R v McIver [2019] NSWDC 672

District Court New South Wales

Medium Neutral Citation: R v McIver [2019] NSWDC 672 Hearing dates: 5 August 2019 – 19 August 2019 Date of orders: 13 September 2019 Decision date: 13 September 2019 Jurisdiction: Criminal Before: N Williams DCJ Decision: Judge alone judgment – Convicted of 2 counts of indecent assault – convicted of 2 counts of buggery – not guilty of 1 count of assault occasioning actual bodily harm – not guilty of 1 count of assault Catchwords: Historical child sexual assault; Bexley Boys Home; Salvation Army; common assault; assault occasioning; lawful chastisement Legislation Cited: Crimes Act 1900 Criminal Procedure Act Cases Cited: R v Trudgett [2008] NSWCCA 62 Williams v R [2019] NSWCCA 53 Category: Principal judgment Parties: Regina (Crown) John Dalziel McIver (Accused) Representation: Counsel: Mr K. Gilson (Crown) Ms L. McSpedden (Accused)

Solicitors: Ms J. Yates (Crown) Mr E. Rowe (Accused) File Number(s): 2016/00326970, 2017/00172183 Publication restriction: Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys Home save for Trevor Hubbard and Ian Hubbard.

Judgment 1. HER HONOUR: Judgment in the matter of R v JOHN DALZIEL MCIVER, trial by judge alone, charged with 1 count of assault occasioning actual bodily harm, 5 counts of indecent assault, 1 count of common assault, 1 count of buggery with an alternate count of indecent assault and 1 count of buggery. 2. Pursuant to s 132 of the Criminal Procedure Act the accused JOHN DALZIEL MCIVER, elected to be tried by judge alone. The Crown agreed and the matter had been decided before the trial was allocated to me on 5 August 2019. 3. I am therefore both the tribunal of law and the tribunal of fact. Section 133 of the Criminal Procedure Act requires that I state the principles of law to be applied and record the findings of fact upon which I rely. 4. I will in the course of my judgment set out the warnings and principles of law to which I have had regard. 5. These largely reflect the directions that I would usually give to a jury in any such matter as the one before me. 6. I turn now to the charges and particulars. 7. On 5 August 2019 the accused was arraigned on an indictment with 10 counts referable to 4 complainants. 8. The counts included both sexual and personal violence offences contrary to provisions in the Crimes Act 1900. The accused was charged as follows: