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: COUNT 1 1. "That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales he did assault AM thereby occasioning to him actual bodily harm" pursuant to s 59(1) of the Crimes Act 1900. 2. The allegation supporting this count was that the accused pushed the complainant over in the shower area at the Bexley Boys Home causing him to fall on a wash trough and lacerate his eye which required stitches. COUNT 2 1. "That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales did indecently assault AM, a male", pursuant to s 81 of the Crimes Act 1900. 2. The allegation supporting this count was that the accused made the complainant bend over in the shower area and grabbed the complainant on the buttock cheek. COUNT 3 1. "That between 8 November 1968 and 15 January 1971 at Bexley in the State of New Wales he did indecently assault GW, a male", s 81 of the Crimes Act 1900. 2. This count was the subject of a directed verdict at the close of the Crown case. COUNT 4 1. "That between 8 November 1968 and 15 January 1971 at Bexley in the State of New South Wales he did indecently assault GW, a male", s 81 of the Crimes Act 1900. 2. This count too was the subject of a directed verdict at the close of the Crown case. COUNT 5 1. "That between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales the accused did indecently assault DC, a male", pursuant to s 81 of the Crimes Act 1900. 2. The allegation was that the accused made the complainant bend over and part his buttock cheeks. The accused then moved his hand over the complainant's anus. COUNT 6 1. "Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did assault CN" pursuant to s 61 of the Crimes Act 1900. 2. This allegation was that the accused kicked the complainant in the shins and grabbed him by the scruff of the neck on an occasion when the complainant was annoying the accused's dog by playing a mouth organ. 3. It should be noted that the complainant gave evidence that the assault was a clip under the ear. COUNT 7 1. "Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN, a male", s 81 of the Crimes Act 1900. 2. This count was the subject of a directed verdict of not guilty at the close of the Crown case. COUNT 8 1. "Between 17 July 1968 and 15 January 1978, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900, and in the alternative to count 8; COUNT 9 1. "Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN", a male pursuant to s 81 of the Crimes Act 1900. 2. The allegation supporting count 8 was that the accused inserted his penis into the complainant's anus in the officer's cottage, and count 9 in the alternative, that the accused inserted something other than his penis into the complainant's anus. COUNT 10 1. "Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900. 2. The allegation supporting this count was that the accused inserted his penis into the complainant's anus in the locker area of the boys' home. ARRAIGNMENT 1. The accused pleaded not guilty to all counts on the indictment. ELEMENTS OF THE OFFENCES 1. The essential elements for each of the offences were contained in MFI 16 to which the parties have agreed is correct. 2. The elements and further content of that document is formerly incorporated into these reasons and of course is a fundamental guide to my judgment along with the annotated indictment which was before me as MFI 2. 3. I refer now to count 1, the s 59 charge of the Crimes Act 1900. 4. The essential elements or ingredients or facts that the Crown had to prove beyond reasonable doubt are, firstly, that the accused assaulted the complainant, and secondly, thereby occasioning him actual bodily harm. 5. With respect to counts 2, 5 and 9 pursuant to s 81 of the Crimes Act the essential elements or ingredients or facts that the Crown has to prove beyond reasonable doubt are that, firstly, the accused assaulted the complainant and that the assault was itself indecent. 6. With respect to count 6 pursuant to s 61 of the Crimes Act the essential elements, ingredients or facts that the Crown has to prove beyond reasonable doubt are that the accused assaulted the complainant, although not occasioning actual bodily harm. 7. Sections 8 and 10 of the Crimes Act, the essential elements or ingredients or facts that the Crown has to prove beyond reasonable doubt is that the accused engaged in an act of buggery with the complainant. 8. I turn now to definitions. 9. Assault means the deliberate striking, touching or application of force to the complainant. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. 10. Actual bodily harm means the term bodily harm is to be given its ordinary meaning, and includes any hurt or injury which interferes with the health or comfort of the victim but need not be permanent, but must be more than merely transient or trifling. 11. Buggery means that the accused penetrated the anus of the complainant with his penis. 12. Indecent means contrary to the ordinary standards of respectable people in the community. For an assault to be indecent it must have a sexual connotation or overtone. 13. I turn now to the issues that were placed before the Court in the course of the trial. 14. The accused challenged the evidence of the complainants and denied that he committed any sexual or physical act on any of them. 15. It was the accused's case that if sexual or physical assaults were occasioned to any complainant, those acts were perpetrated by somebody else and each complainant had necessarily incorrectly nominated the accused as the perpetrator. 16. With respect to the counts of assault and assault occasioning actual body harm, whilst the accused denied ever striking either the complainant in the manner alleged nonetheless he maintained that for any such act committed in the alleged circumstances of either allegation the Crown must rebut lawful chastisement. 17. Cross-examination of DC addressed issues of contamination and his motive in the light of his attempts for the payment of additional compensation from the Salvation Army. He had sought this additional compensation for the shortcomings in his education that he believed he suffered as a result of his time at the Bexley Boys Home. 18. Issues of misplaced animus held by the two complainants AM and CN towards the accused for the death of Trevor Hubbard were also placed squarely in issue in the course of the trial. 19. The evidence of CN was put in issue given his length history of drug and alcohol abuse and longstanding mental health issues associated with PTSD. 20. Identification and/or recognition were also squarely placed in issue by the accused. 21. I turn now to counts 3, 4 and 7 upon which I directed verdicts of not guilty. 22. After the conclusion of the evidence of GW the Crown conceded that due to a lack of specificity in his evidence, in particular with respect to S-type problems, count 3 and 4 should be a verdict of not guilty by direction. Accordingly, I directed myself with respect to a directed verdict of not guilty on counts 3 and 4 of the indictment. There was no opposition to that course by the defence. 23. After the conclusion of the evidence of GN the Crown also conceded that count 7 should be subjected to a verdict of not guilty by direction given that the complainant did not give any evidence that could support count 7. There was no other evidence to support that charge. 24. Accordingly, I directed myself with respect to a directed verdict of not guilty on count 7 on the indictment. There was no opposition to that course by the defence. BACKGROUND OF THE FACTUAL MATRIX 1. The allegations concern a period of time from July 1968 until January 1974 when the accused was for two discrete periods of time a member of staff at the Bexley Boys' Home. 2. The Bexley Boys' Home was run by the Salvation Army. It provided accommodation for up to 100 boys aged between five and about 16 years. The resident boys were either generally wards of the State or had been left in the care of the boys' home by their family as they were unable to look after them. 3. Exhibit 4 was what was referred to as a Gantt style chart, indicates that the accused was posted to the Bexley Boys' Home for two periods; the first one commencing on 18 July 1968 and finishing on 14 January 1971, and a second period which commenced on 20 January 1972 and finished on 17 January 1974. 4. Exhibit 4 also indicated times that various boys were resident in the home and other relevant staff members' postings. 5. While posted to the Bexley Boys' Home the accused was provided with accommodation in the assistant manager's cottage which was located within the grounds of the boys' home. 6. This was clearly marked on exhibit 1 as the assistant manager's quarters. Those premises comprised a two bedroom cottage situated close to the main building and dormitories of the boys' home. 7. I turn now to the directions of law in a judge alone trial. 8. The accused has pleaded not guilty and elected to be tried by judge alone. Accordingly, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return verdicts according to the evidence. 9. The burden of proving every element of a charge and the guilt of the accused rests firmly and only on the Crown. The burden of proof of course rests on the Crown and does not move. 10. There is no onus of proof on the accused at all. 11. I have had the benefits of submissions from the Crown Prosecutor and the accused's counsel. They were careful and fulsome. I note of course that they are not evidence. I have considered each party's submissions on how I should approach the evidence and the particular areas of which I should pay particular scrutiny. 12. I have considered the party's submissions; particularly Ms McSpedden's careful submissions on behalf of the accused with respect to what she says are the significant frailties and shortcomings of each of the complainants' evidence. 13. I have closely reviewed all of the evidence including viva voce evidence of witnesses called before the Court, documents and photographs, both ERISPs that the accused participated in with police, and of course the evidence of the accused and in his case. DIRECTIONS OF LAW SEPARATE COUNTS 1. The accused was being tried initially on 10 counts with 7 remaining (after the directed verdicts) counts jointly. 2. The charges are being heard together as a matter of convenience. There is no tendency evidence. 1. I repeat and underline there is no tendency evidence and I have not taken any such matter into account. 2. I must consider each count separately which means that I would be entitled to find the accused guilty on one count or more counts, and not guilty on another or others if there is a logical reason for that outcome. 3. Whilst each charge must be considered separately, there must be a logical consistency in the result. IMPARTIALITY, PREJUDICE, SYMPATHY, ANTIPATHY 1. In my role as the tribunal of fact I must evaluate the evidence in an impartial and dispassionate way. I do not leave my common sense at the door and I should have regard to my understanding of people in human affairs. 2. I do not act on suspicion no matter how grave nor do I act on what I think probably might be the case. 3. I direct myself that I must put aside any sympathy or antipathy that I may have for anyone involved in the trial. I must put aside any prejudice I might have, including any prejudice regarding the subject matter of the counts on the indictment. 4. I must also put completely aside any publicity about similar allegations in other cases. Any media reports of the Royal Commission into Institutional Responses to Child Sexual Abuse, both generally and to any extent that they may relate to allegations against the Salvation Army or this accused. They are not relevant to my task and I entirely disregard such knowledge that I do have. 5. I remind myself that as the tribunal of fact I must approach the issues in this trial dispassionately and objectively. 6. My findings and ultimate verdicts must be based only on the evidence that has been properly put before me in the trial. To do otherwise would be contrary to my significant and solemn responsibility that I have to return verdicts according to the evidence. ASSESSMENT OF WITNESSES 1. I direct myself that I may believe the whole of what a witness says I may disbelieve the whole of what a witness says or I may believe a part and disbelieve another part of a witness's evidence. 2. It goes without saying that a witness may be honest and accurate, honest but mistaken or dishonest in relation to any one or more aspects of the witness's evidence. 3. Each witness has given evidence about events that they have remembered. A person's memory may depend upon a number of different factors including that person's capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail and the capacity to recall a memory and articulate it. 4. The subject matter of an event is also relevant to memory and its reliability. Some events themselves are of little or no consequence, and any memory of that event may be retained only for a short time. On the other hand others are of greater importance and accordingly one might remember it for a relatively long time, although over time aspects of the detail of the memory or the parts one considers to be of no real consequence might fade. All of these factors derived as a matter of common sense and human experience might impact on what someone can remember of an event or how clearly they might remember it. 5. My task in relation to the evidence of a particular witness is to decide whether I consider their evidence to be sufficiently reliable such that I can act upon it to the very high standard required by the criminal law, being proof beyond reasonable doubt. Reliability is said to depend upon two quite different but overlapping factors; one factor is a witness's honesty, and the other is the witness's accuracy. There are many factors which can have a varying upon a witness's honesty. In considering the question of honesty I might consider the impression the witness made upon me. Demeanour and impression are important valid factors to take into account. 6. I could ask myself did a particular witness impress me as somebody doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? 7. Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was being asked? 8. Did the witness strike me as being objective and impartial or did the witness strike me as appearing to have an axe to grind, or to be colouring his or her evidence in some way? 9. Did the witness concede that he or she had lied in their evidence? 10. Of course demeanour and impression are matters that I am entitled to take into account. Nonetheless I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. These observations of course apply equally to prosecution and defence witnesses' demeanour and impression alone did not determine the honesty or accuracy of the witness's evidence. 11. If I conclude that a particular witness has been doing his or her best to be honest I would need to be moved to the second aspect of reliability which relates to a witness's accuracy. A witness can be perfectly honest and accurate or perfectly honest yet completely or partially inaccurate. 12. To determine how accurate a particular witness's evidence is I may look to a number of factors. For example, how careful was the witness's observation with respect to the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event or affected by any emotions such as stress, panic or fear that may have impacted upon their powers of observation and the laying down of an accurate memory in the first place. How old was the witness at the time? How long ago were the relevant events? 13. How important to the witness might surrounding details of an incident or event have been such that the witness focused on committing to his or her memory all aspects of the event as opposed to what the witness perceived to be the significant part of the event? Has the witness provided a consistent account of the incident of the event? 14. They are all matters that I take into account in considering those issues. BEYOND REASONABLE DOUBT 1. This is a criminal trial and the burden of proving the guilt of the accused was firmly on the Crown. That onus of proof relates to every element of each of the offences charged. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt beyond reasonable doubt in relation to the counts on the indictment. 2. The words beyond reasonable doubt are to be given their ordinary English meaning. 3. Our system of justice provides that persons tried in our courts are presumed innocent unless and until they are proven guilty by the Crown beyond reasonable doubt. I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes then the appropriate verdict is not guilty. If the answer is no the appropriate verdict is guilty. That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove each and every single fact or issue beyond reasonable doubt. The onus is on the Crown to prove all of the elements of the offence, the subject of each individual charge, beyond reasonable doubt. INFERENCES 1. My role as judge of the fact extends beyond concluding whether or not any particular fact has been established by the evidence. As the judge of the fact my role extends to drawing reasonable inferences or conclusions drawn from the facts I find established. I note that the words inference and conclusion are interchangeable. 2. In a criminal trial I must be satisfied of the guilt of the accused beyond reasonable doubt. That means of course, amongst other things, that I should be extremely careful about drawing any inference. I am to examine any possible inference to ensure that it is a justifiable inference. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. SPECIAL CONSIDERATION OF COUNTS 1. As noted above, I must consider each count separately. I must not simply determine whether the Crown has proved the accused's guilt on the charges in a global or collective way. Giving separate consideration to each count on the indictment means I am entitled to bring in different verdicts in relation to different counts. However, as noted above, different verdicts on different counts must be based on a logical and reasoned approach rather than as a result of caprice or an arbitrary or random approach. 2. As I separately consider each count I must look at the evidence which specifically relates to the counts then under consideration, and make a determination with respect to that count upon it before proceeding to the next count. MARKULESKI 1. As noted above I must consider each count separately. I noted that giving separate consideration to each separate count on the indictment means I am entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. So if I would find the accused not guilty on any count or counts on an indictment, particularly if that was because I had doubts about the reliability of a particular complainant's evidence I would have to consider how that conclusion affected my consideration of any other counts pertaining to the same complainant, because an issue critical to the determination of each of these matters is the reliability of the particular complainant's evidence. 2. The complainant and CN are two complainants in respect of whom there is more than one count charged. Accordingly this direction pertains to my consideration of their matters. RELIABILITY 1. I turn now to a direction regarding the evidence of each of the complainants. I must examine their evidence carefully and satisfy myself that they are reliable witnesses, that is that they are honest witnesses and witnesses who are accurate in vital respects. 2. I must examine and evaluate the evidence of each complainant in light of any criticism that has been made of it. It is only after such careful scrutiny and evaluation, and if I am satisfied beyond reasonable doubt that evidence in reliable as to the elements of the particular charge I am considering, that I can find the offence proved. 3. In determining whether the Crown has established its case in respect of a particular count on the indictment as I separately consider each count I must also consider any evidence that I find proven that may support or contradict the accounts given by the complainant to whom the particular count under consideration relates. 4. One of the complainants has been subject to abuse by people other than the accused during their childhood. Some of them have also suffered from mental health and related issues, including resorting to drugs and alcohol as a way of coping with the traumas of their developmental years. At least one of the complainant's has pursued compensation from the Salvation Army in respect of their experiences at the Bexley Boys' Home. 5. Of course it is a matter of human experience that suggests that each of these types of matters can influence in a number of ways the recollection of witnesses and the evidence that they may give with respect to those recollections. I must be very mindful as to the existence of these considerations in my assessment of the evidence of individual complainants to whom they might relate and approach the evidence with appropriate caution where they exist, the possibility that factors such as these may affect the reliability of the complainant's evidence. Specifically, the matters outlined above may have affected adversely a complainant's capacity to lay down an accurate memory in the first place, or affected his capacity to accurately recall the events about which evidence is given. These factors may have led a complainant to becoming convinced of an inaccurate version of events. A witness may have been influenced by a number of factors to reconstruct a memory out of a multitude of recollections of varying or questionable accuracy. 6. I must therefore scrutinise with care each complainant's evidence having regard to these factors. I must be satisfied that he is not just an honest, but he is also a sufficiently accurate witness in the accounts he has given. 7. In any criminal trial there are factors that may impact on the witness's reliability that witness's evidence must be approached with caution because of the onus and standard of proof placed upon the Crown. 8. I do not suggest that there is no entitlement to convict an accused upon the evidence, even the uncorroborated evidence of any complainant. Clearly I am entitled to do so, but only after I have examined the witness's evidence and satisfied myself that it is reliable beyond reasonable doubt. 9. In considering the evidence of each complainant and whether it does satisfy me of the guilt of the accused to the requisite standard I must of course look to see if it is supported or contradicted to any extent by other evidence. FORENSIC DISADVANTAGE 1. I must give myself a warning relating to the issue of delay in the complaints being made in this case. 2. I must appreciate fully the effects of delay and ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. 3. The disadvantages in the context of this particular case included the following: i. The loss of evidence with the effluxion of time, including the loss or destruction of documents and records that might be pertinent to the prosecution or defence, to the prosecution or defence of the allegations; ii. The death of a number of witnesses; iii. The fading or interference with memory or the accuracy of memory through the effluxion of time. 1. These difficulties loom large in this case and put the accused at significant disadvantage in responding to the prosecution case, either in testing prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both. 2. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been. 3. Had the allegations been brought to light and the prosecutions commenced much sooner it would be expected that each complainant's memory for details would have been clearer. This may have enabled the evidence to be checked in relation to those details against independent sources so as to verify it or disprove it. 4. Each individual complainant's inability to recall precise details of the circumstances surrounding the incidents make it difficult for the accused to throw doubt on the evidence by pointing to circumstances which may contradict it. Had the accused learnt of the allegations at a much earlier time he may have been able to recall the relevant details which could have been used by his counsel in cross‑examination of the complainants. 5. Another aspect of the accused's disadvantage is that had he learnt of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at a particular time, and to have been able to bring forward evidence to support him. 6. The accused has been put in a situation of significant disadvantage; therefore he has been prejudiced in the conduct of his defence on each count. 7. As a result I warn myself that before I convict the accused on any count I must give the prosecution case in respect of that count the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about, for example, the fact that a complainant's evidence has not been tested to the extent that otherwise it could have been, and the inability of the accused to bring forward evidence to challenge it or support his defence. COMPLAINT EVIDENCE 1. The Crown does not rely in any of these matters on complaint evidence. The absence of complaint does not necessarily mean that the allegations are fabricated. 2. Neither absence of complaint or delay in complaint necessarily means that the allegations made by the complainant in each case are made up. There may be good reason an individual would fail to complain or delay many years before making a complaint. 3. A failure of timely complaint must be viewed in the context of each complainant at the relevant time being a child who was then what was described as an inmate of an institution run by a religious organisation conducted with a military like presentation. 