Stanley v State of New South Wales

1. [1]

   HIS HONOUR: By a statement of claim filed on 16 September 2022, as amended in a filing in Court following the evidence in the hearing (the ASOC), the plaintiff seeks damages from the State of New South Wales (the defendant) for injury he suffered consequent to sexual assaults committed on him while he was a detainee in a juvenile detention centre (Mount Penang) on the Central Coast between 6 November 1996 and 10 January 1997 (the relevant period). The claim is brought on the basis of three causes of action: in negligence, on the basis that the defendant breached its duty of care to avoid foreseeable but not insignificant risks of harm to the plaintiff; a non-delegable duty of care owed to the plaintiff by the defendant; and the vicarious liability of the plaintiff for the alleged abuse of the defendant.

2. [2]

   The essence of the plaintiff’s claim is that when he was aged 16, he was sexually abused by a staff member in the vicinity of where detainees showered in the gym at Mount Penang following sport. In its final address, the defendant did not suggest that the plaintiff had not been sexually abused as a child but rather that it could not have occurred in a shower area in the gym in the circumstances alleged or in a shower area anywhere else at Mount Penang. In the event that the Court determines that the abuse did occur and that liability by the defendant is established, the defendant does not admit that the plaintiff’s injuries were to the extent that he has pleaded.

The plaintiff’s background

1. [3]

   The plaintiff, who is 45 years old, is an Aboriginal man. He was born in Warren and adopted by his maternal grandparents when he was three weeks old. He was brought up by a sister-in-law of his grandfather, Margaret Stanley (Ms Stanley), and her partner, Frederick Stanley.

2. [4]

   The plaintiff recalls a “happy and comfortable upbringing” in his early years in their household with six siblings. He grew up in Mount Druitt, attending primary and secondary schools in the area. However, when he was aged 6, a brother was killed in a car accident and when he was aged 12, Frederick Stanley died, which the plaintiff has recalled caused the family to “fall apart a bit”. In year 7, he experienced behavioural difficulties; truanting, fighting, using cannabis and stealing. From the age of 14, he was appearing in the Children’s Court and, from the age of 15, he was being detained in custody in juvenile justice facilities at Cobham, Minda, Reiby, Baxter, Karion and twice at Mount Penang, his last detention in a juvenile justice facility being for 16 days in Baxter Detention Centre in May 2000, although he was then an adult. The plaintiff does not allege he was sexually abused in juvenile detention other than during his first detention at Mount Penang, which commenced about a fortnight after his sixteenth birthday.

3. [5]

   The plaintiff was detained at Mount Penang in the relevant period consequent to a sentence imposed in the District Court for offences of attempted robbery and break enter and steal while armed, committed on 11 and 12 February 1996. He had serious prior convictions in the Children’s Court for assaulting a teacher at Bidwill High School on 30 September 1994, robbery whilst armed with a knife in December 1994 and assault occasioning actual bodily harm on 28 November 1995.

4. [6]

   The plaintiff’s first convictions as an adult were for assault, destroying property and stalk/intimidate, committed when he was aged 18, for which he received concurrent fixed term sentences of 3 months’ imprisonment. Thereafter, he has been incarcerated for much of his adult life for a range of offending, including armed robbery, robbery in company, assault, carrying a cutting weapon, destroying property, stalk/intimidate, domestic violence offences, take and drive conveyance, driving dangerously, larceny, possession and supply of prohibited drugs, and traffic offences.

5. [7]

   On admission to Cobham on 13 February 1996, following his arrest for the offences for which he was detained subsequently at Mount Penang, the plaintiff admitted smoking “about 4 cones per day” and that he had been smoking cannabis since the age of 13. A case conference summary prepared on 6 November 1996 noted that the plaintiff reported smoking 50 cones daily and a report dated 17 June 1997 noted that his cannabis intake had increased from “a couple of cones every few days” to “$50 a day prior to admission”.

Background to Mount Penang

1. [8]

   Mount Penang was a detention centre for the purposes of s 5 of the Children (Detention Centres) Act 1987 (NSW), that had operated as a juvenile detention centre from the early years of the 20th century. In the relevant period, it was a property of around 180 to 200 acres with about 150 staff. It had the highest number of detainees (about 150 to 180) of any youth detention centre in New South Wales. Uniquely, it was not enclosed; it did not have a perimeter wall. The detainees were mainly serving sentences and, on occasion, were on remand. Their ages ranged from 16 to 18 years, although some witnesses recalled there occasionally being 15-year-old remandees and some older detainees.

2. [9]

   Mount Penang had been transferred to the newly-formed New South Wales Department of Juvenile Justice (the Department) by the time of the relevant period. In 1991, Kariong Juvenile Justice Centre opened at Mount Penang. It accommodated juveniles charged with serious crimes, until its closure in 2015. Following concerns raised by the Royal Commission into the NSW Police Service in 1995 to 1997 and a recommendation in a report to parliament by the NSW Ombudsman in December 1996, titled “Inquiry into Juvenile Detention Centres”, Mount Penang closed down in 1999 and was replaced by the Frank Baxter Detention Centre, which had been built alongside it.

3. [10]

   In the relevant period, the detainees were accommodated in six dormitories, by then known as units, each with an individual name and about 25 to 30 boys. The unit in which the plaintiff was accommodated was known as Vernon. The floor plan was rectangular-shaped, with the sleeping quarters at the rear end of the unit, comprising rows of beds. The laundry, store room, a single staff toilet and an ablutions area for the detainees (toilets, shower cubicles and wash basins) were at the entrance (front) end. There were about six shower cubicles in a row along a wall. Each shower cubicle had a door that, when closed, allowed a view of the legs and head area of the occupant. In the middle area of the unit was an office and (for the detainees) a general recreation area, a TV room, a “Hi-Fi” room, a quiet room, and a telephone booth. All internal walls, except for the ablutions area, laundry, store room and staff toilet, were transparent, being hardened glass or Perspex.

4. [11]

   The complex at Mount Penang included multiple other buildings and facilities, including at least one administration building, a sports oval, a separate cricket field, a swimming pool and a gymnasium (the gym). In the relevant period, the gym had two primary separate internal sporting activities areas: a basketball area and a weights room. Whether there were functioning showers in the gym, or showers at all, was a factual dispute between the parties. Near the gym were cricket nets and the cricket field.

5. [12]

   The staff worked three shifts per 24 hours, with some variations between starting and finishing times. The primary custodial role with the detainees at Mount Penang was assumed by “youth workers”, whose responsibilities included moving the detainees around the facility and ensuring that they adhered to the daily routine. The units were supervised by two youth workers and, as well, by a matron in the evenings. Sporting activities were supervised by “sport and recreational officers” (recreation officers), who had the same training and employment responsibilities as the youth workers. There was a rule that all activities of the detainees in all locations, including the units, the gym and other sporting areas, were to be supervised at all times by at least two youth workers or recreation officers. Similarly, all movements of detainees on the grounds were to be in the company of at least two youth workers or recreation officers, although some former youth work or recreation officer staff gave evidence that they could obtain permission from an operations manager, via a radio that they all carried with them, to escort a detainee or detainees from one place to another without a second youth worker or recreation officer.

6. [13]

   In the relevant period, there were about four to six full-time recreation officers, who ultimately came within the youth work stream of management responsibility.

7. [14]

   From around 1996, case workers were introduced into Mount Penang. They had a developmental role with the detainees rather than a custodial function and often had a social work qualification. They were intended to assist with addressing underlying factors that may have led to the detainees being in the criminal justice system. Some case workers were sexual assault counsellors, whose role it was to counsel detainees who had been charged with or convicted of sexual assault offences.

8. [15]

   Around 1994, changes were made to the nomenclature of staff positions and the buildings, in accordance with an evolution in the operation of Mount Penang from a more custodial role run on a military (naval) structure. In line with those changes, the management hierarchy was renamed. The most senior role was previously, in descending order of authority, superintendent, deputy superintendent and assistant deputy superintendents. There may have been more than one deputy superintendent and assistant deputy superintendent at any one time as well as acting positions. The new head position was that of manager, followed by four types of operations managers, including operations manager vocational and operations manager casework. Each operational manager also had responsibility for a particular unit. One unit, which was described as a “prestige unit” for detainees about to be discharged, was overseen by a team leader.

9. [16]

   The daily routine at Mount Penang, as described by witnesses called by the defendant who worked there in the relevant period, and as agreed by the plaintiff, was as follows. On weekdays, the detainees would wake at about 6 or 6.30am and be permitted to have a shower. They would be taken to the dining area, which was in a separate building, for breakfast, then returned to their unit. After a short period, they would be taken to either school, vocational training or to join a work party on the grounds. Shortly before midday, they would be returned to their unit to wash up and then be taken to the dining area for lunch. They would be returned to their unit and at about 1.30pm, they would be taken to one of the three options that applied in the mornings. They would be returned to their unit at about 3pm.

10. [17]

    The detainees could stay in their unit until dinner or play sport. Those doing sport in the gym would be taken to the gym where they would be supervised by two recreation officers. They would be returned to their unit at about 4.30pm where they could shower, and then all the boys in the unit would be taken to dinner, in the dining area. I note that according to the muster records in evidence, dinner was between 4.50 and 5.20pm. Some detainees would be taken to the gym after dinner to play sport. On their return to the unit, if they wished, they could shower. For all the detainees in the unit, there might be discussions with a matron, who would be on duty in the afternoons and evenings, and activities in the unit recreation area, then it would be lights out at about 8.30 or 9pm.

11. [18]

    On weekends, the detainees would get up at about 7.30am. On Saturday mornings, they would all play or watch sport. They would be returned to their units before lunch and, if need be, have a shower in their unit. In the afternoon, they could either play sport or stay in the recreation area of their unit. On Saturday nights, they could stay up later than usual. There might be a film in the unit recreational area. On Sundays, there was sport and an opportunity to receive visits.

12. [19]

    The parties agreed as to the showering routine in the units. The detainees would mostly shower in the mornings before breakfast or in the afternoons. They would be instructed to go to the shower area in groups of about six (dictated by the number of cubicles), taking their towels and clean clothes with them. They would undress in the shower cubicle, utilising a bench for their clothes. One youth worker would be positioned in the shower area where he could view the showers and at the same time be seen from the office area where the second youth worker would be located, affording for that youth worker a view of all the sleeping area as well as of the youth worker supervising the shower area.

The nature and circumstances of the abuse as pleaded and particularised by the plaintiff

1. [20]

   In his statement of claim and as repeated verbatim in the ASOC, the plaintiff pleaded that the abuse occurred in the vicinity of “the shower block”:

2. [21]

   In response to a request for particulars, the plaintiff informed the defendant by letter dated 24 November 2022 of the following.

3. [22]

   The staff member who abused him (the abuser) was a “normal worker” who the plaintiff observed “working in or around the gym section and in different units”. He was “Caucasian, with short, brown hair and of medium build”. He had “normal clothes, often a t-shirt and shorts”. As to whether there were any prior interactions between the plaintiff and the abuser:

4. [23]

   There were no witnesses to the abuse that occurred as pleaded in 10(b) and (c). The plaintiff could not recall when the incidents of abuse occurred, including as to the time of day. The masturbation version of Bingo (the Bingo shower game) was played in the following manner:

5. [24]

   The participants were “other inmates and on some occasions the officer”. As to the duration and frequency of the Bingo shower game:

6. [25]

   The plaintiff did not report the abuse to other staff or to the police, and did not seek medical or psychological treatment with respect to the abuse.

7. [26]

   The plaintiff’s claim as to the alleged abuse in his first evidentiary statement, dated 29 November 2022, was as follows:

8. [27]

   In a subsequent (undated) outline of anticipated evidence statement, which was served on the defendant in July 2024, the plaintiff relevantly stated:

9. [28]

   The plaintiff bears the onus of proving his claim, the standard of proof being on the balance of probabilities, although in the terms of s 140(2)(c) of the Evidence Act 1995 (NSW), a matter to be taken into account in deciding whether that standard is established is “the gravity of the matters alleged”. In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 (GLJ), at [57], Kiefel CJ, Gageler and Jagot JJ said:

10. [29]

    The first in sequence of the factual matters in dispute that the plaintiff must establish to that standard is that the abuse occurred.

Whether the abuse occurred

1. [30]

   The parties tendered a joint memorandum of facts in dispute. It included the following:

2. [31]

   In his opening, the plaintiff submitted that the evidence would establish the following:

3. [32]

   The plaintiff has not identified the abuser, other than by his description of him. In view of the generality of the plaintiff’s recollection of his appearance, the absence of identifying factors, the inability to nominate particular dates of the abuse and the passage of time, there is no evidence of the identification of staff members at Mount Penang in the relevant period who were or may have been on duty at the gym when the plaintiff was allegedly abused. Since the plaintiff does not suggest that he complained to staff or any other authority figure, including police, there is no evidence of a contemporaneous or subsequent complaint or investigation of his allegations.

4. [33]

   The abuse pleaded and particularised falls into two categories. One concerns the Bingo shower game abuse, which occurred first in time (the shower abuse); that is, the abuser on multiple occasions exposed his penis and masturbated in view of the plaintiff and the other detainees while they were playing the Bingo shower game. The second category is the “one on one” abuse; the two incidents of abuse in the room with the bathtubs in which the abuser prevailed upon the plaintiff to masturbate and fellate him (the one on one abuse).

5. [34]

   As to the shower abuse, there is no corroborative evidence of the plaintiff’s account that the Bingo shower game was played by the detainees in the relevant period or at all, in the gym or elsewhere at Mount Penang. As the plaintiff does not suggest that there were witnesses to the one on one abuse, the plaintiff’s case as to both categories depends essentially upon the reliability of his account.

6. [35]

   As part of the process of determining whether the plaintiff has established that the abuse occurred, it is relevant to consider whether the evidence establishes, or is at least reasonably consistent with, the plaintiff’s evidence as to the context of the abuse. The aspects of the contextual evidence are, whether in the relevant period:

7. [36]

   According to a history of Mount Penang that was an exhibit, [1] the gym was constructed in 1960 from prefabricated concrete. Initially, it was used as temporary accommodation for detainees but from a time later in the same year, it was used as a gym.

8. [37]

   An architect’s plan of the gym, dated 26 November 1959 (the 1959 gym plan), titled a “working drawing”, depicts it as being rectangular in floor plan, lying north-south. It comprised, in all, four rooms. On that plan there is a large unlabelled area, which corresponds with uncontradicted evidence that it was used for basketball (the basketball area) and two narrow rooms side by side along the full width of the southern wall, each with a doorway to/from the basketball area. The western-most narrow room is styled a “locker room” and has symbols consistent with them denoting 40 lockers along its walls. The other narrow room to its east is labelled “shower room”. Three shower cubicles, marked with “5’ 6” partitions”, are apparent and seven basins. The shower cubicles are depicted as not having doors. Two shower cubicles take up the western wall of the shower room and the third is on the southern wall alongside the corner shower cubicle. Below are two details of the 1959 gym plan (which was tendered as Exhibit A(19) by the plaintiff and Exhibit 47 by the defendant). The first shows an overview of the gymnasium and the second an expanded image of the shower and toilet area:

9. [38]

   The only door within the entire shower/toilet area is at the eastern end of the shower room, separating it from a square-shaped room, titled “Toilet”. That room occupies the south-eastern corner of the gym and protrudes further east than the rest of the eastern wall. It is shown as having two toilet cubicles, a shower cubicle and a urinal. The walls of this shower cubicle are also marked as being “5’6” high”. The plan shows sewer plumbing lines for each toilet and each of the shower cubicles and basins, joining with an apparently then-existing sewer line.

10. [39]

    The only access point to the “shower room” or the toilet area is via the doorway from the basketball area.

11. [40]

    A later plan of the gym, dated 19 September 1980 (the 1980 gym plan), which also appears to have been drawn by an architect, is captioned “alterations and additions to gymnasium to provide store room”. The walls of the gym appear as in the 1959 gym plan with little internal detail and, along the full length of the eastern wall from the toilet area, is a new rectangular-shaped narrow room labelled “new store room”. Its internal wall is the former eastern external wall of the basketball area. The evidence of all but one of the witnesses was that in the relevant period that room existed and was used exclusively as a weights room, which I accept to have been so (the weights room). The only entry/exit point to the weights room on the 1980 gym plan is a doorway at the northern end that appears to share a common external entry area with the basketball area. In particular, there is no internal thoroughfare from the weights room to any other part of the gym, including the “shower room” or “toilet” room marked as such on the 1959 plan. Below is a detail of the 1980 gym plan (which was tendered as Exhibit A(2) by the plaintiff and Exhibit 48 by the defendant), showing the “store room” that was added and its relationship to the shower/toilet area (as marked on the 1959 gym plan) and the basketball area:

12. [41]

    In his oral evidence, the plaintiff reiterated that the incidents of abuse did not happen to him in the shower area in Vernon but rather in a shower area in the gym: “The staff would walk down and drop you off, and there was two staff down there only”. He explained that the two staff in the gym would not be the same staff that brought him to the gym. He was not able to differentiate in his recollection between youth workers and recreation officers, so that he did not know whether the staff on duty in the gym on the occasions he was abused were one or the other, or both.

13. [42]

    The plaintiff said that the shower cubicles in the gym did not have doors. As to the shower layout, he said:

14. [43]

    A focal point of the cross-examination of the plaintiff was his evidence as to the accessibility of the shower and toilet area to the detainees and to others in the gym while the abuser was masturbating during the Bingo shower game. It was put to him that the area he described as having showers were behind a locked door. His evidence was that between the basketball area and the shower area there was a doorway, but no door:

15. [44]

    And later:

16. [45]

    The plaintiff drew a plan of the layout of the shower and toilet area as he recollected it. He thought there were four separate rooms in that area: two toilets were in one room; the showers were in a second room; an adult-sized standard white bathtub was in a third room; and there was a fourth room, which he did not look inside.

17. [46]

    The plaintiff was shown a version of part of the 1980 gym plan and was asked whether the area that is marked as the toilet and shower area on the 1959 gym plan were consistent with his memory of the gym. He replied to the effect that those rooms and the room marked “locker room” on the 1959 gym plan were not there when he was at the gym. He agreed that it was possible that those rooms were there and blocked off, and that he did not recollect that.

18. [47]

    As I understood the plaintiff’s evidence, there were at least two access points, possibly three, to the area of the gym complex where the showers and toilets were located. He said that the weights room and the basketball area had their own entry points to the shower and toilet area and when he first saw the abuser come into the shower area when he and the others were playing the Bingo shower game, he did so from the area where the toilets were located, which led the plaintiff to believe that he had approached from a third entry point to that area.

19. [48]

    It was in the room with the bathtub that the abuser asked the plaintiff to masturbate him. He was asked:

20. [49]

    It was put to the plaintiff that detainees were not permitted to use a toilet inside the gym, and that if a detainee needed to go to the toilet while in the gym, he would be escorted back to their unit:

21. [50]

    The plaintiff said he would play basketball for up to two hours, which would prompt him to want to shower in the gym, even though it was a cold-water shower and there were no soap or towels:

22. [51]

    It was suggested to the plaintiff that he was not permitted to shower in the gym:

23. [52]

    He agreed that he and the other detainees could shower after they were returned from the gym to their respective units.

24. [53]

    The plaintiff said that he was one of a group of four to six detainees who played the Bingo shower game, which they did on two or three occasions. He determined that number of fellow participants by recalling there were at least four shower cubicles and they were each occupied when they played the Bingo shower game. The other boys who played the Bingo shower game with him were from different units and he could not recall their names. On each occasion that he played the game, the abuser, who was a staff member, watched them. It was not clear from the plaintiff’s evidence whether the abuser was one of the two staff on duty at the time of the abuse or another (third) staff member.

25. [54]

    It was put to the plaintiff that, on his version of the layout, the abuser, according to where he had marked his position on his plan, would have been visible from the weights room while masturbating:

26. [55]

    As to the two incidents of one on one abuse recounted in the plaintiff’s first evidentiary statement at pars (27)–(28) (the masturbation incident) and (29) (the fellatio incident), he said the masturbation incident occurred after he had a shower. He said: “as I was getting out, I hit him up” for a cigarette. The reference in par (27) to it being “just me and him” was to them being alone when they were in the room with the bathtub. The plaintiff did not recall where he was in the gym when the abuser offered him a cigarette before the fellatio incident. As to where those two incidents occurred:

27. [56]

    The plaintiff’s evidence, as outlined in his evidentiary statement, was to the effect that the abuse prompted feelings of shame, embarrassment, anger and a loss of trust in others. He would think that others are taking advantage of him, prompting him to “lash out … fight first and I don’t think of the consequences, I just snap … something that I have always done”. He suffers nightmares “a few times a week”, lost his enjoyment of life and became depressed and socially isolated, contemplating suicidal thoughts. He finds it difficult to make and keep friendships and has never had a romantic relationship. He is prone to anxiety and panic attacks.

28. [57]

    The plaintiff’s drug use went from using “a couple of sticks a day” of cannabis before the abuse, to methamphetamine (ice), a daily dose of a gram of amphetamine (speed) and, from the age of 19, heroin. On one occasion, he was admitted to hospital for a “speed psychosis”. The plaintiff’s drug use “led [him] to a life of crime”. He spent about three and a half years “in and out of juvenile detention” and approximately 24 years as an adult in prison.

29. [58]

    In his oral evidence, the plaintiff said that by using heroin, which was from around 2001 and 2002, he managed to block out the memory of the abuse:

30. [59]

    The person he met, who he had known in Mount Penang and which caused him to recollect the abuse, was Tim Richardson. He agreed that Mr Richardson had told him that he was suing the State. He could not recall if Mr Richardson was one of those who played the shower Bingo game with him.

31. [60]

    The plaintiff said he continues to have nightmares “at least once or twice a week” and has done so “most of my life” and felt angry about what has happened to him. Later in the cross-examination, he was asked:

32. [61]

    There was no clarification of the plaintiff’s apparently conflicting accounts concerning whether he recalled the abuse between 2002 and 2019.

33. [62]

    As to the time of day that the abuse happened, he said:

34. [63]

    And later:

35. [64]

    Later, his evidence as to the time of the abuse was as follows:

36. [65]

    During the following cross-examination, the plaintiff continued to refer to the incidents in both categories occurring when he was in the gym after dinner, until the following exchange:

37. [66]

    A few moments later:

38. [67]

    I note that Dr Alexey Sidorov, Consultant Forensic Psychiatrist, states in his report, dated 7 June 2023, that the plaintiff told him he told Ms Stanley of the abuse “many years later”. In oral evidence, the plaintiff said he told Ms Stanley about the abuse after he was released from juvenile detention, which was in March 1998. He said he told her not to tell anybody: “I didn’t want a big scene.” Ms Stanley is deceased. The plaintiff agreed that he had multiple sessions with counsellors while in juvenile detention, a Forensic Psychiatrist in July 1999 who had been retained by the Aboriginal Legal Service and multiple other psychiatrists and psychologists over the years, and had not informed any of them of the abuse.

39. [68]

    The material before the Court included a report dated 30 December 1996 that was prepared by a Juvenile Justice counsellor at Mount Penang, who interviewed the plaintiff in the context of his participation in the Violent Offender Program on 4 December 1996, in the company of Ms Stanley. A passage in the report is as follows:

40. [69]

    The plaintiff was cross-examined about the incident and the role of a particular teacher. He was asked:

41. [70]

    The plaintiff called two witnesses in support of the proposition that there were functioning showers in the gym that were utilised by detainees, although one witness (Kenneth Buttrum) resiled from that position. The evidence of the other person, who was a detainee at Mount Penang (Glen Bright) but not during the relevant period, was to the effect that showers could be utilised by the detainees in the gym. Neither witness said there were bathtubs, or a bathtub, in the gym.

42. [71]

    Mr Buttrum was the Director-General of the Department from August 1995 until his retirement in November 2000. In an evidentiary statement dated 24 July 2024, at which time he was aged 83, he stated that he had worked at Mount Penang as a deputy superintendent (vocational), from 1971 to 1973. In a supplementary evidentiary statement made on the same date, he stated:

43. [72]

    In evidence, Mr Buttrum expressed uncertainty as to whether he had been satisfied that the contents of his supplementary statement were “accurate and truthful” before signing it, in particular, the contents of par 4:

44. [73]

    Mr Buttrum was taken to each of the four sentences in par 4. He said that the first two sentences were correct. As to the third sentence, he said: “I don’t recall the gymnasium building there were showers in the building”, and later:

45. [74]

    When asked if the fourth sentence was a correct recollection, he replied:

46. [75]

    In an evidentiary statement dated 9 October 2025, Mr Buttrum stated that the detainees would hide and access cigarettes around Mount Penang. He agreed in cross-examination that this observation was based on his experience working at Mount Penang in the seventies.

