put into evidence, and the matters about which DC was cross-examined from the document did not include anything to do with the particular incident that formed the basis of count 5. Nor was there any suggestion made to DC that the evidence he gave in Court was inconsistent with what was contained in the Truth document. He was cross-examined about his claim for compensation from the Salvation Army, the relationship of that claim to his having worked with the Salvation Army during his adult life, and the fact that he had been made redundant by them.

35. [117]

    At the trial, there was a challenge to his evidence on the basis of contamination from the CLAN organisation because DC identified the applicant’s son on a trampoline shown in a photograph in exhibit 3. The photograph was said to have been taken in 1969, and DC did not come to the Home until 1974. Although he knew the applicant’s son Ian at that time it was suggested that the only way he could have immediately identified Ian in the photograph when shown it in Court was from having received assistance at an earlier time to know who was shown in the photograph.

36. [118]

    The only mention of this matter at the appeal is found in paragraph 133 of the applicant’s written submissions which read as follows:

37. [119]

    That paragraph contains two errors. First, it was not CN’s memory of the boy in the photograph but DC’s memory. Secondly, the photograph was not one of IH (TH’s brother) but a photograph of the applicant’s son Ian. On the assumption that the complaint on appeal mirrors that made by counsel for the applicant before the trial judge, it is difficult to see how, even if DC had been assisted to recognise the boy in the photograph, that affected his evidence of the incident involving the applicant. Contrary to the submission of counsel for the applicant at the trial, DC did not see that photograph for the first time in Court. DC said in cross-examination that it was not the first time he had seen the photograph and he may have seen it in conference with the Crown prosecutor or his solicitor. He also accepted that he would not have been able to identify the applicant’s son without somebody assisting him in that regard. Another witness, DJ, gave evidence of having emailed the photo to DC, but said that he did not point out that it was the applicant’s son on the trampoline.

38. [120]

    Her Honour specifically referred to the issue raised about contamination. She said that she did not find any basis for the suggestion that DC’s evidence was contaminated by speaking to other CLAN members or other boys from the home.

39. [121]

    In my opinion, it was open to the trial judge to accept DC’s evidence and to find that the event about which he complained constituting count 5 occurred in the way he described. I do not have a reasonable doubt about the applicant’s guilt in relation to count 5.

40. [122]

    As with the complaints by AM and DC, her Honour determined the outcome of the counts on her assessment of the evidence of the complainant, in this case CN.

41. [123]

    Her Honour said that CN “did not dissemble. What you saw is what you got. He had no artifice, nor did he demonstrate any contrivance in giving his evidence”. Her Honour said on a number of occasions that she found CN’s evidence honest and accurate. Her Honour said that his evidence rang true. He was self-effacing, and freely admitted that he was a troublesome and unruly child. Her Honour said she found his account of the anal penetration in the officer’s quarters compelling, particularly because of his evidence of the cot in the room at a time when the applicant and his wife had a very young child.

42. [124]

    A number of challenges were raised by the applicant to CN’s evidence that were said to throw doubt on his credibility. The first concerned the uncharged incident in the laundry. In his first statement to the police, CN said that the laundry incident occurred the day after his brothers were adopted and left the Home. The brothers were adopted on 7 October 1967 but the applicant did not arrive at the Home until July 1968.

43. [125]

    In cross-examination, CN gave this evidence:

44. [126]

    In her judgment, her Honour noted that CN was cross-examined at great length with respect to his recall of the timing of the incidents. Nevertheless, her Honour accepted CN’s evidence as honest and accurate. It was open to her Honour to accept his evidence given in answer to the challenge in cross-examination to the date on which the laundry event was said to have occurred.

45. [127]

    The second challenge to CN’s evidence concerned his account surrounding the death of TH. There were three aspects to this. The first was that CN remembered the boy who died as IH. The boy who died was said to be a friend of CN, and CN said that he did not know that IH had any brothers at the Home. Secondly, CN’s evidence was that the applicant was the person on duty in the dormitory on that night and the person who did not give TH his asthma puffer or some other form of treatment when CN and the others knocked on the door to his room. The third matter was that CN said that when it was discovered that TH (he said, IH) had died, there was a riot which involved a number of boys getting the applicant into a corner and punching him as a way of getting justice for the dead boy. He also said that a person called Captain Wilkinson or Wilkins was trying to protect the applicant from their assault on him.