4. In those circumstances it is not unsurprising or unreasonable that there was an absence of complaint. It does not follow that the allegations are false simply because there was an absence or delay in complaint. 5. In considering what may be expected from a child as a consequence of sexual offending I am mindful that there is no correct way to respond. The response of an individual is guided by many factors. It may be influenced by age, by familial support, by the identity of the perpetrator and the relationship to that person and the circumstances in which the alleged offending occurred. 6. In considering the absence of each complainant I take into account their age and personal circumstances at the time. The failure to complain must be viewed in the context of the period concerned, and each complainant being a child who was effectively in an institution. MOTIVE TO LIE 1. A question may be asked in each case as to why the complainant would make up such serious allegations against the accused. Accordingly I give myself the following direction about that question. 2. It would be wrong to conclude that the complainant whose evidence I am considering is telling the truth because there is no apparent reason in my view for him to lie. People lie for all sorts of reasons. Sometimes this is apparent, other times it is not. Sometimes the reason is discovered, other times it is not. 3. This direction flows from the basic legal proposition in any trial that the Crown who brings the case must prove its case beyond reasonable doubt and the accused does not have to prove anything. 4. When the defence directly assert a lie was told by the complainant an accused person does not have to prove that the complainant had a motive to lie or what that motive might be. My task does not include speculating about whether there is some reason why the complainants would lie. 5. At all times before I can find the accused guilty of a particular count I must be satisfied beyond reasonable doubt of the reliability and honesty of the evidence of the complainant to which that count relates. THE ACCUSED GIVING EVIDENCE 1. The accused gave evidence in this trial. His account in the witness box was given subject to an affirmation made by him to tell the truth, and he was exposed to cross-examination. 2. The accused, as any person accused of a serious criminal activity, has a right to silence. He was under no obligation to give an account to the police and he was under no obligation to give evidence in this trial. 3. An accused person does not have to prove anything. This flows again from the basic principles that he is presumed innocent and it is for the Crown to prove the allegation beyond reasonable doubt. 4. Having decided to give evidence the accused became a witness. I am entitled to assess what he said and the way in which he said it in the same way that I assess all witnesses who gave evidence. I may accept all of what he said, reject parts and accept other parts of his evidence or reject everything that he said. 5. However, it is most important that I bear these directions in mind: i. The fact that the accused chose to give evidence in this trial and that he chose to give an account to police in two recorded interviews after his arrest does not mean that the onus of proof shifts from the Crown to the accused; ii. The accused bears no onus to prove that he is not guilty, he is presumed innocence. It is always the Crown who bears the onus of proving its case; iii. I should clearly understand that it is not a contest between whether I prefer the evidence of the complainant or the evidence of the accused in my consideration of any individual count. It is not a contest because the onus of proof is not on the accused to prove anything; iv. It is evident that if in this Court there is a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove in respect of one or more counts, then I am bound in law to bring a verdict of not guilty on that count or counts; v. It is not the position that I have to believe that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised, the Crown must establish beyond reasonable doubt the charges which it brings against the accused, and it is never for an accused to prove that he or she is not guilty. vi. Even if I were to reject the accused's account or important aspects of it, before I could find him guilty on any particular count I must be satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence charged by the particular count I am considering. CHARACTER 1. Detective Sergeant Warren gave evidence that the accused has no criminal record. It is accordingly open to me to find that the accused is a person of good character. If I do so conclude the law provides that the accused is entitled to have me take that good character into account in his favour in the following way. 2. The fact that the accused is a person of good character entitles me to consider the improbability of his having committed the offences alleged. In other words, it is a matter I may take into account when asking myself in relation to any particular count whether the Crown has satisfied me beyond reasonable doubt of his guilt on that count. 3. Further, I can use the fact that the accused is a person of good character to support his credibility. It is the reason that a person of good character is less likely to lie or give a false account either in giving evidence or giving an account of the events in answer to questions asked by the police. 4. None of this means of course that good character provides the accused with some kind of defence. Obviously enough people commit crimes for the first time and people with prior good character can and sometimes do commit serious crimes. But good character is nonetheless one of the many factors which I am entitled to take into account in determining whether the Crown can satisfy me beyond reasonable doubt as to his guilt in respect of any count. Like everything else concerning assessments of the facts in this matter, this is something for me to assess using my common sense and experience of world and human behaviour. CLOSING ADDRESSES 1. Both the Crown and Ms McSpedden for and with the accused put arguments to me about the evidence. 2. The closing addresses are not evidence. However, I should have and I have had regard to each closing address and the arguments made. 3. It is a matter entirely for me as the tribunal of fact as to whether I accept or reject those arguments. I have had the advantage of the transcript of closing addresses and whilst I have had close regard to them, I do not propose to set out in argument the submissions made on behalf of the parties in my judgment simply because of the length already of the document. INDIVIDUAL COUNTS IN THE EVIDENCE OF THE COMPLAINANT'S 1. In the case of each count the Crown's primary witness was the complainant himself. There is nothing corroborative of the complainant's evidence in any individual case. 2. Accordingly, the central features of these matters before me which are affectively discrete trials being heard together for convenience, is that in order to convict on any one count I would need to be satisfied beyond all reasonable doubt of the truthfulness and accuracy of the particular complainant to whom that count relates. 3. There is no evidence in support of the allegation of each of the complainant's, save for the generally obvious physical descriptions of where they say things occurred and the generally daily routine of the Bexley Boys' Home. 4. There is no eyewitness and no physical evidence that one might expect or sometimes at least see. There is no complaint evidence that might fortify an assessment of the credibility or reliability of any one of the complainant's in the way evidence of that type may work. FORENSIC DISADVANTAGE 1. As noted by the Crown and I have noted this is a case where the forensic disadvantage caused by delay is significant. 2. The officer in charge of the investigation, Detective Sergeant Nigel Warren, engaged in a thorough, exhaustive and careful attempt to gather all available evidence that might be relevant to the prosecution or defence of the allegations. 3. As the Crown submitted, Detective Sergeant Warren left no stone unturned in trying to locate witnesses and physical evidence. Notwithstanding his considered and considerable efforts after a lapse of at least four decades and in some case closer to five, it has been impossible to avoid the consequences that are inevitable through the loss of evidence. 4. There are records missing that might have assisted one side or the other. For example, school reports, hospital records, rosters of the Bexley Boys' Home and possibly other records for example, Salvation Army records. Numerous witnesses have died, some of them potentially of considerable significance including Mr Stan Morton and Mr Lionel Bray, both former managers of the boys' home as well as other former officers, employees and residents of the home. 5. Alongside the loss of evidence in the manner just described above, there has been of course the inevitable fading of memory that necessarily accompanies the passage of so much time between the relevant events in their hearing in a court of law such as this. That fading memory has been a feature of the evidence of every witness called in each of the matters including of course the accused. IDENTIFICATION AND RECOGNITION 1. Each of the complainants identified the accused as the perpetrator by name based upon their stated familiarity with him at the time. 2. Each purported to recognise the accused at the time of the alleged conduct based upon previously knowing him by appearance and name. Other observations by other former inmates were alleged to have been made of the accused. 3. There are only about six or seven male officers or staff members employed within the institution during the relevant periods being Mr Bray, Mr Stan Morton, Mr Ken Beer, Mr Chris Cole, Mr T Smith, a relieving member who could not be identified by name, but was possibly known as Uncle Col and the accused and possibly another person by the name of Wilson or Wilkinson. 4. It was submitted on behalf of the accused that a direction on identification was required when considering the evidence of the complainants. It was submitted that the complainants have made an erroneous identification. 5. A witness may err when purporting to recognise a person previously known to them and a special caution should be exercised before accepting recognition evidence as it falls within s 116 of the Evidence Act. See for example R v Trudgett [2008] NSWCCA 62 and Williams v R [2019] NSWCCA 53. 6. In considering this special caution the experience of criminal courts over the years has demonstrated that identification evidence may turn out to be unreliable. 7. I must carefully consider the circumstances in which each witness made observations purportedly of the accused, as the circumstances in which the witness made his or her observations can affect reliability of identification evidence. 8. This includes giving consideration to the familiarity prior to the observed incident, the circumstance of the occasion of the observation and any discrepancies in the description. 9. In undertaking this task and mindful for the need for caution, I note that the description provided by witnesses was provided well after the alleged interaction. 10. It was not challenged that the accused would have been known to some extent to each of the relevant witnesses, given his employment at the time at the institution that they were resident at the Bexley Boys' Home and therefore each complainant could have described him even based on innocent interaction. This requires consideration of the possibility to misattribution. 11. The evidence at trial concerns a period of time over 45 years ago. This is a considerable passage of time. 12. The accused did have a very detailed memory of the Bexley Boys' Home, its staff and daily routines, which was reflected in the two police interviews and his evidence before me. 13. The accused suffered at the time of both the police interviews and trial from health issues. The Court sitting times were flexible to accommodate his needs. 14. Nonetheless those health issues did not seem to impact upon his cognitive functions or hamper his ability to answer when questioned by police or to participate in the trial. 15. In the first ERISP which was on 2 November 2016, the accused complained repeatedly that he was taken from his home before he could eat a substantial enough breakfast. He maintained throughout the first interview that his answers were possibly compromised due to his lack of nourishment. I note however that police gave the accused regular breaks and sustenance throughout the interview and asked repeatedly if he was able to continue. No request to exclude the interview was made to me. 16. The accused through this counsel asked for and sought adjournments throughout the course of the trial. In his evidence before me the accused appeared very capable of speaking up for himself. The responses in both ERISPs and in his evidence before me very much confirmed that he was not adversely impacted by any particular difficulty when interviewed or when in the witness box. 17. I accept that the accused has an imperfect memory of some aspects from the late 60s and early 70s as would be anticipated after such delay. 18. I am satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay. This focus on the consequences of the delay is distinct from mere delay. This issue depends on the nature of the complaint and the extent of the delay in the circumstances of the case. 19. As noted in the evidence of Detective Sergeant Warren, a number of potential witnesses are deceased or not locatable. 20. The rosters are not available and nor are the punishment records. 21. I accept that their absence has caused a significant forensic disadvantage and that I need to take that disadvantage into account when considering the evidence. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or bringing forward evidence himself to establish reasonable doubt about his guilt or both. 22. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been. Had the allegation been brought to light and the prosecution commenced much sooner, it would be expected that each complainant's memory for details would have been clearer. 23. This may have enabled the evidence to be checked in relation to those details against independent sources so as to verify it or disprove it. Each complainant's inability to recall precise details of the circumstances surrounding incidents makes it difficult to throw doubt on the evidence by pointing to circumstances which may contradict it. 24. Had the accused learnt of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel as noted above in cross-examination of the complainants. 25. Another aspect of the accused's disadvantage is that had he learned of the allegation at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him. 26. Exhibits 1, 2 and 3 record the layout of the Bexley Boys' Home apparently at the relevant time to the counts on the indictment. 27. Exhibit 1 is a site map of the home. 28. Exhibit 2 is accepted as a generally consisted diagrammatic representation of the internal layout of the home and the grounds at the relevant time. 29. Exhibit 3 is a bundle of photographs of the home and some residents at relevant times. 30. Many of the former employees and some of the former residents at the boys' home are deceased. This includes Mr Morton, Mr Beer, Major Bray, Mr Cole and I note also Mr Cole. 31. There are some documents about concerning the career of the accused within the Salvation Army and various postings he held throughout that time. There is some documentary material available as to placements of the boys residing in the home, though incomplete. 32. I accept that not all documentary material is still available. 33. The accused has been put in a position of significant disadvantage. He has been prejudiced in the conduct of his defence, as a result as noted above; before I convict the accused I must give the case the most careful scrutiny. THE EVIDENCE 1. I turn now to the evidence that was before the Court and of course I cannot attempt to repeat it all and this is just a summary of the important aspects of each complainant's evidence. DC 1. DC was born in March 1959. He was 60 years of age when giving evidence. The complainant was at the home for about five months, from early July until early December 1973. 2. He gave evidence with respect to count 5 on the indictment, a count of indecent assault which was particularised as the accused fondling his buttocks and directing the complainant to spread his buttocks cheek and the accused then moving his hand around the complainant's anus. 3. The complainant DC lived with his father RC and step-mother in Arncliffe. In approximately 1968 or 1970 the Salvation Army came around and asked him if he was interested in joining the cubs. This was followed with a request from a Mr Thornton who came down and spoke to DC's parents. As a result DC was signed up with the cubs. He was about seven or eight years of age. The complainant started to learn the cornet through his association with the Salvation Army band. 4. He met Dean Booth and Alexander Anderson, both of whom he described as Bexley Boys on his first night of attendance at the Salvation Army Cubs. 5. He attended Cubs for a few years until he was about 12 years of age when that discontinued. He did however continue with his band practice which was usually held on a Wednesday and Sunday. 6. DC still saw some of the people that he knew from those early band days. 7. DC said that when he was in second form at high school, now known as Year 8, at Peakhurst High School his parents went to an interview with the boys home. He did not know why, but he was moved in to live at the Bexley Boys' Home for a period of just under six months. He stayed at the boys' home for the period shown on exhibit 4. 8. The oldest boys in the home were aged about 16 to 18 years of age. He only encountered those older boys on that Sunday night, the subject of count 5 in the shower area. 9. He mostly had the same routine as the other boys, save for the fact that he went to a different high school. His daily routine included getting up around 6.30am, washing, having breakfast and then going to school. 10. He left the boys home at about 7.30am. He did not like it all at the boys' home. It was a very hard regime and accordingly he came back home as slowly as he could. The boys who went to the boys' home went to either Bexley North for primary school and Kingsgrove High School for the older boys. 11. When he arrived home it was usually about 4.30pm. The boys would have free time until dinner and then after dinner he would usually practice the Cornet. 12. As to the routine at shower time DC identified various positions on exhibit 2. He said the boys would be called out of the locker room where they waited until they were summoned into the shower room. 13. They undressed in the locker room and then they would be called out row by row into the shower area. He understood that they were grouped by rows. When you came into the shower room there were four shower heads for boys who would be in the shower and four boys at the time were usually be towelling themselves dry. He said it involved awkwardness because there was a total lack of privacy in the locker room and in the shower room. 14. DC said that on Saturday's and Sunday's he was mostly at church and didn't get back to the boys' home until about 8.30pm. The usual practice was that they showered once a day. His father sometimes came to the boys' home and he went out with them. On alternate fortnights he might go home with them or go out with them. 15. He said that Mrs Morton, whose first name was Eva, was married to Stan Morton, who was the head of the boys' home. 16. The complainant did not know the accused other than from his dealings with him at the home. He knew that the accused was married with children. 17. From his involvement with him at the home, he knew that the accused supervised the activities of the boys and supervised them at meals and study times. 18. He described the accused as generally wearing a white shirt and grey trousers and navy blue trousers on Sunday. 19. He could not recall any further functions that the accused may have had. He was threatened with the cane by the accused, but as I understand his evidence not actually hit with it. COUNT 5 1. The complainant says that the events supporting count 5 in the indictment occurred on a Sunday. 2. On Sunday there were less staff and fewer boys. This incident occurred after the trip that he had made to West Wyalong on a Rotary program. He was preparing to go into the showers and was naked in the locker room waiting to be called into the shower area. Generally he said he would not be with the boys at all on a Sunday because of his involvement with the church but on this particular occasion Mr and Mrs Morton had another engagement which precluded them from taking him back to evening service at the church. He therefore found himself in the shower with the other boys and the accused on this particular Sunday evening. 3. The boys were showering. Some boys were towelling off, others showering, four boys at a time. On this occasion the complainant was the only one called through. He recalled being called up by the name 'Cxxxx' (phonetic) which was how he pronounced his name at that time. More recently he explained that he adopted the traditional Irish pronunciation of his surname. 4. He entered the room and the accused said "Come here, bend over". He was directed to part the cheeks of his bottom. The accused said to him "You've got worms". The accused was behind him. He felt a brush of a hand followed by a prodding of his anus area. The complainant reacted and said to the accused "Are you having your jollies there. Are you a poofter?" 5. This response from the complainant drew laughter from the older boys. 6. The accused told the complainant "Get to the office". 7. The complainant went to the office. He was dressed in his pyjamas and dressing gown. He sat in the office area. He described by reference to exhibit 2 as an area which was called the vestibule. He sat on a chair there for a long time in the dark. He was very nervous and started sucking on his upper arm. That sucking caused bruises to his arm. 8. After waiting in the dark for an extended period of time the accused came to the office area. They went into an office area in the general area of the vestibule. The accused said to the complainant "I have every right to cane you". The complainant replied "I don't know what you're going to do to me, but I'll be telling everyone at Rockdale what you've done". 9. With that the accused said to the complainant that he had to pretend to have been caned, whereupon he went back to the play room having escaped punishment. At the play room he described himself as mingling with the other people that were there. 10. There complainant said that there was not really any unpleasantness between him and the accused before that incident. He described an occasion when he was made to clean the grease trap on his own which was a very unpleasant duty. He resisted it. The accused thereupon walked him around the perimeter of the home. They engaged in a heated conversation. The accused said to him "I thought you would have accepted this duty with grace, as you are a junior soldier". The complainant understood his responsibilities after being told that and he said that he cleaned the grease trap until it "gleamed like gold". 11. The complainant left the home in 1973 and did not return as a child. He had kept up his connections with some of the people that he met through the Salvation Army. He had seen the accused once since the time at the boys home, at the funeral of somebody called Herb Epps in 2014. He thought it was early in the year in Wollongong. There were hundreds of people at the funeral and he sort of spun around and saw the accused in the crowd. 12. In cross-examination the complainant was asked about a notional time line of the various points in his narrative. He could not recall whether he made the statements to Mr Greville before or after Mr Epps' funeral. It was agreed that he had made a statement to the police on 23 September 2015. 13. The complainant agreed that he had not said anything to anybody at that time. He described Major Morton, the head of the boys home as firm but fair. He agreed that he did not make any complaint to either him or his wife Eva Morton or to the woman described as Matron. There was no conversation with Matron about worms. He made no complaint to the Coles who were in charge of the small children's home. 14. The witness was taken to a document that he had produced called "Truth". He had written that document just before his interview with Mr Greville. He had spoken to Alison Jones in about 2014, following the commencement of the Royal Commission into Child Abuse. He had discussed the Bexley Boys' Home with her. Before he spoke to Alison Jones the name of the accused was featuring in the Royal Commission. 15. He had also been keeping up with the evidence from the Royal Commission and had read articles in the Daily Telegraph and he thought to himself "I have had similar experiences". 16. He knew that the Bexley Boys' Home was going to be a case study and knew that the accused was named. It was after that he created a document "Truth" before he spoke to Mr Greville. 17. The complainant was cross-examined about the document entitled "Truth" and comments about his views for compensation that he had previously made in that document. He had written there that there was no need for compensation or compensation to pay for counselling as his "life was pretty good at the time". 