Principal fired after police raid
WARREN OWENS. Sunday Telegraph. Surry Hills, N.S.W.:Nov 26, 2006. p. 27
A SYDNEY church school principal has been sacked and police asked to
investigate child pornography allegedly found on his office computer.
Detectives attached to Wetherill Park police station executed a searchwarrant
at the principal's office at St Hurmizd's Assyrian Primary School, a senior
officer confirmed last week. Detectives seized the computer hard drive there
and a computer at the principal's Smithfield home.
Principal Wayne Pettiford (pictured), who denies the allegations told The
Sunday Telegraph he had been dismissed by the school.
"It didn't work out," he commented on Friday.
Police experts were forensically examining the computers to ascertain the
source and nature of images found on the hard drive, one officer said.
A priest of the Assyrian Church of the East, Father Genard Lazar, contacted
police over his concerns several weeks ago, according to parents of childrenat
The Greenfield Park school is operated by the church, which
is located alongside it. Both
cater for Sydney's 40,000-strong Assyrian population. Mr Pettiford, a former
Catholic school teacher and principal, was the school's inaugural headmaster
when it opened four years ago.
His welcoming note to parents was still available on the school's website on
Friday, though any pictures of him had been removed.
Mr Pettiford said he knew police had taken his home computer, but he was not
aware his school computer had also been seized.
Mr Pettiford denied any knowledge of child pornography on his officecomputer.
"You've got to be kidding," he said. "It's disgusting."
Child porn brings jail; File held thousands of images
GR. Herald. Newcastle, N.S.W.:Nov 28, 2006. p. 21
A NORTH Rothbury man whose computer contained 2155 child abuse andpornography
images of 675 girls from as young as five years has been jailed for 14months.
Gregory John Scott, 42, of Oakey Creek Road, was sentenced in East Maitland
District Court yesterday by Judge Helen Murrell.
He pleaded guilty to seven charges of using the internet to get access tochild
abuse and pornography images after the Australian Federal Police searched his
home in October last year.
He told federal police officers he had planned to collect the images so he
could open a pay-for-view website.
The court heard that Scott wanted to make enough money from the website so he
could get his mother out of an abusive relationship and get away with her to
Federal police began investigating Scott's activities after receiving
information from the United States.
Describing the images as degrading and repulsive, Judge Murrell told Scott he
had a problem and needed to seek psychiatric help while in jail.
She said one image was of a girl aged about five. The child was naked andbeing
penetrated by an adult male.
Other material concerned abuse, bondage and bestiality.
The court heard how Scott was a recluse who lived in impoverished conditions
and was suffering from depression.
Early last year he acquired an old computer and had the internet connected
through an account under a false name. He adopted an online name of Kandiann,
taking on the identity of a mature age woman and using the identification asa
way of soliciting child pornography and child abuse material.
Barrister Peter Harper, for Scott, said his client was the eldest of three
children and had grown up seeing his mother in violent relationships.
Crown prosecutor Dean Mayr said if Scott was serious about setting up the
website as a business he would have had more sophisticated equipment.
He said Scott did not have broadband but a dial-up internet connection andhad
carried out no preparation to begin the business.
Mr Mayr said there was no plan to make money.
Banned carer wins appeal
December 05, 2006 12:00am
A FOSTER carer banned from working with children because he had sex with agirl as a teen has had the decision overturned in the first case of its kind inVictoria.
The father is the first to fail a compulsory police check under new lawsdesigned to protect kids.
The State Government last week refused to issue a card allowing him to workwith children because of his sex crime conviction more than 30 years ago.
But a Victorian Civil and Administrative Tribunal judge yesterday reversedthe ban after an urgent hearing, ruling the man did not pose an unjustifiablerisk to youngsters.
The case is the first under the Working With Children Act to come before thetribunal.
Hundreds of thousands of Victorians with regular, direct and unsupervisedcontact with children – including foster carers, crossing attendants and somesport club volunteers – will be screened over the next five years.
Checks on 12,300 people have occurred since April.
Adults found guilty of certain sex offences against a child are refused theright to work with kids but can appeal to VCAT.
The tribunal heard the man, described as a supportive father and exemplarycarer, had consensual sex with a 15-year-old girl while he was 19.
"People mature," VCAT president Justice Stuart Morris said. "It is not onlyunforgiving but inaccurate to assume that a man does not change, and develop,after making a mistake early in life."
The man, who cannot be named for legal reasons, has cared for three fosterkids and risked committing an offence if he returned home or the children werenot relocated.
In the 1970s he pleaded guilty to carnal knowledge and abduction with intentto commit carnal knowledge after the girl's father complained. He received atwo-year good behaviour bond and $100 fine.
Justice Morris noted the sexual relationship was between two people in thesame general age group, the man was not in a position of authority over the girland a lenient penalty had been imposed.
He said it was unlikely VCAT could determine all such cases so quickly andsuggested the tribunal have specific powers to make temporary orders pendingfinal decisions.
Rape release fury
WOMEN'S rights groups have condemned a decision to release a convicted serialrapist from a Brisbane prison, claiming the chances of him re-offending are'incredibly high'.
Robert John Fardon, 58, who spent 27 years inprison for violent sexual offences including offences in Townsville, wasreleased from Wacol prison – under stringent conditions – before midnightyesterday, despite attempts by the Queensland Attorney General to keep him injail.
The Court of Appeal yesterday upheld Justice Ann Lyon's original decisionthat there 'was not an unacceptable risk that he would commit a serious sexualoffence if released' under the order.
Fardon firstly raped and wounded a 12-year-old girl in 1978 after he luredher to his home to celebrate the birth of his son.
Within months of his release in 1988 he had raped, sodomised and assaulted awoman in Townsville and was sentenced to 14 years imprisonment in 1989.
His full-term release date was June 30, 2003, but just a few weeks prior tothat the State Government introduced the Dangerous Prisoners (Sexual Offenders)Act 2003, aimed at protecting the community by keeping dangerous sexualoffenders in jail past their release dates.
Under his release order, Fardon must remain in Queensland, go to regularcounselling sessions and submit to regular drug and alcohol testing.
He is also forbidden from working with children, visiting parks and publicspaces without written permission, providing unsupervised child care, or joiningany clubs or affiliations where children might be members.
But founder of child protection advocacy group Bravehearts, Hetty Johnston,said the chances of Fardon re-offending were 'incredibly high'.
"I know how hard it is to treat sex offenders, and this is just run of themill offenders, but (Fardon) is a violent, repeat offender," she said.
"And his chances of rehabilitation are next to zero."
Ms Johnston said the decision to release Fardon set a dangerous precedent fornew legislation and seriously undermined its effectiveness in terms of communitysafety.
She said his release made a joke of the Dangerous Prisoners (SexualOffenders) Act.
"The community's rights to safety are left in doubt," she said.
"They just didn't rate. It's incredibly sad. We've gone back 10 years, atleast."
Ms Johnston said the response should have been 'when in doubt, don't let themout' rather than force the community to take a massive risk.
Townsville Women's Centre co-ordinator Cathy Crawford said given Fardon'shistory, it was more than likely he would re-offend.
"The question is what has changed in the one or two years since it wasn'tsafe to let him out?" Ms Crawford said.
Susan Bothmann from Wacol Prison's legal service, said Fardon had assured herthat he would not re-offend.
"I have Robert's assurance and I can give you Robert's assurance that he doesnot want to go back to jail again," she said.
"I know he wants to make a new life for himself."
No details are available about where Fardon will reside when he is released,but Ms Bothmann said he would adhere to all conditions in the order.
Ms Johnston said he would seek to live in a place that was 'safe' for him tolive.
Child sex was lawyer's 'sick fantasy'
December 04, 2006 01:11pm
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A LAWYER who discussed child sex, rape, incest and bestiality on a phone chatline was engaging in "sick fantasy", his barrister told a Sydney courttoday.
Michael John Poynder, 51, of Potts Point, faced a sentencing hearing in theDowning Centre District Court today, after pleading guilty to two offences.
The court was told that in May and June this year, he used a telephone chatservice in a bid to procure children - a boy and a girl, aged 15 - for sex.
But the "girl" he contacted was actually an undercover police woman, andPoynder was arrested when he turned up to meet her at Redfern carrying condoms,lubricant and $230 in cash.
Poynder pleaded guilty to two counts of using a carriage service to procure achild for sex, an offence which attracts up to 15 years imprisonment.
The sentencing judge will also take into account two other matters, in whichPoynder used the telephone service in an offensive manner.
According to a statement of facts tendered to the court, Poynder left amessage on the chat service saying he was "into taboo things, sex with childrenand animals, rape, incest ... Get back to me if any of those interest you".
Judge Stephen Norrish asked: "Am I sentencing him as a fantasist or am Isentencing him as a person who has been detected discussing real events?
"One of the disturbing aspects (is that) ... there may be elements of fantasyin these conversations, but they may well be fabrications in order to giveeffect to his desires in a realistic way."
Poynder's barrister, Ian Barker QC, said such discussions should be regardedas "no more than fantasy".
"You should approach this on the basis that it is almost all fantasy - prettysick fantasy, but nonetheless fantasy," Mr Barker said.
The hearing continues.
Wife of convicted paedophile MP demands fresh inquiry
By Peter Gardiner THE wife of convicted paedophile and disgraced politician Bill D’Arcy has used a Sunshine Coast conference to call for an inquiry into his case.
And Lois D’Arcy told a Marcoola conference highlighting false allegations of child sexual abuse that the Queensland Government needed to set up a case review commission to help clear the names of people wrongly convicted.
However, Mrs D’Arcy, who has stood by her man since the former teacher was first accused of sexually dealing with students 40 years ago, said her lawyers had gagged her from dropping a promised legal bombshell because of a "legal complication".
In front of false abuse experts such as Prof Don Hunt and lawyer Greg Walsh,who has successfully exposed false repressed memories in court cases, Mrs D’Arcytold the Historic Allegations of Child Abuse gathering she believed it was not amatter of "if" but "when" the breakthrough would come for her husband.
"It seems to me that the justice system strongly resists the notion thatwrongful convictions can and do occur," she said.
"The public, once they learn the real facts, will be horrified by the D’Arcycase.
"Bill and I feel strongly that the Queensland public must be made aware thatthere, but for the grace of God, goes every one of them."
Mrs D’Arcy said any parent, child carer or anyone involved in a family dramawas vulnerable to allegations that could ruin a life.
Mr Walsh said he likened the increasing number of court cases based onrepressed memories of child abuse surfacing as akin to the Salem witch trialswhere women were burnt at the stake on mere hearsay.
"I would be absolutely angry if someone abused my daughter but I’m anAustralian who believes in a fair go."
Mr Walsh said all it took for people to have their lives ruined was to have amentally unbalanced person go to a repressed memory therapist who then went to abiased police officer who did not carry out a proper investigation.
Victim in tears as rapist gets eight years
1st December 2006, 9:00WST
The victim of an horrific home invasion, who was threatened with a knife and raped while her partner was tied up, left court in tears after her attacker was jailed for eight years yesterday.
The woman faced her attacker, 19-year-old Gregory Walter Narrier, across theDistrict Court and listened as Judge Julie Wager indicated that the startingpoint for the sentence was 19 years.
But, due to matters of mitigationand his pleas of guilty, the final jail term was cut to eight years.
With parole, Narrier will serve six years.
Outside court andsupported by her partner and her mother, the woman said: "I wanted to come tocourt to see an end to this. I didn’t know what to expect but we would havepreferred the 19 years."
Judge Wager also gave the woman a life-longviolence restraining order against Narrier.
Narrier pleaded guilty to 18offences including aggravated burglary, deprivation of liberty, making threatsto kill and aggravated sexual penetration.
The court was told thatNarrier, high on a mix of alcohol, amphetamines and cannabis, smashed his wayinto the young couple’s Midland home in the early hours of March 24. He armedhimself with kitchen knives and confronted the terrified couple in theirbedroom.
The young man was tied up by Narrier who told him: "If youmove, I’ll kill you."
Narrier then returned to the young woman and, witha knife in his hand at all times, sexually assaulted her repeatedly for about 20minutes.
After the attack, he rummaged through the house, stealing anumber of items. As he left, he told the woman: "I have been watching you formonths. Tell anyone and I’ll come back and kill you." He told the man: "If youcall the police, I’ll kill you."
Later, Narrier broke into the home of aformer girlfriend and used a broom handle to attack the girl’s mother.
Judge Wager said that Narrier had a difficult childhood, adding: "As aresult of violence, assaults and neglect, you were robbed of your innocence as achild." He had been good at football and had the chance to go to ClontarfAboriginal College but did not follow it through.
The judge went on: "Ifyou had not been under the influence of amphetamines, these offences would nothave occurred. But you chose to take the drugs and are responsible for theoffences."
From the 19-year starting sentence, Judge Wager made aone-third reduction for changes in sentencing legislation and cut the figure by25 per cent because Narrier had pleaded guilty. The eight-year term, withparole, was backdated to March when he was taken into custody.
New sex charges for Lewthwaite
December 1, 2006 - 12:58PM
Convicted child killer John Lewthwaite has been charged with two counts ofcommitting an act of indecency.
He is expected to face Penrith Local Court later today where police plan toallege the incident happened at Cronulla on January 21 this year.
Lewthwaite was taken into police custody this morning from Silverwater Prisonwhere he had been held since parole was revoked over a separate obscenebehaviour offence.
He was fined $1000 on Monday when he was found guilty of sunbaking naked insandhills behind Wanda Beach in Sydney's south last August.
Lewthwaite, now 51, was released from prison on lifelong parole in 1999 afterserving 25 years for the 1974 stabbing murder of five-year-old Nicole Hanns.
The NSW State Parole Authority (SPA) revoked his parole in early Septemberamid a public outcry over the August exposure charge.
Police sources said the latest charges were laid after two women reacted topublicity surrounding the Wanda Beach case.
They contacted officers saying they believed Lewthwaite has been the man whohad exposed himself to them on a Cronulla street.
Teacher jailed over schoolgirl sex
December 01, 2006 10:26am
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A MELBOURNE high school teacher was today jailed for six months for havingsex with a student he called his "sexy horny schoolgirl".
Mark Andrew Hayes, 39, pleaded guilty to one charge of sexual penetration ofa child under his care and supervision.
The court was told that on November 7 last year, Hayes called in sick forwork then had sex with the girl, aged 15, at the house he shared with hispregnant girlfriend, who taught at the same school.
Victorian County Court judge Jennifer Coate said Hayes had exchanged up to400 text messages with the girl beforehand.
She said this, plus the planning of the offence, meant Hayes could not claimthe crime was a foolish lapse of judgment.
One message Hayes sent to the girl said: "Sexydreams my sexy horny schoolgirlxxx," court documents show.
Judge Coate said Hayes had breached a precious trust placed in him to guidethe teenager through life.
"What you have done shakes the foundation of our system of teaching youngpeople," Judge Coate said.
She jailed him for six months with an added six-month suspended sentence.
The power of a single vote
By Piers Akerman
November 26, 2006 12:00
BY a single-vote margin, the NSW Legislative Council has moved to throw lighton what may well be the greatest cover-up of maladministration and corruptionamong the most senior police officers in NSW.
Although members of the Carr-Iemma government tried to block the move,Liberal, National, Greens and independent MLCs succeeded on Thursday indemanding that all papers relating to Operation RETZ be provided to the UpperHouse by December 7.
If this is not done, the Opposition has no alternative but to demand a recallof parliament. Operation RETZ began in the 1990s, but its report has been buriedby a succession of politicians and senior police because of its capacity todestroy the reputations of some of the highest-ranking officers.
Although John Della Bosca, who represented the Government in opposing thepresentation of the RETZ files to parliament, told the Upper House "theGovernment has been open in these matters'', that is most definitely not so.
For 10 months, the Government and Police Commissioner Ken Moroney have beenin defiance of Justice Johnson's January 28 order in the NSW Supreme Court tohand over Operation RETZ files to former former NSW detective Tim Priest, whosereputation has been grossly traduced by media figures Chris Masters and MikeCarlton.
Justice Johnson did not come to his decision lightly. He took eight months toread all the documents and consider his opinion.
The Government had the option of taking his decision to the Court of Appeal,but has not done so.
The stonewalling cannot be permitted to continue. The report includes theofficial diaries of lightweight former commissioner Peter Ryan and former deputycommissioner Jeff Jarratt, whom Ryan wrongfully dismissed.
It largely centres on the extraordinary behaviour of former assistantcommissioner Lola Scott, who was the subject ofa psychological review in 2000that found she made either "a conscious and deliberate attempt to subvert dueprocess'' or had "an inadequate understanding of the limits of her properauthority''.
A related report by Chief Inspector Jeff Tunks into events at Cabramatta from1991 to 2001 should also be tabled. State and federal Labor MPs have aninglorious history of trying to block inquiries into NSW police corruption.
One objector has been federal MP Darryl Melham, who repeatedly interruptedtestimony by former undercover officer Glen McNamara to the House ofRepresentatives Standing Committee on Legal and Constitutional Affairs in 2003.
Despite Melham's constant complaints, McNamara told the committee aboutcorrupt police officer Larry Churchill and the standover racket he ranprotecting drug dealer Allan Saunders and notorious pedophiles Robert "Dolly''Dunn and Colin Fisk.
Dunn and Fisk were then engaged in manufacturing amphetamines to financetheir criminal sexual activities. During his evidence, McNamara said he had seena set of priest's robes the pedophiles said Dunn wore when he met the parents ofthe boys he used for sex - and during sex with the boys.
McNamara said he replayed taped conversations with the two men to policeinternal security officers Lola Scott (subsequently appointed assistantcommissioner by Ryan) and Ken Watson, but they refused his request to makeimmediate arrests.
McNamara said his undercover role was subsequently revealed and Scottrecommended that he be charged with crimes based on allegations made by Saundersand Churchill, but that Dunn fled.
The charges against McNamara were laterdropped, and he received an apology from the NSW Ombudsman. When Churchill,Saunders and Fisk were arrested, all pleaded guilty. Dunn, whom Scott had givenan indemnity from prosecution, was traced to Lombok, then Honduras, where he wasarrested.
McNamara said that when Scott applied for Dunn's indemnity, she did notmention the undercover tape, nor tell a judge she had seen videos of Dunn havingsex with boys. That, he said, was proof of perjury and conspiracy by Scott topervert the course of justice.
Scott refused to be interviewed about the indemnities she sought from thenhead of police internal affairs Mal Brammer. She was not charged with refusingto obey a lawful direction because then deputy commissioner Ken Moroneyintervened and named a lowly sergeant to conduct the interview.
McNamara said Moroney curtailed the interview when Scott began to cry.Brammer filed a complaint about Moroney's behaviour with the Police IntegrityCommission, but it has still not been resolved.
The Government's attempts to block investigation of Operation RETZ are inline with its recent attacks on Opposition Leader Peter Debnam for raisingquestions about NSW Attorney-General Bob Debus's handling of the correctiveservices ministry.
A thorough investigation of Operation RETZ could be the trigger needed toflush out government cover-ups and move on corrupt police.
No apology for magick Mystic sex abuse claim settled
Grant McArthur. Herald Sun. Melbourne, Vic.:Nov 30, 2006. p. 36
AN anti-child-sex campaigner has avoided having to apologise for her claims a
secret society sacrificed children, ate organs and was part of a pedophile
network of politicians, police and TV celebrities.
Members of Ordo Templi Orientis claimed they had been the target of revulsion
and ridicule and hatred since an article by Child Sexual Abuse Prevention
Program head Dr Reina Michaelson appeared on several websites.
After a three-day religious vilification hearing at the Victorian Civil and
Administrative Tribunal the groups have reached a private settlement.
Dr Michaelson did not apologise, but agreed to state on her CSAPP websitethat
references to the OTO were without her group's knowledge or authorisation.
The OTO told the tribunal the article said they were a satanic cult which
kidnapped street children, babies and orphans for ritual sacrifices, hosted
parties where naked child waiters were sexually assaulted and murdered, and
that they forced children to produce child pornography.
They said the names of senior politicians, TV personalities, high- ranking
police officers and teachers claimed to have been involved in the ring were
concealed by false names in the article.
OTO follows British occultist and mystic Aleister Crowley, who wrote texts
including The Book of the Law and Magick in Theory and Practice.
His instructions include: "A male child of perfect innocence and high
intelligence is the most satisfactory and suitable victim."
However, OTO member David Bottrill said like other religious books the texts
used metaphors and images.
"The Book of Laws is a coded religious text that is better explained by those
practising the religion than those pointing fingers from outside," MrBottrill
He said it was pretty upsetting for his organisation to be called a bunch of
Dr Michaelson said racial vilification laws prevented her from commentingabout
the case or if she planned to continue investigating alleged pedophilerings.
Women back sex abuser
GAVIN LOWER, COURT REPORTER. The Advertiser. Adelaide, S. Aust.:Nov 30, 2006.p. 25
TWO Girl Guides leaders have backed a taxi driver who sexually abused ateenage
They have also pledged to give Gregory Thomas Giles work involving girlsgoing
to the next jamboree.
Guides South Australia quickly distanced itself from the women's comments,
which were heard in the District Court yesterday.
The court heard Guides district leader Susan Waite and leader Debra Watsonhad
signed a reference in support of Giles. They said: "We will have nohesitation
in engaging Mr Giles . . . of Guides taken to the next jamboree."
Ms Waite was described as district leader of Naracoorte, Lucindale and Penola
Girl Guides and Ms Watson a leader in Naracoorte Girl Guides.
However, Guides SA said Ms Waite was no longer a district leader and neither
she nor Ms Watson were authorised to make a statement on behalf of the
Yesterday, Ms Waite said she had known Giles for 15 years and stood by her
position. "I stand by my comment as given in the reference that was providedto
the court," she said from her Naracoorte home.
Guides SA Spokeswoman Judy Harris said the organisation had a policy that all
adults involved in the supervision of Guides had to have a current police
"If a police check threw up any information of this sort or we became awareof
it, our position is they would not be permitted to be involved with thegirls,"
Giles, 50, of Naracoorte, was found guilty by a jury earlier this year, of
unlawful sexual assault and indecent assault against a 14- year-old girl in
2003. He was bailed to be sentenced in January.
Rapist has jail term increased
November 30, 2006
A SYDNEY man convicted of raping two teenage girls today had his minimum jailterm increased by two years following a crown appeal.
Known only as MSK, the man already was serving a 22-year jail term for gangrape when he was sentenced this year for sexually assaulting teenagers TeganWagner and Cassie Hamim in 2002.
The victims have given permission for their names to be used.
He was sentenced effectively to a maximum four years behind bars, on top ofhis earlier sentence, for assaulting the pair.
Prosecutors appealed against the sentences, arguing they were inadequate anddid not not reflect the seriousness of MSK's crimes.
Today, the NSW Court of Criminal Appeal agreed.
The appeal judges ordered MSK to serve an extra 10 years' jail on top of hisoriginal sentence, taking his maximum jail term to 32 years.
His minimum jail term was increased by two years, making him eligible forparole in 2026.
Court hears of gifts for sex
by RAE WILSON A TEENAGE girl described how her grandfather allegedly bought her gifts in exchange for indecently touching her in a letter she wrote for police.
In the letter — which was read aloud in Maroochydore District Court yesterday — the girl also described how her grandfather allegedly exposed her to pornographic images on the internet, showed her naked pictures of him and her nanna "having fun", and regularly woke in her bed to find her hand on his penis.
The girl, who was aged between eight years and 13 years old, said he smacked her three times on the backside and broke her wrist when he dragged her off a bed the last time she stayed at his Bli Bli house in October last year.
She said she had been reluctant to tell her mother because she had been inhospital with enough worries and that her grandfather had told her he would goto jail.
The 71-year-old has pleaded not guilty to indecently touching a linealdescendant five times, exposing her to indecent pictures twice, raping her withhis fingers and causing her bodily harm.
Judge Keith Dodds read the girl's letter to a jury of 10 women and two men.
He said the girl wrote that she started staying at her grandparents when herbrother took up martial arts and then on weekends because she wanted to "go tochurch on Sundays".
She said he allegedly touched her indecently on the breast the first timewhen she was eight.
The rape charge related to allegations his fingers touched her genitals forseveral minutes and caused her pain.
"He tried to pull down my pants, he eventually succeeded and fingered me,"the letter read.
"He said he was doing me a favour by letting me experience the feelings. Itdidn't work because I was struggling so much."
The letter said the next day her grandfather said it was time to put hispenis against her vagina.
"He said he would give me $50 or something expensive if he did. I said $1million. He told me to be reasonable; I said I was being reasonable.
"He would buy me things and tell me that I had to pay him back ... he wouldexpect me to let him touch me or want him to touch me.
"He used to get mad at me when I got my period because he knew he couldn'ttouch me.
"Sometimes he would pull down my pants and tell me he just wanted to look atmy little hairs."
The trial continues today.
Rapist `not to blame'
The Advertiser. Adelaide, S. Aust.:Nov 29, 2006. p. 35
AN UNREPENTANT rapist, who continues to blame both his victim and "theChurch"
for his crimes, has been jailed for three years.
The computing teacher, 65, who cannot be identified, was found guilty by a
District Court jury of rape and assault with intent to rape.
Judge Andrea Simpson yesterday sentenced the man to 5 1/2 years' jail for the
crimes he committed against his step-daughter 18 years ago. "You appear tosee
yourself, unrealistically, as having no control over your behaviour," shesaid.
Thursday, 19 October 2006. 18:00 (AEST) Jury retires in Dunning case
A jury has retired to consider its verdict in the child sex trial of aprominent Queensland businessman.
Ross William Dunning, 64, the former chairman of Energex and the CentralQueensland Ports Authority has pleaded not guilty to three counts of indecentassault in 1968.
The complainant, who was 14 at the time, told the Gladstone District Courtthat he was molested during "sleep overs" in the Dunning family home.
Dunning denied the allegation.
Welfare authority failed children - report
By Peter Jean
November 29, 2006 12:00
AT least six children died after welfare authorities failed to follow upreports that parents were abusing drugs, the NSW ombudsman has revealed.
Bruce Barbour's report into the 117 "reviewable'' child deaths which occurredin 2005 was tabled in State Parliament today.
The cases include those ofchildren who had been the subject of a report to the Department of CommunityServices (DOCS) or whose siblings had been the subject of such areport.
The ombudsman also reviewed the deaths of children who died insuspicious circumstances, or as a result of neglect or abuse.
Mr Barboursaid 54 of the children who died in 2005 had parents with a history of substanceabuse.
Three died from methadone poisoning and 14 had mothers who usedillicit drugs or alcohol during pregnancy.
Mr Barbour's report found 32of the children who died had been the subject of a report to DOCS that includedconcerns about parental drug abuse.
Reports for six of the children wereclosed by DOCS without secondary assessment occurring.
Before twochildren died, reports had been opened but not allocated to staff, the ombudsmansaid.
"We found that closure of reports occurred for some children whereDOCS records indicated a significant child protection history,'' the ombudsman'sreport said.
Mr Barbour found previously identified problems, such asgovernment agencies failing to consistently recognise when a child might be atrisk, were still occurring.
He said there were also continuing problemswith coordination between government agencies.
"Over the three years inwhich my office has been reviewing child deaths, the concerns we have identifiedhave remained largely consistent,'' Mr Barbour said.
Opposition youthaffairs spokeswoman Catherine Cusack said she was alarmed that 60 reviewabledeaths of babies aged under 12 months had occurred in 2005, up from 35 in 2004.
She said the Government was failing to deal with child protectionissues.
"Clearly, they have not only not got their act together, but thenumber of deaths of babies is actually increasing, and that's just a disgrace,''Ms Cusack said.
Community Services Minister Reba Meagher said theGovernment would continue its DOCS reform program, which includes 300 extracaseworker positions in 2006/07.
"The ombudsman's rightly identifiedthat in 2005 things should have been done better. We accept that,'' Ms Meaghertold reporters.
"We've always said that rebuilding an agency with atroubled history like DOCS is going to take some time.''
D'Arcy wife to 'drop bombshell' at forum
November 29, 2006 - 8:05PM
The wife of convicted child molester Bill D'Arcy will defend her husband and"drop a few bombshells" when she speaks at a weekend child abuse forum on theSunshine Coast.
The former Queensland Labor MP is currently serving an 11-year jail term forchild sex offences committed while he was a teacher at a Queensland schoolbetween 1961 and 1972.
His wife Lois D'Arcy has maintained her husband's innocence and is expectedto use her family's example to speak on problems experienced when people makesexual abuse accusations years after they occurred.
Event organiser Michael Cox said the "extraordinarily strong" Mrs D'Arcy wasone of several speakers in the line up which included lawyers, psychologists anduniversity experts.
"She is carrying on, very determined, as is Bill, to have this whole horriblemess exposed for the fraud that it is," Mr Cox said.
"She'll be dropping one or two bombshells, I'm not at liberty to say whatthey are but I can say this, that I've been involved in the D'Arcy case for oversix years ... (and) you don't need a degree to see that the man is notguilty."
Mr Cox said the issue was important to him after he was falsely accused byhis mentally ill daughter 15 years ago.
She later recanted her claims, he said, but the trauma ripped his familyapart and he had dedicated himself to helping end the trauma to others caught insimilar situations.
Mr Cox said it was hoped the forum could be a catalyst for a state governmentinquiry into the D'Arcy case and wider problems associated with historicalsexual abuse allegations.
The forum, Historical Accusations of Child Sexual Abuse from Noble Cause toNightmare, will be held at Sunfair, Marcoola, on Saturday from 1pm(AEST).
Child killers plead manslaughter, reduce sentences
By Katie Lapthorne and Mark Buttler
November 29, 2006 12:00
MORE than a dozen people charged with murdering children in the past decadein Victoria have struck deals to dramatically reduce their time behindbars.
Families, police and victims' groups are appalled by the "institutionalisedinjustice" that lets child killers beat murder charges in favour ofmanslaughter.
A wave of community outrage over the death of five-month-old Rachael JoyArney has prompted calls for a review of the law.
The Herald Sun has identified 12 cases where attackers inflicted horrificinjuries on young children. In each, the offenders were charged with murder butprosecutors accepted a plea of guilty to manslaughter.
All but one received sentences of less than half the 20-year maximum penaltyfor manslaughter. Their minimum non-parole jail terms totalled just 64 years.
In developments yesterday:
VICTORIAN Premier Steve Bracks took the rare step of urging the Director ofPublic Prosecutions to appeal against the minimum five-year sentence imposedthis week on the killer of baby Rachael.
FRUSTRATED police called for juries to be left to decide child murdercharges.
THE father of one victim spoke of his devastation at seeing his son's killerjailed for just four years.
A PROMINENT barrister called for the DPP to makepublic the reasons for accepting lesser pleas.
The list of case studies reveals the horrific injuries and torment sufferedby the child victims.
They include skull fractures, broken ribs, bleeding on the brain, and torninternal organs.
The highest sentence - 10 years' jail with a minimum of seven - was given in2000 to Gary Stanley Kesic, who violently shook Jed Britton, 2, over the child'sinability to learn toilet training.
David Scott Arney, 25, was sentenced on Monday to a minimum five years forrepeatedly punching daughter Rachael in the stomach.
Mr Bracks, clearly moved by baby Rachael's death, said he hoped the DPP wouldconsider an appeal.
"This is a horrific case, a dreadful case. I'm appalled by all of it," hesaid.
"It would be up to the DPP to decide if it wishes to appeal on that matter .. . and you would hope if there is an opportunity . . . they would take thatup."
One homicide squad detective said police were resigned to such sentencesbeing imposed.
"It's sad but it's at the top end," he said.
"When a bloke gets nine (years in prison) with a six (year non-paroleperiod), it's above average.
"The little baby's got no choice. They're goneforever."
The detective said it was a sad reality that if judges handeddown stiffer sentences, they would be reduced on appeal.
He saidsustained public outrage might be the only thing that changed the situation.
Australian Childhood Foundation CEO Joe Tucci said the law was lettingchildren down by reducing the seriousness of a horrific crime.
"Theprice of a child's life is 5-10 years at the most and that, to me, is a tragicindictment on the way we see the sanctity of childhood," Mr Tucci said.
He said the Office of Public Prosecutions should be transparent andaccountable when it accepted a reduction in the charge.
Mr Tucci wantsplea bargaining abolished and a new child homicide offence with a minimum termintroduced.
The father of Jonathan Guiver, 3, who was beaten to death byMark Mietto in 2001, said the penalty for his son's death did not fit the crime.Mietto received a minimum four-year jail term and was released this year.
"A fair penalty? There probably isn't one," Mr Guiver said.
"Tenyears is what I thought he would have got but nothing could be right for whathe's done.
"A child is defenceless. A child needs the protection of thecourts."
Barrister Peter Faris, QC, said a jury should decide betweenmurder and manslaughter in child homicide cases.
"You hear that a juryis the hallmark of democracy and it reflects the views of the man in the street. . . why wouldn't you leave the case to them?" Mr Faris said.
He said aculture had developed where child-killing cases were put in their own categorywith their own rules.
"It's the theory that these are usually horrificcircumstances for everybody," Mr Faris said.
"It's an overly sympatheticattitude for factors that can be reflected in the sentence for murder."
Office of Public Prosecutions spokesman Bruce Gardner said plea offerswere always considered, but whether they were acted on depended on differinglegal factors.
The Arney case, like all others, was being considered forappeal.
There's much help at hand; SURVIVOR
writes Michelle Harris. Herald. Newcastle, N.S.W.:Nov 28, 2006. p. 31
EXPERIENCING sexual assault is a nightmare come true.
What's worse, it's a nightmare that seems to be endured mostly by youngpeople.
Last year, there were 1151 males and 5637 females sexually assaulted in NSW,
according to the Australian Bureau of Statistics.
More females aged 15 to 19 experienced sexual assult than any other age group
for both men and women; last year there were 1360 females in that age group
Those figures do not indicate how many sexual assaults occurred against each
victim and they also exclude any victims of sexual assaults not recorded by
The decision to report a sexual assault is a very difficult and personal one,
NSW Rape Crisis Centre manager Karen Willis says. It's also a decision often
affected by an individual's understanding of the legal process before them.