46. [128]

    CN was certainly wrong about the identity of the dead boy and about the issue of the applicant being on duty in the dormitory that night. He was probably wrong about there being a riot because all of the other evidence from boys and staff was that the reaction to TH’s death was that the boys were very quiet and subdued. Further, the officer supposedly assisting the applicant could not have been Mr Wilson because he did not arrive at the Home until after the applicant had left in 1973.

47. [129]

    Her Honour noted that CN was clearly mistaken in relation to the death of TH although she did not identify all of the matters now raised when assessing CN’s evidence. Certainly, she said that his mistake in relation to the dead boy’s name was not one that caused her to revisit any positive assessment that she made of CN’s credibility and reliability.

48. [130]

    The mistaken memory that CN had of the events surrounding TH’s death are matters that must be taken into account when coming to a view about his credibility in relation to the events that gave rise to the charges. I have already discussed, when considering AM’s evidence about TH’s death, how both AM and CN might have a false memory that the applicant slept in the dormitory because he was there first thing in the morning that TH was discovered. It must also be said, however, that the events surrounding the death of TH were peripheral events when the offences are being considered. They were not said to be relevant to the recollections of the timing of the events complained of, nor to impact upon those events other than in an assessment of CN’s credibility.

49. [131]

    Clearly, the errors made by CN concerning the events surrounding TH’s death must be considered when CN’s credibility is being assessed. Her Honour made no mention of these errors, although she summarised CN’s evidence about the matters surrounding TH’s death. The enquiry on a ground of appeal asserting an unreasonable verdict in a judge-alone trial is not whether the judge made an error by failing to consider some aspect of the evidence. The enquiry for an appeal court is whether, having regard to all of the evidence, it was open to the trial judge to make a particular finding or reach a particular verdict: Filippou at [56]. That must be the case because, where there is a jury, it will never be known whether the jury considered this or that aspect of the evidence in reaching a verdict that must have been reached because a complainant was believed.

50. [132]

    In Pell v The Queen the High Court said:

51. [133]

    A number of other matters about which CN gave evidence were borne out by other evidence, as the trial judge recorded. CN gave specific evidence about the applicant and his appearance. When asked to describe the applicant he said:

52. [134]

    It was not suggested to CN that his description of the applicant at the time was wrong. Further, it is significant that only CN and one other boy, GW, remembered that the applicant wore glasses, as the applicant agreed in his second ERISP that he did.

53. [135]

    Other matters of significance were CN’s memory that the applicant had a dog which he described as a small silky terrier sort of dog and which the applicant said was an Australian terrier. Secondly, CN, when describing the room he was taken into in relation to count 8, referred to there being a cot in the room which accorded with the evidence of both the applicant and his wife, as her Honour noted in her judgment.

54. [136]

    The applicant also relied on CN’s evidence regarding the “Sunday parents” as another example of his poor memory. CN said that some of the boys were taken out by their parents on Saturdays. When asked why they were called Sunday parents if they actually took the boys out on Saturdays he said that he presumed they were classed as Sunday parents from the church. He agreed that his Sunday parents were the Gibbs and that he went out with them on Sundays and public holidays but not Saturdays, as he recalled. His evidence was not inconsistent with what the applicant had said in his first ERISP (page 51 A10):

55. [137]

    A further matter said to impact on CN’s credibility was his inability to exclude the possibility that the events he complained of occurred at a time before the applicant even arrived at the Home. It was true that CN was not able to fix any particular point in time when the offences occurred, but that is scarcely to be expected when he arrived at the Home before he was aged five and remained there for ten years. In his evidence he described that every day was repetitious and the days rolled on one into another. It is not surprising that after 50 years CN was not able to provide any point in time when the offences occurred.