18. He spoke to Phil Inglis from the Salvation Army and asked him "Should I be mentioning what happened to me?" He said that Phil Inglis encouraged him to do that. 19. The complainant DC denied that his job with the Salvation Army gave him any access to historical records. 20. In cross-examination he gave some further details with respect to his prior family life before he went to the boys' home. He had a brother who was born with Cerebral Palsy. He was put into care. His parents subsequently divorced and his mother was killed as he understood in a motor vehicle accident. It kept occurring to the complainant that his mother in some way may have taken her own life. 21. He was brought up after that by his father. It would appear that they did not get on after his father subsequently remarried. When his father and step-mother went on regular holidays they would leave him with relatives or other acquaintances. 22. He felt abandoned and described himself as being "dumped" in the Salvation Army home for six months before going back to his father. He could not get away from his father soon enough. 23. The complainant had been employed at the Salvation Army. 24. Whilst the complainant had not been to any reunions for former Salvation Army home residents, he did go to an afternoon tea for people needing support as a result of his contact with a network called "Care Leavers Australia Network", known as CLAN. 25. He had received some compensation after he was made redundant by the Salvation Army. He was compensated because he did not have sufficient qualifications and could not work for them anymore. He felt he was compensated because when he was in the children's home his school work went into a decline and adversely impacted upon his education. 26. He was initially offered $5,000 which he refused. Eventually he accepted $35,000, but refused the additional $5,000 after taking the advice of counsel. He knew Bud and Christine Cole, Major and Mrs Morton and Matron. 27. He did not know Carl Compton. 28. It was put to him that he had sought further compensation after the amounts of $35,000 and $5,000. DC rejected that and said that he sought a review of his claim. 29. DC agreed that whilst he only spent six months of his schooling at the boys' home, nonetheless this was the commencement of his schooling going into decline. 30. He agreed that in the "Truth" document there was no mention of the negative impact on his education by virtue of his stay at the Bexley Boys' Home. 31. He was taken to the words that he used in the "Truth" document to describe what he had said to the accused after being touched on the anus by the accused. In the "Truth" document he used the words "I think, as I remember" and he was cross-examined as to that expression. He was asked if they were meant to convey a lack of certainty. 32. The complainant said that he wrote the "Truth" document as his first expression ever made. He agreed that it was a matter of considerable seriousness. He was casting his mind back as best he could. He said that whatever he had written was done without the intention to mislead anyone. He did not recall anybody known as Uncle being in the shower room. The only person he could recall in the shower room was the accused and Stan Morton. 33. The complainant was taken to exhibit 3, photograph 8, which was a photo of a number of young boys on the trampoline in what was described as the play room. He agreed that in evidence the previous day it was not the first time that he had seen that photograph. 34. He agreed that he was at the home in 1973 when he was 14 years of age. He understood that the boy known as IM, who was the son of the accused was a similar age to DC himself. He agreed that he had looked at the photo in conference with the Crown Prosecutor. He was asked if he had looked at that photograph with Dean Jones at a CLAN meeting. He could not recall that. He agreed that he could not identify that person on the trampoline as the accused's son without somebody assisting him, but he could not recall that it was Dean Jones. 35. It was put to the complainant that he had a vested interest in the outcome and had gilded his evidence to increase the chances of better compensation from the Salvation Army. He denied that he had retained any lawyers for that negotiation process. He denied that he had contacted a firm of lawyers called Kelso's through the CLAN network. 36. The complainant was cross-examined as to the differences in the wording between the "Truth" document and his evidence before me. He said that any difference was explained by the fact that the "Truth" document was his first statement and was the first time that he had ever tried to verbalise what had happened to him. He denied the proposition that he was trying to improve the version as he went along. 37. DC was cross-examined further about what he had written with respect to the grease trap duty where it was described as a punishment. He said it was an unpleasant job and it was not the best of jobs. The way he remembered the grease trap duty was he was given the job and that he made the best of a bad situation. He was cross-examined with respect to his description of being given the job in his police statement on 23 September 2015 at paragraph 38, where he described the grease trap duty as a punishment. 38. The complainant was asked why he had not complained about the indecent earlier. He said that the time he thought that because he was not caned for what he had said to the accused after the shower incident, he felt that he was let out of a difficult situation. It was only subsequent to that, that he realised what the full nature of the offending was. He described himself as having had a "me too moment". 39. He said that albeit the Matron a woman known by the name of Selma Hill was a kindly person he did not think at the time he could have complained to her. Moreover he was thankful that he had been let off the hook for not being caned. AM 1. AM was born in September 1959. 2. He made two statements, one dated 13 January 2015 and the second one in June of 2019. 3. Both of those statements refer to the incidents at the Bexley Boys' Home several decades ago. 4. The complainant was born in Warrnambool, Victoria; his mother and father subsequently separated. He lived on a farm in Leeton with his father when he was aged about five years of age. 5. The complainant was driven to Sydney and then taken to the Bexley Boys' Home with his older brother G who was about three or four years older than him. 6. The complainant was admitted to the boys' home on or about 10 September 1965 just shy of his sixth birthday. His discharge date was 17 December 1971. 7. He attended the primary school at Bexley North; he had to repeat sixth class. 8. By occupation he was a heavy plant operator for some 25 years, mainly in the construction industry. When he was released from the boys' home he and his brother went to live in Western Sydney. 9. He had prepared a number of diagrams and was largely familiar with the layout of the boys' home as represented by the exhibits. 10. The complainant recalled that his bed was in the upstairs dormitory, the position of which moved during the time that he was at the boys' home. AM was also able to nominate the position for Trevor Hubbard's bed during his time. He knew that Trevor Hubbard was the boy who died at the home. 11. The complainant said that the dormitory changed about 18 months before he actually left the boys' home. They were starting to put partitions up to create small cubicles, but it was not completed by the time he had left. The complainant described other points of location on the various diagrams. He was familiar with where the bell was, and its purpose, and the number of rings and what they signified. He was familiar with the quadrangle and various other locations on the premises. 12. The complainant made a number of friends during his years at the home. 13. He described having duties which included cleaning the floor in the shower, sweeping the quadrangle, looking after the visitors' area, washing the cutlery and also cleaning out the grease trap from time to time. 14. The complainant described the daily routine as getting a wakeup call, making your bed, doing duties that were assigned to you, breakfast, completing duties, dressing for school, being given lunch and then going to school. 15. When the complainant first arrived at the home Major Bray was in charge followed by Captain Morton who became Major Morton. 16. Major Bedwell was not there for a very long time. Uncle Terry was like a lay staff member who held a position like an officer. There was a person by the name of Uncle Col who he described as "a very tall, skinny kind of bloke with black hair that was worn longer than the boys' hair". He described Uncle Col as a smoker. He did not dress in an officer's uniform, but dressed rather casually. 17. The complainant knew the accused. He believes that the accused turned up at the boys' home about two or two-and-a-half years after he had been there. 18. The complainant was petrified of the accused and described him as a 'nasty person', he had felt that nastiness. He was petrified of the accused because the accused had punched, slapped, thrown things at the complainant, pushed him into lockers and pushed him into walls. 19. The complainant said that you had to bear in mind that he was only a child at the time, around eight years of age. He said this kind of behaviour went on for quite a while. To avoid being treated like that the complainant said, "I tried to do everything I possibly could to keep away from the accused, I was petrified of the person". 20. The complainant did not tell anyone on the staff what the accused had done to him because he was fearful of speaking out and of the chances of being further punished. 21. The complainant understood that the accused was in charge and was basically running the place when Major Morton was not around. He said the accused was quite an intimidating person. 22. When they came home from school they got changed into play clothes, polished their shoes and then they might be lucky enough to have a chance to play. This would be followed by dinner time, then a shower and maybe homework. Sometimes they spent their time in the recreation room before bedtime. 23. The complainant said that the accused was one of the officers that supervised the boys. During those routines the accused was always dressed in his Salvation Army uniform minus the hat. This uniform consisted of a white shirt with a Salvation Army insignia; he sometimes wore a tie. He had dark pants and black shoes. 24. The complainant said he tried to avoid the accused on the weekends; actually he tried to avoid any contact with him at all. 25. The complainant ranked the officers on a scale of nastiness towards him. The accused was number 1, Uncle Terry was number 2 and Major Morton was number 3. He recalled getting the cane from the accused in the front area of the building in the office near the front entrance. COUNT 1 1. The complainant recalled an incident in the shower block where he sustained injury to his face. This is the evidence which supports count 1 on the indictment. 2. The boys were getting ready for shower time. He got what he described as "a bit of a hurry on, a push in the back" and as a result he lost his footing and went straight into the wash trough. The impact resulted in the top of his right eye being "busted open". 3. The complainant said it was the accused that pushed him in the back; there were other boys around. All the boys were lined up, all naked and they were just waiting for their turn in the shower. 4. The complainant was shown exhibit 2. He marked on it with a degree of accuracy the doorway near where the incident took place. Everybody was around. Uncle Terry had been supervising the boys in the locker room when they took their clothes off. This would have occurred at about 5.30pm or thereabouts in the afternoon. He was seven or eight years of age. 5. The accused had come into the doorway, which the complainant marked as between points 25 and 8 on exhibit 2. 6. He had not seen the accused when he came in. The accused said something like, "Come on. Move along". He then lost his footing and fell into the sink. The top part of his right eye, just under his eyebrow, split open. 7. Uncle Terry administered first aid. The complainant was taken to the St George Hospital about an hour later where he had stitches inserted into his right eye. He returned home later that night. 8. The complainant said he knew it was the accused that had pushed him in the back. This was because: 1. He recognised the accused's voice. 2. He saw the accused's shoes, and 3. After he got up from the floor he saw the accused quite clearly. 1. The accused said that this incident distressed him quite a bit. COUNT 2 1. The complainant gave evidence about another incident which occurred in the shower area with the accused, giving rise to count 2. The complainant alleged that he was touched on the bottom by the accused. 2. The complainant said that this occurred on a weekend, it was a Saturday. He believes that he was around eight years of age at the time when it happened. 3. The complainant had received word that his father was coming to see him. He was told to have a shower and get dressed in what he referred to as his khakis. 4. On this occasion he was in the shower area by himself. He understood that his father was coming over and visiting that day outside of the usual visitor routine because the complainant's brother was in hospital. 5. The complainant believed that he was taking a shower at around 1.30 or 2 o'clock in the afternoon. He had been reluctant to leave playing, but when he was told he was going to see his father he was excited, he was hoping that it would be good news, that he was going to be going home. 6. The complainant was directed to have a shower by the accused. There was a period of time when he was on his own in the shower area before the accused turned up, he had left the room and then came back. He was told to step forward and turn around. The complainant said when he was being showered he was touched on the bottom by the accused, "As I've come forward in the shower room I told to turn around and bend over. I was touched". The complainant said it startled him. He described it as "like a grab, just a grab" on the backside with the right‑hand side of his cheek buttocks being touched by the accused. 7. The complainant said that when he was touched on the bottom in the shower Major Morton walked past the doorway near the shower, he was accompanied by a lady and another gentleman. He believed that is why the situation stopped. He said that was the only time it ever happened. 8. The complainant said he was petrified when this happened and did not say anything at the time nor did he say anything to anybody after it had happened. He said that he told his brother a couple of days later, but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the accused. He said that his brother did not say anything in response to that and that was the end of the conversation. 9. The complainant knew Trevor Hubbard and he knew that Trevor Hubbard had a brother called Ian Hubbard. He got along with Trevor Hubbard and he knew that Trevor Hubbard suffered from asthma. One particular evening he heard Trevor Hubbard struggling to breathe. This was the night Trevor Hubbard was in the toilet block on the right-hand side of the dormitory. The complainant noted a position with respect to a toilet at the right-hand end of exhibit 2. He said that Trevor Hubbard was not very far away from him, only 6 to 10 metres. 10. It was very quiet. He could hear Trevor Hubbard struggling to breathe. The complainant thought that he was around eight or nine years of age. He saw the accused near Trevor Hubbard and standing over him; he could see it from his position in bed. He described the accused as being dressed in uniform. 11. The complainant said that the incident when he was touched on the bottom occurred before Trevor Hubbard passed away. Trevor Hubbard's date of death was recorded in his death certificate, which was before the Court, dated 3 June 1969. 12. The complainant was cross-examined by Ms McSpedden and he agreed that a lot of time had elapsed since he was in the Bexley Boys' Home more than 45 years prior. 13. He agreed that he had made a statement to police at Coffs Harbour Police Station on 13 January 2015. He had spoken to people from an organisation called Bravehearts. 14. He had made contact with Bravehearts because he had heard, and become aware, that the Bexley Boys' Home was mentioned in the Royal Commission. He had read about evidence given there in the newspapers but he was not following up with great detail. He had become aware that the accused's name had been reported. 15. He said he was not aware that Uncle Terry was residing in the dormitories at the time Trevor Hubbard died. He agreed that he had described Uncle Trevor (as said) as a person who could be violent. It was customary for an officer to sleep in one of the dormitories to supervise the dorm; however, he was certain that around that time Trevor Hubbard died there was the officer who slept in the room that night. 16. He agreed that both Col and Uncle Terry would ask the boys to bend over in the shower. He agreed that Uncle Terry had a practice of abusing the boys in performing something that was referred to as a horse slap. 17. Uncle Terry was a big fellow and he could be pretty brutal and he had copped a flogging from him in the past. This included being pushed into lockers, slapped and punched, with a couple more hits as well. This could occur in front of other boys. It could occur for any reason, for example punishment. 18. The complainant was cross-examined about a statement that he had made to police on 13 January 2015 and said that there were different forms of punishment that he was subjected to. He said, "I would get the cane, hit and punched and backhanded and slapped. Things will get thrown at me, get pushed into a locker or pushed over in the shower area". He agreed that he was speaking in general terms about things that would happen to him at the boys' home. 19. When asked specific questions the complainant agreed the accused had caned him in the office. He understood that those canings were recorded in an A4 sized big black book. The complainant also said that he received the can when he was outside the doorway of the office as well. The complainant insisted that the accused also punched, slapped and backhanded him. The accused had thrown a cake of soap at him in the shower out of anger. He insisted that he got pushed and landed in a washbasin. He insisted that it was the accused when it was put to him that he was mistaken as to the identity of the person who pushed him in the back. 20. With respect to the death of Trevor Hubbard the complainant agreed it was something that had upset not only him but all of the boys. In cross‑examination it was suggested to the complainant that on the night that Trevor Hubbard died it was, in fact, Terry Smith who was in the dormitory. The complainant said he was not certain of that. 21. He did not recall any boys going to speak to an officer to get medication for Trevor Hubbard. The complainant insisted that it was the accused actually standing over Trevor Hubbard. He could not see Trevor Hubbard on the ground, but he could make out the accused standing over someone on the ground. 22. The complainant denied that he blamed the accused in some way for Trevor Hubbard's death and that he wrongly held the accused accountable for Trevor Hubbard's death. The complainant denied that any such belief had influenced the way he had recollected other events, particularly the time in the bathroom when he was pushed and cut his head. 23. The complainant denied that his willingness to believe that the accused was involved in Trevor Hubbard's death had made him more ready to conclude that the accused was the person who grabbed him on the cheek of his bottom in the shower. 24. The complainant said in cross-examination that he knew what had happened and that was all he could say. He insisted that he knew it was the accused who had grabbed him on the bottom. 25. He maintained that he did not approach Major Morton to complain about the conduct because of his fear of punishment. The complainant said that whilst he had tried to get in touch with CLAN he did not have any luck and accordingly had never been in contact with them. STATEMENT OF GM 1. AM had an older brother, GM. GM made a statement which was exhibit 7 before me. I turn now to the statement of GM and make a brief reference to the evidence set out therein. 2. GM was the older brother of the complainant, AM. He went to live in the Bexley Boys' Home when he was young and he left the home when he was 14 years old. He was there for about seven years. He and his brother AM entered the home and left the home at the same time. 3. He accurately described the way the main building of the boys' home appeared as represented in exhibits 2 and 3. He also gave what seemed to be an accurate account of the daily routine of the boys' home. 4. He recalled a number of officers working at the boys' home including Uncle Terry, Uncle Bud, Uncle Carl, Major Bedwell, the accused and Major Bray. He described the accused as tall, white skin and solid build. He lived at the home in one of the houses. He did not think he had a family there and was not sure when he arrived. He described the accused as having given him the cane as he was an officer. 5. GM never witnessed any sexual or physical assaults by officers upon boys at the home. He and his brother never spoke about any problems that he had with any of the officers, nor had they discussed with each other what happened to them in the home. 6. GM could not recall AM going to hospital. 7. He recalled that there was a time when he himself did go to hospital because he had contracted hepatitis. He went to the hospital near Long Bay Prison, which I assume was likely to be Prince Henry Hospital. He thought he was in hospital there for about three weeks. JAM 1. I turn now to the evidence of JAM. 2. JAM had made a statement to police on 15 October 2015 about the time he had spent in the Bexley Boys' Home. He confirmed that he had drawn some diagrams of his recollection of the main building, the parade ground, the recreation hall and so forth. He agreed that exhibits 1 and 2 were reasonably accurate reflections of the way the buildings and the other surrounds were set out when he was there. 3. JAM agreed that he was at the home for two periods from 7 January 1964 through to 30 June 1969. He said that he recalled leaving the home when his father came and picked him and his two brothers up from the home. 4. He confirmed that Major Bray was in charge of the home the whole time that he was there; he did not know the accused or Stan Morton. He confirmed that the sleeping arrangements were in a first floor dormitory, as shown on exhibit 2, in particularly the second page of exhibit 2. 5. He recalled that with respect to night time supervision of the dormitory that was performed during the years that he was there by Terry Smith; he was the only one he could recall. JAM said the boys called him Uncle Terry. 6. JAM said that Mr Smith occupied a room in between the dormitories. He had been inside that room, which he indicated on the map as being the one on the right on the top of the diagram. Inside that room was a normal bedroom with a TV and a few photos. He could not recall the room having any windows. He said that whilst he could only recall Mr Smith as a supervisor he could not recall anybody else. There may have been other supervisors in the dormitory, but only for short periods. 7. Mr Smith was his primary carer for 99% of the time. Mr Smith did not dress in the Salvation Army uniform but wore what JAM described as just normal sort of normal clothes. He could not recall him wearing anything with insignia on it, but remembered that Mr Smith dressed up a bit on Sundays because there was three times church on Sundays and Wednesdays. 8. With respect to the showering routine during the weekdays JAM said in the morning and at night time before bed we would line up and there were four showers. All the boys were naked. They got undressed in the locker room and then walked into the shower room. You could put a towel around you so you covered yourself up. He could only recall Terry Smith supervising them in the shower room. He said that they would proceed in a military fashion to go into the shower room, four or five of them would go in at a time; there might have been five showers. He said then, "You'd step forward. After you got wet soap up and then rotate back, rinse off and then go and dry off". The only physical contact with the boys that he recalled were smacks on the backside. This happened to him a couple of times, usually because he was misbehaving. He referred to them as 'horse bites' on the backside. 9. JAM recalled Trevor Hubbard and that he had severe asthma. He recalled that Trevor Hubbard had died as a result of an asthma attack. JAM witnessed Trevor Hubbard dying and said, "I watched him die". 10. When JAM first saw Trevor Hubbard on that night he was on the toilet down the end of the dormitory. This was toilet number 1 on exhibit 2. JAM was sleeping in a bed about four down in the middle row; he was close to the toilet. It was early morning, just before the sun came up. He had gotten up to go to the toilet and he saw Trevor Hubbard on the toilet, he was "blue and not good". 11. Trevor Hubbard was sitting up "but his face was blue and he was trying to talk and he couldn't". 12. JAM raised the alarm and called out, "Somebody wake up Terry Smith. Get out with the oxygen tank". There were other boys around but he could not recall exactly who was there because it was, as he described, "just panic". 