The NSW Violence Against Women Specialist Unit says a person's decision to
report a sexual assault is shaped by many factors, usually including what the
victim thinks will be the likely response and protection offered from formal
and informal support services, such as police and counsellors.
"Most people's knowledge of the [legal] process is fairly limited," Ms Willis
"You don't go out and find out about something you hope you'll never have to
"The first contact we have with someone tends to be about their feelings of
shame or fear and 'how could he do this to me'."
"Reassuring someone that they're not to blame is the most important thing,"Ms
"After that we can talk to them about seeking medical attention and thenmaybe
A medical examination is important for all sexual assault victims to undergo,
regardless of whether they intend to report the assault to police.
Treatment may be needed for injuries, and to address the possibility of
contracting an STD or a female victim becoming pregnant.
A medical examination is also vital for gathering evidence about the
perpetrator, which could later be used in a court case.
"Sexual assault victims should know that they can have forensic evidencetaken
without going to police or getting the police involved," Ms Willis said.
Hospitals have a sexual assault trained doctor who will explain what'sinvolved
with the examination.
"They can decide either on the spot or later that they want to go to police,
and that way [having a medical examination] the evidence is still there.
Deciding to come forward is entirely up the individual, although it's good to
"Obviously it is great when a woman [or man] chooses to come forward wereally
hope they do but it's completely understandable when they choose not to," Ms
"There are issues of public interest, but it's a decision that in the end can
only be made by the victim and that decision should be respected andsupported
no matter what."
Some people have misconceptions about the response of police, Ms Willis said.
"A lot of people still have this idea that the cops don't do it[investigating
sexual assaults] that well. But there have been a lot of changes in the way
police approach sexual assaults . . . and we hear a lot of stories about how
compassionate and supportive police have been."
Similar apprehensions about court are often experienced by sexual assault
"A lot of people have an idea that it is going to be difficult, and it's true
court is not easy.
"But I think it's important to let women know that they don't have to bealone
when they go through this."
The Office of the Director of Public Prosecutions (DPP) prosecutes courtcases
against serious offenders. The witness assistance service is part of the DPP.
Its officers can support sexual assault survivors through the legal processand
explain what their rights are and what happens during court.
"Reassuring someone that they're not to blame is the most important thing."
YOU'RE NOT ALONE
NSW Rape Crisis Centre: Offers 24-hour counselling, support and and referral
service for anyone who has experienced sexual violence. Its website includes
fact sheets about dealing with a sexual assault, and the legal process of
reporting it to police and going to court (nswrapecrisis.com.au). Phone 1800
*NSW Health Sexual Assault Services: Newcastle, Longworth Avenue, Wallsend.
Phone 4924 6333, or 4921 3888 (24 hours).
**Lower Hunter Community Health Centre: 58 Stronach Avenue, East Maitland.Phone
4931 2000, or 4921 3888 (24 hours).
Upper Hunter Sexual Assault Service: Muswellbrook Community Health Centre,
Brentwood Street, Muswellbrook. Phone (02) 6542 9125, or 1800 642 357 (24
Victims of Crime Assistance League (VOCAL): 2nd floor, 3 Market Street,
Newcastle. Phone 4926 5826.
Hunter Women's Centre: Corner of Avon Street and Industrial Drive, Mayfield.
Phone 4968 2511.
Teen facing assault charge
GR. Herald. Newcastle, N.S.W.:Nov 28, 2006. p. 3
A TEENAGER has been charged with the aggravated indecent assault of a 15-year-
old girl at Scone.
The male, 19, is alleged to have assaulted the girl on Saturday.
He was bailed to appear in Scone Local Court on December 13.
Man jailed for step-daughter's rape
November 28, 2006 01:50pm
AN UNREPENTANT rapist who continues to blame both his victim and "the church"for his crimes has been jailed for at least three years.
The 65-year-old computing teacher, who cannot be identified, was found guiltyby a District Court jury of one count of rape and one count of assault withintent to rape.
Judge Andrea Simpson today sentenced the man to 5 ½ years jail.
She further ordered he serve a three-year, four-month non-parole period forthe crimes he committed against his step-daughter 18 years ago.
"You appear to see yourself, unrealistically, as having no control over yourbehaviour," she said.
"You blame it on sexual urges ‘encouraged’ by the church or on ‘sexuallyprovocative young people’.
"You place responsibility for your sexual behaviour outside yourself, anddisplay little understanding of the impact of your behaviour on others ... youstill do not accept responsibility for your offending."
In 1988, the man twice attacked his young step-daughter, apologising aftereach incident.
The girl was traumatised, and her grief increased when her mother sided withher attacker, refusing to believe her.
Judge Simpson said the girl had gone on to create a productive life forherself, but had only recently re-established ties with her mother.
"Not only did you betray the trust of your step-daughter, you betrayed herrelationship with her mother," she said.
WA minister 'unaware' of investigation
By Adam Gartrell
November 28, 2006 02:52pm
EMBATTLED West Australian Education Minister Ljiljanna Ravlich has accusedthe former director-general of her department of not telling her about acorruption probe.
Ms Ravlich said today she believed former Department of Education andTraining (DET) chief Paul Albert concealed the Corruption and Crime Commission's(CCC) investigation into DET's handling of allegations of sexual misconduct byteachers.
"Absolutely, I am saying that,'' Ms Ravlich said.
Theminister said she only found out about the investigation when the CCC briefedher four days before releasing a report in October.
The report found DETpaid insufficient attention to managing the risks of sexual contact betweenteachers and students and gave greater weight to employee welfare than to thesafety and protection of children.
The report claimed the scalp of MrAlbert, who accepted a "management initiated retirement'' less than 12 hoursafter its release.
But Mr Albert yesterday contradicted the minister'sversion of events, telling a parliamentary inquiry he told Ms Ravlich "on atleast three occasions'' - in May, July and August - that the probe was underway.
Ms Ravlich today rejected Mr Albert's evidence, saying he had onceinformally mentioned the department was "working with'' the CCC on something,but had never elaborated.
"I certainly don't have any recollection ofbeing informed, informally or otherwise, on either of those two (other)occasions,'' she said.
Ms Ravlich, who will appear before the sameparliamentary inquiry tomorrow, said she looked forward to giving her version ofevents.
The state's teachers recently called on Premier Alan Carpenterto sack Ms Ravlich over her handling of the introduction of new programs and herhandling of the sexual misconduct issue.
Groups settle row over website paedophile claims
A secret society accused of sacrificing children has agreed on a settlementwith the child abuse organisation that posted the claims on a website.
The society Ordo Templi Orientis took the Child Sexual Abuse PreventionProgram head, Reina Michaelson, to the Victorian Civil Administrative Tribunal(VCAT), accusing her of fuelling religious hate on the program's website.
The comments linked the society to an alleged paedophile network ofpoliticians, police and TV figures.
They were allegedly posted on the program's website then removed, but a linkto another site repeating the claims remained.
Dr Michaelson argued the information was posted without her consent and thecomments were never intended for the public domain.
In a settlement reached today, Dr Michaelson will attempt to have theoffending website shut down and has acknowledged no proof has ever been producedto support the allegations, which caused serious offence to the society'smembers.
The Advertiser. Adelaide, S. Aust.:Nov 24, 2006. p. 19
SEX crimes against children via the internet are the fastest- growing crimes
At a recent conference, a Queensland police expert showed that American
pedophiles now target Australian children because, if they are caught, our
justice system is known to deal leniently with offenders, imposing good
behaviour bonds and suspended sentences when, in the United States, they could
expect a minimum jail term of 20 years.
Phillip Holman's reported behaviour (The Advertiser, 21/11/06) was typical of
internet sex offenders who are sexually aroused by children and seek them out
for their own sexual satisfaction.
This offender went to great lengths to conceal his identity and, had it not
been for the intervention of police, another child could have been sexually
abused and psychologically damaged for life.
Suspended sentences and good behaviour bonds are unlikely to change sexual
attraction to children unless the successful completion of a treatment program
is part of the contract.
To date, there has been no indication that treatment is a requirement.
* FREDA BRIGGS,
Court adjourns case of teen accused of raping senior
ABC Regional News. Sydney:Nov 23, 2006. p. 1
A children's court hearing over the sexual assault of an 83-year- old central
Victorian woman has been adjourned for another month.
A boy, who was 15 when the attack happened last August, is charged with
attempted murder and two counts of rape, and five other offences.
The court yesterday granted a month's adjournment to allow the Office ofPublic
Prosecutions to consider a plea offer.
The defence counsel for the boy said the plea offer includes evidence around
the most serious charge of attempted murder.
The case has been set down for a further committal mention on December 20.
The boy remains in custody.
104 TEACHERS SACKED - Staff criminal and inept
BRUCE MCDOUGALL, KELVIN BISSETT. The Daily Telegraph. Surry Hills, N.S.W.: Nov 27, 2006. p. 1
THREE NSW teachers a month are being sacked for gross incompetence and shocking
crimes, including sexual assault, child pornography and supplying drugs.
The criminals and failures are being purged from the 2240 public schools in a
bold bid to lift teacher standards, The Daily Telegraph has learned.
A detailed dossier of the Education Department's 104 dismissed teachers,
obtained under Freedom of Information laws, reveals for the first time the
disastrous outcomes for students when the wrong people enter classrooms.
Among those already removed from schools are at least two assistant principals who have been convicted of
possession of child pornography in the past three years, documents show.
Of the 104 teachers dismissed from positions in NSW public schools over the
three years, one was found to have sent an obscene message and graphic by
mobile phone to a female student.
Others were sacked for falsifying medical certificates or obtaining money by
Assessors for the Education Department found one teacher -- later sacked -- had
been getting students to do teaching work.
Another had allocated grades to students who were not even on the school roll.
A male teacher convicted of assaulting his female principal claimed more than
$1.5 million when sacked by the department.
The catalogue of crimes includes:
* A TEACHER charged with committing acts of indecency on children aged 8 and
* A TEACHER who engaged in sexual misconduct with male students; and
* A SCHOOL assistant charged with drugs and firearms offences.
Former Gosford High School Maths teacher Robert Drummond is one who was sacked
over a student relationship.
It is understood 34 non-performing teachers have been sent on improvement
courses -- while still on full pay -- over the past year.
However a number never make the grade, requiring officials to begin a lengthy
Education Minister Carmel Tebbutt said yesterday the Government was committed
to ensuring teaching was of the highest standard and teachers lived up to the
position of trust and respect they held in the community.
"The overwhelming majority of teachers do a great job ... the number of
teachers dismissed over the three-year period represents 0.03 per cent of the
Education Department's employees," Ms Tebbutt said.
"Any serious misconduct or significant poor performance by teachers is not
tolerated and is dealt with immediately."
Opposition education spokesman Brad Hazzard has said a coalition government
will introduce inspections of teachers in classrooms to maintain standards
Safety net just an illusion; CASE STUDY
DONNA PAGE. Herald. Newcastle, N.S.W.:Nov 27, 2006. p. 5
AT just 14 years of age Melanie knows only too well the dangers of internet
The Lake Macquarie teenager is among hundreds of Australian children who have
fallen victim to online predators.
Having only just moved to the Hunter Valley 18 months ago and struggling to
make friends at school, Melanie began spending a lot of her time on the
"Mum and dad weren't worried at the time, because during a lot of it I would
say I was doing my homework," she said.
"I was on the net a lot and I met heaps of different people through chat."
After months chatting with her online friends, Melanie met a boy with whomshe
formed a close bond.
The pair exchanged messages every day and talked about everything from
Melanie's problems at school to missing her old friends interstate.
"I really liked him and he told me he was a few years older and had been
through a similar move," she said.
"We talked about everything and he was kind of like a boyfriend in the end I
After almost three months of chatting with the person, the conversationturned
Melanie said at first it was "pretty innocent stuff" and then things began to
get more serious.
"I started getting a bit freaked out and I realised that I didn't know who he
was and it scared me," she said.
"In the end I told mum and never messaged him back."
Melanie's mother said she has no idea if the person was a teenager or someone
older trying to gain her daughter's trust.
"It was a very sobering experience and we still don't know what was behind it
all," she said.
"We were very lucky that Melanie was sensible enough to tell us when she
realised she might be in trouble.
"I would just urge other parents to be mindful of their children using the
internet a lot, just because your child is sitting in front of a computer in
your home does not mean they are safe."
Man tries to abduct children
November 27, 2006 01:15am
A YOUNG boy and girl evaded an abduction attempt yesterday morning.
Three children - a boy, 8, his sister and another girl, both 11 - were at apedestrian crossing on Philip Highway, adjacent to Elizabeth South ShoppingCentre, when a man grabbed the boy at 8.30am.
The children struggled with the man and the boy broke free but the man thengrabbed one of the girls by the arm.
She also was able to break free and the three children ran to school wherestaff and police were alerted.
The man is described as Caucasian, about 35-years-old, 175cm tall with askinny build, tan complexion, clean-shaven and with a shaved or bald head.
Expat faces court on child sex charges
From correspondents in Jakarta
November 22, 2006 12:00
AN Australian teacher has faced an Indonesian court over allegations heforced Jakarta children to have sex.
Peter William Smith, 48, appeared briefly in the South Jakarta DistrictCourt, where a four-page indictment alleging abuse dating back three years waspresented.
Mr Smith's lawyer Sangap Sidauruk said his client would not contest theformal wording of the indictment.
"We do not see any formal matters to be submitted and that's why we aren'tgoing to submit an exception," he said.
Sidauruk said Mr Smith "never" forced or threatened the children.
"If it's about threatening, if it's about forcing ... he never did that," hesaid.
Under Indonesian law, anyone found guilty of forcing or persuading a child tocommit a sexual act, or allowing such an act to happen, could face a maximum 15years' imprisonment.
Mr Smith was employed as an English teacher for the Indonesian AustralianLanguage Foundation in Jakarta when he was arrested on August 5.
The hearing will resume next Wednesday, when several of Mr Smith's allegedvictims are expected to testify.
Russell v The Trustees of the Roman Catholic Church for the Archdiocese ofSydney  NSWIRComm 65 (1 June 2004)
Last Updated: 4 June 2004
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION : Russell v The Trustees of the Roman Catholic Church for theArchdiocese of Sydney  NSWIRComm 65
FILE NUMBER(S): IRC 770
HEARING DATE(S): 23/06/2003, 24/06/2003, 25/06/2003, 26/06/2003, 27/06/2003,28/07/2003, 29/07/2003, 30/07/2003, 31/07/2003, 18/08/2003, 19/08/2003,26/08/2003, 24/11/2003, 02/12/2003
DECISION DATE: 01/06/2004
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney
JUDGMENT OF: Harrison DP
Mr I Neil
Harmers Workplace Lawyers
Mr J Murphy
Instructed by Mr G McKay, CCER
CASES CITED: Public Service Association and Professional Officers'Association Amalgamated Union of New South Wales of a dispute with NSW Fisheriesre alleged treatment of employee in restructure  NSWIRComm 135
Waterford and The Commonwealth of Australia  163 CLR 54
Alcoota Aboriginal Corporation and Another v Gray and others  161 FLR95
Gough & Gilmour v Catepillar (No1)  NSWIRComm 73
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar GoodsWorkers Union (NSW) v Gartrell White (No 2)  35 IR 60
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar GoodsWorkers Union (NSW) v Gartrell White (No 3)  35 IR 70
Franklins Ltd v Webb  72 IR 257
Wang v Crestell Industries Pty Ltd  73 IR 454
Bounouar v The Spanish Club Ltd  94 IR 166
Transport Industries Insurance Co v Longmuir  1 VR 125
Briginshaw v Briginshaw  60 CLR 336
Neat Holdings Pty Limited v Karajan Holdings Pty Limited  67 ALJR 170
G v H  181 CLR 387
In re H. and others (Minors)  AC 563
In re Dellow's Will Trusts  1 WLR 451
Whitlam v Australian Securities and Investment Commission  199 ALR 674
Four Sons Pty Ltd v Sakchai Limsiripothong  98 IR 1
Coles Myer Ltd v Shop Distributive and Allied Employees Association  27IR 299
Bigg v NSW Police Service  80 IR 434
Helton v Allen  63 CLR 691
Bhandari v Advocate's Committee  1 WLR 1442
Marsden v Amalgamated Television Services Pty Ltd  NSWSC 510
Barten v Williams  20 ACTR 10
Wilcox v Sing  2 Qd R 66
R V Hull Prison Board of Visitors  3 All ER 545
Rainsford v Governor of Her Majesty's Prison at Ararat  VSC 141
Doggett v The Queen  208 CLR 343
Director of Public Prosecutions v Hester  AC 296
Director of Public Prosecutions v Boardman  AC 421
Longman v R  168 CLR 79
Kelleher v R  131 CLR 534
R v Vawdrey NSW Court of Criminal Appeal, 16/4/98, unreported
R v Murray  11 NSWLR 12
Crampton v R  206 CLR 161
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) 73 ALJR 306
Palmer v R  193 CLR 1
Amalgamated Television Services Pty Ltd v Marsden  NSWCA 419
Kilby v R  129 CLR 460
Attorney General of Hong Kong and Wong Muk Ping  1 AC 501
Ian Ueckert and Australian Water Technologies Pty Ltd  NSWIRComm 123
Ross v GN Comtext (Australia) Pty Limited  NSWIRComm 133
Bankstown City Council v Paris  100 IR 363
Mills v Industrial Fish Tasmania Pty Ltd (Receivers and Managers Appointed) 49 IR 416
Burut v The Public Prosecutor  2 AC 579
Mohd. Ali Bin Burut and others and Public Prosecutor  2 AC 579
R v Spencer  1 AC 128
Hollington and F Hewthorn & Co Ltd KB 1943 587
Gonzales and Claridades  NSWSC 508
Wheeler v Philip Morris Ltd (1989) 97 ALR 282;
Ross v GN Comtext (Australia) Pty Limited  NSWIRComm 133.
Browne v Dunn (1894) 6 R 67
LEGISLATION CITED: Industrial Relations Act 1996
Evidence Act 1995
- 75 -
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
CORAM: HARRISON DP
Tuesday, 1 June 2004
Matter No IRC 770 of 2003
DAVID RUSSELL AND THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THEARCHDIOCESE OF SYDNEY
Application by David Russell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996
 NSWIRComm 65
1 The application in this matter was filed on 17 February 2003. The matterwas subject to proceedings for the purpose of Conciliation and Directions on 20February 2003 resulting in further conciliation proceedings on 25 March 2003.
2 The matter was unable to be resolved by conciliation and directions issuedfor the conduct of arbitration proceedings over five days from 23 to 27 June2003. In the event, almost three days of that time was taken up by furtherattempts at conciliation pursuant to s 87(2) of the Industrial Relations Act 1996 ("the Act") which were alsounsuccessful.
3 Arbitration proceedings continued throughout the latter part of 2003 withfinal written submissions on 15 December 2003.
4 Mr I Neil of Counsel appeared on behalf of the applicant, instructedby Harmers Workplace Lawyers.
5 Mr J Murphy of Counsel appeared on behalf of the respondent,instructed by Mr G McKay for the Catholic Commission of Employment Relations(CCER).
6 Mr Neil brought evidence from:
· Mr David Russell The applicant
· Ms Helen Kennedy A flight attendant, the mother of 2 boys aged 10 and 12currently members of St Mary's Cathedral Choir
· Ms Irene Szady A legal secretary, the mother of a son a member of the StMary's Cathedral Choir and student at the Cathedral High School from Year 5 (age11) to the present time at age 17
· Mr John Mitchell A retired teacher, a friend of the Applicant and afrequent visitor to his home.
· Ms Elizabeth Vierboom A music teacher, the mother of a son a member of theCathedral Choir and student at the Cathedral High School from age 10 to 18.
· Mrs Judith Mitchell A primary school teacher, and the wife of Mr JohnMitchell.
· Mr Peter Smith A retired customs officer, a friend of the Applicant andfrequent visitor to his home.
· Mr Sean O'Dea A former member of choir, past music teacher, and pastboarder at the Applicant's residence.
· Mr James McCarthy A friend of the Applicant and fellow model trainenthusiast
· Dr Leonie Hammer A veterinary surgeon and breeder of German ShorthairedPointer dogs
Mr Murphy brought evidence from:
· Mr "X" The identity of this witness is suppressed by Order issued on 16June 2003. This witness puts the allegation giving rise to the termination ofthe Applicant's employment.
· Dr Andrew Soddy A psychiatrist who had care of "X" from 1980 to 1984 in hiscapacity as Senior Staff Specialist and Chairman, Department of Child and FamilyPsychiatry at the Prince of Wales Hospital, Randwick.
· Mr John Cooke Appointed by CCER to conduct enquiry into allegations by "X"("the Cooke enquiry").
· Mr Brian Donnelly Professional Officer with the Image Analysis Laboratory,School of Surveying and Spatial Information Systems, University of New SouthWales
· Father A. Doherty Dean of St Mary's Cathedral
· Mr Peter Little A Barrister briefed by the Director of Public Prosecutionsfor the prosecution of David O'Grady on eight charges of indecent assault.
· Mr Gregory McKay Senior Employment Relations Advisor for the CatholicCommission for Employment Relations
Mr Russell, the Applicant, was employed as the Director of Music at St Mary'sCathedral ("the Cathedral") by the Trustees of the Roman Catholic Church, therespondent, from 1975 to the termination of that employment on 31 January 2003.The application filed states that remuneration was approximately $480 per week.The employment is award free and is administered by the CCER on behalf of therespondent.
9 As Director of Music the applicant was responsible for the management ofthe Cathedral choir. His duties included private tuition to the members of thechoir, conducting the choir at Church services held at the Cathedral, anddirecting choir concerts and performances, including overseas concert tours.
10 The choir consists of male members of all ages, including a largecontingent of primary and secondary school children from the St Mary's CathedralSchool ("the School").
PRINCIPAL EVENTS SURROUNDING TERMINATION OF EMPLOYMENT
11 In 1998/99 allegations of sexual assault were made against the Applicantand a David O'Grady by Mr Daniel Buckley, a former pupil of the School and,whilst at the school, a member of the choir. Mr Buckley alleged that he was thevictim of events which, in his statement prepared for criminal proceedingsagainst Mr O'Grady is said to be from 1979 to 1983, and during the course ofthose proceedings said to be in the period January 1981 to December 1983. MrO'Grady was at the time a sacristan at the Cathedral.
12 The evidence of the Applicant is that Mr O'Grady occupied a room at hisresidence as a boarder for some months in late 1982, early 1983 at the requestof the then Dean of the Cathedral.
13 The Applicant has strenuously denied any involvement in any improperconduct and any knowledge of improper conduct by Mr O'Grady towards childrenwhilst he was boarding at the Applicant's residence or at any other time.
14 In 2000 Mr O'Grady was charged with nine counts of indecent assault on MrBuckley. He was convicted on one count of indecent assault, being an event atthe Applicant's residence witnessed by "X".
15 Three charges alleging indecent assault were laid against the Applicant.These allegations were denied. The charges were not pursued at the committalproceedings on 13 March 2000 when Mr Buckley, the complainant, failed to appear.
16 On conclusion of the proceedings of 13 March 2000 the Applicant returnedto his duties and continued to discharge his obligations as Director of Music.
17 In August 2002 the Office of the NSW Ombudsman requested that aninvestigation of the applicant's conduct take place pursuant to Part 3A of the Ombudsman Act 1974. Arising from thisrequest the Respondent appointed Mr John Cooke to conduct an investigation intothe conduct of the Applicant ("the Cooke enquiry").
18 The application details three areas of the Cooke enquiry: the firstdescribed as the "primary allegations", that being those subject to the criminalcharges not pressed; an additional allegation that the Applicant had seen butdid not act upon an incident at his home involving O'Grady and three children;and an alternative allegation that the Applicant had witnessed and taken noaction in respect to an event involving Mr O'Grady, Mr Buckley and anotherchild, identified for the purpose of these proceedings as "X". This allegationis referred to in these proceedings as "the walking in" allegation or event.
19 The findings of the Cooke enquiry are contained in a report to theRespondent (Exhibit 22) in which Mr Cooke concludes that the primary allegationsare not sustained, the additional allegation is not sustained, and that thewalking in allegation is on the balance of probability sustained. Theseconclusions were accepted by the Respondent, which acted to terminate theApplicant's employment on the basis of the finding in respect to the walking inallegation.
20 The walking in allegation is detailed in the evidence of "X" (exhibit 1).This statement was made at the request of an officer of the NSW Police Forceattached to the Child Protection Enforcement Agency during the course of aninvestigation into the allegations against Mr O'Grady by Mr Buckley.
21 "X" describes events in which he and Mr Buckley were seduced by Mr O'Gradyto masturbate him.
22 The walking in allegation is put at item 23 of attachment 1 to exhibit 1in the following terms:
23. At this point the lounge room door opened and David RUSSELL was standingin the doorway. He observed what was occurring and stated, "Oh, I see that yourbusy, I'll come back later". And then left, closing the door behind him.
23 The evidence of "X" is that Mr O'Grady then instructed the boys to lay oneither side of him and he masturbated them. On completion Mr O'Grady exhortedthe boys to secrecy.
24 The evidence of "X" is that he became aware during the course of events atthe Applicant's residence as described by him that these actions were wrong. Heis not able to depose at which point in the events he developed this feeling.The evidence of "X" is that he subsequently confided in his mother to a limitedextent and was able to put the issues aside and move on.
25 In his evidence the Applicant was candid and frank that had such an eventoccurred, dismissal would be a proper and appropriate outcome. The Applicantstrenuously denied that such an event occurred and that he had any knowledgewhatsoever of the conduct of Mr O'Grady.
26 The substance of the present proceedings requires a finding of fact inrespect to the walking in allegation, and in Mr Neil's submission anassociated consideration of the competency and procedural fairness of the Cookeenquiry.
27 Mr Cooke did not directly interview "X" and relied upon documentation madeavailable to him by the respondent and by the applicant and/or hisrepresentatives.
28 Mr Murphy contends that the evidence supports a finding that thewalking in allegation is substantiated and that any flaws in the Cooke enquiryare minor and inconsequential against the finding of fact.
THE COOKE ENQUIRY
29 The evidence of Father Doherty in his affidavit (exhibit 24) is that in1999 he was informed by the NSW Police of their intention to prosecute MrO'Grady and the Applicant on charges of sexual abuse. The evidence of Fr Dohertyis that the Applicant was arrested on 8 July 1999 and that, in accordance withstanding protocol, he could be stood down from his position as choir directoruntil the matter was resolved. The Applicant was informed that a finaldetermination would be made by the respondent the following day, 9 July 1999.
30 Father Doherty deposed that on 9 July 1999 the Applicant voluntarily stooddown from position pending resolution of the matter. On 23 August 1999 adetermination was made by the court allowing the Applicant to resume his role aschoir director on the condition that he "be with choir boys only in the companyof a responsible adult". The Applicant was required to arrange his ownsupervisor, which he did.
31 Father Doherty deposed that on 13 March 2000 the Applicant attended theDowning Centre Court and the charge against him was dropped because of thenon-attendance of the accuser. The Applicant then resumed his normal duties.
32 Father Doherty deposed that on 13 August 2002 the NSW Ombudsman's Officerequested the CCER, and through them the Cathedral, to furnish a reportconcerning the allegations of abuse by the Applicant and that the matter beattended to urgently. The allegations to be investigated were those of MrBuckley left unresolved by the collapse of court proceedings as a result of hisnon-attendance.
33 The correspondence from the NSW Ombudsman is tendered as attachment C toexhibit 22, the affidavit of Mr Cooke. This correspondence recites events asunderstood by the Ombudsman, including the allegation by Mr Buckley of theapplicant walking in on him, Mr O'Grady and another student (then notidentified) in their underpants, and doing nothing about it. The correspondenceis critical of the failure of the CCER to conduct a risk assessment in respectto the Applicant as previously requested by the Ombudsman. The correspondence of13 August 2002 states inter alia:
Having considered the available information, the significant delays in CCER'sinvestigation, the inadequate risk assessment and limited documentation that hasbeen provided by CCER in relation to its investigation, I have decided toconduct an investigation into this matter pursuant to section 25G(2) of the Ombudsman Act 1974.
I am now formally notifying you of my decision to conduct an investigation asrequired by section 16 of the Ombudsman Act 1974.
NOTICE OF INVESTIGATION
The public authority whose conduct is the subject of the investigation is:The Catholic Commission for Employment Relations (CCER)
The conduct which is the subject of the investigation is:
· The adequacy of CCER's handling of and decision making in relation to childprotection issues associated with Mr David Russell's current employment as achoirmaster at St Mary's Cathedral.
· The use made of information CCER had in relation to child abuse allegationsagainst Mr David Russell and the provision of that information to the Ombudsman.
· CCER's response to the Ombudsman's requests for information under 13AA ofthe Ombudsman Act 1974,
34 Father Doherty deposed that he concluded that in the interests of fairnessand objectivity an independent investigation into the earlier allegations wasthe most appropriate approach, and subsequently Mr Cooke was appointed by theCCER to undertake the investigation. The evidence of Father Doherty is that heunderstood that Mr Cooke had previously conducted similar types ofinvestigations for the Professional Standards Office of the Archdiocese ofSydney.
35 Father Doherty deposed that he attended a meeting on 10 October 2002 withthe Applicant, his solicitor Mr Chris Mitchell, and Mr Cooke, which he put tookapproximately an hour. Transcript of that interview, which was tape recorded byagreement of all parties present, was tendered by Mr Neil (exhibit 29).
36 The evidence of Father Doherty is that he received a preliminary reportfrom Mr Cooke on 21 November 2002 (attachment F to Mr Cooke's affidavit, exhibit22).
37 This report reveals that Mr Cooke had an interview with Mr Buckley on 24September 2002 in the chambers of counsel representing Mr Buckley, Mr AdrianMcInnes QC, in the presence of the solicitor representing Mr Buckley, Mr KenHarrison. Mr Cooke also relied upon documentary material, including thestatement made to the NSW Police by "X" on 20 January 1999 (part of exhibit 1 inthese proceedings).
38 The conclusions reached by Mr Cooke are set out at page 11 of his report.The subsequent extract is edited to comply with the suppression order in respectto the identity of "X" and to exclude from publication the identity of othernamed participants who have not had the opportunity to consider application forsuppression of their identities in these proceedings.
The many inconsistencies in the complainant's claims, allegations andstatements may be attributable to his psychiatric state, which suggests thatcorroboration should be sought, where possible. There is no possibility of anycorroboration of his allegations, as were detailed in the charges, against theaccused. This fact, and ["A's"] evidence, suggests that the likelihood of asuccessful prosecution of those charges would have been remote.
What is disturbing is the claim, corroborated by "X", that the accusedcondoned the sexual abuse of 10-11 year old boys, whatever the extent of thatsexual abuse may have been. The accused strongly refutes that claim. He suggeststhat the complainant had the opportunity to see "X's" statement of 20 January1999 before preparing his statement of 23 April 1999, and would have been ableto ensure consistency. But they are not consistent as to dates or detail. Theirconsistency is in their respective versions of the role played by the accused.
Short of collusion with the complainant, there appears to be no logicalreason why "X" would have given the account that he did, unless it reflected hisrecollection. The complainant's psychiatric condition suggests that collusion isunlikely. In the unlikely event of some attempt at collusion, it might beexpected that their respective recollections would not differ as much as theydo. At the time he provided the statement, "X" was living in ........ He was a....... .......... ["X's" occupation] The statement contained evidence he wasprepared to give in Court proceedings. It is hard to believe that thecomplainant would have been capable of enlisting the level of support thatcollusion would have required. It is equally hard to believe that such supportwould have been provided. I would assume that "X's" recollection of thecomplainant would not be substantially different from ["A"] who described thecomplainant as "a fruit loop".
If "X" is to be believed, the accused observed the sexual abuse of the boysby O'Grady and did nothing to stop him. It seems that the incident could nothave happened in 1981, as the complainant has stated. Nothing has emerged tocontradict the possibility of such an incident having occurred in March 1983."X's" recall in this respect, and in relation to the presence or otherwise ofother boys on that occasion, is to be preferred to that of the complainant, forobvious reasons. I have not sought to speak to "X". I consider his statementspeaks for itself. For much the same reason I did not think there was anythingto be gained by speaking to ["A"].
Some question hangs over the accused's credibility through ["A's"] statementthat he and other boys were at his house at a time and in circumstances that theaccused has denied children were present.
His credibility could be tested by exploring his denial that he ever made anyoffer to parents to have boys stay overnight at his place. I have not pursuedthis.
39 As noted in Mr Cooke's conclusions he had not interviewed "X". FatherDoherty's evidence is that he instructed Mr Cooke to contact "X" by telephone,which he did. Mr Cooke provided a supplementary report to Father Doherty on 2December 2002 (attachment G to exhibit 22) which deals in its entirety with atelephone conversation between Mr Cooke and "X". In his affidavit (exhibit 24)Father Doherty describes the supplementary report as confirming "X" maintainedthat he and Daniel Buckley definitely stayed overnight at the Applicant'sresidence on the night before the train excursion, at the Applicant'sinvitation, and that he was quite adamant that the Applicant entered the roomand observed himself and Mr Buckley fondling Mr O'Grady's genitals whilst theywere naked; and that he clearly recalled the Applicant using words to the effectof those recorded in his statement (exhibit 1).
40 Mr Cooke provides detailed analysis of the allegation he rejects but doesnot do so in respect to the walking in event, satisfying himself that as both MrBuckley and "X" refer to a walking in event that such an event must haveoccurred.
41 The Applicant and his representatives put strident criticism and complaintof the Cooke enquiry to the respondent, detailed in attachments to theApplicant's affidavit. The complaints and criticism go to procedure, substance,and conclusions reached. In response thereto Mr Cooke provided a document titled"Observations (following initial and supplementary Reports)" dated 13 January2003 (exhibit 25). Amongst these observations Mr Cooke states:
"My Reports incorporated no formal "Findings", either preliminary or final.No "Final Report" had been contemplated."
42 Mr Cooke further states that he does not regard the walking in eventdescribed by Mr Buckley and that described by "X" as two separate events,confirming that he preferred the version by "X" over Mr Buckley's.
43 In accordance with his earlier observation Mr Cooke does not proceed toconsideration of the validity of the event described by "X". Mr Cooke furtherstates that his initial decision not to speak to "X" was founded on a conclusionthat "X" was unlikely to contradict his formal statement and, for reasons oftime and costs, decided to complete the report on the basis of the availablematerial. Mr Cooke confirms that he made telephone contact with "X" after beingrequested to do so by Father Doherty, though saw no utility in speaking to himface to face, nor in contacting the investigating police officer who had takenthe statement, nor in speaking to the other boy whom Mr Buckley had said waspresent during his version of the walking in event, as he was satisfied that hewas not present during the relevant incident and would not be in a position tohelp.
44 Mr Cooke further observed that he did not regard Mr Buckley's evidence ascorroborative of anything, reiterating his preference to believe "X" and discardMr Buckley's recollection. The Cooke reports accept and reiterate the version ofevents set out by "X" in his statement to Police without dilution, exposition oranalysis.
45 Mr Cooke observes that he accepted that the steam train excursion tookplace on 19 March 1983 on the basis that it was stated as a fact to have takenplace on that date by the Applicant in his statement of 22 October 2002. MrCooke notes that the Applicant's statement puts that O'Grady boarded at hishouse for about three months during late 1982 and/or early 1983 and that SeanO'Dea boarded with the Applicant from August 1983 until February 1985, noting inhis observation that the actual date of the train excursion and the associateddate of the incident which is alleged to have preceded it, is of limitedsignificance as is O'Grady's status as a boarder at the time.
46 The evidence of Father Doherty is that subsequent to further discussionswith the Applicant and his representative in which they raised a number ofissues of procedural fairness and strenuous denial, he arrived at theconclusions set out in paras 21 and 22 of exhibit 24:
21. In my consideration of this matter I have taken into account a number offactors: firstly, my respect for the person of David Russell and his long-timecontribution to the community and the musical life of the Cathedral; secondly,the obvious respect he enjoys with the choir itself, both the adult and youngadults in the choir, and the enthusiastic support that was expressed by choirparents when issues were first raised in 1999; and thirdly, his reputation inthe wider musical world of Sydney. All these factors weighed in David Russell'sfavour in my mind.
22. In the face of this, and his denials, was the evidence from thePreliminary Report of the Cooke investigation which gave me serious cause toexamine the situation as dispassionately as possible, given the responsibilitythat fell upon me as an employer. However, I believe that it was theSupplementary Report, which included statements from "X", and which providedwhat I believed to be corroborating evidence of the issue in question, thatprovided me with what I believed to be compelling reasons, on the balance ofprobabilities, to move to dismissal. The interview of January 31, was organisedso that Mr Russell and his legal counsel had a further opportunity of throwingmore light on the facts that could allow some other final determination. Nothingthat was said in that final interview altered my conclusion.
47 It is apparent from this evidence that Father Doherty was the finaldecision maker in the process leading to the termination of the Applicant'semployment and that his decision turned heavily upon the supplementary reportfrom Mr Cooke which dealt only with Mr Cooke's telephone conversation with "X".
THE EVIDENCE OF "X" - DETAILED RECOLLECTION OF EVENTS
48 The evidence of "X" is that between 1980 and 1981 he lived with his motherand sister in the Wollongong region and attended primary school in SouthernSydney. He auditioned for a position in the Cathedral choir and was acceptedalong with 12 other boys, whom he was able to name in his statement. Theposition in the choir entitled him to fee free tuition at the School, which hecommenced in 1982 at the age of eleven years. "X" provides a detailedrecollection of the composite year 5/6 class (he was in year 5) and the identityof his teacher. The recollection of "X" is that the majority of 6th classstudents, whom he was able to name (including Daniel Buckley), were members ofthe choir.
49 The statement details the days of the week, times and circumstances ofchoir practice at that time. "X" recalls the role of the Applicant aschoirmaster, though cannot recall detail of the piano player other than that hewas red headed, had a beard and was largely considered a "good bloke" by thechoirboys. The recollection of "X" is that there was little association betweenthe adult male members of the choir and the scholastic members and he has littlerecollection in respect thereto.
50 "X" deposed that at Sunday Masses there were a number of additional malesassociated with the choir, whom he recalls were largely members of the clergyand some others carrying out formal duties associated with the Mass ceremony,all of whom he has a vague recollections other than Mr O'Grady whom he put was"out of the norm as he had long blonde hair."
51 The recollection of "X" is that Mr O'Grady was made known to him abouthalf way through his first year with the choir (1982). "X" recalled that MrO'Grady came to have more presence with the choir in and around the thirdquarter of 1982, attending choir social functions and evening practice onTuesdays and Thursdays and making the acquaintance of all of the school basedmembers of the choir. The recollection of "X" is that later in the year MrO'Grady seemed to be always present and had become popular as he would giveattention to the children and organise games during breaks, unlike other adultmale members of the choir who, on the recollection of "X", showed littleinterest and gave no attention.
52 The recollection of "X" is that there was always competition between theyoung choir members to be the best singer and that the Applicant was adept atencouragement and criticism, resulting in "everyone performing at their optimumlevel".
53 The evidence of "X" describes an event wherein he and four other choirboyswere rewarded for singing achievements with a trip on a steam train to leavefrom Central Station for a southern destination. "X" recalled that those to goon the trip were himself, Daniel Buckley, one other choir member whom he named,and two others whom he could not remember. "X" could not remember the particulardestination of the train though recalled that it went south past his place ofresidence. The recollection of "X" is that the trip took place on a Saturday(identified as 19 March 1983) on the basis that it could not have been a schoolday and it could not have been a Sunday as the participants would be otherwiseinvolved with Sunday masses.
54 The recollection of "X" is that as his residence was an hour and a half bytrain from the city "it was deemed fruitless that I travel all the way home onlyto come back the next day to catch a train back to where [he] lived".
55 "X" recalled that Daniel Buckley lived a similar distance west and on thatbasis the Applicant suggested that they both stay at his home for the night andtake the steam train trip the next day.
56 "X" recalled that after school he and Daniel Buckley met the Applicant inthe choir room and went with him to his residence. "X" could not recall the nameof the suburb but remembered that the residence was a town house and that thevehicle had to be parked on the street, which was on a slight upward gradient.The recollection of "X" was that the Applicant had two dogs which he describedas "pure bred golden retrievers" and that he remembered distinctly trying to patone whilst it was eating. "X" recalled that it turned to attack him, theApplicant telling him that he should not touch the dogs whilst they were eating.
57 "X" details the subsequent events in paras 21 to 27 of attachment 1 toexhibit 1 in the following terms:
21. We watched a little television for an undesignated amount of time andthen David O'GRADY suggested that we do something else. I can't recall whetherthe television was turned off or not. David O'GRADY then suggested that we alltake our clothes off. Danny BUCKLEY and myself concurred with me believing it tobe harmless at the time. David O'GRADY then took his clothes off and laidvertically opposite the entry to the lounge room and started to instruct us totouch him.
22. First he instructed us to touch his chest to which we complied. He thenasked if we would touch him lower, that being just above the pubic hair area ofhis body, at this time I was slightly hesitant but again complied with hisrequest. Eventually he asked Danny BUCKLEY if he would touch his penis. I can'tremember how I came to be touching his legs but that was where I was when thequestion was asked of Danny. Danny BUCKLEY started to touch his penis and thencame explicit instructions on how he should be touching his penis, stating thathe was to grasp his penis in his hand and move it up and down. He then asked meif I would also participate in touching his penis, to which at that timeassessing that Danny (being the older) was participating so concluded that I toowould touch his penis also and thus participated in masturbating David O'GRADY'spenis by moving my hand up and down on his penis. All directions were directedat both of us unless otherwise specified.
23. At this point the lounge room door opened and David RUSSELL was standingin the doorway. He observed what was occurring and stated, "Oh, I see that yourbusy, I'll come back later." And then left, closing the door behind him.
24. David O'GRADY then stood up and asked us to lay side by side withdistance between us in the same position that he had previously been laying towhich we complied. He then sat down between us and started to touch our penis'ssimultaneously, stating, "Now doesn't that feel good."
25. After some time he desisted in his actions and we adorned our clothesagain. Upon completion of the acts he distinctly stated that we were not to tellanybody about this but that it was our secret or words to that effect. Theseparticular acts took place over an unspecified amount of time and I am unable torelay the exact time frame of the incident.
58 At para 31 of exhibit 1 "X" refers to a trip to Germany by the choir inthe following term:
31. I recall the trip to Germany however I had moved interstate to Queenslandprior to the trip taking place.
59 The evidence of "X" is that he maintained contact with the Applicant inhis capacity as choirmaster. "X" put that this contact could not have beenavoided, adding that:
"however my mother did not perceive him to be the principal offender althoughshe did recognise that he had allowed the offence to continue."
60 The evidence of "X" is that he was not subject to the offer of presents,gifts or invitations subsequent to the incident and that shortly after there wasa separate and unrelated incident, the result of which persons he regarded asthe natural leaders of the class, whom he names, branded Mr O'Grady "a faggot",resulting in his losing popularity, becoming unwelcome around the choir room andeventually disappearing.
61 In cross examination "X" deposed that he had forgotten what he describedas insignificant portions of the day. When asked by Mr Neil whether hehad reconstructed events by deduction, "X" put that he had made some assumptionswhere memory had failed but had not applied any process of deduction.
62 An assumption conceded by "X" is that the steam train trip took place on aSaturday.
63 Mr Neil questioned "X" closely on his recollection andreconstruction of these events. This evidence is found at pp 61 to 64 oftranscript:
Q. Do you remember that on that occasion in July 2000 you were asked somequestions about what happened when the three of you were in the lounge room -remember that?
Q. On the day in question, remember that?
Q. Do you remember that on that occasion in July 2000 you said of thoseevents - to begin with it was just fun but then it progressed to the next stages- remember saying that?
A. I don't remember saying it, no.
Q. I want you to assume you did?
Q. And what I want to know from you is this. That statement does not accordwith your present recollection does it?
Q. Did it accord upon the assumption that you said it in July 2000, do youthink that it accorded with your recollection at that time?
A. I would not have said it otherwise.
Q. So the answer is yes isn't it?
Q. Now, what I want to explore with you for a moment is this; why is it doyou think that your recollection about that aspect of the incident has changedbetween July 2000 and the 26 June 2003?
A. Just a portion which has gone - relevance.
Q. A portion of which is gone - relevance did you say?
Q. So it is something relevant, you accept that?
A. No, I am actually saying it is probably not relevant so therefore mymind's probably excluded that portion of it between now and then.
Q. Consciously or unconsciously do you know?
A. I don't know.
Q. Can you offer any other explanation?
Q. Now, I think we have agreed haven't we, that on the 20 January 1999 whenyou wrote your statement - signed it, I am sorry - you put everything in yourstatement that you could remember - agreed?
Q. And nothing that you could not remember, agreed?
A. Yes that's correct.
Q. And you haven't in your statement in connection with the incident in thelounge room, you haven't in your statement used any words to this effect haveyou - to begin with it was just fun but then progressed to the next stages -haven't used any words to that effect have you?
Q. And do you think or any words that suggested such a period in the sequenceof events, you agree?
A. Yes I agree.
Q. Now that must be mustn't it because when you signed your statement on 20January 1999 you didn't remember?
A. Yeah, could have just been excluded from my memory.
Q. That must be right because you put everything in your statement that youcould remember?
A. That's right, at the time of doing the statement.
Q. How did your memory improve on this aspect of the incident between 20January 1999 and July 2000?
A. I may have been asked a question which I answered that way, I don't know.
Q. So, is your answer to my question that you don't know?
A. Yes, I don't know.
Q. You have no explanation for how it might be that in the time that elapsedbetween 20 January 1999 and July 2000 you remembered something about thesequence of events that you say occurred in the lounge room?
A. You give me no option but no.
Q. You can't suggest any reason can you for why it is that your memory ofthese aspects of the incident improved between 20 January 1999 and July 2000?
A. I don't have a transcript in front of me so I don't know what context itwas used but no I don't.
Q. So your evidence on this question is this is it; I want to understand it.As to the statement about the events in the lounge room on the day in questionto begin with it was just fun but then progressed to the next stages - as tothat statement you had no such recollection on the 20 January 1999, youremembered it in July 2000 and you have forgotten it again?
Q. No Mr "X" that is just nonsense isn't it?
A. Am I supposed to answer that?
Q. Yes you are?
A. I don't think so.
Q. Your memory gets better and gets worse and then gets better again over aperiod of time?
A. I don't have a transcript.
Q. Answer the question - that's nothing to do with it -answer the question,does your memory get better then get worse then get better again?
Q. Your memory, doesn't it get worse over time, at least that's what you havetold us?
Q. There was another boy with you in the lounge room you say on the day inquestion, is that right?
A. Yes that's correct.
Q. And look at your statement please, paragraph 25, please read that toyourself. Let me know when you have done so.
Q. Alright, now paragraph 25 marks the end of your account of the incidentthat you say occurred in the lounge room on the day in question - that's rightisn't it?
A. That would appear so from the statement, yes.
Q. And according, do you say, to your recollection, it marks the end of theevents that you say occurred in the lounge room, is that right?
Q. After those, immediately after the events that you have described inparagraph 25 of your statement, do you have any recollection at all about whatyou did?
A. No they would only be deductions.
Q. So you have got absolutely no recollection have you about any events thatoccurred immediately after those that you have described in paragraph 25 andthose that you have described in paragraph 26, is that right?
A. I have -- they would be deductions, yes.
Q. You have absolutely no actual memory of the events of what occurredbetween the events you described in paragraph 23 and those you described in 26?
A. That's correct.
64 "X" describes the report to his mother as possibly a traumatic andembarrassing event, conceding that he did not inform his mother of all of thedetail of events preceding the steam train trip and most certainly did notinclude detail of masturbation. In particular "X" deposed that he made nospecific mention of the Applicant to his mother in the report to her after thesteam train trip.
65 The relevant evidence of "X" is found at pp 12 and 13 of transcript in thefollowing terms:
Q. Do you remember what you said to her?
A. I don't remember what I said to her but I remember her distinctly tellingme not to hang around with the gentleman in question.
Q. One thing you can recall may we take it is you didn't mention DavidRussell's name to your mother?
A. Yes, I don't think I did.
Q. And would you say that your recollection in that regard is as good asanything else you recall about the report you made to your mother?
A. No I would not say that.
Q. The reaction would be memorable?
A. I just remember telling her.
Q. We can be confident you have no recollection of mentioning David Russell'sname to your mother when you made your report to her on the day immediatelyafter these events, is that right?
A. I would like to reiterate it is over 25 years ago now but yeah I am prettysure I didn't mention Mr Russell.
Q. Take it from me you can reiterate that, could we be confident on thatscore, can his Honour be confident that you have no recollection of mentioningDavid Russell's name when you made your report to your mother on the dayimmediately after the day in question?
A. I can't say that with any conviction.
66 In later cross examination "X" put that in 1999 he had recalled tellinghis mother of some involvement of the Applicant which was the foundation for hisstatement in the Police report that his mother had recognised that the Applicanthad allowed the event to continue.
67 When pressed by Mr Neil (TR p22), "X" put that the recollectionfound in the Police report should be preferred to his evidence of pp 12 and 13of transcript as set out above.
68 There was no formal complaint laid by "X" or his mother to any person inrespect to these events. "X" remained at the school and in the choir,participating in all the usual events of both, until 4 May 1984 when he movedwith his mother and sister to Queensland. "X" subsequently returned to theschool for a brief period on return from Queensland.
69 There is no evidence from "X's" mother as to any of the issues. When putto him in cross examination (TR pp 36 and 37) "X" deposed that in discussionwith his mother two nights prior to this evidence, she did not recall the reportto her of the events.
70 Mr Murphy produced a doctor's certificate from a duly qualifiedmedical practitioner and an associated report (exhibit 36) which details thereasons mitigating against the availability of "X's" mother to give evidence inthese proceedings.
71 Mr Neil established that "X" is a vocationally experienced witnessand comprehends the evidentiary value of an early and contemporary report ofevents. Mr Neil then put to "X" that he had maintained his evidence ofthe report to his mother in his 1999 statement, knowing that she did not supportit by her independent recollection. "X" deposed that he was aware of hismother's lack of recollection, putting that he had been vague to her in thereport at the time due to the embarrassment involved. "X" remained adamant thathe had told his mother, putting that she was his only adult confidant at thetime and, having told her, put the event behind him and got on with life.
72 In addressing this point found in his 1999 statement "X" put that he hadnot intended to convey that he had told his mother all of the detail of theevening, but that he had told her the nature of events.
73 In re-examination Mr Murphy addressed the issue of an incompletereport by "X" to his mother to which "X" responded that in addition to theembarrassment involved, his mother at the time was working two jobs andattending university; inferring that he wished to spare her additionalresponsibility and concern.
74 During the course of cross examination Mr Neil put to "X" that hehad told a journalist that it (an event of this nature) had never happened tohim before or after so it is "fairly clear" in his mind. An examination ofrecollection ensued. "X" put that he had greater difficulty in remembering wordsbut held a recollection of the events subject to these proceedings as a seriesof moving pictures in his mind, with bits missing or gaps lost to memory. "X"accepted that so long as the events remained sequential he may have filled gapsin his recollection by deduction to produce a seamless recollection. Theconclusion of this evidence is found at p 49 of transcript in the followingterms:
Q. And after 22 years of thinking about those events what you would be leftwith is a seamless memory that contains bits of what you actually remember, bitsof what you have deduced and each of them in your mind indistinguishable?
A. Is that what you are suggesting?
A. Some portion may be yes.
Q. That's the way your mind works isn't it ?
The Coffee Table
75 Mr Neil took "X" to the specific allegations of the events with MrO'Grady. The evidence is that both "X" and Daniel Buckley were acting on MrO'Grady's instructions. Mr Neil sought a recollection of preciseinstructions from Mr O'Grady in the sequence of events. "X" was unable to recallthe precise detail, relying on his statement and additional recollection that heand Mr Buckley were instructed to lie on the floor on either side of Mr O'Gradywho lay down opposite the door. The evidence of "X" is that Mr Buckley wasslightly taller than he and that Mr O'Grady was much taller than both, puttinghis height in the vicinity of six feet.
76 Mr Neil put to "X" that a large coffee table had occupied asubstantial area of floor space in the lounge room, putting that it would havebeen impossible for he, Buckley and O'Grady to occupy the positions described."X" deposed that he had no recollection of the coffee table anywhere in theroom.
77 In further cross examination Mr Neil took X" to his recollection ofthe two "pure bred golden retrievers", which he deposed he remembered distinctlyas one had nearly bitten him. Mr Neil put a photograph of two dogs to "X"(exhibit 13), showing one to be golden and one deep brown in colour, assertingthat these were the dogs living with the Applicant as at March 1983. "X"conceded that his recollection may be inexact on this point.
78 At p 93 of transcript "X" conceded that his recollection of eventssurrounding the steam train trip and at the Applicant's residence may be equallyinexact. The relevant evidence is set out hereunder:
Q. Tell me, Mr X, if your recollection of the two large golden dogs beingpresent in the house on the day before the steam train trip, is at least asclear as your recollection of anything else that occurred on that day, would youaccept that in your recollection of anything else that you say occurred on thatday, you might be mistaken?
A. Yes, I would accept that.
Q. Of anything else that you say occurred on that day, you might be mistaken;you would accept that, wouldn't you?
Q. If you have made a mistake about the two large golden dogs being presentin the house on that day, then you may very well have made a mistake aboutanything else that occurred on that day?
A. That could be true.
Q. That is a possibility, is it not?
A. It is a possibility, yes.
Q. A very decided possibility, would you accept that?
A. It is a possibility, yes.
The Model Train Set
79 Mr Neil then took "X" to the plan of the applicant's residencecontained within exhibit 1, and asked for his recollection of items in thekitchen/dining room area of the house. "X" could not recall anything inparticular or out of the ordinary. "X" had no recollection of a large modeltrain set in the area.
80 Mr Neil tendered two photographs of a train set (exhibit 15). Theevidence of "X" is that he would certainly have remembered the train set if ithad been there though he had no recollection of it. The train set is a largetable mounted model of considerable detail, measuring approximately 3m x 1m withelaborate mountain scenery, a number of stations, tunnels, surroundingcountryside and several trains.
81 In response to Mr Neil "X" put that his inability to remember thetrain set may arise from a defect in memory or a mistake in the date of thesteam train trip, which is his reference point for the date of the precedingevents, suggesting that if the train set had been in the Applicant's house inMarch 1983 the steam train trip may have been at another time.
Medical History Of "X"
82 During the course of cross examination Mr Neil questioned "X"concerning admissions to hospitals for treatment for severe vomiting; statementsby him to psychiatrists in respect to problems with a teacher, other students,lack of friends at school; and the diagnosis of vomiting as psychogenic inorigin.
83 "X" recalled hospitalisation for severe vomiting and "a few dramas withsome kids at school" but had no recollection of detail or of informing apsychiatrist in respect to the issues put to him.
84 "X" did not challenge records put to him by Mr Neil that he hadbeen admitted to the Prince of Wales Hospital on 58 separate occasions betweenMay 1980 and October 1988. He was able to recall that he had some contact with apsychiatrist but could not recall whether that was before or after he commencedschool at the Cathedral.
85 Mr Neil put to "X" that on or about July 1980 a psychiatrist hadexpressed a diagnosis that "X" exhibited a pattern of demanding and manipulativebehaviour. "X" had no recall of these events. He recalled that he had beenrequired to take medication including Droperidol and Ligactil.
86 Mr Neil put to "X" that records revealed that his 17th admission tothe Prince of Wales Hospital was on 5 March 1983, apparently two weeks prior tothe steam train trip of 19 March 1983; and the 18th admission took place on 27March 1983. "X" was unable to recall these events. It was put to him that onboth occasions he had expressed his satisfaction with and enjoyment of hisschool life and involvement in the choir. "X" was also unable to recall theseevents. He deposed that a statement to that effect could have been made and, ifso, would have properly reflected his attitude towards school and the choir.
87 Mr Neil put to "X" that he had not informed the treatingpsychiatrists of the events involving Mr O'Grady and the allegations against theApplicant because they had not happened in the way he now alleges. Thisproposition was flatly rejected by "X" who contended that he had no particularrecollection of his discussion with psychiatric staff. "X" recalled that apurpose of psychiatric interview was to discover the cause of the vomiting,postulating that as the O'Grady event occurred after the onset of thisaffliction he would not have considered it relevant to a consideration of cause.
88 The evidence of Dr Soddy confirms that "X" was under his care between 1980to 1984 and that he saw him twice on a consultation basis in 1987. Dr Soddyqualified his evidence on the basis that it was approximately 16 years since helast saw "X" and regarded his case as "out of time" and that his own notes hadbeen destroyed. Dr Soddy refreshed his memory by reference to a letter he hadwritten on 7 May 1984 introducing "X" to Queensland doctors (exhibit 21), whichhe deposed provides a useful overview. Dr Soddy deposed that he had also readcopies of hospital notes and discharge summaries from Sutherland and Prince ofWales hospitals covering the period 1980 to 1987 and had read the statement of"X" to NSW Police.
89 Dr Soddy confirmed that "X" suffered from recurrent bouts of severevomiting for which no physical cause was found and which appeared to be relatedto anxiety or excitement. Dr Soddy deposed that the general picture of "X" wasof rapid onset of severe vomiting leading to significant dehydration which inturn produced withdrawal and some irritability but which quickly disappearedafter rehydration. Dr Soddy's evidence is that when normally hydrated "X"presented as an intelligent, helpful and pleasant boy.
90 Dr Soddy detailed medication provided to "X": Largactil, Melleril,Phenergan, Valium, Inderal, Maxolon, Mylanta, pethidine, Ampicillin andCloxacillin/Gentamycin. Dr Soddy described the medication as antibiotic,antinausea, antianxiety, and antihistamine with some sedative properties. DrSoddy acknowledged that Largactil and Melleril have some use in psychiatry,deposing that "X" at no time demonstrated any signs of psychiatric disorder, andin his case the medication was used exclusively as antiemetic and antianxietyagents. Dr Soddy's evidence is that the only medication he prescribed for "X" asan outpatient was Inderal which he put has no known effect on the mental state.
The Proceedings Against Mr O'Grady
91 Mr Neil then took "X" to his evidence in the criminal proceedingsarising from the charges against Mr O'Grady, subsequently tendered in theseproceedings as exhibit 30. Mr Neil put to "X" that his evidence in thatmatter, found at pp 116 and 117 of exhibit 30, is that he did not know where theApplicant was at the time of the offence by Mr O'Grady and makes no mention ofthe walking in event. The relevant question and answer are found in thetranscript of 7 July 2000 in the following terms:
CROWN PROSECUTOR: And did you have dinner?
Q. And what happened after that?
A. With Mr O'Grady, Daniel and myself went to the living area. I don't knowwhere David Russell was at the time and we watched television for a little whileand then at Mr O'Grady's suggestion he asked if we wanted to play a game and heasked us to remove our clothes down to our underpants. And at the time I thoughtit was a little bit strange but Daniel being the older was complying so Ithought, oh well, it must be okay and we played, just some sort of wrestling orromping around for a while. Do you wish me to continue?
Q. And did something happen as far as Daniel was concerned?
A. Yeah, at Mr O'Grady's instruction we were told to lay adjacent to eachother and then he sat between us and masturbated Daniel Buckley.
Q. How did he do that?
A. It was like a basic masturbation motion where is stroking up and down onhis penis.
Q. And you able to say how - long this went on?
A. No, sorry not with any conviction.
HER HONOUR: Q. Where were his underpants at that time?
A. He had taken them off by that stage also at Mr O'Grady's instructions heus to take our underpants off and lay side by side.
CROWN PROSECUTOR: Now, I gather it stopped?
Q. You got dressed again?
A. Yes, that's correct.
Q. Was there any conversation after that, do you remember?
A. Basically words to the effect we weren't to tell anybody it was just ourown little fun and games.
Q. And I take IT later on you went to bed and went on your train trip thenext day?
A. That's correct.
Q. After that time did you have any contact with Mr O'Grady?
A. No, I mean he was still around at the choir practices but and as far asthat goes, yeah I had contact with him but nothing in the manner where we were.
Q. Since that night, through to when the police contacted you concerning thisinvestigation had you had any conversation with Daniel Buckley about the eventsof this night.
<WITNESS STOOD DOWN
92 The evidence of "X" is that he did not mention the walking in event ormake further reference to the Applicant during the O'Grady trial on instructionfrom the investigating police officer on the basis that the Applicant was not adefendant in those proceedings.
93 At the time "X" gave his evidence there were no charges outstandingagainst the Applicant. It is contended that in these circumstances and on thebasis that "X" made no complaint against the Applicant he was restrained bydirection of the presiding Judge not to refer to any activity involving himselfand the Applicant in those proceedings.
94 "X" conceded that the jury in that matter was left with the understandingthat only he and Buckley were privy to the events with O'Grady and that therehad not been any other witnesses. "X" conceded that this is inconsistent withhis allegation of the walking in event, which placed the Applicant as anadditional witness to the abuse by O'Grady.
95 "X" denied that the failure to mention the walking in event was motivatedby a belief that the evidence of the Applicant if called would not support hisversion of events. "X" also refuted the proposition from Mr Neil that hemade no mention of the Applicant in the proceedings against O'Grady because atthe time he had no recollection of the walking in event or that the walking inevent never occurred.
96 This controversy is clarified by the evidence of Mr Peter Little, tenderedby Mr Murphy (exhibit 34). Mr Little was not required for crossexamination. Exhibit 34 discloses that he was the barrister briefed by theDirector of Public Prosecutions to prosecute Mr O'Grady.
97 Mr Little describes the pre-trial and trial procedures in whichinformation in respect to the walking in event was made available to thedefendant's representatives and an objection by them dealt with on the voir direby the trial judge who ruled this and other material not relevant to thoseproceedings inadmissible. The evidence of Mr Little confirms the evidence of "X"that he was acting in accordance with instructions and his understanding of hisresponsibility in the matter.
The Walking In Allegation
98 In addressing the walking in allegation "X" was firm in his evidence thatthe door opened, the Applicant spoke the words: "I see that you're busy, I'llcome back later", without entering the room, and the door closed. There is noother allegation of involvement of the Applicant. "X" could not recall any otherdetail, in particular the time involved, the appearance of the Applicant, hisfacial expressions or the clothing he wore, or how far the door opened.
99 In the course of cross examination "X" conceded that he may be mistaken inregard to the actual words used by the Applicant though was unshaken in hisinsistence that the door to the lounge room opened, he observed the Applicantwho spoke to the three then in the lounge room. The evidence of "X" is that herecalls the manner in which these words were spoken. "X" put that he had notincluded this aspect in his statement as he had not regarded it as relevant atthe time and considered it a minor detail of the events.
100 Mr Neil concluded his cross examination by putting firmpropositions to "X" that he could not remember:
· the train set;
· where he slept on the night;
· the dark brown dog;
· when the alleged incidents took place in relation to the choir's trip toGermany.
101 Mr Neil put to "X" that he had never been to the Applicant'sresidence or had no recollection of being there, that the walking in event didnot occur and that he had no recollection of it. All of these propositions aredenied by "X" with the exception of the proposition that he had not been to theApplicant's residence at a time when a dark brown dog lived there, which heconceded was possible.
RE-EXAMINATION OF "X"
102 During re-examination Mr Murphy raised the prospect that there wasno report to school authorities as "X" did not wish to jeopardise hisscholarship which provided free tuition on the basis that he continued in thechoir. Mr Murphy sought evidence from "X" to the effect that he feltthere was no inconsistency between these events and informing medicalpractitioners prior to and thereafter that he enjoyed school and the choir andthat he was on a singing scholarship and was doing well.
103 Mr Murphy concluded his re-examination by seeking clarity from "X"in respect to the walking in event. This evidence is found at pp 152 and 153 oftranscript in the following terms:
Q. Are you certain it was Mr Russell in the doorway?
Q. How are you certain?
A. How am I certain?.
Q . Yes
A. My memories are that that was the person who was standing in that doorwayand that I looked straight up at him when I was sitting on the floor conductingthe acts that we were in.
Q. ... ... where was he looking?
A. Looking directly at us on the floor.
Q. How do you know that?
A. Because I looked straight back at him.
Q. Do you have any doubt at all it was Mr Russell?
A. No doubt at all.
Mr Buckley's Version of Events
104 Mr Murphy tendered a statement made to the NSW Police by DanielBuckley on 23 April 1999 (exhibit 18) in which Mr Buckley gives his version ofthe walking in event and circumstances leading to it.
105 Mr Murphy submitted that Mr Buckley could not be located for thepurpose of giving evidence in these proceedings, his statement was admitted overthe objection of Mr Neil.
106 Mr Buckley's statement refers to one particular night during the schoolyear of 1979 when he went to the Applicant's house with "X" and two other boyson the basis that they had been invited by the Applicant to watch a video, whichhe identified as Raiders of the Lost Ark. Mr Buckley deposed that he, "X" andanother boy were wrestling with Mr O'Grady in the lounge room and that theApplicant was in the kitchen getting ice cream. Mr Buckley described the eventsas Mr O'Grady sitting on the floor in his underpants and the three boys runningaround him trying to fight and wrestle with him, during the course of which MrO'Grady grabbed him, and on his version the other boys, on the outside of theirunderpants, touching their penises whilst exhorting them to secrecy.
107 Mr Buckley stated that whilst this was going on the Applicant "walkedinto the lounge room and saw us in our underwear and he said; 'I'll leave you toit then' or words to that effect". In his statement Mr Buckley gives his age aseight years old at the time.
The Differences Between "X" and Mr Buckley
108 In cross examination "X" put that it was not likely that he had discussedthe events with Mr Buckley. "X" deposed that he was aware that Mr Buckley'sversion of events differed from his own in that Buckley had included a third boyin the event. "X" deposed that he had not seen Buckley's statement and knewnothing of it other than the inclusion of the third boy.
109 The evidence of "X" is that he took the view that as Buckley had beeninvolved in several other experiences with O'Grady that Buckley may haveconfused detail of separate events in his recollection. "X" deposed that thiswas the view expressed to Mr Cooke in the one telephone conversation with him on24 September 2002 when this inconsistency had arisen.
Refusal of Mr Buckley To Give Evidence
110 The affidavit of Mr Greg McKay (exhibit 33) details his attempts to haveMr Buckley give evidence in these proceedings. Mr McKay deposed that he spoke toMr Buckley's solicitor, Mr Kenneth Harrison, on at least two occasions prior to20 May 2003 and was informed that there was difficulty in contacting Mr Buckleyas he lived in another state. Mr McKay testified that he had a furtherconversation with Mr Harrison and developed an understanding that Mr Buckleymight be prepared to give evidence and on 23 May 2003 emailed an affidavitproforma for Mr Buckley to complete.
111 Mr McKay's evidence is that on 3 June 2003 Mr Harrison wrote to himrequesting that certain conditions be met relating to other proceedings prior toMr Buckley being prepared to give evidence in this matter. The correspondence(Ex 33 Annex. B) seeks a waiver of any out of time defence by the respondent inseparate proceedings brought against them by Mr Buckley. This request wasrejected and eventually a summons for Mr Buckley to give evidence was servedupon Mr Harrison on 13 June 2003.
112 Mr McKay's evidence is that he received a written response dated 13 June2003 (Ex 33 Annex. D) from Mr Harrison advising that he had received specificinstructions not to accept service of summons in these proceedings. Mr McKay'sevidence is that Mr Harrison informed him that "we should not hold out hope" ofcontacting Mr Buckley to appear as a witness.
113 Mr McKay deposed that further attempts were made to serve the summons onMr Buckley however the process server engaged was not able to ascertain MrBuckley's contact details and the summons was not able to be served.
114 Mr McKay deposed that he received further correspondence from Mr Harrisondated 20 June 2003 (Ex 33 Annex. F) referring to the previous discourse andadvising that Mr Buckley had instructed he would not give evidence in thismatter and that the cheque provided for conduct money would be returned.