47. [76]

    As to the Bingo shower game, Mr Buttrum stated:

48. [77]

    Mr Bright was a detainee in Mount Penang between 17 June 1998 and 23 September 1998 when he was aged 17; that is, he was there 18 months after the relevant period. In an evidentiary statement dated 21 August 2024, he stated:

49. [78]

    In oral evidence, Mr Bright said that the showers in the gym did not have hot water. The detainees were able to take their towels to the gym and, as well, there were towels at the gym for those having showers there. He personally did not recall taking a towel with him to the gym. He said: “If you needed anything, you would just ask the officers.” He would ask an officer for soap, which the officer would retrieve from a box in the office in the gym.

50. [79]

    Mr Bright disagreed with the proposition that there were no toilets in the gym, and with the proposition that if a detainee needed to go to the toilet while they were in the gym, they would be taken back to their unit. Mr Bright said that sometimes when he was in the gym, there was only one staff member supervising them.

51. [80]

    I note that there was no other evidence to the effect that the youth workers or recreation officers had an office in the gym in the relevant period or at any other time. Mr Bright was not asked if he ever saw a bathtub in the shower area.

52. [81]

    The defendant called seven witnesses who worked at Mount Penang in the relevant period. A subject of their evidence was whether there were showers, toilets or bathtubs in the gym and, if so, whether the detainees were permitted to use them. In summary, one witness (Stephen Gilligan) recalled there being toilets and showers in the gym, another (Terrence Gould) recalled there being toilets and thought there may have been showers, as well. Both witnesses said the detainees could use the toilets, if necessary, and that the detainees only showered in their units. Neither gave evidence of seeing the showers operating or being aware that they were in working order.

53. [82]

    Four witnesses said that there were no toilets or showers in the gym and another witness (Michael Charlesworth) presumed that a locked area in the gym was an “amenity block” but never entered it and did not know what was in it. None of the seven witnesses said that there was a bathtub in the gym. Their evidence is now canvassed in more detail.

54. [83]

    Mr Gilligan first worked at Mount Penang from 1986, initially as a casual youth worker. By 1987, he was a senior youth worker. For a brief period in 1987, he worked in another detention centre and then returned to Mount Penang. He was an assistant superintendent from 1989 and an operations manager from 1994 until Mount Penang closed.

55. [84]

    In a witness statement dated 3 July 2024, Mr Gilligan stated:

56. [85]

    In a witness statement dated 1 August 2024, Mr Gilligan commented on the two gym plans. As to the 1959 gym plan, he said that at least in the time he was there, the locker room did not have lockers. It was used as a store room for sports equipment and was out of bounds to detainees. He stated:

57. [86]

    As to the 1980 gym plan, he said the area marked as the new store room was used as the weights room.

58. [87]

    Mr Gilligan stated:

59. [88]

    In evidence, Mr Gilligan confirmed that his recollection was that there were showers and toilets in the gym. He described what he would see when he walked into the area marked “toilet” and “showers” by reference to a copy of the 1980 gym plan. The door from the basketball area to that area was locked. After unlocking the door and walking through, one could see toilets to the left and showers to the right. He did not ever see the showers working and was therefore unable to say whether they were operable. He could recall seeing a shower recess but could not recall whether he saw shower heads or taps. He said that there was no bathtub in that area.

60. [89]

    He said that the recreation staff had keys to the toilet area and that the toilets were working, so that although there was equipment stored in there as well, they could be used. However, the showers were not used. He elaborated:

61. [90]

    He said he was surmising that recreation officers used them. Mr Gilligan was asked whether it was the case that if there was a detainee in the toilet and shower area with a staff member, they would not have been visible to other detainees and staff. He replied:

62. [91]

    Mr Gilligan recalled a toilet block on the southern side of the gym that had male/female toilet facilities that was used by community visitors. He thought it was 8m past the southern end of the gym. At some point it was “closed off”, but he could not recall if that was when Mount Penang closed down or whether it was earlier.

63. [92]

    Mr Gilligan was unsure when the detainees were banned from smoking. Staff were not permitted to smoke while on duty and when it was banned, it applied to the whole Mount Penang site for detainees and staff.

64. [93]

    As to the staffing and activities arrangements over the summer holiday period, in his witness statement, Mr Gilligan stated:

65. [94]

    Mr Gould was a youth worker at Mount Penang from 1971 (then called a youth instructor) to 1982 and deputy superintendent from 1987 to 1989. He then worked elsewhere, returning to Mount Penang in August 1996 as the manager. In an evidentiary statement dated 4 July 2024, he stated:

66. [95]

    In his oral evidence, Mr Gould reaffirmed that recollection and gave evidence suggesting that his familiarity with the gym was confined to his first period of employment there:

67. [96]

    Mr Gould was also uncertain as to when smoking by the detainees was banned. He was aware that staff would supply cigarettes to detainees:

68. [97]

    Mr Gould said that over the summer holiday period:

69. [98]

    Mr Gould said that any casual staff who were employed over the summer holiday period in 1996/97 would have been experienced and trained, although as to casual staff who were brought on for sport and recreation specifically:

70. [99]

    As to the Bingo shower game, Mr Gould stated, in the same evidentiary statement:

71. [100]

    Mr Brummell worked at Mount Penang for a period in 1977 and then from 1980 until 1999, initially as a youth worker, then progressing to a senior youth worker, acting chief youth worker, and a program coordinator (vocational). In the relevant period, he held dual roles in a mid-management position overseeing the youth workers and as a manger of one of the units.

72. [101]

    In a witness statement dated 5 March 2025, he referred to the 1959 and 1980 gym plans, observing that his recollection of the gym was different to the way it appeared in both plans. He attached a drawing of the gym layout according to his recollection, which did not have the “new store room” addition that appears in the 1980 gym plan and showed the area depicted in the 1959 gym plan as the locker room and shower area as one room, which he called the “weights room”. The toilet area was not on his plan at all.

73. [102]

    He stated:

74. [103]

    In his plan, Mr Brummell included a free-standing dwelling alongside the south-eastern corner of the gym, labelled “brick toilet block”, which he said was about 4m square and 2m from the gym building with “possibly a concrete walkway” connecting it. He said it was used by members of the community when they attended sporting events in the gym or nearby cricket field. He said it was there throughout the time he was at Mount Penang and that he had used it when practising in the cricket nets, which were nearby.

75. [104]

    Mr Brummell said that there were no showers or toilets, or plumbing fixtures for showers such as shower heads or taps, in the gym. There were no towels there and the detainees were not permitted to take a towel with them when they were taken to the gym. He said that the room labelled “toilet” in the 1959 gym plan was part of the weights room that, in his plan, extended along the southern wall. However, I note that Mr Brummell did not have a room at all in his plan where the toilets appear in the 1959 plan. Rather, it appears to be part of the basketball area which has a doorway from that area to the eastern exterior of the gym. Curiously, he said that the only structural change to the building during the time he worked at Mount Penang was “some minor stuff where the weights room would be, and the equipment taken in there. That was the only change”. Mr Brummell said there were no bubblers in the gym and he did not recollect any works being undertaken to install bubblers while he was at Mount Penang.

76. [105]

    Mr Brummell said that ordinarily two staff would supervise detainees in the gym; it would be “very rarely, if ever” that a staff member would do so alone.

77. [106]

    The detainees who used the gym would be encouraged to use the toilet in their unit before they were taken there and would shower back in their units on their return. If a detainee needed to go to the toilet while at the gym, “if there was sufficient staff around”, a staff member could have taken them back to the unit, but “in [my] memory, that’s never occurred”. Mr Brummell said, over the years he worked at Mount Penang, he had supervised detainees at the gym before dinner but had never supervised detainees at the gym after dinner: “that would be the role of the recreation staff”.

78. [107]

    Mr Brummell said that in 1996, staff were still permitted to smoke but cigarettes were contraband so far as detainees were concerned. Nevertheless, the detainees would “always be trying to obtain cigarettes from somewhere so that they could have a sly cigarette somewhere”. As a manager and unit supervisor in 1996 and 1997, he was unaware of staff ever supplying cigarettes to detainees.