13. He ran down and banged on Terry Smith's door but there was no answer. He ran back to Trevor Hubbard to see if he could help him a bit more but he did not know first aid at that age. He said that "there was not much to do except watch him die". No adult appeared at the time. By the time an adult appeared the ambulance was on the way and it was too late for Trevor Hubbard. 14. With respect to the lockers he said that they were open, without doors. The lockers butted up to each other and they were joined together. 15. In cross‑examination he confirmed that at the time that Trevor Hubbard died Terry Smith was the only person who looked after the dormitory or supervised the dormitory at night. Terry Smith slept in the room that he had indicated. He said that he had seen Trevor Hubbard on the toilet in the early morning and yelled out to the boys to get the oxygen and to get Terry Smith. He said everybody was running backwards and forwards. said the boys were angry that Trevor Hubbard had died because they thought it was unnecessary and it could have been prevented. 16. JAM said it was his recollection that in the time that he was there, being mindful he left at the end of June 1969, Terry Smith was the only person who ever supervised him in the showers. Terry Smith had a habit of inflicting what he referred to as 'horse bites' in the shower on the boys. A 'horse bite' involved cupping one's hand and making a loud noise in delivering a slap to one's backside or buttocks. 17. Terry Smith would also whack them on the backside if they were misbehaving in the shower lines. 18. JAM said that when the boys wet the bed and their sheets were wet in the morning they were made to put them over their heads and stand out in the sun until they dried. They had to take them to the laundry. This happened to him. Terry Smith made him do it and it was very humiliating. The humiliation made them wet the bed all the more. He could not think of anything worse in terms of humiliation than that. 19. He said that when the boys were naked in the shower Terry Smith leered at them. His gaze would settle on their private parts a bit longer than it should have. He avoided being alone with Terry Smith, but he was aware that Terry Smith had a television set. 20. JAM said that the area beyond the pavilion, towards the top of that plan, exhibit 1, was referred to as a paddock. There was huge acreage there and a little tip. He couldn't recall any horses being there but did recall it being an unofficial tip. 21. JAM could not recall either the accused being there nor could he recall Stan Morton being the manager of the Bexley Boys' Home. He remembered Ken Judge and he remembered Major Bray. TERRENCE LEONARD SMITH 1. I turn now to the evidence of Terrence Leonard Smith. 2. Terrence Leonard Smith was born in March 1940. He was on the staff at the Bexley Boys' Home in the late sixties and early seventies. 3. Exhibit 11 was his career card. It showed that he was not a Salvation Army officer when he worked at the Bexley Boys' Home but was a member of the employed staff. He started at the boys' home on 12 January 1967 and left in 1971 for a period of time while he was studying to enter the training college. 4. He recalled working with the accused and had a good relationship with him. The accused took over the position of second in charge about a year-and-a-half after he started at Bexley. 5. Mr Smith agreed that exhibit 1 was a reasonable depiction of the way the Bexley Boys' Home appeared, its buildings and surrounds. 6. Terry Smith's background was that he had come from Barnardo's Home in England. As a result he had some sympathy for the boys at the Bexley Boys' Home. His role was that, essentially, of housemaster. 7. He had a room in between the dormitories which remained constant throughout his period of supervision, from 1967 through to 1971. There were some nights when he was not there, when he was either on holidays or on campus. He had approached the boys' home manager and said he could not do a 24-hour stint continuously and needed time off. 8. He said there was never another officer working with him at night time, but then he recalled that there was a short time when there was another man who had the other bedroom. He could not remember his name and said that this man had come from welfare. It could have been Carl, but he could not remember him. He recalled that this man stayed for a few months and then was asked to leave. 9. The morning routine included him getting the boys up at around 6 o'clock in the morning. If the accused was assisting him he would come and assist supervising the boys. He recalled some other officers, including Captain Judge and Mr Beer. He had anything up to 90 boys to supervise. 10. After getting the boys up he would send one-half of them down and then the other supervisor would forward the boys from the second dormitory. 11. He would go to the locker room then all the boys would go to the locker room and then the second officer would go to the bathroom and he would wait there and send the boys to wash. This was just face washing as opposed to showering. 12. After that the boys would do duties, setting up the dining room and getting it ready for breakfast. Then they would go directly to the quadrangle to line up for breakfast. After breakfast some would go out and play and others would have duties. Eventually the students would go off to school, either Bexley North for the primary school students and later, he said, there were some high school students. 13. Mr Smith said that when the boys were at school he would go and pick up donations of food for the home or perhaps take a boy to the dental hospital. 14. Mr Smith said that he would normally dress in casual attire and not wear a uniform. He said whilst he might have worn a white shirt it would not have had insignia or epaulets. 15. The accused, he said, was always in his uniform which was a Salvation Army shirt with the Ss on it. The shirt was usually white with red on the epaulets and maybe blue trousers or navy trousers. 16. Mr Smith never wore a uniform while at the boys' home because he did not become an officer during his time at the boys' home. 17. Stan Morton also wore uniform. The accused was the assistant manager and would assist Major Bray in the office, doing paperwork and other tasks that Major Bray may ask of him. 18. Mr Smith would see the accused if he was on duty with him, including at meal times if he was on duty at the same time. He said the accused was usually uniform, also at night and including the night time meal. 19. Mr Smith said that position 8 on exhibit 2 depicted the bathroom and position 9 was the locker room. The lockers were open with no doors. They were stacked together and they had a top and a bottom where the boys could put their shoes. There are two rows of back to back lockers, you could not see through them, you could not get through them, there were just a lot of single lockers. There are also lockers on a wall. 20. The boys were supervised when showering in the evening. There was a change in the procedure when Major Morton came. He changed the shower procedure to suit the high school boys as they had homework to do. He allowed the high school boys to have their showers earlier than the rest so they could go down to the playroom and do their homework. 21. When the younger boys were showering, after the older boys had been there, there were two officers who would supervise the boys. This included one officer going down to supervise the older boys in the playroom to make sure that they were doing their homework. 22. The boys would go into the locker room and strip naked and stand by their lockers. They then marched through to the shower room. Here they would line up and go and wash their feet in the foot trough and then go into the shower. Each boy was required to have a hot shower and then a cold shower. 23. He did not see any disciplining of the boys when they were having their showers. He said he very rarely needed to correct them in the shower area, if he did he would put a boy's name in a notebook and just see them later on. He was allowed to smack their arms but not on the bottom; Major Bray told him he could do that. 24. He said that Mr Morton had a different attitude to Major Bray and Mr Morton did not like corporal punishment. He would give them the cane on occasions to get control of them. 25. At times Major Bray would cane the boys in front of him and he would allow Mr Smith to cane boys under his supervision. He thought that this was allowed so that the boys could see that he, Mr Smith, had his own authority. He was allowed to cane boys in Mr Bray's presence in the locker room or the dining room. 26. Mr Smith said that with respect to the accused reacting to boys' misbehaviour he would send them to the office for a caning. He very rarely saw the accused cane anyone. He clarified his answer, he said he did not actually see the accused cane anyone nor did he see him physically disciplining any boy anywhere else for any reason. 27. Mr Smith told police that he had not witnessed any sexual abuse of any boys at the home. He said the boys would go to bed at about 6.30 in the evening. The boys had busy days and they were tired and they would be asleep within ten minutes. 28. Mr Smith denied that he would have boys in his room of an evening. He denied that boys would watch TV with him. Mr Smith said that he understood that the other fellow who worked with him for a short time who left, he was told that he left because he had sexually abused a boy. 29. Mr Smith was aware that Trevor Hubbard had asthma and that was the cause of his death. He said he would have been on duty that night. He could not recall being woken by anybody in relation to the Trevor Hubbard situation. Mr Smith did not recall anything about the death of Trevor Hubbard. 30. He said he found him in the toilet at the end of the bed in the dormitory. He did not recall any boy drawing his attention to Trevor Hubbard's situation. He would have found Trevor Hubbard when it was light, it was morning, 6 o'clock in the morning, the other boys were just getting out of bed. He did not recall anybody raising the alarm. When he found Trevor Hubbard he went and called the accused. 31. Mr Smith believed another officer had just come on duty that morning, it could have been the accused, but whoever it was had been sleeping in the dormitory that night. 32. He described the boys' response to Trevor Hubbard's death as pretty quiet, there was no anger and nobody made any comment or anything like that. He denied that any boys approached him and remonstrated with him in any way. He denied that any boys remonstrated with the accused or any other officer about what had happened. 33. He did not see any boys attempting to beat up or attack any officer in the aftermath of Trevor Hubbard's death. The accused wrapped Trevor Hubbard up and took him away in blankets; he carried him through the dormitory downstairs. 34. He could not recall any anger expressed by any of the boys to him. He acknowledged his brother Ian Hubbard would have been very upset. I may have come and talked to him or talked to somebody else, but he could not remember. 35. Mr Smith vaguely knew a boy by the name of CN but said it was a long time ago now. He said the name rang a bell, but he could not say what about. 36. In cross-examination Mr Smith said that he was aware that there was prescribed medication for Trevor Hubbard. He denied that that medication was maintained by him to administer to Trevor Hubbard. He maintained that the medication was in Trevor Hubbard's possession. He denied that a cylinder of oxygen was kept in his room in case of an emergency in respect of Trevor Hubbard; he was sure about that. 37. Mr Smith guessed that he was asleep in his room near the dormitory on the morning of 3 June 1969. He was on the premises first thing in the morning and remembered waking up and getting up to go to the toilet. He could not recall any boys beating on his door and saying words to the effect of, "Trevor Hubbard's having an asthma attack. He needs his oxygen". 38. He recalled the accused going into the toilet and coming out with Trevor Hubbard's body over his shoulder. He saw that and he believed he had a blanket around him. 39. He denied that he went to the sick bay with the accused. He did not notice any chaos erupting among the boys. While the boys were deeply upset about the event they did not voice any distress to him, in fact, he said, they were silent. He could not recall any boy uttering any recriminations towards him or the Salvation Army staff. He insisted that they just took it quietly. 40. Mr Smith was cross-examined on an apparent inconsistency between his evidence on 17 July 2019 with respect to allowing boys to come into his room and watch television. He was reminded that he said he allowed boys to watch TV in his room very seldom. It was put to him that that was inconsistent with the evidence that he gave before me, in fact, that he never allowed it. 41. He denied that he ever slapped boys on the buttocks in the showers or that he ever had boys bend over, while they were lining up for the shower, directing their bottoms towards him. He denied that he ever had a boy bend over in the shower and prod him around the anus area. 42. He denied that he ever had grabbed a boy by the buttocks cheek when lined up in the shower. He denied that boys were directed to take their wet bed linen downstairs and wash them under the shower and then take the wet sheet and drape it over themselves in the sunshine until they were dry. He never did it and denied it was ever his intention to humiliate the boys who had wet their beds. 43. He said that both he and the accused would attend Flemington Markets to get fruit or other offerings for the home. 44. The accused might have done maintenance around the home, the accused might have worn a casual King Gee dust jacket in performing tasks such as going to the markets or collecting meat, but he remembered the accused usually being in uniform. 45. Mr Smith could not remember any horses kept on the land adjacent to the boys' home. 46. Mr Smith denied that there was ever an occasion when he came across a boy in the laundry area and told him to put his hand on his penis. He denied that he ever did that with CN. 47. Mr Smith denied taking a boy into the bedroom of the officers' quarters, taking his pants down and fondling his penis and scrotum. Mr Smith denied that he was responsible for any sexual assault upon CN either in the laundry, the officers' quarters or the locker room. I note the time. I propose to take a short morning tea adjournment to allow the parties to have a break. SHORT ADJOURNMENT 1. HER HONOUR: I was reading a portion of my judgment with respect to the evidence of AM with respect to the night of Trevor Hubbard's death and who was there. Just for abundant caution I have gone back and checked the transcript. It was suggested to AM that on the night Trevor Hubbard died Mr Terry Smith was in the officer's room adjacent to the dormitory. However he replied, no, he wasn't certain of that. At page 115 lines 26 to 28. He accepted that it was customary practice for an officer to sleep in one of those rooms supervising the dormitory. 2. I then moved to summarise the evidence of Mr Terry Smith and I now move to the evidence of Alison Jones. ALISON JONES 1. Alison Jones gave evidence with her respect to her acquaintance with the complainant DC. DC had come to work with her when the Royal Commission into the Salvation Army was happening. 2. In cross‑examination she agreed that she got to know DC through the Salvation Army Church in Wollongong around 2010. She got to know him better when he started work at the Salvation Army Welfare Centre in Wollongong. 3. Ms Jones was aware that some aspects of the Royal Commission institutional responses to child sexual assault touched on the Salvation Army and in particular the various Salvation Army homes. 4. Ms Jones had some discussion with DC about the Royal Commission enquiry into Bexley Boys' Home but not as she referred to, deep discussions. 5. It came to her attention that DC had a grievance in relation to his treatment while he had been at the Bexley Boys' Home. 6. At the time DC first spoke to her about this matter he had received money from the Salvation Army because of what had happened to him through the Royal Commission. 7. She denied that DC ever told her that he felt that he had not received enough money. RG 1. RG was born in September 1956 in Camden New South Wales. Eventually his father admitted him into the Bexley Boys' Home on 1 February 1965. He started school at Bexley North about the same time. They all walked to school. He said his time at the Bexley Boys' Home was "pretty rough". 2. The boys were accommodated in a dormitory upstairs in the main building. He was looked after in the dormitory by Uncle Terry and Uncle Carl. Uncle Terry wore a grey uniform. 3. Uncle Terry's role in his life was like a parent. Uncle Terry had a room upstairs where the dormitory was and one or two days off at intervals. 4. The supervisor's role was to ensure that the boys did their homework, go upstairs to their own beds, make sure everybody was all right and make sure there was no more noise and then turn off the lights. In the five years that he spent at the boys' home there was probably about five different adult supervisors in the dormitory. 5. He recalled the different personnel being Lieutenant Lyons, Lieutenant Spratt apart from Uncle Terry. He recalled a Major Bray and a Major Bedwell and recalled Uncle Carl coming much later. Uncle Carl was kicked out before he left but could not recall when he was kicked out. 6. The daily routine at the boys' home included being woken up at 6 o'clock. If kids wet the bed they would get the cane. There were duties to be done, for example, setting the table, making beds if before going to school at about 8.30am. 7. In the evening the boys would have their showers. They went to their lockers which were all in a line. They undressed and then they walked through to the bathroom as directed by one of the officers. He recalled there being a lot of washbasins and a footbath and four showers. There was only one officer supervising the procedure. 8. Uncle Terry supervised the boys in the shower. When they were standing there he would watch them and he would check their hands and arms to make sure they had no dirt left on them after the shower. He said that if anybody misbehaved whoever was in charge would hit them. This included Uncle Terry. They would help smaller kids in the showers. After the shower they would clean their teeth and then get into their pyjamas. Some nights they all were allowed to watch television but most nights they were to do homework. 9. RG recalled being given the cane with it depending on what you did. He said that nearly all of the officers caned him. This would include being caned across the hands and this would occur sometimes in their office. He recalled Major Morton, Uncle Terry and two other officers caning him. 10. Uncle Carl was a tall bloke with a medium build and clean shaven; he recalled that he had said he came from Germany. He was not an officer and did not wear a uniform. When he came to reside in the dormitory he was in the room on the other side of Terry Smith's room. He recalled at some stage GM was in hospital with hepatitis. He said that GM had a younger brother. 11. Uncle Carl took him to a kitchen and took his pants down and wanted him to play with his penis. Uncle Carl ejaculated. RG did not tell anybody about this. He did not think it would happen again. He was also too scared to tell anyone. 12. Uncle Carl used to come around late at night and take him into his room. This happened more than once. In the room Uncle Carl would take off all his clothes and require RG to take off all of his. He did not want to do that but he was scared and he felt he had no choice. He was told to play with Uncle Carl and then Uncle Carl had anal intercourse with him. This happened about three or four times. 13. He spoke to GM about this because GM had had it done to him. RG could not recall how many times this had happened. He did not keep a count of it but recalls being woken in the night. The accused found out about it and called him into his office and questioned about it. 14. He said the accused was dressed in a proper Salvation Army uniform. This had red on the side and Salvation Army insignia. The uniform included a blue shirt with a black tie but when officers were off duty they just wore normal clothes. 15. He recalled seeing the accused on duty supervising the showers, supervising homework and a lot of times he was in the playground. 16. RG got on reasonably well with the accused. He said he disciplined him once or twice if he got out of line. The disciplining including standing in the quadrangle or being caned He was only ever caned on the hands and this occurred, he said, in the office and nowhere else. I will just go back to this, this discipline included standing in the quadrangle or being caned. He only ever caned him on the hands and this occurred in the office and nowhere else. 17. He said that he was caught by the accused in Uncle Carl's room. Uncle Carl told him to go and clean his room and that he would be up shortly. This occurred on a Sunday afternoon but the accused found him in Uncle Carl's room. 18. RG recalled telling the accused about what had happened between him and Uncle Carl. He said that the accused asked very detailed questions about the sexual abuse that RG disclosed including the size of Uncle Carl's penis. He did not see Uncle Carl again after that. 19. He recalled that Uncle Terry caned him from time to time and including a few in the locker room. The boys would keep in their locker room toys, their homework, school clothes, play clothes, pyjamas and maybe the odd book. 20. RG was able to identify the position where his bed on exhibit 2 was and he recalled the locked number that he was assigned being number 55. 21. There was a door on the veranda near the locker room that gave access to where the accused lived with his family and some of the other staff. 22. He said May was the cook who he used to work with sometimes. He did not forget her because she used to go for the same team as him, being South Sydney. He said he did go to the laundry. He could not recall the laundry ever being locked. 23. Uncle Terry would often supervise the boys in the showers. Uncle Terry would slap the boys on their backside if they mucked up. He would also ask the boys while they were naked to bend over and touch their toes. He said the other officers did that as well. 24. He recalled the death of one of the boys at the home. This boy had a brother called Ian Hubbard who had locker number 56 which was next to him. He said that Trevor Hubbard, the boy that died, had very bad asthma and was in and out of hospital a lot of times. CHRISTINE COLE 1. Christine Cole was the wife of the late Major Bud Cole, now deceased. They had lived at the Bexley Boys' Home from the end of 1969. Her daughter, MC, was born in May of 1970. Bud Cole worked on staff of Bexley Boys' Home until December 1971 or 1972. She also recalled being employed at the boys' home. 2. She lived in a two bedroom cottage which was to the left of the main building and past the assistant manager's quarters. The accommodation was pretty run down but it was painted and fixed up for them when they moved in. Her husband was not a Salvation Army Officer but an employee of the Salvation Army. He was called a 'Boys' Officer' even though he was not a Salvation Army Officer. He did general things around the home, for example, attending to the lawns, collecting vegetables from the markets and general supervision of the boys. 3. When they arrived at the boys' home Major Morton was in charge. His accommodation was on the right side of the building. Major Morton was married and had children living with him. 4. Mrs Cole knew the accused as the assistant manager of the boys' home. He was married and had two boys and a daughter. The accused lived in the assistant manager's quarters which were to the left of the main building. 5. Mrs Cole recalled other officers that lived at the boys' home being a couple of single men who had a room on the top level of the main building. Terry Smith was one and Russell Walker was the other. She particularly remembered Russell Walker because they became friendly with him and he later came to live with her husband and her for a couple of years in premises away from the Bexley Boys' Home. 6. In cross‑examination Mrs Cole said that she maintained an association with the Salvation Army as she was a member of the church. In the 1990s she worked as a Principal Officer in childcare at the Salvation Army Headquarters where she was in charge of records relating to the Salvation Army Childrens' Homes. She had produced a lot of records to the police in the course of their investigations. 7. She and her husband had left the Bexley Boys' Home after Major Lawry Wilson came to the boys' home. Her husband and Mrs Cole disapproved of the way Major Wilson treated the boys and that was one of the reasons that she and her husband left the boys' home. 8. She recalled that Lawry Wilson had started the punishment books. She could not recall finding any books that related to the time before Lawry Wilson. She recalled seeing three little punishment books. At least one, maybe two were from Goulburn with the other one maybe from Bexley. She had no seen any punishment books that related to any of the period of time before Mr Wilson came. She said Mrs Burgess lived at the boys' home and there were two other women, Wendy and May. SCOTT MICHAEL JENKINS 1. Scott Michael Jenkins was a registered psychiatrist practicing in Bundaberg, Queensland where he was treating the complainant CN. He was asked to see CN for an opinion and treatment management of CN's complex history which included depression, ADHD and a borderline personality disorder and complex post-traumatic stress disorder. 2. He prescribed Duloxetine for depression, dexamphetamine for his ADHD, Valium and his general practitioner continued to prescribe Avanza for CN. 3. Dr Jenkins said Duloxetine was an antidepressant which would make CN's mood closer to normal. It would assist in improving motivation, energy levels and concentration. 4. He said that there was no evidence that the antidepressants in general and Duloxetine in particular had any effect on long term memory. 5. He said it should improve a person's ability to concentrate particularly in the context of giving evidence in Court. Dexamphetamine would similarly assist with difficulties in immediate concentration, the capacity to remain organised, short term memory and capacity to function improves. It has neither a positive nor negative effect on long term memory. 6. The Valium which was a Benzodiazepine used for persistent anxiety reduces anxiety levels and helps persons function on the lower level of anxiety. It would not have any real effect on long term memory. 7. Avanza was an antidepressant from a different family than the Duloxetine. The Avanza is taken at night and is a common treatment for persistent depression. A side effect is the immediate increase in sedation and that is why it is taken at night. It assists with sleep; there is no effect on long term memory. 8. Since Dr Jenkins had been seeing CN he had been suffering from his depressive symptoms and symptoms relating to his PTSD. Dr Jenkins said that he could not see any particular problems with CN giving evidence. SHARON ANNE BROWN 1. Sharon Anne Brown gave evidence that she was a Detective Senior Constable of Police attached to the Child Abuse and Sex Crime Squad. She had been involved in the execution of several search warrants, one of which was involved in the execution of the search warrants on the Salvation Army Headquarters in Sydney. 2. Detective Brown had taken a statement from CN with respect to his time in the Bexley Boys' Home. A statement was signed and dated on 16 December 2015. She said, "CN volunteered the names of the staff at the Bexley Boys' Home. " DEAN JONES 1. Dean Jones was also known by the name of Dean Booth. He was born in April 1959. Mr Jones started living at the boys' home in February of 1965. He would have been five going on six years of age. He said the accused started at the boys' home when he was around 8½ years old. 2. He said the accused left at the end of 1970 and came back in 1972 when he was going on thirteen years of age. 3. Mr Jones said that Major Bray was the manager during the accused's initial time at the boys' home and followed by Stan Morton in the beginning of 1969. 4. Mr Jones recalled that the accused would wear a uniform when he was on duty. He would not wear a tie unless it was Sunday. If he was not on duty he would wear casual attire. His uniform included a white shirt with dark navy blue pants. There would be pips on his shirt. He wore this when supervising the boys. The accused's supervision duties included the shower, the playground and escorting them on their way to school. He would also cut the boys' hair. 5. After Mr Jones had left the Bexley Boys' Home he became involved with an organisation called Care Leavers Australian Network, that's CLAN. This was a support organisation bringing people together who had been brought up in an institution. He had obtained some photos from Terry Smith. 6. Mr Jones who met the complainant, DC at a CLAN reunion. He emailed DC the photograph which was before me as a part of exhibit 3 being photograph number 8. 7. He said In 1973 Captain Wilson tasked him to destroy things that he no longer wanted in the main office. Amongst those things was a complete register of every boy that had ever passed through the doors of the Bexley Boys' Home. Mr Jones considered the book to be of historical interest so he did not destroy it. Instead he stashed it in the shed. Unfortunately the book was destroyed by fire when the shed burnt down. 8. Mr Jones agreed that most of the time the accused did in fact wear ordinary civilian clothes during the day when he was attending to handyman and maintenance duties but he insisted that his memory was that the accused always wore Salvation Army Uniform when he was around the boys doing his duties. 9. Mr Jones recalls horses being adjusted on the property at the back of the boys' home. NIGEL KEITH WARREN 1. Nigel Keith Warren, officer in charge of the investigation of the matters before the Court. He had made a number of enquires over the last few years to locate both boys from the home and staff who had worked at the boys' home in the sixties and seventies. 2. He conducted two interviews with the accused. 3. I turn to those two records of interview. ERISP OF 2 NOVEMBER 2016 1. Detective Warren conducted the first ERISP on 2 November 2016. He had arrested the accused at his home in Richmond and took him to the Windsor Police Station where the accused agreed to participate in an ERISP. 2. The ERISP was admitted before me without objection and became exhibit 15. It was accompanied by a bundle of documents which were shown to the accused during the record of interview. The ERISP was played to the Court. 3. On 2 November the accused participated in his record of interview. He responded to allegations concerning a number of complainants. As that ERISP has been tendered in evidence it is of course admissible to take into account along with the evidence in the case. I remind myself that the accused could have chosen to exercise his right to silence but he chose to participate in the interview. 4. In spite of the many decades that have passed since the relevant time at the Bexley Boys' Home the accused demonstrated a detailed recollection of the layout of the Bexley Boys' Home, it's routine and its staff. 5. The record of interview, as I said, was conducted on 2 November 2016. The accused was informed that the ERISP into the investigation was to do with some assaults and indecent assaults on a number of boys at the Bexley Boys' Home between 1968 and 1974. 6. The accused consented to be interviewed; he agreed that he had been given the opportunity to contact a legal advisor in relation to the matter. He confirmed that he agreed to be interviewed. 7. The accused identified his officer's career card and said that was the first time he had seen it, he agreed that it related to his postings within the Salvation Army. This document confirmed that he had started at the Bexley Boys' Home on 18 July 1968 and was there on his first posting until 14 January 1971. There was a second period of employment at the Bexley Boys' Home from 20 January 1972 to 17 January 1974. 8. The accused explained the process of gaining admission to the Salvation Army and his progress through the ranks. He was also shown copies of orders and regulations which bound him as a member of the Salvation Army. 9. The accused was asked if he had a memory of his first posting to the Bexley Boys' Home. He did have that memory. He was a second officer at the boys' home, one of three male staff. 10. He was responsible to the manger. There was another employee that worked with him. His main responsibility was to be responsible for the place when the manager was away. 11. The manager for the first twelve months that he was there was Brigadier Lionel Bray. For his second posting, initially it was made to Stan Morton who would have been at the home from July of 1969 onwards. He could only recall two changes in the managers during that period of time. 12. There were a number of employees one of whom was Major Terry Smith who is now retired who was initially an employee. Mr Smith was at Bexley Boys' Home during both of the accused's postings. 13. He said in the first period of time there would have been a female cook and two other female employees; three ladies all up including Mrs Burgess, May and Wendy. There was also a laundress called Lila. 14. Terry Smith cared for the boys. He was originally from the United Kingdom with the Dr Barnardo's Scheme. He had been cared for well and wanted to see that other boys who had been placed in similar circumstances to himself were equally cared for well. 15. The accused said that he got on well with staff there. The accused requested a lolly or something sweet to eat in the course of the interview. He agreed that he had just had a meal but he said that he needed to have something sweet before he could continue with the interview. The interview was suspended. In the suspended time the accused was afforded some sweets which he was allowed to continue to chew during the course of the resumed interview. 16. The accused said that he was interested in doing his job and caring well for kids. He described himself as fit at the time doing lawn mowing, maintenance work around the home. He described himself as he supposed, 'strong'. He denied that he ever got angry with staff. When asked if he remembered any of the boys that were there at the time he said he had vague memories of some of them. 17. With respect to the morning routine or the daily routine the boys would get up, they would get dressed; some of the senior boys had chores like helping in the kitchen and setting tables in the dining room. The younger boys played. He said he learnt how the boys' home worked by word of mouth. He said, "You learnt under the manager, you were guided by that." He said there was no formal training. He said he was not allowed to use the cane unless he was in charge when the manager was on leave. 18. He said that the cane was given very infrequently perhaps for disciplining for stealing. That would be the minimum. A boy might get the cane if he had been involved in multiple incidences of bullying a smaller boy. He doubted if he would get the cane for swearing and certainly not for bed wetting. 19. The accused said that Stan Morton's aim was to humanise the place. With respect to showering the bigger boy would take the smaller boy. He said there were lines of lockers and the older boy had to help the little boy get dressed. They would all strip off, put their towels around them and go across the hallway into the shower room where they would line up, they would wash their feet. There were two showers, they would get wet, put soap on themselves then go back, rinse off, come out and dry themselves. 20. The accused during the course of the interview stood up for a while because his legs were, as he described, killing him and then he moved around for a period of time before being seated again. He was asked to look at and comment on some photos of the boys' home. The accused remembered some other members of staff who lived at the home over the time that he was there including Major Cole who both had their wives with them. He also mentioned Lionel Bray. 21. He said that details of corporal punishment were recorded in the punishment book including the child's name, the date of the offence and how many strikes of the cane he was given. He said, the book was signed and kept in the office. 22. He said that caning was only permissible on the hand and the maximum was six strokes. He said he did not cane anyone anywhere else other than the hand. He denied emphatically inflicting corporal punishment in any other way than with the cane. He emphatically denied hitting the boys with his fists. He did not know of any officer doing that. The only misdemeanour as he described it was on a weekend and the little boys complained in regards to this other person's behaviour. He said that it appeared that he was grooming kids for sex. He said, "I actually suspended the fellow from duty until Stan came back" and that was on question and answer 397 at page 34. 23. The accused could not remember this person's name but recalled he was of French origin. This unknown male did not wait for Stan Morton to return. He was picked up by police at the airport for visa violations. The accused denied that while he was at Bexley either during the first period or the second period that any child came up to him and disclosed any abuse whether it was physical or sexual. The accused said that with respect to the French employee whom he suspended for grooming boys. He could not recall what the behaviour was but that it was certainly behaviour that the boys complained about for which he suspended this person for further investigation. ERISP OF 8 JUNE 2017 1. The accused also participated in a record of interview with Detective Sergeant Warren on 8 June 2017. That record of interview was before me as MFI 13. He confirmed that he had obtained legal advice and that he was happy to continue to participate in the record of interview. He confirmed that he had been previously interviewed with respect to allegations at the Salvation Army Boys' Home and that he agreed that he was shown records and personal records of his time at the boys' home in that first record of interview. 2. He confirmed the two discrete periods or postings that he had at the boys' home. 3. He agreed that he had detailed to Sergeant Warren where he had resided during the two postings at the Bexley Boys' Home. 4. He described it as a double brick home on the northern or the left hand side of the property when you entered the main building. He said that was in an area which cornered Barnsbury Grove and Kingsland Road. He said that he stayed in that house with his family including his wife, his two boys and his daughter. 5. He said that his youngest was born while they were there and he said he was born in 1970. 6. When asked to describe the inside of the cottage he described it initially as four bedroom then clarified that in saying it was four rooms. It was basically four rooms divided with a hallway down the centre and then he was asked to draw that which he did. He described that there was a sunroom on that house as well and an attached laundry. He said the boys' home was to the right and there was a dividing fence between his home and the main building of the boys' home. He also described positions where Ken Beer and Bud and Christine Cole lived during their time at the boys' home. 7. He said that there was a manager's residence or what was referred to as the small boys' cottage. There was also on the plan where the original manager's residence was and that was in fact subject to a later change when the old residence was no longer occupied and new premises were made for the manager. He described working at the boys' home where staff would have time off and there would also be a roster, he referred to it as a roster system or people would rotate, he said: "I call it a rotor rather than a roster because it rolled around depending on the number of people and the staff that were responsible." 1. He said that at least 50% of his time involved doing maintenance. He also went to the markets to buy wholesale vegetables, he would go to Coles at Roselands after the cafeteria closed to pick up leftovers, and he also went to Homebush Abattoir to get meat which he brought home. He also said that he did butchering for the boys' home. He described himself as being second officer in charge and then the assistant manager on the second time around. He said that there was a slight difference between those two positions and described the difference at question and answer 154. I interpolate that little turns on that. 2. He said that whilst the manager was on the building, it was the manager's role to discipline boys, and with respect to corporal punishment it was always the manager. That was the use of the cane. That was subject to legislation back then and he would only have the authority to use corporal punishment, i.e. the cane, if he was in the position of acting manager. He said that that was already written down in a punishment book, and that that punishment would always be given in the office. He said the punishment book was to identify the child who was the subject of the misdemeanour to quantify how many strokes of the cane were administered and also the date. He said that he did not think there was any legislative requirement for that to be witnessed. 3. He said he did not recall any of the boys in particular that he disciplined, and he said that the use of the cane by him was infrequent. But he did recall giving a group of boys the cane, including his own son, because there was an incident that they were involved in he referred to as 'mischief', and he received the cane along with them. 4. He said that a boy might get the cane for, he said, "for bullying or fighting, something like that. Maybe stealing". He thought though rather than give the boy the cane it was always a better way to get the boy to make a confession and to make restitution to the person rather than give the cane. 5. With respect to the lockers in the locker room, he could not say what colour they were, he said if there was any glass it would be opaque, you could not see through there. There would have been a small pane in the top and he said that there were lockers made out of metal, brown metal lockers, the kids used to sit in the bottom of them where their clothing hung. You would always hear a bump, bump, bump when, as I understand his answer, when the boys were sitting in the bottom of the locker. He said that they would flex when the boys sat on them. 6. There was a top shelf with hanging space and that the lockers had numbers on them which corresponded with numbers that were put on their clothes. He hastened to add that the boys were named and they were not known by their number, but it was of course a sensible way of identifying boys' clothes with such a large number of boys to look after. 7. The accused was asked about whether or not there was a paddock adjacent to the boys' home. He said that there was a paddock beyond the playground and that they eventually developed it as I understand it into a football field. It had been initially a garbage dump, and then later on it was turned into a playing ground. He said it was not ever really known as a paddock and it was never known as a horse paddock. 8. He said that he did recall a laundry on the original premises. He said that you entered the laundry through the ground floor, it was a double-storey building, it had a loft, it was old fashioned, spin dryer, was separate from the washing machine, there was a drum, it was horizontal, made out of brass and it had a door that opened up into it and the clothes were put in there and that would close. There was a button on the wall had the motor where you pressed it to make it work. He said they might have had an old fashioned clothes dryer. And then he described a system where dirty clothes were taken off, they would have been taken progressively down to the laundry and the laundress would have dealt with them. 9. He said that there would have been clothes baskets, the old fashioned wicker ones which like cane probably had a quarter inch thick or something with them. He confirmed that there was a loft but he had probably never gone up there. He said that there might have been a ladder to get up there, but he did not recall if the ladder was in fact working. He could not recall very much else about that room, that being the laundry. He said that he might have gone there to take stuff down there under the supervision of the matron or the laundress. 10. He was asked whether any of the boys ever went down there, he said that they might have gone down there to take stuff down there under the supervision of the matron or the laundress. He denied ever going down there. He thought that the laundry was locked, otherwise people would come in off the street, and it was locked to keep it secure. 11. He said that with respect to owning a dog there was a period of time when he lived at the boys' home when he owned an Australian terrier. He denied that there were ever times when a boy in the home would annoy his dog that was because the dog was never allowed to go over to the home. They had a secure yard at the back because they had small children. He denied that there were ever sounds made that would make the dog howl. 12. He said that with respect to any boys at the home playing musical instruments, he thought that Dean Jones or Dean Booth, "I think he played an instrument in the Hurstville band", and then he qualified that and said, "That might have been the Rockdale band". 13. The accused denied that he ever recalled any of the boys at the home playing a mouth organ, and particularly hearing a boy playing a mouth organ which caused his dog to get annoyed and consequently howl. He said that if that had happened he would have remembered it because he would not have tolerated a howling dog. 14. With respect to CN, he was asked if he recalled CN and he said that he did recall him. He remembered him as he was a boy at the home and he could not recall any of his features. He recalled him as a slim kid, he said that he had chiselled pointed features or something like that; he described him as an ordinary kid. He thought that CN may have been there longer than some of the other boys, "I don't know"; he was just trying to think about that. "Do you recall if he had any siblings at the home?" He could not recall that. 15. Then there were some questions about how the accused would have looked at the time, he agreed that he would have been about 12 stone, again confirmed he was physically active and did a lot of manual work around the home. 16. He said he was 29 when he went to work at Bexley. He was asked if he wore glasses back there, and he agreed that he did some of the time. He said that he would normally be shaven as he appeared at the time and as he appeared in the ERISP. 17. With respect to the allegation of CN, playing the mouth organ and claiming that when he played it his dog would howl, the accused said at question 334, "That's pretty inventive", and he went on at 335 to say, "It's just plain nonsense". The accused denied the allegation that he ever got upset with CN because of that and kicked him in the shins. He said: "That's nonsense. I'm going to be paying uh-huh; they're paying his subscription in to the Screen Writers Guild or something if I've got enough money when I finish with this." 1. He denied that that incident happened. Nor he denied it happening with any other staff members back then. 2. He denied wearing uniform when he was on duty around the boys, and he said if it was in summer he would just wear a work shirt and work pants, and in the winter he would wear short trousers and - sorry, in the winter he would put on long pants. He said that the reason for that was that the Salvation Army uniform, the regimental dress, was quite expensive and it would not make sense, in fact it would be ridiculous if you were handling hydrochloric acid in your uniform doing the pool or doing the butchering wearing it, or being in a steamy shower, that would be nonsense. 3. When the allegation with respect to count 8 and 9, the act of buggery and the alternate indecent assault were put to the accused at question and answer 355 and following, he said that that was "ridiculous, he had never been that way inclined, (and) had been married to the same woman for 56 years," "We courted for three years before that and we were both virgins when we got married". He said that this is nonsense. When it was put to him that, "CN claims that something was stuck up his butt into his anus and it felt like it was a part of you", he said he had no knowledge of that, he said, "That definitely didn't happen", and he said, "I can sit here and say quite honestly and openly without a quiver because it's so ridiculous". He denied any knowledge of the allegation. 4. He said that if it had happened at his house then his wife would have been there and his children would have been there, or at least some of this children. He said if it had happened in the house behind it would have been either Ella Beer there or her young children, or Chris Cole there with at least her youngest child. He said, "If it had happened in Stan Morton's old house Eva would have been there, probably working up at the matron's locker room because she used to gravitate between those two places between the day", and he said, "If it was a morning or a non-school day then Joycelyn, the youngest daughter of the Morton's, would have been there". He added that "This is plain fabricated nonsense", and went on to say, "And it's about time we all saw it as that". 5. He said when the occasion of the allegation with respect to count 10 was put to him, he said that "You can't hide between the lockers, it was impossible", and when the allegation was put to him that he had pushed CN up against a locker, "and when you were chest to chest turned him around" and then anally penetrated him with his penis, his answer to that was, "CN's been developing his story by talking to other mates at CLAN and people, that's what I'd say about that". He denied that it happened, he said "It didn't happen", and then he said, "Look, I would not risk - I would not risk contracting something and transmitting that to my wife", and went on to say, "This is absolutely ridiculous". And further on, when the CN allegation was put to him again he shook his head and denied it. 6. The balance of the record of interview discusses postings that the accused was on before and after the Bexley Boys' postings that he had. 7. As I said, I have not attempted to summarise the entirety of either record of interview, but just reflect for the purposes of my judgment the important questions and answers as I saw it, that the accused was asked and his answers. JOYCELYN MORTON 1. Joycelyn Morton was the daughter of Eva and Stan Morton. She was born in 1959. Her parents were both officers in the Salvation Army. Her father was appointed manager of the Bexley Boys' Home in 1969, and the family moved there to live there at that time. She acknowledged that the site plan in exhibit 1 was generally correct, as was exhibit 2, the hand drawn plan. She had gone to Bexley North Primary School. She stayed at the Bexley Boys' Home with her family until the end of 1973. They were there for about five years. 2. She said that she formed friendships with the boys from the home, and they would travel to and from the high school on the bus with boys from the home. She recalled playing cricket and soccer and being on the monkey bars in the playground with the boys, and she was allowed to roam around the grounds of the boys' home at large. The only areas that she was not permitted to go to was the shower area and the change room. She had never been there. 3. She recalled the accused and his son IM. She went to school with IM. When the accused's son BM was born the accused's wife was not well. She would visit and help feed and keep the baby occupied. The accused was the assistant to her father and she was sure that the accused would have supervised the boys during the time that she was there. 4. The accused wore Salvation Army uniform which was in her memory always navy trousers and a white shirt, in winter he would wear a jumper. She could not actually picture him dressed otherwise than in his uniform. 5. Ms Morton did not witness any form of punishment at the boys' home. She recalled Terry Smith and Russell Walker being at the boys' home, but she did not know their status, just that they were there. She recalled there was a time when her father initiated restructuring of the large dormitories into smaller cubicles. 6. Her father worked very long hours. She recalled that he would go and walk through the dormitories at night, but she never saw him do that, it was just that she would recall him saying things such as "I'm going to just walk through the dormitory and make sure the boys are okay". She said that she recalled the accused's wife assuming an official role in running the establishment. The accused's wife, she said, did not like the fact that the boys were in uniform and thought it preferable that they were provided with casual clothes. CN 1. I turn now to the evidence of CN who was the final complainant who gave evidence with respect to counts 6, 7, 8, 9 and 10. 2. CN was born in September 1959. He had two older brothers a sister. CN was in the Bexley Boys' Home from a very young age for many years. 3. He made a statement to the police on 15 December 2015 and another statement on 23 November - I have to just check that year - and a statement on 24 July 2018, and a statement on August 16 2018. There are also a number of drawings made by him accompanying the various statements. The drawings became exhibits 18 and 19. 4. CN took a number of medications including antidepressants, medication for ADHD, sleeping pills, Panadol, medicine for fibromyalgia and Valium. He had taken his medications that day and was feeling fine. CN was initially in the Home with his brothers. 5. One brother was three years older than him and the other was about 18 months older than him. They had both left the home before him as they had been taken out and adopted. Nonetheless, when they were at the home they were always there for him when he needed them. 6. CN was less than five years of age when he went into the home. He slept in the dormitories. The position of his bed changed from time to time over the years. He said there was a chapel, a locker room and he confirmed the position of the showers. The lockers were metal and some had doors. They were back to back with rows of lockers joined together. There were lockers down the back wall. There was a top shelf, a place to hang your clothes and another shelf underneath for shoes. 7. CN described the process of showering. This would take place after school. The boys would all line up and wait till the showers were free for them to use. "It was like a conveyer belt", he said. They would wait naked in the locker room. They were supervised during this procedure. 8. Most of the time that he was at the home he attended Bexley North Primary School. He would walk along a walkway from the home to the school. 9. They were supervised in the dormitory by staff. There were officers that lived adjacent to the dormitory in two officers' quarters. One looked out the back of the boy's home and one looked out the front of the boys' home. Exhibit 2 accorded with his recollection and he said was a reasonably accurate representation as to what the dormitory looked like before they were changed. 10. The routine of an average weekday included lights being turned on. The boys were told to get up. They would make their beds, they would go downstairs to the locker rooms to get themselves organised into their clothes. They would have breakfast. On weekdays they would line up again in the shower area where they gave the boys oil to put on their hair. The high school boys would go and catch the bus, the primary school boys would walk down the path to their school. 11. At the end of the school day they would come home, get changed and then polish their shoes in the courtyard. They were allowed to go out and play after that was done. The back paddocks past the pavilion were out of bounds. They were horse paddocks. He did not know who the horse paddocks belonged to, but the horses were kept there. Sometimes he would go and pat the horses. 12. The bell would go for teatime which normally had nine bells. They would stand in the quadrangle and they would line up and go up the steps into the dining room. Sometimes after dinner they were allowed free time to watch TV or just muck around. 13. CN said the routine did not differ greatly on weekends except for the fact that they did not have to go to school. They got up, they had breakfast and they were allowed to go to the play area and play during the day. Some of the kids were taken out by their parents on Saturdays. He was taken out by people who he called Sunday parents who took him out for a bit over a year. 14. He said there were still a lot of kids around on Saturdays. They would play soccer and muck around. He used to hide a lot and described one special hidey hole above the laundry room where he had knocked out some planks of wood. 15. He said he also ran away from the Home a lot but could not remember how many times he ran away. 16. Major Morton was in charge of the Home. He started after CN had been in the Home. Mr Morton wore a white shirt with a Salvation Army emblem on the collar and black pants. Mr Morton had officers' quarters built for him down near the school. Before that he was not sure where he lived, but it was somewhere on the boys' home campus. 17. He recalled Mr Morton was married and having a "lovely daughter" whose name he could not recall. 18. He used to see the daughter around the home from time to time. The officer in charge before Mr Morton was Major Bray. 19. He recalled that Mr Morton had an assistant officer in charge and that was the accused. He described that the accused wore the same dress as Mr Morton being a white shirt, Salvation Army things on the collar and black pants. 20. He recalled that there were other male persons working at the home who were not Salvation Army officers. CN described the accused as being about 6 foot tall with a "buzz type of short haircut, a squarish head". He thought that he used to wear black glasses every now and again. 21. The accused used to live in the officers' quarters which were down on the left hand side as you were looking at the boys' home. He circled the position on the left hand side as you looked at the boys' home. He circled the position of the assistance manager's quarters on exhibit 1 as indicating where the accused had lived. He had seen him at the officers' quarters and had circled exhibit 1, and he said that was where he was assaulted by him. 22. He recalled the accused supervising the boys in the showers and would also check up on them in the TV room. 23. He recalled that the accused had a dog because it used to come up from the accused's quarters. He described it as a "silky terrier of some sort". He used to see the dog regularly because he had a mouth organ that he used to play to the terrier and it used to howl. He thought that was great. COUNT 6 THE COMMON ASSAULT 1. On one occasion when he was making the dog howl the accused 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. 2. The accused grabbed him by the scruff of the neck. He told him to "Cut it out and stop doing it", and took the mouth organ from him. He then gave him a clip behind the ears. 3. CN said he took this all with a grain of salt. He could not recall what the accused was wearing. After this happened he went out to the back paddocks to play in the area that they were allowed to play. He said he did not know how old he was when this happened. DEATH OF TREVOR HUBBARD 1. CN recalled a boy Trevor Hubbard. He was a friend, a mate that he knocked around with at the boys' home. He recalls that his first name was I. 2. This boy had suffered asthma and used the puffer. One night they found him on the toilet floor having an asthma attack. CN said that the toilet was on the right hand side of the dormitory on the first floor and indicated where it was in relation to exhibit 2. 3. He said he was in bed when he became aware that the boy was having an asthma attack. He said a couple of the kids got up to him and saw what was happening. They went down to the officers' quarters in the dormitory, the one that faced the main road, closest to Kingsland Road. "We knocked on his door; they said something was happening to TH". The officer came and had a look and basically said, "He'll be alright". 4. The officer went back off and the boys went back to bed. It was dark outside. He looked at his mate, they went back to bed. There was nothing he could do for the boy. 5. They were told that the boy was dead. As a result of the boy's death there was a riot amongst the boys. There was a dozen of them young and old kids. It started in the main foyer where the offices were underneath the dormitory. They got the accused into a corner and started punching into him. They were throwing punches but nothing was said to the accused. 6. He recalled that this was an unusual event. The officer was wearing white shirt and black pants. Another officer, either Captain Wilkinson or Wilkins was leaning over to protect the accused's body and to stop the boys from throwing punches. Nobody was saying anything but there was just a whole lot of screeching. 7. He said that he did this because the deceased boy was his mate and they were doing it to the accused for "justice". 8. They believed that the accused had failed the deceased. The deceased boy had not been given his puffer. He had not seen the accused in the room before the boy died. 9. The incident escalated into some of the boys going onto the rooftop. They were told to come down or their privileges such as going to see their parents and going out would be lost. The complainant said to the other boys, "You might as well go down because I don't go out anywhere anyway". He stayed up there until it was going on dark, then he got too scared and came down. He said he "copped a flogging" from Major Morton. 10. This flogging occurred in the hallway that led to the sick bay. It included him being hit across the wrist with the cane and across the back of the legs. He did not know if anybody else was about when this was done to him. He said it was not the first time that he was caned by Mr Morton. He said he was often caned on a regular basis. He described himself as "not being the best behaved kid in the boys' home". 11. CN described three different occasions where he was sexually abused by an officer at the boys' home, and it was the accused he said. UNCHARGED ACT IN THE LAUNDRY 1. Firstly, the first time this happened was in the laundry, this is referred to as an uncharged act in the laundry. He said the first time this happened was in the laundry room which he identified with reference to exhibit 1. He said the laundry room was always in the same position next to the horse paddocks. It was not far from the cement walkway which led to the school. The laundry had two storeys. This was an open space with bit stainless steel washing machines. The door into the laundry could not be locked. There was another room which had clothes bins where dirty clothes would be put in before they were washed. 2. He described a "hidey hole" in the laundry which was accessed by going up some external wooden steps. There was a landing with a locked wooden door behind which there were prams and other miscellaneous stuff. This was a floor that took up the whole of the building. The door at the top of the staircase was always locked, but he broke some floorboards to get inside of the building on the first floor. A group of the boys had broken the floorboards by wiggling them out and cutting them loose. He was able to put them back down. This area became a "hidey hole" that he and other boys used. He used it mostly. About four floorboards had been removed with lengths of 2 foot to 3 foot. They managed to wangle them loose and that is how they got into the first floor. 3. He said it was the accused who sexually abused him in the laundry. He said he knew it was the accused because he said, "I know his face". On this particular day he was dressed in a white top with black pants. 4. He said he didn't know what day of the week it was. He remembered he had just got into trouble from Major Morton. He had yelled out a whole heap of swear words at him and he took off. The accused followed him down into the laundry. The complainant went into the laundry because he was being chased. He wanted to try and get into his "hidey hole" but he did not have enough time to get into it. He got caught in the laundry. He knew he was not going to make it into the "hidey hole" so he jumped into one of the clothes bins and put clothes over the top of him and tried to hide. 5. The next minute he was pulled out of there. He was standing face to face with the accused. The accused said to him "Come here". 6. He was hesitant. The next thing he knew that happened was that the accused got his hand and put his hand on the accused's, what he referred to as his "dick". This occurred in the laundry room where the clothing bins were. There was no one else around. He explained that his hand came to be placed on the accused's penis because the accused grabbed it and I understand placed it there. 7. The accused then told CN to "Get out". The complainant said that he just took off and went and hid under the pavilion. Nothing else happened of a physical nature between him and the accused on that occasion besides having his hand grabbed and placed on the accused's penis. 8. He was asked if he told anybody about what happened. The complainant said: "No, you couldn't tell anybody because you've got to think a home full of boys, we're all a bunch of arseholes to each other, and as it was we used to beat up the poofters, pardon my French. So the last thing you would want to do is give anybody any ammunition to have anything against you." 1. He did not tell any of the officers or any of the women that worked there because it would be, as he described, "a waste of time". He said his brothers were not in the home at the time when this happened. 2. Whilst CN could not give a timeframe for the laundry incident, he said it was the first incident of a sexual nature that occurred between him and the accused. COUNT 8 AND IN THE ALTERNATIVE COUNT 9 THE INCIDENT IN THE OFFICERS' QUARTERS 1. The complainant confirmed that he had pictured himself at an officer's quarters which were on the left hand side looking at the boys' home down to the left. 2. He was mucking around in the out of bounds part of the grassed area near the assistant manager's quarters on a particular day. They were not allowed down in that area because that would give them access to the main road. He did not know what day of the week it was or what time of the day. Suffice it to say it was light. He was taken down to the officer's quarters by the accused. He did not see where he came from. He was dressed in the normal white shirt and black pants. He had not been to this place before that day. 3. They went into a room. There was just an office door that led to the room. There were doors on the outside. The accused told the complainant to "face the wall". In one of the rooms there was a desk, a dresser set of drawers, a cot or a bed. He was told to turn around and face the wall which he did. The next minute he said "I just felt shooting pain in my behind". He was wearing his play clothes which were taken down to his knees. He then felt a sharp pain in his rear end. The next minute he turned around. He uttered "a few obscenities and took off out of the room". 4. He was pulling his pants up as he was going. The sharp pain was, as he described it, in his "bum". He felt pain and he described it as a "ripping pain". He panicked; he fled, pulling up his pants as he went. He yelled abuse at the accused. He then went and hid himself under the pavilion. 5. After that he noticed some blood spots on his underpants and the following day his bottom was really sore. He did not tell anyone about what had happened to him. He described feeling pressure in his bottom. COUNT 10 ACT OF BUGGERY IN THE LOCKER ROOM 1. I turn now to count 10 and CN's evidence with reference to count 10 which was the act of buggery in the locker room. 2. CN described a third incident which happened in the locker rooms. He had been in the locker rooms trying to see what he could steal from the lockers. The accused came in. He tried to hide himself behind the lockers which apparently he could not really do. "You could hide behind the end of the row of lockers". The complainant explained how that might be possible with reference to exhibit 3, photograph number 9. 3. He said that the accused grabbed him by the arm and they were standing chest to chest. He turned him around to face the locker. He said that the accused penetrated the complainant and "Stuck his dick in my bum… just moved his pelvis". 4. He said that this seemed to last for what he described as "…an eternity". He could not put a timeframe on it. He said he was then told to get out. He said that his body was sore with a spot of bleeding. 5. In cross-examination CN said that he was about four and a half years of age when he entered the boys' home. He agreed that even though some things may have happened up to 55 years ago, nonetheless "some things you never forget". It was upsetting for him when his brothers left and he was there by himself. 6. He agreed that since then he had been diagnosed with ADHD and thought that he might have got into more trouble than the average child did at the time. The complainant said that he did not like Major Morton, nor did he like the accused. He said that he had nothing to do with other boys from the Bexley Boys' Home since he had left. 7. The complainant agreed that he had described Trevor Hubbard as one of his friends. He could not recall describing him to the police as "actually my best mate". When it was suggested to him that the name of the boy who died of asthma was Trevor Hubbard, CN said he always knew his name was I. He said he was not aware that Trevor Hubbard had a brother at the home called I. He agreed that it could have been simply mistaken in remembering his name as I. 8. He agreed that there were two officers with separate accommodation in the dormitory. These officers slept there overnight for general supervision. 9. CN could not recall Uncle Terry being in one of those rooms. He insisted that it was the accused that was in the room. He could not recall the accused carrying the deceased boy out of the dormitory over his shoulder the following morning. 10. He agreed that the death of the Trevor Hubbard boy caused a tremendous amount of upset to the boys in the dormitory. It was a traumatic event and there was a lot of blaming going on. He agreed that he had given evidence that some boys started punching the accused because they blamed him for the death of the boy. 11. When it was put to him that it was not the accused that was being punched but the man referred to as Uncle Terry, he said that was not correct. He agreed that from the day of the death of Trevor Hubbard he blamed the accused for the boy's death. 12. He agreed that part of the blame was because he considered the accused responsible for the boy's death because he did not give him his puffer and he wanted justice for his friend. 13. In cross-examination CN confirmed that he would go out on Sundays with the family known as the Gibbs. They would take him on outings on Sundays plus the school holidays. 14. He agreed that the father of that man, a man named Darren or Darryl had sexually assaulted him on more than one occasion. This occurred in his home. The sexual assaults included fellatio and buggery. 15. He agreed that there were two boys at the home who tried to sexually assault him. 16. A person who was in charge of the camp which he went on had also sexually assaulted him. He said that these matters had all distressed him greatly. 17. The complainant agreed that he went for a long time without diagnosis or medication for either his depression or his ADHD. Before he was treated he dealt with those issues as best he could by taking drugs and alcohol. The drugs he took include marijuana, speed and he was a binge drinker on the weekends. He said he no longer drank alcohol. 18. The complainant CN was cross-examined further about each of the alleged incidents between him and the accused. He said he was not able to put a timeframe of when the events giving rise to any of the accounts occurred save for excluding 1964. He could not say one way or another when the incidents occurred. 19. Apart from some further brief evidence from the officer in charge, that was the main parts of the case for the Crown. 20. And I note the time and if it is convenient we might break for lunch now. Ms McSpedden is there anything arising? MCSPEDDEN: I have a sentence matter before her Honour Judge Shead at 2 o'clock. I anticipate it won't take very long, but would your Honour just excuse me from the bar table, my instructing solicitor can take notes. 1. HER HONOUR: Of course. I was going to say I have got some little time to go in the judgment and I do not know if we would finish if I allowed you the indulgence of not being here. But if you are happy for your solicitor to be present for that short time I am only too happy to excuse you Ms McSpedden, thank you. LUNCHEON ADJOURNMENT I'm sorry that I kept you waiting. It's just that obviously there's a lot of material to consider in this judgment which I have been considering very carefully and I was also mindful to give Ms McSpedden the opportunity to come back. So hopefully she will be back soon. Mr MCIVER, you're in very capable hands with the instructing solicitor. So I continue with my judgment with respect to a summary of the accused's evidence. 1. The accused gave sworn evidence before me. I remind myself that there was no obligation for him to do so. The accused bears no onus of proof at all, the onus of proof remains on the Crown throughout the trial. 2. Albeit I have already directed myself with respect to the applicable law nonetheless it is most important that I bear these directions in mind, they are worth repeating and I do as follows: 1. The accused chose to give evidence in this trial and he chose to give an account to police in the two recorded interviews after his arrest. That does not mean that the onus of proof shifts from the Crown to the accused. 2. The accused bears no onus to prove that he is not guilty, he is presumed innocent. It is always the Crown who bears the onus of proving its case. 3. I should clearly understand that it is not a contest between whether I prefer the evidence of the complainant or whether I prefer the evidence of the accused in my consideration on any individual count. It is not a contest because the onus of proof is not on the accused to prove anything. 4. If in this Court I am left with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove in respect of one or more counts then I am bound in law to bring a verdict of not guilty on that count or counts. 5. It is not a position that I have to believe that the accused is telling the truth before the accused is entitled to be acquitted as I have previously emphasised. The Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for an accused to prove that he or she is not guilty. 6. Even if I were to reject the accused's account, or important aspects of it, before I could find him guilty on any particular count I must be satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence charged by the particular count I'm considering. 1. The accused maintained his pleas of not guilty with respect to the remaining counts before the Court. He has been found not guilty by way of directed verdicts on counts 3, 4 and 7. 2. With respect to the first ERISP the accused maintained that he was suffering from hypoglycaemia which required him to digest sugar in easily digestible amounts. He had the shakes he said in that ERISP. 3. He acknowledged that he was mistaken in that interview in stating that Major Bray was the manager of the boys' home when; in fact, having thought about it he realised it was Major Morton. 4. The accused said in both interviews he was doing his best in all the circumstances to be as truthful and accurate as he could. 