115 The only sworn evidence of Mr Buckley is that given in the O'Grady trial(exhibit 30) before her Honour Payne J. of the District Court of NSW - CriminalJurisdiction, and a jury of twelve. The evidence of Mr Buckley is at pp 12, 13and 14 of transcript of 5 July 2000 in that matter.
116 In that evidence Mr Buckley deposed that he and "X" were invited to theApplicant's residence by Mr O'Grady to watch a video version of the movie"Raiders of the Lost Ark". Mr Buckley deposed that after watching the video MrO'Grady suggested they play a wrestling game and later that they strip to theirunderwear. Mr Buckley's evidence is that all touching was on the outside of theunderwear, but for one occasion when Mr O'Grady put his hands inside MrBuckley's underwear. Mr Buckley's evidence is that he "freaked out" and "it"stopped soon after that. Mr Buckley deposed that he did not stay the night atthe Applicant's residence but was driven home to his grandmother's house.
117 On the second day of the O'Grady trial, 6 July 2000, her Honour wasrequired to make a ruling in respect to the evidence of "X". Her Honour ruledthat "X" could say what happened to Mr Buckley but not in respect to himself,and therefore Mr Buckley could not say what happened to "X".
118 In cross examination at page 42 of transcript of 6 July 2000 Mr Buckleyput that the overnight stay to watch videos and the event involving Mr O'Gradyand "X" was around Easter 1981. Later, at page 43 he put that the invitation towatch the video "Raiders of the Lost Ark" could have been 1982 but certainly nolater. It is put, without proof or dissent, that "Raiders of the Lost Ark" wasnot released in video format until 1984.
119 At page 44 of transcript of 6 July 2000 Mr Buckley was certain that onlyhe and "X" were present on this occasion and that he was present with "X" andanother boy on a separate occasion.
120 At page 66 of transcript of 7 July 2000 the proposition was put to MrBuckley that he and "X" had stayed overnight at the Applicant's residence inOctober 1983 prior to a steam train trip the following day. Mr Buckley was ableto recall the steam train trip, was unsure of the date and could make noconnection between the train trip and staying over at the Applicant's residence.
121 Agreed facts in the O'Grady trial were that Mr Buckley commenced at theSchool on a choir scholarship on 28 January 1981 in Year 5; "X" commenced on achoir scholarship on 3 February 1982 in Year 5. There is no record of Mr Buckleyfinishing at the School. "X" left the School on 4 May 1984.
122 It is not disputed in any way that the choir undertook a trip to Germanyat the end of 1981, early 1982. Mr Buckley's evidence at p 76 of transcript inthe O'Grady trial (exhibit 30) is that as a first year member of the choir hewas ineligible to take part, however, Mr O'Grady "would put in a good word withthe choirmaster" to assist his selection for the trip to Germany. Mr Buckley wasnot selected for the Germany tour. "X" did not commence at the School till afterthe Germany tour. The choir next toured to the United States of America in late1984, early 1985. "X" had by that time left the school, Mr Buckley toured as oneof two soloists.
123 At page 99 of transcript of 7 July 2000 documentary evidence is alludedto which put the steam train trip in October 1983.
124 At page 101 Mr Buckley says he was at the Applicant's residence with "X"on only one occasion. Mr Buckley deposed that he had attended the Applicant'sresidence on three occasions; one preceding the train trip, the "video night"involving "X"; and another occasion.
125 The evidence of "X" in the O'Grady trial is very brief, found at pages115, 116 and 117 of transcript of 7 July 2000. "X" was not subject to crossexamination.
126 The evidence of Mr O'Grady commences at page 150 of transcript on 10 July2000. At page 151 Mr O'Grady deposes that he resided at the Applicant'sresidence for 12 months, from November 1982 to November 1983. His evidence isthat Mr Buckley and "X" stayed over at the Applicant's residence prior to asteam train trip some time after September 1983. Mr O'Grady put that all choirboys who lived away from their fathers were invited.
127 Mr O'Grady's evidence is that he brought both Mr Buckley and "X" to thehouse where they had a meal, which he prepared. Mr O'Grady deposed that as theboys were not familiar with the property there was a fair bit of looking around.Mr O'Grady further put:
There were two dogs lived on the property as well, and I can't account muchmore the exact details of what they did, they did what 12 year old boys like todo. There were trees in the back yard - I really can't account for the details.
128 Mr O'Grady deposed that after the meal they watched a video, there were afew minutes of harmless horseplay in which all participated and were fullyclothed.
129 Of interest to the present proceedings is the absence of any reference byMr O'Grady to the Applicant or the train set. Mr O'Grady's evidence in respectto the layout of the house and location of furniture is different to that of "X"and the Applicant. In particular, the front room is regarded as the lounge room,containing a piano, television and stereo and is closed off by a door. He makesno mention of the lounges or coffee table. In cross examination Mr O'Gradydeposed that the events took place in an open lounge area he likened to alibrary. Mr O'Grady claimed clear recollection of the room at page 161 oftranscript of 10 July 2000 in the following terms:
Q. In a loungeroom?
A. I suppose its an open lounge without a great deal of furniture in it.
Q. It does have furniture?
A. It does have some furniture.
Q. Anything else, vases, oddments?
A. A piano, a standard lamp next to the piano, two arm chairs against onewall and fairly bare of other furnishings. A carpet square on the ground.
Q. Sensational memory for the furnishing in a room in a house you lived infor about 12 months around 16 or 18 years ago?
A. I did spend a lot of time in that room because I played the piano and itwas the room right at the bottom of the stairs that I walked down to everymorning that I came down the stairs.
130 Mr O'Grady put that the television and stereo were in a different room hedescribed as the "front room".
131 Mr O'Grady's evidence is that he also went on the steam train trip at theinvitation of the organiser, a person whom he did not name, describing him as aperson not associated with the choir.
THE EVIDENCE OF THE APPLICANT
132 The evidence of Mr Russell is found in three affidavits, exhibits 3, 4and 31. He was subject to extensive cross examination.
133 Mr Russell's evidence details his long and involved association with thechoir which he put, over the years of his involvement, comprised about 40percent adult members and 60 percent children attending the school.
134 Mr Russell's evidence recites without dispute the events related in theevidence of Father Doherty of arrest, charge, voluntary stand down, and returnto his duties following the collapse of the charges brought against him inrespect to Mr Buckley.
135 Mr Russell deposed that around June or July 2002 Father Doherty enquiredas to his intentions towards retirement in a passing conversation, inviting theinference that there existed a preference for the issues to be resolved by hisdeparture.
136 Mr Russell deposed that in August 2002 Father Doherty informed him of theOmbudsman's interest in the matter and arrangements were made that he again besupervised during choir practice pending resolution. Mr Russell deposed that hewas shocked and angered by the re-opening of the matter. He agreed to thesupervision and was required to arrange it himself, which he did.
137 Mr Russell's evidence is that he engaged Mr Chris Mitchell of CorrsChambers Westgarth to assist him and sought further clarification of therequirements of him and to expedite the matter. Mr Mitchell was a member of thechoir as a child and continues as an adult member of the choir and has known theApplicant in that capacity for many years.
138 Mr Russell's first affidavit (exhibit 3) sets out in some detail hisattempts to assist expedition, his representations and those of his solicitorsto that end, and involvement in meetings and discussions with Father Doherty, MrMichael McDonald, the Executive Director of CCER, and Mr Cooke.
139 Mr Russell deposed that in early December 2002 he was informed of theoutcome of the Cooke enquiry and asked to respond to the preliminary findingsthat he had walked into the lounge room (of his home) and saw children and MrO'Grady engaged in sexual activity, did nothing, and walked out.
140 Mr Russell deposed that he was very distressed and recalls his responseto Mr McDonald and Father Doherty at para 41 of Ex 3 in the following terms:
As you can see, I am extremely distressed and upset. I can't believe thatsuch a finding could be made. This was not one of the original charges and hasnever been raised as a charge. It is just not true. This is all false. I did notdo any such thing. There is a witness who says that it did not occur. How couldthis happen? I just can't believe it.
141 Mr Russell's evidence is that Mr Mitchell then made a number of enquirieson his behalf seeking access to the Cooke report identifying persons interviewedby Mr Cooke and whether he could talk to persons named. Mr Mitchell was affordedaccess to an edited version of the Cooke report in mid December 2002. Mr Russelldeposed that he worked with Mr Mitchell to prepare a detailed reply to theedited version of the Cooke report made available to them. Mr Russell's evidenceis that a complete copy of the report was not available to him or Mr Mitchelluntil return of summons in these proceedings on 20 March 2003.
142 Mr Russell continued his duties as Director of the choir undersupervision. He made further representations to Mr McDonald for expedition ofthe process, culminating in a meeting on 31 January 2003 with Father Doherty andMr McDonald which he attended accompanied by Mr Mitchell. Mr Russell recalls theopening conversation at para 50 of Ex 3 in the following terms:
Chris Mitchell: Is the report and the process now finalised?
Mr McDonald There is an issue about the walking in incident - no conclusionyet, but it is now resolved that it has been sustained. The Cathedral regardsthis as serious and wants to know whether anything else has to be considered.
Father Doherty No verdict has been reached on the matter by the employer. Iam the employer and I represent the Church.
Mr McDonald Mr Cooke has looked at the materials and the Cathedral hasconsidered it. It believes that there is a case to answer in relation to theallegation.
Father Doherty There is no verdict yet, but the matter has come to a momentof decision.
Mr McDonald Now the Cathedral as the employer must finalise its view inrelation to the Cooke report and take a view as the employer.
143 Mr Russell deposed that he was then asked to consider what he might putby way of mitigation and was given a few minutes to consult with Mr Mitchell.The reply is recounted at para 52 of Ex 3 in the following terms:
52. Mr Mitchell then put certain matters to Father Doherty and Mr McDonald.To my recollection, those matters were to the following effect:
(a) the finding is based on statements from totally unreliable sources, beingMr Buckley and "X", and in circumstances where there was an entirelyunsatisfactory inquiry by the police, including the fact that "X" was not spokento directly by the investigating officer;
(b) Mr Cooke had conducted a cursory, half-hearted investigation; and
(c) support of the Choir members for me is overwhelming and my long historywith and commitment to the Choir has been ignored.
Neither Mr McDonald nor Father Doherty responded to those comments other thanto suggest that an adjournment occur. We adjourned for about 30 minutes.
144 On resumption of the meeting Father Doherty informed Mr Russell of thetermination of his employment. Monies due to him were paid by cheque thatevening.
145 Mr Russell maintains an absolute denial that he observed any improperconduct of the type alleged. At para 56 of Ex 3 Mr Russell takes issue with theobservation of Mr Cooke that:
If "X" is to be believed, the accused observed the sexual abuse of the boysby O'Grady and did nothing to stop him. It seems that the incident could nothave happened in 1981, as the complainant [Buckley] has stated. Nothing hasemerged to contradict the possibility of such an incident having occurred inMarch 1983.
146 Exhibit 4 is a further affidavit directed in response to Ex 1, thestatement of "X", in which Mr Russell reiterates his denial of the allegations,deposing that had he knowingly observed such conduct, he would have immediatelytaken steps to stop it and would have reported it to the proper authorities.
147 Mr Russell deposes in Ex 4 that he has no recollection of "X" or MrBuckley ever staying overnight at his residence, whether while Mr O'Grady wasboarding there or at any other time. In this deposition Mr Russell drawsattention to what he describes as a number of inaccuracies relating to the workof the choir, the layout of his residence in 1982 and 1983 and the contentthereof, which he deposes he would give evidence in due course if it becamerelevant to do so.
148 Mr Russell's evidence is that "X" and Mr Buckley were never in hisresidence to his knowledge. His evidence is that choirboys had only ever visitedhis residence on a small number of occasions in late 1984 as a lead up to aconcert tour of the United States of America in January 1985. Mr Russell'sevidence is that there were always a number of boys present and the eventsconducted by other adults as part of a reward and recognition system directed toimproving presentation of the choir ahead of the concert tour.
149 In response to a question by Mr Murphy, Mr Russell conceded thatMr Buckley was part of that trip and he might have visited the residence as partof those events but he did not particularly recall him being there. "X" did notparticipate, having left the school on 4 May 1984.
Mr O'Grady As A Boarder In The Applicant's Residence
150 Mr Russell's evidence describes the manner in which Mr O'Grady came toboard at his residence. Mr Russell's recollection is that Mr O'Grady came to theCathedral some time in 1982 and to the best of his recollection in early 1983 hewas approached by Father McGloin, the then Dean of the Cathedral. Hisrecollection of their conversation is found at para 58 of Ex 3 in the followingterms:
David, it is not appropriate that David O'Grady continues living in theCathedral Presbytery. He has no money. Would there be anyone in the Choir whocould give him some accommodation until he has enough money for a bond?
That is a difficult one, father. I've got two empty bedrooms, but I work twojobs and he would have to look after himself. There is no way I can supplyanything else but shelter. "
I'll talk to him.
151 Mr Russell expands upon this evidence at page 274 of transcript in thefollowing terms:
Q. You are suggesting that he came to Cathedral in early 1982?
A. To the best - yes, what I can say categorically is because David O'Gradywas a person of no consequence in terms of in my case - well, when we returnedfrom the European tour in 1982 I, because of a certain matter of most exhaustionafter taking them around Europe, et cetera, took some time off the Cathedral anddidn't arrive back until the end of March 1982. When I arrived back, I foundthere was a new Dean. We left with Dean Willoughby. We came back and there wasDean Michael McGloin. Later in that year, and I can't know why, I was aware thatthere was a new resident who happened to be David O'Grady who was living in theCathedral House and he was interacting, as a young man, with the choir boys inthe break. At some stage during that year, and I don't know when, Dean McGloinapproached me and said he thought it was probably inappropriate for DavidO'Grady stayed in the Cathedral House any longer, would I ask anyone in thechoir if they could possibly provide accommodation. Now, that is a verydifficult thing to ask of a voluntary group of people to take on board someonewho they don't know. So I said to him that that's a hard ask but I have a sparebedroom and you know I do two jobs and the best I can offer him is shelter andthat was agreed upon and that's how David O'Grady came into my life at therequest of the Cathedral Dean and, surely, you can't get a strongerrecommendation, or you couldn't do, at that stage.
152 Mr Russell deposed that Mr O'Grady moved in as a boarder some time afterthat. Mr Russell deposed that after approximately four weeks he observed MrO'Grady to be continuously deeply depressed and informed him that he would haveto obtain help or move out. Mr Russell deposed that in response to Mr O'Grady'sreply that he had no money to obtain help, he arranged for a counsellor,identified as Beresford Waterman, to see Mr O'Grady. Mr Russell's evidence isthat some time after that Mr O'Grady threatened suicide and subsequent theretohe insisted that Mr O'Grady leave his residence. Mr Russell's estimates that MrO'Grady resided at his home for about six months at the longest.
Layout of Residence
153 The Applicant was subject to detailed examination in chief and crossexamination in respect to features of his residence and the content thereof in1982/1983.
154 Mr Neil first addressed the layout of Mr Russell's residence in1983 by reference to exhibit 12, which Mr Russell confirmed depicted thelocation and layout of furniture on the ground floor of his residence at thattime. Mr Russell deposed that the furniture had been arranged in the mannerdepicted in exhibit 12 from 1979 and remained that way until he sold theproperty in 1996-97. Exhibit 12 shows a model train layout of substantialdimension in the kitchen area. The lounge room where the walking in event isalleged to have occurred has a large corner lounge, piano, audio cabinet, andfree standing speakers surrounding a coffee table positioned in the centre ofthe room.
155 Exhibit 15 is two photographs of a very elaborate model railway. Exhibit16 is a scale drawing of the lounge room and furniture contained therein. MrRussell described the lounge room as crowded with furniture. He is supported inthis evidence by Mr and Mrs Mitchell and Mr O'Dea.
156 There was extensive evidence in respect to the layout of the lounge roomand, in particular, a large coffee table said to dominate the space. Thisconjecture was subsequently resolved by inspection of the residence on 19 August2003.
157 On inspection the room was presented by the Applicant as he deposed itwas at 1983. The coffee table had been obtained on loan from its present owner;the applicant retains in his present residence the majority of furniture whichwas relocated for the purpose of inspection with the co-operation of the presentoccupant.
158 In addressing the type and colour of dogs present in March 1983, MrRussell identified a photograph (exhibit 13) of two dogs which he put were across Labrador/Golden Labrador named Tristan and a brown German Short HairedPointer named Liobe. Also appearing in the photograph is a female described as avisitor from Germany whom Mr Russell deposed had stayed with him over theChristmas/New Year period 1983-1984.
159 Attachment A to exhibit 31 is a photograph of Mr Russell and his parentsdated Easter 1982. Attachment B to exhibit 31 is a photograph of Mr Russell withthe aforementioned Tristan and Liobe as puppies, which he deposed, by referenceto his appearance in the photographs, suggests and confirms that the photographof him with the puppies was also taken in the late part of 1982.