79. [108]

    Ms Pearson worked at Mount Penang from 1988 until 2000, when she transferred to the Frank Baxter Youth Justice Centre. Her first position was as an assistant matron and then as a senior youth worker. Her recollection was that in the relevant period, she was either the acting chief youth worker or an acting assistant superintendent. She said she used to “swing between the two roles as required by the centre”. Ms Pearson believed that in the relevant period she was the acting chief youth worker, working day and evening shifts.

80. [109]

    In a witness statement dated 30 July 2024, she stated:

81. [110]

    Ms Pearson said that normally the detainees would shower in the units at set times, although detainees could shower in their unit, for example at 8.30pm, if they had been playing sport. Ms Pearson said that the unit showers were cleaned every day by a small work part of detainees under the supervision of staff and “thoroughly cleaned once a week”. Ms Pearson did not recall a brick toilet block near the gym or there being toilet facilities at all for those using the cricket pitch. Her recollection was that the community continued to have access to the gym until Mount Penang closed.

82. [111]

    Ms Pearson’s recollection was that cigarettes were banned but she was unsure of when the ban was introduced; it was “possibly by 1998” and that until then, there was a designated smoking area in the units for the detainees.

83. [112]

    Mr McInnes commenced work at Mount Penang as a casual youth worker in 1996 and became a permanent youth worker in 1997. Later that year, he became a recreation officer and in 1998 he switched to an administrative role at Mount Penang. In a witness statement dated 5 March 2025, he stated:

84. [113]

    In his oral evidence, Mr McInnes said that there were two locked-off rooms in the basketball area that were used for storing sports equipment. He would access both rooms, from time to time. He did not recall there being toilets or showers in either room. He said that the “small toilet block” he included in his statement was disused; he did not recall it being used during his time at Mount Penang. It was about 50m from the gym. He was asked about the lines in the 1959 gym plan apparently indicating the walls of shower cubicles and toilets, and asked if he recalled seeing anything approximating the position of those lines. He did not.

85. [114]

    He said that when he was supervising at the gym, if there were detainees in both the basketball area and the weights are, there would be two staff in each area.

86. [115]

    As to the Bingo shower game, Mr McInnes stated, in his witness statement:

87. [116]

    Mr Kerr commenced work at Mount Penang fin the early 1990s as a youth officer and in the late 1990s, he became a recreation officer. He could not recall which of those two positions he held in the relevant period, although contemporaneous records establish that he was primarily a recreation officer then, occasionally doing shifts as a youth worker. In a witness statement dated 24 March 2025, he stated:

88. [117]

    In his oral evidence, Mr Kerr said that when he was a recreation officer, he would be in the gym, on average, once a day, supervising detainees. He would sometimes set up equipment, which involved him accessing a locked storage room off the basketball area, which he identified from the 1980 gym plan as the room marked as the shower room on the 1959 gym plan.

89. [118]

    He confirmed his evidence that there were no toilets or showers in that storage area or elsewhere in the gym. He did not recall there being another room off the basketball area and did not recognise the room that was marked the “locker room” on the 1959 gym plan.

90. [119]

    Mr Kerr said that he was on duty at times when the community was using the gym facilities. There was “a [toilet] block next to the cricket nets”, which he presumed the community could use, although he had never been inside it and did not know if it was operational. On a map of the Mount Penang complex, he marked the cricket nets as being close to the south-eastern corner of the gym and the toilet block being on the other side of the cricket nets from the gym.

91. [120]

    He said that if there were three to four detainees in the weights room, they might be supervised by one officer, but in the basketball area, there were always two supervisors. Permission would be sought by radio from “Operations” to take three or four detainees to the weights room.

92. [121]

    Mr Charlesworth worked at Mount Penang from 1987 until it closed in about 1999. He started as a youth worker and progressed to a recreation officer in the early 1990s, being one of six recreation officers. He remained in that position until Mount Penang closed. As a recreation officer, he worked in the Mount Penang’s sporting facilities, including the gym. In an outline of anticipated evidence dated 31 July 2024 which, in his oral evidence was adopted as his evidence in chief, he recalled what he believed might have an amenities block, although he never had access to it. There was a storage room for gym equipment, and there were no baths, toilets or showers in that room.

93. [122]

    In his oral evidence, Mr Charlesworth said that supervision at the gym was not necessarily exclusively by recreation officers; other staff would also assist with supervising at the gym. It was used by the detainees after dinner.

94. [123]

    He said that in 1996 and 1997, he would enter the storage room to access sporting equipment kept there but he never entered the room that had a bolt and lock, which he presumed was “some sort of amenity block”. He did not have a key to the lock and presumed other staff did have a key. He said there was a bubbler in the weights room and at some point, one was installed in the basketball area of the gym as well. He did not recall there being a toilet block near the gym.

95. [124]

    As noted, the evidence included photocopies of 391 pages, for the relevant period, of contemporaneous daily records of the operation of Mount Penang that were created by staff, known as “muster records” or the “Muster Ledger”. The records refer to the plaintiff. He is not mentioned as being enrolled in the school but rather, he attended vocational training on small motors on 4, 10, 11, 17, 18 December 1996 and 3 January 1997.

96. [125]

    Muster records for 6, 24 and 27 November 1996 refer to a hole being drilled through a wall in the gym for a “water connection to bubbler” and water and waste water lines being built for it. A note on 8 January 1997 noted that the bubbler in the weights room was broken. The muster records refer to the cleaning out and maintenance of various toilets on the Mount Penang site, but do not mention the cleaning or maintenance of toilets or showers in the gym.

97. [126]

    The documentary material includes a disciplinary report concerning an incident involving the plaintiff that occurred on 21 November 1996 at 8.50pm in the ablutions area of the Vernon unit. He was asked by the two staff on duty to go to bed and responded with threatening and abusive language. The reporting officer wrote: “This is not the first time he has acted in this sort of way to staff”.

98. [127]

    I note a document dated 3 January 1997, addressed to prospective visitors to the plaintiff, advising them that “Detainees at Mt Penang are prohibited from smoking” and that visitors are not permitted to supply detainees with tobacco products. A case plan for the plaintiff, updated on 9 January 1997, noted that “Has only been participating in basketball, swimming”.

99. [128]

    Programs for five of the units for either 1993 or 1995 were in evidence. No program for Vernon was available, although there was oral evidence from former employees that the Vernon program was similar to that of Walpole. According to the daily routines, detainees could shower at night. The programs for Walpole and Woods in 1995 referred to the detainees being able to shower in their unit until 8.30pm, on all nights of the week. The program for the Stayner unit dated 25 September 1995 stated “9.30pm All detainees showered and in bed” for all days of the week. The program for the Carinya unit in 1993 states, for Mondays to Fridays: “8.20pm Showers ceases. Only those returning from Recreation may shower after this time”. For Saturdays: “8.00pm Showers off”, and for Sundays: “8.30pm Showers off”. The Sobraon Unit program for 1993 provided that for all days: “8.20pm showers cease”.

100. [129]

     The material includes references to the training provided to casual youth workers. A memorandum from the Executive Manager of Human Resources in the Department, dated 6 September 1995, refers to casual youth workers having an induction day followed by a five-day program. A letter from an assistant superintendent at Mount Penang to the Department’s Human Resources Manager, dated 27 April 1993, sets out some detail of the five-day training course which is followed by three observation shifts in the units, with experienced staff.

101. [130]

     The parties tendered into evidence material as to the training that staff who were operating in the relevant period may have received concerning institutional child sexual abuse, particularly as to its reporting and prevention, including minimising opportunities for it to occur. Given the circumstances of the alleged abuse, the relevance of that material was as to liability rather than the factual issue of whether the abuse occurred. There was, however, relevance in the so-called “two person” policy that operated at Mount Penang in the relevant period, that as a rule, there was to be two staff members with detainees at all times.

102. [131]

     The plaintiff was psychologically assessed by Anna Robilliard (Forensic Psychologist) on 14 June 1996, by Dr Alex Gilandas (Clinical Psychologist) on 6 November 1997 and by Brittney Keech (Clinical Neuropsychologist) on 21 August 2025. Dr Robilliard applied the Kaufman Brief Intelligence test, which yielded a composite (verbal and non-verbal) score of IQ 66, which placed him in the lowest 1 per cent of the population in terms of intellectual capacity, commonly referred to as having a mild intellectual disability.