5. With respect to the events surrounding the death of Trevor Hubbard the accused said there was only one staff member that actually slept in the dormitory building; that was Terry Smith. On the day or Trevor Hubbard's death it was his day off. 6. Terry Smith's day off started the morning that the accused came to wake the boys up. He wanted to give him a sleep in because he would be back in the building that night. The accused came to the southern end of the dormitory. As he walked in he could see the toilet. He saw Trevor Hubbard actually sitting on the toilet, slightly leant to his right side. He was concerned for Trevor Hubbard because he knew him well. He walked straight over, down the corridor between the rows of beds. He noted that the boys were waking up, but that was all he could recall. 7. He went to Trevor Hubbard where he was seated on the toilet, he felt quite cold. He felt his carotid artery but could not get a pulse. He decided to pick Trevor Hubbard up, as he described, "fireman fashion". He picked him up probably by the left arm, and put him behind his head. He went straight back up the passageway in the direction that he had come and he walked over to the door on his left. He went through the door and then past Terry Smith's room, which was on the left, and then he went downstairs to the sickbay. 8. He was doing that quickly because he wanted to put Trevor Hubbard onto a bed so he could start resuscitation. He did the "Schafer method" which involved chest compressions and pulling the shoulders backward; he did not have any success with that. Things became, he said, "jumbled, but I didn't leave". He recalled that Major Morton was at the sick bay fairly promptly and that the accused stayed there for quite some time. Ambulance officers came and they pronounced Trevor Hubbard deceased. Later, a local GP from Bexley North came and another doctor came to sign the death certificate. Trevor Hubbard's body was removed from the premises. 9. The accused denied that there was any occasion on that day when he was set upon by a group of boys. He said the boys were very quiet and subdued. 10. The accused would have been wearing on that day shorts, work shoes and a work shirt. 11. The accused denied that it was his habit to wear Salvation Army uniform in his day-to-day duties at the home. Many of his day‑to-day duties took place when the boys were at school. He wore Salvation Army uniform when they had Sunday night chapel, Wednesday night chapel and when he attended the Bexley Salvation Army for church on Sunday. The uniform during the summer was blue pants and blue tie and a white shirt with insignia on the collar and plates and two stars, because he was a captain. In the winter he would wear blue pants and the official Salvation Army uniform which was dark blue or navy. 12. On both occasions that the accused was at the Bexley Boys' Home he lived in the assistant manager's cottage. When he and his wife first went there their eldest son was almost five and he had a daughter who was about 18 months old. 13. The accused drew a diagram which represented the house as it was when he lived there. There were two bedrooms on the right-hand side. The bedroom that he and his wife slept in had a bed in it and there was a fireplace in that room. The other bedroom had two beds in it. There was a cot in his room where Narelle slept in their room. He said when the cot was moved out of his room it would have probably been moved into a corner of the second bedroom. 14. When the accused first went to the boys' home another officer and his wife, Ken and Ella Beer, lived in quarters near the assistant manager's quarters. That cottage was of wooden construction. The accused was asked about another building adjacent to the assistant manager's quarters. He was not able to say when that building was demolished but he recalled that the back fence that was behind his place was a 6 foot fence built of hardwood. It was new timber, partially weathered, about 18 months old and not rotted away. 15. The accused denied that there was ever an occasion when he was in the laundry of the Bexley Boys' Home with CN. 16. He denied that there was ever an occasion in which he sexually assaulted CN in the laundry. 17. He denied that there was ever an officer called Russell Walker at the boys' home in either of the two periods that he was at the boys' home. He denied ever being at the Bexley Boys' Home at the same time as an officer known as Wilkins or Wilson. 18. He denied ever chasing CN to the laundry or placing his hand or forcing CN' hands on his penis. 19. He denied ever clipping CN behind the ear when he had been playing the mouth organ. 20. The accused agreed that during the first period of time when he was at the boys' home his family had an Australian terrier dog. The dog was tan in colour and his tail had been docked. The dog was kept inside the fully-fenced yard. 21. The accused denied that he ever took CN into any of the officers' residences on the campus. He denied that he ever sexually assaulted CN by placing either his penis or an object into his anus. 22. Similarly the accused denied that there was ever an occasion in the locker room at the boys' home when he placed his penis inside CN' anus and ejaculated. 23. The accused denied that there was ever an occasion when he pushed AM from behind so that he hit his head on a basin and split the skin. The accused denied doing that because it was very slippery; he said it definitely did not happen. He denied that there was ever an occasion when, in his presence, a boy fell over in the bathroom and cut his head, requiring stitches. 24. The accused said that the shower routine always involved two persons supervising. One would supervise the boys in the locker room and then forward the boys through, across the little hallway. The boys would then also be supervised in the showers. He would wear ordinary work clothes when supervising the boys. He denied ever wearing a Salvation Army uniform in the showers. 25. He denied that there was ever an occasion when he was in the shower room alone with AM. He denied ever telling AM, in the shower room, to bend over and then grab his naked backside cheek. 26. The accused denied that he ever supervised DC in the shower and told him to bend over and looked at his bottom. He denied that there was ever an occasion that he poked around near the complainant's anus and said, "You've got worms". 27. The accused said it would be ridiculous for him to say that. The accused denied that he ever sent DC to the office to wait for him and threaten to cane him. He denied that DC had ever said to him, "I'm going to tell your son what you do for a living". He denied that DC said to him words to the effect of, "What are you a poofter". 28. The accused said that their third child, a son, was born in May 1970. There were still two children sleeping in the second bedroom. His wife was home a lot because NM was still a toddler. 29. At one stage his son, the youngest son, BM, became ill with encephalitis. His wife spent a lot of time taking the children to a paediatrician in Manly; his wife would drive herself to those appointments. 30. The accused carried out a number of duties away from the home, including getting fruit, vegetables and meat. When he did this he wore grey gabardine workpants and a blue shirt with Salvation Army insignia showing under the dust coat. He did this to identify himself at the markets as a member of the Salvation Army. 31. The accused said that he was a person who used the cane as punishment, but that was only ever in the office and never outside. He had a punishment book and details of any punishment were entered into that book. The accused denied that he ever hit boys about the ears or any other place on their body with his fists. He denied kicking boys or using any other form of corporal punishment on them. 32. In cross-examination the accused was asked if he had any experience of disciplining boys before he took up the position at the Bexley Boys' Home. He said he was not going to answer that that way, in terms of yes or no, because he believed that over the years the definition of discipline had shifted. He said that he found a problem in that term discipline. He said that he did not need to give boys a clip over the ear or push them or give them a bit of a belting to get them to comply with his demands or commands. He said it was unnecessary for him to do any of that. 33. The accused said that he chose to work on a process of positive and negative reinforcements. He said he was interested in enhancing a child's self‑esteem because that was the way he was brought up. This was the ethos that he brought to the Bexley Boys' Home. When the Crown Prosecutor asked him if he was, in fact, exaggerating how benign he was as a supervisor he responded, "No I think you're kidding yourself Mr Crown". 34. The accused insisted that all of the boys that he dealt with in the home came to respect him. He did not think they were afraid of him because they knew that if they crossed the line there would be consequences. Those consequences would be graduated from the withdrawal of privileges to having to return back to the home a week early in school holidays. He said that no boy ever confided in him that he had been beaten unfairly by any officer or a staff member. He denied that any boy had confided in him during 4½ years that he had been sexually assaulted by any officer (save for the time that two boys spoke to him after he had discovered them in Uncle Carl's dormitory). 35. The accused said that that was an example of how alert he was that, in fact, the boys did not need to come and tell him that something was going wrong, on the contrary he insisted that he would be aware because he was vigilant. 36. The accused did not record the conversation that he had with RG in the office after he had found him in Uncle Carl's room. He said he did not record the conversation with RG because he said, "We didn't record things like that in those days. And if I can just say that before I talk to RG any more than that, I asked him to go and get GM". The accused said he did not need to make a record of the allegation because he would be making a verbal report to the manager, Mr Morton. He never did a written report at any stage because he said he was never asked to do so. He did not need to make a written report of what either RG or GM had alleged with respect to the sexual assault upon them by Uncle Carl. He was able to remember it quite well when the manager came back to the boys' home on Monday morning after his weekend off. "I told him what the boys had told me and I was able to tell him that accurately". 37. He said that he suspended Uncle Carl on the spot. The accused noted that on the Sunday afternoon during the time that Uncle Carl had been stood down from duties, that his door, his room, was open and he had cleaned it out and fled. To his knowledge the police were not brought into this. He then corrected himself and said that Uncle Carl was picked up at the airport because of visa violations and was prosecuted for that. He was not sure if he was ever prosecuted for sexual assaults of the boys at the Bexley Boys' Home. 38. The accused confirmed that at one stage when his wife was pregnant with BM she worked as a receptionist at a urologist's. Her mother would come and look after the other children. The accused said that there were occasions when his wife would go and visit her mother in Dee Why or leave the home to do other things. She would take the two younger children with her and I would be at school. He agreed that there would be times in the middle part of the day where his wife was not at home. 39. The accused was asked about his ERISP with police and questioned about his memory of CN. He told police that CN was not a boy about whom anything stood out. 40. He could not recall DC when asked about him with police. 41. He could not recall any incident with DC involving the grease trap and arguing with him about having to clean out the grease trap. He said he did not engage in what he referred to as "theological blackmail". He said, "I wouldn't do it and I didn't do it". 42. He said on weekdays in the evening, once he was off duty, he would not go back and walk around the home. 43. When it was suggested to the accused that whether or not as a result of the grease trap incident he wanted to take DC down a peg or two in the shower one night the accused responded, "That's laughable, Mr Crown, that's ridiculous". 44. The accused was cross-examined at some length about various uniforms worn over the years and said that even if he wore part of his uniform when he went out of the grounds on duty, he would change out of that uniform back into his work clothes when he returned from those duties. He said he never used the uniform to enhance his authority. 45. The accused maintained that any failure to correctly recall during the first ERISP was due to the fact that he was shaking and quite hypoglycaemic and therefore not able to properly recall. This was because he had not been able to have a proper food intake that day. The accused denied that any boys had tried to beat him up later that day, (with respect to the death of TH). He said it did not happen. He said they did not beat up Terry Smith either. When it was suggested to him that the boys were in uproar on the day of Trevor Hubbard's death he said, "That's nonsense, Mr Crown, 'cause the manager would've spoken to them and there was no need for an uproar". 46. The accused denied ever discussing the death of Trevor Hubbard and said it could have been discussed at the next staff morning tea or discussed the next day because they were fully occupied, initially, with the ambulance then the doctor then the police. 47. He disputed that the boys were ever angry. There was no expressed anger because the boys had the trust of Stan Morton, he said they trusted him. 48. Going back to the topic of CN, the accused said that he did remember him vaguely. He did not agree that he was an unruly child. He did not stick out in his mind; he could not recall him running away on more than one occasion. 49. He did not recall that CN was prone to swear at officers and to misbehave. 50. He denied that he ever caught him playing a mouth organ that caused his dog to howl. He described the allegation that he gave CN a clip behind the ear as a result of CN playing a mouth organ and causing his dog to howl as "nonsense". 51. The accused denied the contextual allegation of placing or forcing CN's hand on his penis in the laundry. 52. He denied that and said, "I'm not a pervert, Mr Crown". 53. When the allegation was put to the accused with respect to count 8, and count 9 in the alternative, that he penetrated CN' anus with either his penis or some other object the accused said in a long, non-responsive answer setting out the differences in the theological position that the Salvation Army had 50 years ago as it was today with respect to homophobia and paedophilia; and I refer to the transcript at p 447. The accused said that: "The view of his family and the Salvation Army at the time was that if you were a practising paedophile well, that is homosexual then you're going to hell. That's what the Salvation Army believed so there was no way in which I would be involved in that kind of activity" 1. The accused denied the act of buggery in the locker room with CN and he denied the allegation of assault occasioning actual bodily harm upon AM. HAZEL PEARL THERESA MCIVER 1. I return now to the evidence of the accused's wife, Hazel Pearl Theresa McIver. 2. Hazel Pearl Theresa McIver married the accused on 6 January 1962. She too was a member of the Salvation Army. They had three children. IM was born in 1963, NM was born in 1966 and BM was born in 1970. 3. Mrs McIver said that she went to work with the accused at the Bexley Boys' Home in 1968. They lived in the assistant manager's cottage, it had three bedrooms. Her son IM attended Bexley North Primary School while NM her daughter was still at home. She was at home a lot because the children were small. She did work outside of the home occasionally. 4. When BM was born he became ill with mumps and encephalitis. She had surgery and that took a good six weeks for her to recover. The Morton's' daughter Joycelyn would visit their home after school to visit BM. 5. With respect to the first posting at the boys' home the accused wore a casual uniform and his official uniform. 6. The official uniform included a white shirt with tie and his insignia with dark trousers. In winter time he would wear a dark navy jacket to match the pants. 7. During the week he would wear a working casual uniform or work clothes if he was doing maintenance around the home. His duties included cleaning the pool and doing maintenance work and mowing the lawns. 8. Their daughter, slept in the second bedroom and IM slept out the back on what she referred to as a closed-in veranda or the third bedroom. There were two beds in the room where NM slept, BM slept in a cot. 9. She said the accused never slept in the dormitory. She did not have a clear recollection of the accused commencing morning shifts in the dormitory from the crack of dawn or as early as 6 o'clock. 10. Mrs McIver said sometimes the accused would wear a casual uniform, sometimes with shorts, sometimes with long trousers. She confirmed that they had a dog at one stage when they lived at the boys' home; this was during the first period of time that they spent there. The dog was a brownie-coloured Australian Terrier. 11. I pause here to interpolate and stop to note the evidence that was given with respect to the tragic death of Trevor Hubbard. There is no doubt that the terrible death of Trevor Hubbard that night sent ripples of distress and pain across that school which affected not only the boys but the staff members as well. The evidence of all of the witnesses who gave evidence with respect to the death of Trevor Hubbard was very tragic and sad and compelling. There were a lot of differences between each of the witnesses' evidence. 12. I note that no count has anything to do with the death of Trevor Hubbard, but I pause and send the sincere condolences of the Court to any surviving members of Trevor Hubbard's family. The death of a child in any circumstance is a great loss to the community and, indeed, that was obviously so with the death of Trevor Hubbard on 3 June 1969. FINDINGS 1. I turn now to my findings. 2. The accused was an unimpressive witness. He presented as controlling, domineering and argumentative in the witness box. 3. He insisted on continuing his answers even when he was reminded by me on a number of occasions that his answers were unresponsive. 4. He spoke over counsel and argued with counsel. 5. He ignored my requests for him to limit himself to a responsive answer. 6. He tried to shift blame for his answers onto the Crown for skewing questions and even to his own counsel, suggesting that she was not being robust enough in objecting. 7. In my view the accused was a witness who lacked candour. He appeared vague when answering questions which were neither complex nor demanding, for example, his recollection of the complainant, CN, who was one of the youngest boys who ever came to the home, remained for the longest terms and, on his own admission, one of the most difficult or naughty boys at the home. The accused had, at best, a vague recollection of this complainant. 8. The accused was unwilling to make concessions in cross‑examination. His evidence of what he wore whilst on duty at the boys' home was unpersuasive and appeared contrived to defect blame away from himself. 9. His lack of reliability on important issues causes me to reject his denials of offending. 10. I must stress, however, that just because I do not accept parts of the accused's evidence does not mean that I would necessarily find him guilty of one or more counts in the indictment. 11. I repeat, before I could find the accused guilty I must be satisfied beyond reasonable doubt that the complainant, whose evidence I am considering, is an honest and accurate witness. In assessing the reliability of each complainant I must have regard to other evidence that may support the complainant's account that I find established. 12. I therefore disregard his evidence and am required to focus on the other evidence. 13. Whilst called as a Crown witness I also consider that the witness Terry Smith was also unreliable. His manner of responding to questions was combative, arrogant and rude. His recollection was selective. 14. His recollection of the traumatic events of the death of Trevor Hubbard was inconsistent with many other witnesses; I thought it was self-serving. 15. I do not accept Mr Smith as a reliable witness. 16. I turn now to consider the evidence of the complainants. I will consider the complainants in order as they appeared on the indictment. COUNT 1 1. "That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales the accused did assault AM thereby occasioning to him actual bodily harm" pursuant to s 59(1) of the Crimes Act 1900. 2. The allegation supporting count 1 is that the accused pushed the complainant, AM, over in the shower area at the Bexley Boys' Home causing him to fall on a wash trough and lacerate his eye which required stitches. He was aged about seven or eight years of age. There were other boys around, lined up, all naked and waiting for their turn in the shower. This occurred at about 5.30pm. Uncle Terry had been supervising the boys in the locker room when they took their clothes off. 3. He said he got a bit of a hurry on, a push in the back. As a result he lost his footing and he went straight into the wash trough. The impact resulted in the top of his right eye being "busted open". The complainant nominated the accused who had pushed him in the back. 4. The complainant marked exhibit 2 with a considerable degree of accuracy, particularly the doorway near where the incident took place. The accused had come into the doorway which the complainant marked as between positions 25 and 8 on exhibit 2. 5. He had not seen the accused when he came in. The accused said something like, "Come on, move along". He lost his footing and fell into the sink. The top part of his right eye, just under his eyebrow, split open. 6. Uncle Terry administered first aid. The complainant was taken to the St George Hospital about an hour later. He had stitches inserted into his eye and returned to the home later that night. 7. The accused was the person responsible for pushing him in the back because AM said he recognised the accused's voice, he saw the accused's shoes and after he got up from the floor he saw the accused quite clearly. 8. I accept that this incident occurred as described. 9. I found AM to be an accurate witness doing his very best to recount his evidence. He was thoughtful in his responses, humble, polite and courteous. 10. He was able to place the events on plan exhibit 2 with considerable accuracy. He was able to provide significant detail of the incident in the shower. This detail included: * his approximate age; * the time of day; * the location of the incident * who else was present; * other staff who were present; * what was said just prior to the push in the back; * what happened as a result of the push; * the injury he sustained; * how he felt as a result of the incident and; * the reasons why he nominated the accused as the person who pushed him. 1. He did not seek to embellish or exaggerate any aspect of his evidence. I found his evidence credible, reliable and accurate. He gave his evidence frankly. 2. Notwithstanding that AM said he was taken to hospital and received stitches there was no medical record to substantiate this. This was in contrast to other available medical evidence with respect to tetanus injections. Nonetheless, the failure of the Crown to produce a medical certificate to support the injury did not detract otherwise from the overall positive impression that the witness made on me in terms of his accuracy and reliability. Given the passage of many decades this is not unsurprising. 3. AM explained that he did not like the accused. He described him as "nasty". He had felt that nastiness in repeated demonstrations of physical abuse directed at him from the accused. He said he went to great lengths to avoid having anything to do with the accused. This was poignant evidence and a stark reminder of the vulnerable positions that those young boys in the home found themselves in. 4. The accused was in the position of "loco parentis". His duties involved supervising a large number of boys of different ages in a confined area of the showers. There were no doubt time constraints to ensure that all of these, up to 90 boys were showered with efficiency. 5. I have turned my mind to the defence of lawful correction pursuant to s 61AA of the Crimes Act 1900, as set out in MFI 15, which was provided to me by the parties. 6. This section provides a defence to what may otherwise amount to an offence if the application of physical force to a child by a parent or a person in loco parentis was for the purpose of punishment of the child, but only if the force was reasonable having regard to the age, health and maturity or other characteristics of the child and the nature of the alleged misbehaviour or other circumstances. The force is not to be applied to the head or neck area of the child or to any other part of the body of the child in such a way as to be likely to cause harm, which is not transient. 7. I accept that the accused admonished AM to hurry him along and accompanied that with a push in the back. There is no evidence that the accused was acting with any animus directed at AM on this occasion. This does not appear to be unreasonable in all the circumstances at that time. 8. Given these circumstances and the fact that the floor was no doubt slippery from the water from the shower, I am of the view that the fall was no doubt an unintended consequence of the push to the back to AM to hurry him along. 