56. [138]

    Although the applicant submitted (as noted earlier at [86(h)]) that her Honour ignored the evidence of DJ which appeared to contradict the evidence of CN, the submission was not developed. DJ’s evidence did not relate to evidence given by CN. It did relate in one aspect to DC’s evidence, as noted above at [119], and tended to support DC’s acknowledgement that he had previously seen the photograph of the applicant’s son on the trampoline.

57. [139]

    Of greater significance was CN’s memory of the applicant including what he looked like, that the other people who sexually abused him at various times were not people who worked at the Home, and the incidental things that he otherwise remembered about each of the offences including, for example, that the applicant owned a terrier dog which he enjoyed making howl, and the presence of the cot in the officer’s quarters at a time when there was such a cot there.

58. [140]

    The authorities in relation to the consideration of unreasonable verdicts all stress the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence. The same principle applies in a judge alone trial where the judge has had the benefit of hearing and seeing each of the complainants as well as the other witnesses.

59. [141]

    It is clear that her Honour formed a favourable impression of CN notwithstanding some shortcomings in his memory resulting in his evidence conflicting with other evidence or objectively demonstrable facts. Those errors were peripheral to the events giving rise to each of the offences and only cast doubt on CN’s credibility generally rather than undermined his account of the events themselves. The present was not a case, like Pell, for example, where there were “compounding probabilities” (see at [56]) which meant that the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant’s guilt.

60. [142]

    The only matter which went to the events involved in the offences themselves concerned what was inserted into CN’s anus in the officer’s quarters in relation to count 8. The applicant submitted that it was necessary for the Crown to exclude any reasonable possibility that something other than the applicant’s penis penetrated CN, and there was no way that the Crown could exclude any such hypothesis. That was because CN did not see the applicant’s penis, and was not able to describe anything other than the painful sensation he felt.

61. [143]

    Her Honour said in relation to this matter:

62. [144]

    The description of what happened did not apparently leave time for any other object to be located and inserted into CN’s anus. He said he felt a sharp pain in his “bum”. The only question asked of him about the cause of the pain was a question by the Crown prosecutor, to which he answered, “Well I don’t know, I presume it was either his penis--” and then there was an objection, no doubt on the basis that CN had said “I presume”. Counsel for the applicant did not ask any questions about the matter. More significantly, when he was asked about the circumstances of count 10, CN said that the applicant “stuck his dick in me bum”. When asked by the Crown prosecutor what he felt, CN said “Pain. Same as before.” That must be a reference back to the circumstances of count 8 which had been recounted a few minutes earlier.

63. [145]

    Having had regard to all of the evidence in the proceedings, I do not entertain a reasonable doubt that the applicant was guilty of counts 8 and 10.

64. [146]

    Leave to appeal should be granted in respect of ground 1 but the appeal dismissed.

Conclusion

1. [147]

   In the light of the outcome of the conviction appeal, it is not necessary to consider the appeal in respect of the sentence.

2. [148]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal in respect of ground 2.

   3. (3)

      Quash the convictions entered in the District Court on 13 September 2019.

   4. (4)

      Quash the sentence imposed by Judge Williams in the District Court on 20 December 2019.

   5. (5)

      Order a new trial in respect of counts 2, 5, 8, 9 and 10 of the Indictment.

   6. (6)

      Stand the proceedings into the arraignment list in the District Court at the Downing Centre on 5 February 2021.

3. [149]

   ADAMSON J: I have had the benefit of reading the reasons and proposed orders of Davies J in draft, with which I agree. I confirm that I have read the transcript of the evidence and the exhibits. I do not entertain a doubt about the applicant’s guilt, much less one that the trial judge might not have been able to resolve, having regard to the advantage which her Honour enjoyed of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence it was open to her Honour to be satisfied of the appellant’s guilt beyond reasonable doubt on the charges of which he was convicted. Accordingly, ground 1 has not been made out. Given that ground 2 has been made out, the conclusion on ground 1 requires an order for a new trial to be made.