103. [132]

     Dr Gilandas applied multiple tests, including the Weschler Adult Intelligence Scale III (the WAIS III) and the WAIS Revised, as well as the Weschler Memory Scale III. Dr Gilandas assessed the plaintiff as having a full scale IQ of 89, which placed him in the “low average” range of intellectual functioning. As to his memory processes, Dr Gilandas stated:

104. [133]

     Dr Gilandas’s findings included “severe impairment of verbal memory” and “severe impairment of delayed recall”.

105. [134]

     Dr Keech assessed the plaintiff on 25 July and 14 August 2025 by audio video link (AVL). Dr Keech referred to an assessment of the plaintiff conducted in February 2004 by Psychologist, Danuata Banachowicz, utilising the Wechsler Abbreviated Scale of Intelligence (the WASI), that produced a full scale IQ score of 72, which placed his intellectual functioning in the borderline range. In all, Dr Keech administered 12 tests on the plaintiff, including the Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV; Selected Subtests) and the Wechsler Memory Scale, Fourth Edition (WMS-IV; Logical Memory). Dr Keech assessed the plaintiff’s general intellectual skills as falling in the “Low Average” range. As to his capacity for learning and memory, she reported:

106. [135]

     The parties each retained a Consultant Forensic Psychiatrist to examine the plaintiff and provide a report as to various aspects of the matter, including the plaintiff’s reliability as an historian. Dr Martin Allan, retained by the plaintiff, diagnosed the plaintiff as having an enduring Substance Misuse Disorder, a Post-Traumatic Stress Disorder and as having “antisocial personality disorder traits”.

107. [136]

     Dr Allan was asked to comment on the plaintiff’s delay in complaint in particular: whether it was consistent with male child victims; whether the reliability of the plaintiff’s account was affected by delayed complaint; and an “increase in the detail disclosed from time to time” following the initial late complaint. In his response, Dr Allan referred to a study that was commissioned by the Royal Commission into Institutional Responses to Child Sexual Abuse that examined research into the memory of child sexual abuse as evidence. Dr Allan noted:

108. [137]

     Dr Sidorov, retained by the defendant, diagnosed the plaintiff as meeting the diagnostic criteria for: Antisocial Personality Disorder; a Borderline Personality Disorder; a Substance Use Disorder, including cannabis, amphetamines and opioids and presenting historically with episodes of drug induced psychosis; a Persistent Depressive Disorder, having experienced suicidal ideation and engaged in self-harm and suicide attempts; and likely an intellectual disability on a background of Foetal Alcohol Syndrome.

109. [138]

     Dr Sidorov noted in his report dated 7 June 2023:

110. [139]

     Drs Allan and Sidorov partook in a conclave, that produced a joint report. Two questions asked of them were as follows:

111. [140]

     In response to question 8, the conclave report recorded:

112. [141]

     Their response to question 9 was:

113. [142]

     They were also asked if the plaintiff suffered from any pre-existing psychiatric disorders when he commenced at Mount Penang. They replied:

114. [143]

     As to their diagnoses, assuming that the plaintiff’s account of the abuse is accepted, they found considerable common ground:

115. [144]

     In oral evidence, Dr Allan was cross-examined as to whether a combination of Foetal Alcohol Spectrum Disorder (FASD) and a high use of cannabis would “damage” one’s encoding, consolidation and retrieval of memory. Dr Allan replied to the effect that such a person may have difficulties with memory, but not with confabulation of memory. Rather, they may forget aspects more easily or the detail of the memory may be less. More particularly, there is no connection between FASD and misremembering an event.

The parties’ submissions as to whether the abuse occurred

1. [145]

   The parties agreed that the defendant would make its oral submissions before the plaintiff. The plaintiff did not provide its written submissions to the defendant until Senior Counsel for the defendant rose to speak. The defendant took exception to the factual accuracy of some of the plaintiff’s submissions. I permitted the defendant to file brief submissions in reply, confined to those issues.

2. [146]

   The plaintiff submitted that the evidence of Mr Gilligan and Mr Gould established the existence and layout of the shower and toilet area of the gym according to the 1959 and 1980 gym plans. The plaintiff’s evidence of the layout was to the same effect. Although the plaintiff had said that there was no door, the fact that the locked door to that area was accessible by all recreation officers, since they all had keys, rendered that memory of the plaintiff of little moment.

3. [147]

   The plaintiff submitted that over the holiday period there was scope for a casual employee to surreptitiously abuse detainees, referring to evidence from Mr Gould that there were fewer permanent staff on duty over the holiday period and thus more reliance on casual staff. The plaintiff concluded:

4. [148]

   It was submitted that staff could then:

5. [149]

   The plaintiff submitted that the proposition that detainees showered in the gym if they played sport there after dinner was logically likely, because they could not shower back in their units:

6. [150]

   The plaintiff submitted, as to Mr Gould:

7. [151]

   The plaintiff submitted that this was a “measured acceptance” by Mr Gould of the truth of the plaintiff’s allegations.

8. [152]

   The plaintiff’s evidence that the abuser used cigarettes to gain his compliance was consistent with the plaintiff being a smoker then and Mr Gould’s evidence that he was aware that some staff did supply cigarettes to detainees, despite the prohibition of smoking.

9. [153]

   The existence of a bubbler in the gym is consistent with the showers having water pipes connected to them.

10. [154]

    The plaintiff submitted that the defendant had advanced a “false memory theory” to explain the plaintiff’s allegations of abuse, and that the theory was without an evidentiary basis.

11. [155]

    The defendant maintained that the evidence established there were not toilet or shower facilities in the gym in the relevant period or alternatively, that they were not accessible to the detainees. The defendant submitted that the absence of references to the showers and toilets in the 1980 gym was evidence that they had not been built. The defendant noted that in the passage of the plaintiff’s opening submissions extracted at [31] above, evidence was anticipated to the effect that the abuse occurred in the holiday period during the daytime and that the detainees were permitted to shower in the gym because the units were locked during the day. The defendant submitted that in his evidence, the plaintiff had not stated the abuse necessarily occurred in the holiday period and he ultimately maintained the abuse happened after dinner. In any event, there was no evidence that the detainees were locked out of their units in the daytime.

12. [156]

    The defendant relied on daily contemporaneous records to establish that the witnesses who worked in management in the relevant period were actively moving about the Mount Penang facilities as part of their duties, and therefore were in a position to be aware as to what was happening on the ground.

13. [157]

    The defendant provided a detailed analysis of the witnesses’ evidence. As to the reliability of Mr Bright’s evidence, the defendant noted his time at Mount Penang was in winter, meaning it was unlikely that detainees would have preferred cold showers in the gym rather than hot showers and clean clothes if they showered back in their units. The defendant submitted that Mr Gilligan’s evidence as to the layout of the amenities area in the gym, read as a whole, is inconsistent with the appearance of that area in the 1959 gym plan and that his evidence was that there was not a shower area in the gym.

14. [158]

    The defendant submitted that the plaintiff said in his evidence that he was “positive” that Mr Richardson was one of the boys who played the Bingo shower game with him, and failed to call him even though he was on the witness list, which justified an adverse finding in respect of his anticipated evidence.

15. [159]

    The defendant submitted that the muster records corroborated the evidence of witnesses who were engaged in management in the relevant period to the effect that the daily routine was “highly structured and followed a set routine” and that the movement of detainees was “highly regulated”, as would be expected in an open institution. The records established that while there was a change in the routine over the summer holiday period, there were no changes in the level of supervision, in view of evidence to the effect that casual staff were trained. According to the muster records, Ms Pearson, Mr Kerr and Mr Charlesworth worked dates between 25 December 1996 and 1 January 1997.

16. [160]

    The defendant submitted that, consistently with observations by McHugh J in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 at 107-108, the Court should be mindful of the fallibility of memory the longer the period between the events in question and their recall and that memory may degrade or change over the passage of time.

17. [161]

    The defendant also submitted that the Court should consider whether the plaintiff’s account of the abuse is a “false memory”, as referred to in State of New South Wales v Torronen [2023] NSWCA 319 per Leeming JA at [74]. The defendant submitted that the plaintiff’s memory may be compromised so that there is:

18. [162]

    The plaintiff submitted that the defendant’s reliance on the possibility that the plaintiff had falsely, but genuinely, recalled the abuse (which the plaintiff termed a “false memory” case theory), is unsupported by the expert forensic evidence, in particular, the defendant’s cross-examination of Dr Allan as to whether a combination of FASD and heavy cannabis use at a young age could lead to false memories.