9. I am of the view that the Crown has not ruled out that the accused was acting in lawful correction. 10. Accordingly I find the accused not guilty on count 1. 11. I now turn to count 2. COUNT 2 1. This charge is "That between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales the accused did indecently assault AM, a male" pursuant to s 81 of the Crimes Act 1900. 2. The allegation supporting this count was that the accused made the complainant bend over in the shower area and grab the complainant on the buttock cheek. 3. AM provided a detailed and consistent account of what happened with respect to the incident supporting count 2. 4. The complainant alleged that when he was around eight years of age he was touched on the bottom by the accused in the shower. He had been told that his father was coming to see him. No doubt for a boy in AM's situation as a long term resident of the boy's home, that of itself would have been memorable. This visit was outside of the usual visitors' routine because the complainant's brother was in hospital. I pause to note that both GM in exhibit 7 and RG gave evidence of an occasion when GM was in fact in hospital. 5. AM said he was told to have a shower by the accused and get dressed in his khakis. He was in the shower area by himself. It was around 1.30 or 2 o'clock in the afternoon. He was reluctant to leave playing, but when he was told he was to see his father he was excited. He was hoping that it would be good news, that he was going to go home. This evidence particularly rang true given the age of AM and the fact that he had been in the home for some considerable time. 6. He was on his own in the shower area for a while before the accused turned up. He had left the room and then came back. He was told to step forward and turn around. The complainant was then touched on the bottom by the accused. He said, "As I've come forward in the shower room I was told to turn around and bend over. I was touched". He said it startled him. He described it as like a grab, just a grab on the backside with the right hand side of his buttocks cheek being touched by the accused. 7. Major Morton walked past the doorway near the shower with a lady and another man. He believed that that is why the situation stopped. This was the only time that it ever happened. 8. He said he was petrified. He did not say anything at that time or after. He told his brother a couple of days later, but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the accused. His brother did not say anything in response. 9. I was watching the witness closely and observed the earnestness with which he approached his response to each question posed to him. This was not studied nor contrived. It was completely natural and complimented the very positive view I have formed with respect to his credibility and reliability. His demeanour did not change between evidence‑in‑chief or cross‑examination. He remained polite and co‑operative throughout. 10. As noted above, the complainant gave evidence that he thought the accused was nasty. He explained that this was because of the repeated hostile acts that the accused had inflicted on him. He tried to avoid contact with the accused as a result. 11. The complainant gave considerable detail in his account of what happened including: * when it happened; * why he was there; * the extraordinary nature of the events that caused him to be showering at that particular time; * 1.30 or 2 o'clock in the afternoon; * his hopes that he would be taken away by his father that day; * only he and the accused were present until Major Morton walked by with two others; * the careful details of what he was told to do directly before the assault; * the significant details of the actual indecent assault; * how he felt after this happened; * his feelings of shame and: * why he did not complaint. 1. AM described the area where this happened with accuracy which was consistent with exhibit 2. 2. His stated age of eight years at the time coincided when Mr Morton and the accused would have both been at the boys' home and the approximate length of time that the accused had been present at the boys' home. 3. I have considered his evidence very carefully. 4. I have had close regard to all of the directions that I have given myself and remind myself again of those warnings and directions. I do not consider that AM was mistaken as to the identity of the accused. He knew him very well and gave compelling evidence as to his knowledge of the accused and his behaviour towards him over a considerable period of time. His identification of the accused was reinforced as effectively the accused was in loco parentis of AM. 5. I do not consider that any misplace or misconceived animus that may have been held by AM towards the accused for the tragic death of Trevor Hubbard had caused him either consciously or subconsciously to mistakenly identify the accused. 6. I remind myself that "indecent" means contrary to the ordinary standards of respectable people in the community. For an assault to be indecent it must have a sexual connotation or overtone. 7. I am accordingly satisfied that in all of the circumstances involving an actual naked boy in a shower area who was told to turn around and bend over and then grabbed on a naked buttock cheek, I am satisfied beyond reasonable doubt that satisfied the meaning of indecent. 8. I found AM to be a credible and reliable historian and witness. 9. Even after reflecting again on the warnings that I must give myself, and based on the compelling and reliable account of AM, I accept that the accused did in fact touch AM on the bottom in the manner alleged. 10. In all of the circumstances I am satisfied of the accused's guilt beyond reasonable doubt with respect to count 2 and accordingly find him guilty of count 2. COUNT 5 1. "That between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales the accused did indecently assault DC, a male" pursuant to s 81 of the Crimes Act 1900. 2. This allegation was that in the shower one Sunday the accused made the complainant bend over and part his buttocks then moved his hand over the complainant's anus. 3. The complainant was the only one called through to the shower. The accused said, "Come here, bend over". He was told to part the cheeks of his bottom. The accused said to him, "You've got worms". He felt a brush of the hand followed by a prodding in his anus. The complainant said to him, "Are you having your jollies there? Are you a poofter?" The older boys laughed. 4. The accused told the complainant, "Get to the office". 5. After waiting in the dark for an extended period of time the accused came to the office area. They went into an office area in the general area of the vestibule. The accused said to the complainant, "I have every right to cane you". The complainant replied, "I don't know what you're going to do to me but I'll be telling everyone at Rockdale what you've done". 6. DC was only at the boys' home for a relatively short period of time being less than six months when he was in second form at high school. He was 14 years of age at the time of the allegation. The allegation is set in this discrete period of time of five months between July and December 1973. 7. DC had a very detailed recollection of the incident, describing why he was there on that evening and the events both before and after the alleged incident in the shower. He was able to recall conversations, he remembered that the reason he was not at band practice that Sunday evening was because the Mortons had another engagement. 8. The sense of humiliation that was a part of this event was palpable. For a 14 year old boy whilst naked to be directed to separate his buttock cheeks for inspection for worms in front of older boys was clearly designed, and I find was designed, to make DC a figure of mockery for that instant. The accused is then alleged to have prodded DC around the anus which caused DC to respond somewhat feistily, "Are you having your jollies there? Are you a poofter?" causing the older boys to laugh. This in turn caused DC to be subjected to the threat of punishment in private but he was able to deflect that because he threatened to expose the accused to others. 9. DC's evidence was attacked on a number of bases including suggested animosity held towards the accused, exaggerating his abuse to enhance claims for compensation, contamination with other witnesses and inconsistencies between his "Truth" document and his evidence and a failure to make complaint. 10. I accept that there was no complaint at the time. However, given the situation that existed at the boys' home, that DC's explanation that he thought he was lucky to have escaped the cane that night and the Court's understanding of the reasons and the directions that I give myself as to the many reasons why complainants delay in complaining, I accept the reasons why there was no complaint at the time. 11. The failure to complain, I do not accept that as a reason otherwise not to accept the evidence of DC. 12. It was suggested that the punishment that the accused had given DC when he was at the boys' home with respect to the grease trap duty was the reason that DC held a long borne animosity to the accused. It was suggested this animosity fuelled the false allegation against the accused. 13. I accept that the accused had directed DC to clean the grease trap and he found it a distasteful exercise which may have been seen as a punishment. Nonetheless, DC gave a very compelling rider to that incident and said that as a result of speaking with the accused he accepted that punishment and made the grease trap "gleam like gold". He understood that there was a reason why there needed to be discipline within the boys' home and he accepted the punishment that he was given by the accused. Ultimately he found it redemptive. 14. Moreover, DC has maintained a lifelong involvement with the Salvation Army and has many friends in the army. In the way he gave his evidence it was apparent that he still had a close affiliation with the army, and in many ways it had defined significant aspects of his life. This too in many ways spoke against animus being a motivation for making a false complaint against the army or any of its members. I did not find that DC was motivated by male fides to make a false allegation against the accused. 15. I do not find any basis to the suggestion that DC's evidence was contaminated with speaking to other CLAN members or any conversation that he may have had with other former residents at the boys' home. 16. I do not find that his attempts to obtain compensation from the Salvation Army in any way compromise his credibility and reliability. Equally, I find that any apparent inconsistencies between his evidence and the "Truth" document which was not before me, only referred to in passing, are not such that I would be minded to doubt the complainant's evidence. 17. DC was an impressive, reliable and considered witness. He did not seek to gild or embellish his answers. His demeanour remained constant throughout the entirety of his testimony. He did not give his evidence in a manner suggestive that it was anything less than scrupulously honest. 18. DC provided significant details in his account of what happened to him in the shower. 19. The shower incident I accept as submitted by the Crown was an attempt by the accused to humiliate DC in front of older boys. 20. The details of the conversation and the responses by the complainant have a ring of truth about them that has rippled through the many decades since the incident happened. 21. Even after reflecting on the warnings that I have given myself I accept DC's account. I accept that he was an honest and accurate witness, and I accept his evidence with respect to count 5 beyond reasonable doubt. 22. I find count 5 proven beyond reasonable doubt. Accordingly, I find the accused guilty of count 5. COUNT 6 1. "Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did assault CN" pursuant to s 61 of the Crimes Act 1900. 2. This allegation was that the accused kicked the complainant, CN, in the shins and grabbed him by the scruff of the neck on an occasion when the complainant was annoying the accused's dog by playing a mouth organ. The accused came up and grabbed him by the scruff of the neck. He told him to "cut it out and stop doing it" and took the mouth organ from him. He then gave him a clip behind the ears. 3. This happened between the officers' quarters and the back area of the steps that led up to the dormitories. 4. It should be noted that the complainant gave evidence that the assault was a clip under the ear. 5. CN was one of the youngest boys ever admitted to the boys' home. He spent a very long time in the home before he was discharged to the care of a foster family at St Ives when he was about 13 or 14 years of age. 6. In later life he has been troubled by a myriad of health problems associated with drug and alcohol abuse and PTSD. He has been prescribed a number of medications that he was taking at the time of his evidence. 7. I accept the evidence of Dr Jenkins that he could not see any particular problems with CN' giving evidence given his present medical and psychiatric issues. 8. CN gave very detailed evidence about many aspects of life at the boys' home. He recalled details both small and large. He recalled that there were horses kept in the nearby paddock. 9. I accept that on hearing accounts of other boys in that era there were horses kept in that paddock. CN remembers going to pat the horses. For an extremely young boy who was abandoned at the home and whose brothers left at some later stage, the fact that this complainant could remember patting the horses was a visceral and compelling memory of an otherwise sad, lonely and vulnerable childhood. 10. CN was clearly mistaken with respect to the name of Trevor Hubbard who as I have noted tragically died at the home on 3 June 1969. He remembered his name as Ian Hubbard, whereas it was in fact Trevor Hubbard. This was indeed a mistake. However, in the scheme of things the mistake of a name and the incorrect attribution of his brother's name given the effluxion of time is not one which causes me to revisit any positive assessment that I might otherwise make of CN's credibility and reliability. 11. CN was cross-examined with respect to his recall of timing and other details. He could not place the allegations he made in any particular year save for ruling out 1964. CN gave a very detailed account of the layout of the boys' home which was supported by both exhibits 2 and 3. 12. His detailed description of the laundry and the hidey hole which he had made with other boys and used as a place of retreat and solitude was compelling and powerful. It was in this laundry space that CN alleged that the context incident, the uncharged act in the laundry of the indecent assault between him and the accused occurred. CN had been misbehaving, possibly swearing at the accused and Major Morton. He ran away towards his hidey hole in the laundry. He was pursued by the accused. When he reached the laundry he had insufficient time to get into the hidey hole but hid himself in the clothes basket. He was discovered by the accused. The accused then grabbed his hand and placed it on his penis. 13. This evidence was led as context evidence as I understand it to place the substantive allegations of sexual indecent assault in context. 14. CN recalled that the accused had a small silky terrier sort of dog. This was in fact confirmed both by the accused and his wife who said that they did have such a dog, described as an Australian terrier, on their first posting at the boys' home. It was subsequently put down when it contracted mange. 15. The existence of this dog is a pivotal fact with respect to count 6. CN was, on his evidence, annoying the dog with his mouth organ, causing the dog to howl. This in turn angered the accused who came and grabbed the complainant by the scuff of the neck, clipping him under the ears and told him to "cut it out and stop doing it". CN apparently took this with a grain of salt and carried on. 16. As I said I have considered the evidence of CN very carefully and closely when he was giving his account. 17. He did not dissemble. What you saw is what you got. He had no artifice, nor did he demonstrate any contrivance in giving his evidence. 18. He appeared to be giving a truthful account of his recollections. As I have noted, his recollections of the daily routines of the boys' home, the layout and the personnel have been largely borne out by other evidence from other witnesses. 19. I have considered CN's evidence with respect to count 6 against the submissions concerning issues affecting his reliability and other submissions made by the defence. 20. CN's evidence rang true. He was self-effacing and freely admitted that he was a troublesome child and unruly. His account of causing the dog to howl with the mouth organ and finding that a source of amusement was visceral and real. His evidence was easy to relate to. 21. I accept beyond reasonable doubt that this occurred in terms as described by CN. I accept that the accused did react to CN playing the mouth organ, causing the dog to howl. I accept that the accused did give CN a clip under the ear. 22. Nonetheless, the fact that the infliction of force seemed relatively minor, the fact that the accused was in a position effectively of loco parentis given the entirety of the circumstances, and given the law with respect to lawful correction which I have previously set out with reference to count 1, I am of the view that the Crown has not ruled out that the accused was acting in lawful correction in admonishing CN. 23. Accordingly, I find the accused not guilty of count 6. 24. I move now to counts 8 and count 9 in the alternative. 25. The allegation supporting count 8 was that the accused inserted his penis into the complainant's anus in the officers' cottage, and count 9 in the alternative that the accused inserted something other than his penis into the complainant's anus. COUNT 8 1. "Between 17 July 1968 and 15 January 1978, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900, and in the alternative to count 8; COUNT 9 1. "That between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did indecently assault CN, a male" pursuant to s 81 of the Crimes Act 1900. 2. CN was mucking around in the 'out of bounds' area of the grassed area near the assistant manager's quarters. He was not allowed there. It was daylight. The accused took him down to the officer's quarters. 3. He was dressed in his normal white shirt and black pants that is the accused. They went into a room. The accused told CN to face the wall. In one of the rooms there was a desk, a dresser set, drawers, a cot or a bed. 4. He was told to turn around and face the wall. He did as he was told. The next minute he "just felt some shooting pain in my behind". He was wearing his play clothes which were taken down to his knees. He then felt a sharp pain in his rear end. The next minute he turned around. He uttered "a few obscenities and took off out of the room". 5. He was pulling his pants up as he was going. He felt a sharp ripping pain in his bum. He felt pain, he panicked and he fled. He pulled up his pants as he went. He yelled abuse at the accused. He then hid himself under the pavilion. 6. He noticed blood spots on his underpants and in the following days his bottom was sore. He did not tell anybody about what happened to him. He described feeling pressure in his bottom. 7. CN gave a detailed account of the anal penetration by the accused. I found his account compelling for a number of reasons. 8. The complainant has provided a relatively detailed account of where this happened. He described: * he was initially in an out of bounds area which he described as a grassy area; * it was daylight; * he was able to describe what the accused was wearing being normal white shirt and black pants; * he himself, CN, was wearing his play clothes; * these were taken down to his knees; * he was able to describe some of the furnishings in the room including a cot or a bed; * he described very frankly what the pain felt like; * he described what he did and where he went immediately after the act of anal penetration; * he saw blood on his underpants and; * his bottom was sore for a few days after this. 1. I found support for CN's account in the fact that the accused's accommodation was in accordance where CN had nominated the assault as occurring. 2. Both the accused and Mrs McIver confirmed that there was a cot in both their bedroom which moved subsequently into the second bedroom at another time. 3. There was also evidence to suggest that there were times that Mrs McIver who also lived at those premises would be absent either when she herself went to work or when she would be taking Bradley to a doctor's appointment or visiting her mother in the northern beaches. 4. I have turned my mind closely to the question of proof with respect to what was used to support this act of buggery on count 8. To satisfy the elements of count 8 I must be satisfied and satisfied beyond reasonable doubt that the accused penetrated the anus of CN with his penis. 5. I found CN's evidence honest, accurate and compelling. 6. As I have said that with respect to general details there was a substantial part of his evidence that was corroborated by other witnesses. 7. His description of the laundry was I find largely confirmed as accurate by what the accused described in his ERISP of June 2017. 8. I find for example that CN was accurate with respect to many aspects of his evidence, for example: * the daily routine of the boys' home; * the showers routine; * the appearance of the accused; * his particular recollection that the accused wore glasses, which no one else said, which was in fact confirmed by the accused in the June ERISP and; * what the accused wore in general. 1. I find accordingly his evidence to be accurate. 2. I found his account very real. 3. As I have said, his evidence had a ring of truth about it which was impossible to discount. His description of the pain and the sensation he felt upon his anus being penetrated was detailed and graphic. 4. He saw blood on his underpants and felt pain in his backside area for a number of days. 5. All of that evidence is consistent with an act of anal penetration. 6. I am satisfied in all of the circumstances that the accused used his penis to penetrate the anus of the complainant. 7. I am so satisfied simply because there was no other evidence of the presence of any other object in that room capable of penetrating the complainant's anus. 8. I remind myself that I do not leave my common sense at the door when I am deliberating. 9. I am satisfied beyond reasonable doubt that the accused performed the act of buggery upon CN which supports count 8. I find that proven beyond reasonable doubt and I find the accused guilty of count 8. I therefore do not need to turn to the alternative count 9 which subsumed in count 8. COUNT 10 1. "Between 17 July 1968 and 15 January 1971, or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales the accused did commit an act of buggery with CN" pursuant to s 79 of the Crimes Act 1900. 2. CN said that the third incident happened in the locker rooms. He had been in the locker rooms trying to see what he could steal from the lockers. The accused came in. He said he tried to hide himself behind the lockers. 3. He said you could hide behind the end of the row of lockers. The complainant explained how that might be possible with reference to exhibit 3, photograph number 9. 4. He said the accused grabbed him by the arm and they were standing chest to chest. 5. He turned him around to face the locker. The accused penetrated the complainant and "stuck his dick in my bum. He just moved his pelvis". 6. He said that that seemed to last for an "…eternity". He then was told to get out. He said that his bottom was sore and had a spot of bleeding. 7. As I have noted above, I found CN to be both honest and accurate. He gave clear details with respect to the layout of the locker room. 8. He gave a clear sequence with respect to the narrative of this third assault, count 10, the act of buggery, as to: * where it happened; * what happened and; * that he and only he and the accused were present. 1. He gave a compelling account of this occasion. 2. His evidence was attacked on the basis that the reason for being in the lockers was flimsy as there was nothing of value to steal. That suggestion fails to take into account that these boys in the home had very little in the way of worldly possession. That submission or suggestion fails to take into account the fact that toys, books or clothes were items of value and worth stealing to indigent boys. 3. CN's self-critical account of reasons why he was in the locker, i.e. looking for something to steal, ring true for a boy who had effectively nothing. It also fits in with his earlier evidence that he was not the best behaved boy in the home. 4. His evidence was also criticised on the basis that the lockers would have provided no place for him to hide. Having seen the photographs and understanding the layout I am satisfied that that would have been at least an opportunity to attempt to hide behind those locker structures. 5. For all of the above reasons I find CN an honest and accurate witness. 6. I accept beyond reasonable doubt his evidence with respect to count 10, the act of buggery which supports count 10, and I therefore find the accused guilty with respect to count 10. I find that act proven beyond reasonable doubt and accordingly find the accused guilty on count 10. ********** Amendments 25 November 2019 - coversheet - updated publication restriction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2019