19. [163]

    The defendant denied that it was advancing a “false memory” case theory. It instead submitted that courts routinely find that a witness’s evidence may be honest but nevertheless inaccurate, and that expert evidence was not required for that exercise.

Consideration as to whether the abuse occurred

1. [164]

   In determining whether the plaintiff has discharged his onus to establish on the balance of probabilities that the abuse occurred, in particular, whether his account of that abuse is reliable, I take into account the following matters:

   1. (1)

      The plaintiff’s recollections of incidental facts that are demonstrated to be incorrect are not necessarily reflective of the reliability of the essential evidence of the fact of the abuse. Adopting the terms of s 293A of the Criminal Procedure Act 1986 (NSW): people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; trauma may affect people differently, including affecting how they recall events; it is common for there to be differences in accounts of a sexual offence; and both truthful and untruthful accounts of a sexual offence may contain differences, which includes a gap or inconsistency in the account and a difference between the account and another account.

   2. (2)

      Similarly, an absence of contemporaneous or subsequent complaint is not necessarily indicative of unreliability of the evidence of the alleged abuse. As required in criminal proceedings by s 294 of the Criminal Procedure Act, absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault. I note that males who are sexually abused as a child may be disinclined to report abuse due to feelings of guilt, shame and fear: SR v Trustees of the De La Salle Brothers (2023) 321 IR 441; [2023] NSWSC 66 at [124(2)].

   3. (3)

      The plaintiff was aged 16 years and two weeks when he entered Mount Penang. He was 16 years and about 12 weeks old when he left. He was there for 65 days. The events in question occurred 28 years ago. In TT v The Diocese of Saint Maron, Sydney and SS (No 3) (2024) 334 IR 1; [2024] NSWSC 943, Elkaim AJ stated at [220]:

   4. (4)

      The plaintiff was poorly educated, may have an intellectual disability and was not particularly articulate. Since the relevant period, he had extended periods of prohibited drug consumption. He was also an emotional witness, who at times could not easily focus on what he was being asked.

2. [165]

   Regrettably, some of the plaintiff’s submissions rested on misstatements of the evidence. While the plaintiff accepted the accuracy of the recollection of Mr Gilligan and Mr Gould as to the layout of the shower and toilet area at the gym, their recollection had little in common with the plaintiff’s diagram and evidence of the layout.

3. [166]

   It was not Mr Gould’s evidence, or the evidence of any other witness, that there were fewer staff over the holiday period. More particularly, it was the plaintiff’s own evidence that there was at least one other staff member on duty in the gym when he was abused. The evidence was that casual youth workers or recreation staff received training.

4. [167]

   No witness gave evidence to the effect that detainees who played sport at the gym after dinner were not permitted to shower in their units before they went to bed. Witnesses who gave positive evidence of that being the protocol included Mr Brummell. I note the programs of five of the units that expressly allowed the detainees to shower at night before going to bed. Again, the plaintiff himself said that when he had a shower at the gym he had the additional option of having a shower back in the unit.

5. [168]

   As to Mr Gould’s purported acceptance of the truth of the plaintiff’s allegations of abuse, it is apparent from the context of that statement that it was not an adoption of the truth of the allegation. Mr Gould was simply complying with a request of the cross-examiner:

6. [169]

   As to the submission concerning the plaintiff’s recollection that Mr Richardson played the Bingo shower game with him, the relevant passage from the trial transcript is as follows:

7. [170]

   It was my note at the time, and my recollection, that the punctuation in the first line of the above answer is incorrect, and should read:

8. [171]

   Following the production of the transcript, I raised the issue with the parties. The question and answer, which had been recorded, were played back in open court, which to my mind confirmed my view, with which the plaintiff agreed. The defendant maintained its view that the original transcript was correct. I proceed on my understanding of the evidence and disregard the defendant’s submission that an inference adverse to the plaintiff should be drawn from Mr Richardson’s absence.

9. [172]

   The first of the contextual elements to the plaintiff’s allegation of sexual abuse is whether, in the relevant period, there were shower facilities in the gym.

10. [173]

    The nine witnesses were called upon to recall an area in the corner of the gym behind a wall, if not behind a locked door, 28 years before they gave evidence. It is unsurprising that memories differed as to whether those facilities existed, particularly in the relevant period.

11. [174]

    I disregard Mr Buttrum’s evidence in his evidentiary statement to the effect that he observed boys showering in the gym. He resiled from that position, in terms that suggest that he was likely referring to showers in a different part of the Mount Penang complex, most likely in the units. It is also difficult to accept that the Director General of the Department, as he then was, would have had occasion to make that observation.

12. [175]

    I am sceptical of the evidence of Mr Bright, who went further than the plaintiff, stating that he sometimes showered in the afternoons at the gym with towels and soap provided there by the staff (the soap being retrieved from a box in the staff’s office in the gym), whereas the plaintiff’s evidence was that there were no towels and soap. As noted, no other witness gave evidence of there being an office in the gym at any stage before Mount Penang was closed down, or towels and soap being provided to detainees showering there. In any event, Mr Bright was at Mount Penang 18 months after the relevant period. Further, it is implicit in his account of routine soap and towel-catered showering in the gym that it was management-sanctioned, which was either unsupported or contradicted by all witnesses who were employed at Mount Penang at that later time.

13. [176]

    Mr Gilligan, who lived on the Mount Penang property for three and a half years, stated in his first evidentiary statement that there were no showers in the gym but modified his stance in his second statement, by which time he had been shown the 1959 gym plan. He recalled seeing shower cubicles in the gym in the 1990’s as depicted in the 1959 gym plan, although he never saw them working. He recalled and described what he could see when he entered the shower and toilet area. He recalled the area was locked off, that the recreation staff had keys to it and that detainees were permitted to use the toilets under supervision, although they were encouraged to use the toilets in their units before going to the gym.

14. [177]

    I reject the defendant’s submission that the absence of an express reference to showers and toilets in the 1980 gym plan is evidence that they had not been built. It is obvious, on the face of the 1980 gym plan, that its purpose was to display the work involved in the addition of the store room. One can see that the walls, including the walls identified in the 1959 gym plan as those of shower cubicles, exist. In that sense, it is evidence that as of 1980, at least the walls of the shower cubicles existed.

15. [178]

    Mr Gould was a witness with little memory of the gym and its facilities in the relevant period, by which time he was the most senior person in management (the manager). He did not recall there being showers in the gym, although he allowed that there could have been, but did recall there was a toilet area that was used when he was there as a youth worker, which was from 1971 to 1982.

16. [179]

    Mr Brummell’s evidence that there were no showers or toilets in the gym is to be assessed along with his other recollections of the gym layout, which included the “toilet” room in the 1959 gym plan being the weights room. This was contradicted by all other witnesses and his own hand-drawn plan, which showed the toilet room to be part of the basketball area from where there was a doorway and steps to the eastern exterior, and the weights room to be where the shower and locker room were marked on the 1959 gym plan, and as one room. I find that his evidence was unreliable as to the gym layout, including as to the question of whether there were toilets or showers there.

17. [180]

    Mr Charlesworth’s evidence was of no assistance to either party on this issue. Similarly, I found Mr McIness’s evidence of little assistance on this factual issue. Mr Kerr’s evidence was credible and to the effect that there were no toilets or showers in the gym in the relevant period.

18. [181]

    Accordingly, the witnesses I found relevant and credible on this issue were Ms Pearson, Mr Gilligan and Mr Kerr. I found Mr Gilligan to be an impressive witness whose recollection of the layout of the shower cubicles and toilet area in the relevant period was particularly persuasive and in accordance with the gym plans. I note that the use of the gym in its first year as a temporary dormitory/unit is consistent with there being toilets, showers and basins available at least in the first twelve months in the building. Accordingly, I am satisfied that there were shower cubicles in the gym in the relevant period.

19. [182]

    The next contextual element is whether in the relevant period the showers were capable of operation (albeit with no hot water) and whether the detainees, at least on occasion in the relevant period, could have used them.

20. [183]

    Mr Bright was the only witness who supported the plaintiff’s evidence on either point. I take into account the corroboration by Mr Bright of the plaintiff’s evidence that hot water was not available in the gym showers, which I regard as a detail that tends towards credibility of that aspect of their evidence. However, the reliability of his evidence is subject to the concerns I have mentioned earlier, at [80] and [175].

21. [184]

    There is no corroborating record in the documentary evidence before the Court that suggests that showering in the gym by detainees or anybody else was ever an activity known to occur or to be sanctioned by Mount Penang management. In an otherwise closely monitored and managed institution, it is difficult to accept that, if detainees sometimes showered in the gym, management was not aware of it. The plaintiff’s evidence was that there were no soap or towels. If the showers were officially used, one would expect there to have been provision of at least soap, if not also towels, and for shower cleaning arrangements to be in place. As submitted by the defendant, there is no muster or other record in evidence of showers, toilets and/or basins or bathtubs being cleaned in the gym.

22. [185]

    A prerequisite for functioning showers is the availability of piped water and drainage in the gym, at least in the basins for detainees to access water while exercising. The construction of a bubbler in the gym complex in the relevant period is not determinative of that issue, but at a minimum, it is consistent with the detainees not having casual access to the shower/toilet area for drinking water.

23. [186]

    I accept the evidence of Mr Gilligan that the toilets in the gym were operable in the relevant period. I note the corollary finding that water and sewerage was connected to that area. However, I am unable to determine whether the shower facilities were also operable, for example, whether they had taps and shower heads or that the cubicles were not being used for storage.

24. [187]

    I am satisfied, however, that even if they were operable, detainees were not permitted to use the showers in the gym.

25. [188]

    No witness gave evidence of there being a bathtub, or bathtubs, anywhere in the gym. Witnesses who had been in the shower/toilet area, who were asked if there was a bathtub in the gym, denied that there was a bathtub there.

26. [189]

    Consideration of factor (e) involves an assessment of the plaintiff’s account of the layout of the shower/toilet area and its relationship to the two primary spaces in the gym (the basketball area and the weights room) against the evidence from other sources of the layout of that area.

27. [190]

    As noted, the plaintiff accepts that the 1959 and 1980 gym plans are accurate as to the layout of the shower and toilet area in the gym and that there were two sides to the main part of the gym, one having a basketball court and the other being a weights room. Having regard to the layout when the gym was constructed in 1960 as portrayed in the 1959 gym plan and the consistency of the shower and toilet areas in that plan with the outline of the shower/toilet area in the 1980 gym plan, and Mr Gilligan’s evidence as to what he saw in that area, I am satisfied that the plans accurately depict what was in the south-east corner of the gym in the relevant period. Mr Gilligan effectively confirmed the layout as in the 1980 gym plan when he described what one would see when walking through the doorway from the basketball area into the shower and toilet area, summarised at [88] above. As noted, having regard to those plans and the evidence of the witnesses generally, I am satisfied that the room that was added in accordance with the 1980 gym plan and labelled “store room” was what came to be known as the weights room.

28. [191]

    I am satisfied that entry to the shower/toilets area was only available through a door, normally locked, from the basketball area. Upon entry, the showers were in a single room immediately on the right and the toilets were to the left. According to the plans, there were three shower cubicles in the far corner of the shower room.

29. [192]

    The plaintiff’s account, as extracted and summarised at [42]–[48] above, was that there was no door in the doorway between the basketball area and the shower and toilet area. When one passed through that doorway, one entered a hallway with a row of at least four shower cubicles on the left. The toilets were at the end of the hallway, in the second room on the right. On the plaintiff’s account, rather than there being two rooms in the shower and toilet area, there were four, and instead of one access point, there were two, possibly three; there was a doorway entry point from the weights area as well as from the basketball area, and possibly also from the end of the hallway, presumably to the exterior of the gym. There were four rooms altogether.

30. [193]

    Accordingly, I find that the plaintiff’s evidence of the layout of that area is not credible.

31. [194]

    None of the witnesses who worked at Mount Penang had heard of the Bingo shower game, as described by the plaintiff. Some witnesses (Mr Buttrum, Mr Gould and Mr McInnes) considered that detainees playing a masturbation game, per se, was credible, but that if a staff member was a participant, they would have heard of it.

32. [195]

    I accept that evidence. It is highly improbable that if the Bingo shower game had been played with a staff member, the detainee participants would not have told others and that word would have quickly spread among the detainees and, ultimately, come to the attention of staff.

33. [196]

    I am satisfied by contemporaneous documentation that in the relevant period smoking by detainees was banned. Having regard to the evidence of Mr Gould, I am satisfied that staff occasionally supplied cigarettes to detainees in the relevant period, even though it was not permitted. The plaintiff informed Dr Sidorov that he started smoking tobacco at age 13. The plaintiff’s evidence that he sought and accepted cigarettes from staff is credible.

Determination as to whether the abuse occurred

1. [197]

   I put to one side the plaintiff’s evidence of the layout of the shower and toilet area, including the number of cubicles (and therefore his evidence as to the minimum number of detainees who played the Bingo shower game); his vacillation between the abuse occurring in afternoon and evening sessions in the gym; and his claim that he wiped his memory of the events for 18 years but at the same time was angry with his abuser for what he did, in deference to the considerations that I identified at [164] above.

2. [198]

   As noted, I am of the view that detainees were not permitted to routinely shower in the gym in the relevant period. An alternative scenario is that the plaintiff and other detainees did shower in the gym, although that was not officially known or sanctioned, perhaps because of reduced oversight, discipline and accountability due to there being casual staff over the summer holiday period, or because it was engineered by the perpetrator. However, I note the evidence to the effect that casual staff, whether youth workers or recreation officers, received training, and the absence of evidence to the effect that when casual staff were employed, there was a drop in the level of supervision or work protocols (although Mr Gould allowed that there may have been a preference with recreation officers for sporting prowess rather than their familiarity with management operations at Mount Penang).

3. [199]

   The hypothesis that the perpetrator permitted the detainees to shower there unbeknown to other staff and management, perhaps to enable his subsequent abuse, is also unlikely in view of aspects of the plaintiff’s own account that the shower abuse occurred while there was at least one other staff member on duty in the gym complex. There is no suggestion in his account that staff other than the abuser were complicit in the facilitation of the Bingo shower game or the one on one abuse.

4. [200]

   I accept the oral evidence of former staff members that it was rarely the case that a staff person would be alone with detainees, and only after obtaining radio permission from management. I accept the tenor of the muster and other operational records to the effect that detainees at Mount Penang were closely supervised, in part because the detention centre did not have a perimeter fence. Indeed, it was an open institution. For those reasons, I reject the alternative scenario.

5. [201]

   The essence of the plaintiff’s account is that the shower abuse occurred while the plaintiff and at least four fellow detainees were showering in the gym after sport. On at least two such occasions, a staff member pulled down his shorts and masturbated in view of them while they were also masturbating, in close proximity to at least one other staff member and other detainees, who could enter that area at any time. No aspect of that scenario is corroborated (other than the unreliable evidence of Mr Bright that when he was there 18 months later, detainees would shower in the gym) and it is inherently improbable. I am not satisfied that the shower abuse occurred.

6. [202]

   The plaintiff’s account of the one on one abuse is closely associated with the shower abuse, in that the permissive relationship, in an institutional disciplinary sense, and the sexual relationship between the plaintiff and the abuser, is said to have developed from it. For that reason, the unlikelihood of the shower abuse having occurred also undercuts the reliability of the plaintiff’s evidence as to the one on one abuse.

7. [203]

   A further concern in relation to those alleged incidents is that the plaintiff recalls them happening in a room in that area of the gym in which there was a bathtub, or bathtubs. According to both gym plans, there were two rooms in that area. Neither plan shows a bathtub in either room, there is no witness other than the plaintiff who says otherwise and multiple witnesses who were former employees deny that there was ever a bathtub in the 1990s anywhere in the gym. I am satisfied that in the relevant period, there was not a bathtub in any part of the gym or, for that matter, in the shower area of the Vernon unit. I am not satisfied that the one on one abuse occurred.

8. [204]

   For these reasons, the plaintiff has not established that he was abused as pleaded in his ASOC. It is neither possible on the evidence before the Court nor necessary to conclusively determine whether the plaintiff’s account is a genuinely held belief or confabulation. I do not propose to venture beyond a finding simply that the plaintiff has not discharged his onus to establish, on the balance of probabilities, that the pleaded abuse in fact occurred.

9. [205]

   Accordingly, the amended statement of claim filed in Court on 21 October 2025 is dismissed.