160 A further photograph is provided, identified as DR 1, showing Mr Russellwith Tristan and Liobe, which he deposed is a photograph sent to him inapproximately 1984/85 taken by a person identified as Hans Bernhardt whilstvisiting from Germany. The photograph has a handwritten date "Oktober '83Sydney" on the back. The word "Siegfried" also appears, which Mr Russell putrefers to Siegfried Koessler. At para 8 of exhibit 31, his affidavit ofevidence, Mr Russell says:
... Hans Bernhardt was the Domkapelmeister at Limburg and Siegfried Koesslerwas the Domkapelmeister at Wuerzburg. They held these posts from before 1976,when I first met them.
161 This evidence is supported by the affidavit of Ms Hammer, a veterinarysurgeon (exhibit 32) in which she deposed that she has examined the photographof the puppies (attachment A to exhibit 32) and DR1, the photograph of October1983, and confirms that from her professional observation the dark colouredpuppy is a German Short Haired Pointer approximately eight to ten weeks of age,and the dark coloured dog in attachment B to exhibit 32 is also a German ShortHaired Pointer aged between nine months to two years, which appears to be fullygrown but still very young, exhibiting the muscle structure of a young adultdog. Ms Hammer adds that from her experience German Short Haired Pointers aregenerally fully grown at approximately nine months of age.
162 During cross examination Mr Russell deposed that he has always kept twodogs and that the dogs in residence had been quite a feature of his household.Mr Russell's evidence is that Mr O'Dea would take up residence and care for thedogs when Mr Russell was away on tour with the choir.
163 The Applicant was firm in his response to Mr Murphy that he hadnever owned two golden retrievers. The Applicant put that the dogs precedingTristan and Liobe were named Johnnie Walker, a white Labrador, and Arwen, aLabrador cross, which he described as a yellowish, honey coloured dog of similarcolour to Tristan.
164 The Applicant conceded that it would be possible for an 11 year old boyto confuse pure bred golden retrievers with a light coloured Labrador. TheApplicant remained firm that the dogs in residence in 1983 were Tristan andLiobe, the latter brown in colour.
165 Mr Murphy put to the Applicant that he had never raised the issueof identification of the dogs with Mr Cooke, inferring that the issue of theidentification of the dogs by "X" was a later concoction.
166 The Applicant deposed that he had been asked to respond to Mr Cooke'sreport which did not mention the dogs.
167 The Applicant further deposed that Liobe died two years ago (2001) at age19 years, being a world record for the longevity of the breed. On this evidencethe dog Liobe was born in 1982.
The Model Railway Set And Visibility From the Dining Area
168 Exhibit 15 is a photograph of a model railway. In addressing the modelrailway layout Mr Russell deposed that he commenced construction in 1982 andcompleted it to the state shown in exhibit 15 by late 1982, early 1983. In crossexamination Mr Russell deposed that model trains had been a life long hobby andthat the display situated in the kitchen area during the course of 1982/83 hadpreviously occupied an upstairs bedroom, the process of removal being undertakenover a period of four to five months, completing during the 1982/83 Christmasvacation period. Mr Russell's evidence is that he had taken the choir on aconcert tour of Europe, in particular Germany, returning at the end of January1982. His evidence is that on his return he decided to remodel the train layouton German lines, undertaking the task late in 1982 as deposed. Mr Russell'sevidence is that he was assisted in this process by Mr McCarthy, a fellowenthusiast, and that Mr John Mitchell had wired the layout for him.
169 Mr Russell's evidence is that the model railway layout remained in hisresidence until 1986. Mr Russell's evidence is that he retained the componentsbut has not reassembled the display.
170 Exhibit 14 is a photograph of the dining area showing the location of thedining table and two timber and glass doors leading from the dining room to thekitchen where the model railway display was situated, some two and half feet onthe other side of the doors in the kitchen area. In the photograph the doors areclosed. Mr Russell's evidence is that this photograph was taken by a real estateagent for marketing purposes and that the doors were normally left open.
171 Mr Russell's evidence is that the bathroom and toilet were located on theground floor, access to which was via doors from the dining area, through thekitchen past the model railway layout to the area at the rear of the dwelling.
172 During further cross examination by Mr Murphy, Mr Russell deposedthat it was not his practice to put any protective cover over the train set atany time, including absences of four to five weeks whilst leading overseas toursof the choir.
173 Mr Russell conceded that it may have been hypothetically possible to havedinner in the dining room and not be aware of the model train set, however, had"X" gone to the area adjacent to the toilet and bathroom at the rear of thehouse where the dogs were fed, he must pass through the kitchen adjacent to thetrain set. Mr Russell's response to Mr Murphy's questions in this regardmaintain his position that "X" had never been to his residence. Mr Russellquestioned the validity of the version by "X" on the basis that, had he been inthe residence for the period of time asserted and nearly been bitten by one ofdogs whilst it was eating, it was inconceivable that he had not needed to usethe toilet nor had gone to the area where the dogs were fed and to do so mustwalk through the kitchen, past the train set, at which stage it could not havebeen overlooked.
Date of Steam Train Excursion
174 Mr Murphy questioned the fixing of the steam train excursion at 19March 1983. Mr Russell's evidence is that the date was by reference to the NSWState Rail records which revealed that the only excursion organised by the NSWSteam Railway Museum on the Illawarra line in 1983 took place on that date. Mr Murphy put to the applicant that another organisation ran steam traintrips on the south coast line in 1982/83 on approximately a monthly basis onweekends. Mr Russell denied any knowledge in respect to this, putting that theexcursion undertaken by the choir had been organised by Mr McCarthy, a member ofthe historical steam train organisation. Mr Russell deposed that such trips werepublished in a magazine published by the historical steam train group and thetrip of March 1983 was the only trip recorded on the Illawarra line in theperiod 1982/1983.
175 Mr McCarthy's evidence, given by affidavit (exhibit 23) and orally,confirms that he has been a member of the NSW Rail Transport Museum since 1973.His evidence is that he has had an association with the applicant since the late1960's as a musician, and from the 1970's as a fellow railway enthusiast. MrMcCarthy recalls the applicant raising the prospect with him of organising asteam train trip for the single parent and disadvantaged boys of the choir,which he did, noting that it was the only train trip he ever went on with thechoir.
176 Mr McCarthy's evidence is that such trips were subject to a special trainnotice applicable to all non-timetable trains and that it was his practice tokeep copies of those notices for trips upon which he travelled or organised. MrMcCarthy deposed that a search of his records revealed a special train noticeheaded "Steam to the Seashore" (Annexure A to exhibit 23) which was undertakenon Saturday, 19 March 1983. Mr McCarthy further deposed that he searched hisrecords for the years 1981 to 1985 inclusive and found no evidence that he hadtravelled on any other "Steam to the Seashore" train trip during that time,certain in his evidence that had he done so he would have kept the relevantnotice as a memento.
177 Mr McCarthy deposed that he recalled the presence of Daniel Buckley, whomhe described as a larrikin but a bright and smiling child, on the trip of 19March 1983. Mr McCarthy could not specifically recall any other participant.
The Walking In Allegation Cross Examination
178 Mr Murphy put the applicant to detailed cross examination inrespect to the versions of the walking in event described by Mr Buckley and "X".Mr Murphy also put the applicant to detailed cross examination in respectto the Cooke enquiry and his responses thereto, in which the applicantspeculated on collusion between Mr Buckley and "X" and the role of theinvestigating police officer in preparation of their statements.
179 The applicant was unshaken in his denial that any form of the walking inevent took place. The applicant conceded that the notion of collusion between MrBuckley and "X" and the role of the investigating police officer was merespeculation on his part as he had been asked to put an explanation and, in anattempt to comply with that request, had speculated in order to explain theinexplicable as the events described by Mr Buckley and "X" were not within hisknowledge and did not occur.
Mr John Mitchell
180 The evidence of Mr John Mitchell is that he is a retired teacher and hasknown the Applicant since 1978, visiting his house on more than 50 occasionsduring the years 1982, 1983 and 1984.
181 Mr Mitchell’s evidence is that the general layout of the ground floor ofthe dwelling, and in particular the furniture in the lounge room depicted byexhibits 12 and 16, accord with his recollection.
182 It is Mr Mitchell’s evidence that he visited the residence on a number ofoccasions in late 1982 and early 1983 to assist the Applicant to build a modeltrain set, deposing that he constructed the electrical wiring and variouscontrol components which involved long periods at the house connecting andmodifying wiring over several weeks.
183 Mr Mitchell identified a photograph of the train set (exhibit 15,initially MFI 4) which he deposed was located in the kitchen/family room of thehouse.
184 Mr Mitchell’s evidence is that the train set measured about three meterslong and 0.9 meters wide and was, on his recollection, visible through the doorsfrom the dining room to the kitchen/family room area when open or closed. MrMitchell deposed that in his recollection the doors were usually open.
185 Mr Mitchell’s evidence is that the dogs owned by the Applicant in January1983 were a brown German Short Haired Pointer and a cross Labrador named Liobeand Tristan as depicted in exhibit 13. Mr Mitchell’s evidence is that he recallsthe Applicant had previously owned a golden coloured dog by the name of JohnnieWalker which had died in late 1982, early 1983 and was replaced by the GermanShort Haired Pointer named Liobe.
186 Mr Mitchell deposed that in his recollection the dogs were occasionallyfed from bowls on the floor of the kitchen and sometimes from the dining roomtable.
Mrs Judith Mitchell
187 The evidence of Mrs Judith Mitchell (exhibit 8) is that she has known theApplicant since 1979 and was a frequent visitor to his residence. Her evidenceaccords with that of the Applicant and Mr Mitchell in respect to the layout ofthe ground floor of the house, the arrangements of the furniture in the loungeroom, which she recalls was "a little over crowded with furniture".
188 Mrs Mitchell's evidence confirms the existence of the train set and thatit was erected during late 1982, early 1983.
189 Mrs Mitchell recalls that she would stand beside the fire in the loungeroom as the coffee table obstructed heat to the lounge and that on occasionswhen she wore a certain coloured jumper with large buttons, the dogs would lickthe buttons thinking they were lollies. Mrs Mitchell recalled two gold dogsbeing replaced by a light coloured dog and a brown dog. She was uncertain inrespect to the names given to the dogs.
Mr Sean O'Dea
190 The evidence of Mr Sean O'Dea (exhibit 9) is that he has known theApplicant professionally from 1975 and on a personal basis from 1979. Mr O'Dea'sevidence is that he stayed at the Applicants residence on a number of occasions,some associated with major choir events, concerts or rehearsals, as a matter oftravel convenience; and on other occasions, whilst the Applicant was on overseasconcert tours with the choir, as a carer for the dogs.
191 Mr O'Dea's evidence is that he stayed at the Applicant's residence overEaster 1983 and that Mr O'Grady was no longer resident there. Mr O'Dea'sevidence is that he met Mr O'Grady on one occasion some four to six weeks priorto a major concert at the Opera House on July 29 1983 for which he had arrangedthe musical scores and the Applicant was conducting. Mr O'Dea's evidence is thathe attended the Applicant's residence to present the musical scores and discussthem with the Applicant and on this occasion met Mr O'Grady and was informed bythe Applicant that Mr O'Grady was departing and had come to collect propertydescribed as a canoe or canoes which had been left in the backyard during thetime he was boarding there.
192 Mr O'Dea's evidence is that he commenced renting a room at theApplicant's residence in August 1983 and continued in residence until lateFebruary 1985 on return from a concert tour of the United States of America andCanada in January 1985 in which he participated as a member of the choir. MrO'Dea's evidence is that he again rented accommodation in the Applicant'sresidence from March 1991 until 1994.
193 Mr O'Dea's evidence is that he has never known the Applicant to invitechoir boys to stay at his house. Mr O'Dea's evidence is that on his recollectionthe only occasions when choir boys attended the Applicant's residence wereassociated with pre-tour activities and that there was always a group of parentspresent and the boy choristers were directly supervised by another adult. MrO'Dea deposed that Mr O'Grady was not present on any such occasion.
194 The evidence of Mr O'Dea accords with that of Mr and Mrs Mitchell inrespect to the general layout of the ground floor of the Applicant's residence,the furniture in the lounge room, and the train set, which Mr O'Dea deposed was"'a talking point of David's home". Mr O'Dea's evidence is that he enjoyedoperating the train set and had observed others enjoying the activity.
195 A substantial amount of Mr O'Dea's evidence went to the size and locationof the coffee table, both in the residence at the relevant time and its currentlocation.
196 This evidence, much of which was curiously vague and inconsistent, wasovertaken by the inspection.
197 Attachment L to exhibit 9 is a photograph of a cream coloured Labradorand a cream coloured Labrador cross which Mr O'Dea deposed were the two dogsowned by the Applicant in the period ending in or about 1981. Mr O'Deaidentified these dogs as having been named Johnnie Walker and Arwen. Mr O'Dea'sevidence is that on their passing these dogs were replaced by those shown inexhibit 13, a Labrador cross and a dark coloured German Short Haired Pointer,which he identified as Tristan and Liobe. Mr O'Dea was unable to be precise inrespect to the arrival of Tristan and Liobe.
Mr Peter Smith
198 The evidence of Mr Peter Smith (exhibit 10) is that he has known theApplicant since 1967 and that he visited the Applicant's residence on a regularbasis from that time. Mr Smith deposed that he visited the Applicant's residenceonly once through 1974 to 1981 due to his wife's illness; however, from 1982,when he and his family moved into the same suburb, he visited at least 50 timesa year in the period 1982, 1983 and 1984 in pursuit of their shared interest inmodel railways.
199 Mr Smith's evidence in respect to the layout of the ground floor of theproperty, the furniture in the lounge room, and the size and location of thetrain set is consistent with that of the Applicant, Mr and Mrs Mitchell, and MrO'Dea.
200 Mr Smith deposed that the model train set was erected during late 1982and early 1983 and remained in the family/kitchen area for five or six years.His evidence is that the train set was visible from the dining area through theglass doors, though in his recollection the doors were almost always left open.
201 Mr Smith's evidence in respect to the dogs owned by the Applicant isidentical to that of Mr O'Dea. Mr Smith identified two golden coloured dogs asJohnnie Walker and Arwen by reference to the same photograph as Mr O'Dea (Att. Lto exhibit 10). Mr Smith deposed that the Applicant purchased two puppies, abrown German Short Haired Pointer and a cross Labrador, on the passing of thetwo golden coloured dogs shown in Att. L. Mr Smith's evidence is that the twodogs shown in exhibit 13 are the two dogs which the Applicant purchased aspuppies in 1982 or thereabouts.
Statement of Nicholas Butler
202 Attachment 4 to exhibit 3 is a statement by Mr Nicholas Butler dated 29February 2000. The statement is admitted with the evidence of the Applicantwithout objection. Mr Butler was not required to give evidence.
203 Mr Butler's statement puts that he was a member of the choir from 1982and that he was about 11 years of age when he joined the choir and the School.
204 Mr Butler states that he knows Mr Buckley and "X", however he assertsthat he had never been to the Applicant's residence with either of them, puttingthat he had attended there on only one occasion with a number of other boys in1983.
205 Mr Butler puts that as a soloist in the choir he spent a lot of time withthe Applicant, both in the choir and "one on one". Mr Butler puts:
I can say categorically that at no time did David Russell behave in any waytowards me improperly. I did not detect in any way, shape or form, any behaviouron his part that could be in any way construed as sexually improper or havingany sexual connotation at all.
Support From Choir
206 Mr Russell deposed that he has experienced strong support within thechoir to return to his duties, which he put were in the care of temporaryreplacements. Mr Russell's evidence concludes with the following statement:
I consider that if I were reinstated to my position as Director of Music, Icould with complete confidence and propriety resume my career and theperformance of all my duties and responsibilities without restrictions orconditions. I have sought to the best of my ability to faithfully serve theChurch, the Choir and its music with honour and dignity. I wish to do so again.
Ms Helen Kennedy, Ms Irene Szady, Ms Elizabeth Vierboom
207 The evidence of Ms Kennedy, Ms Szady and Ms Vierboom is by affidavit,exhibits 5, 6 and 11 respectively. None were required for cross examination. Theevidence of each is that they have had a long association with the Applicant,resulting from their children's participation in the choir (and in the case ofMs Vierboom, her husband's membership), and have developed a high regard for hisprofessional ability. Each deposed that they are informed of the presentcircumstances by reading the Cooke report, the affidavit of Father Doherty, andthe affidavit of "X". The conclusion of each is adequately expressed in thefinal paragraph of Ms Vierboom's affidavit in the following terms:
I have never had, nor do I now have, any reservations about having my son inthe care of David Russell. Upon his reinstatement, I look forward to himreturning to his position as Director of Music at St Mary's Cathedral and aschoirmaster to my son and husband.
208 This deposition is supported by a petition of 80 adult members of thechoir (exhibit 28) declaring their total confidence and trust in, and fullsupport of, the Applicant.
209 Mr Neil submitted that the termination of the Applicant'semployment was unfair within the meaning of Part 6 of the Act in both substance and procedure.
210 Mr Neil submitted that the procedural deficiencies in the Cookeenquiry and the decision making process surrounding it are so profound that therespondent's conduct must be condemned as incompetent, incomplete and partial,rendering it unfair.
211 In addressing the substance of the termination of employment Mr Neil submitted that the evidence available is incapable of properlysatisfying a reasonable employer or this Commission that the Applicant wasguilty of the conduct alleged.
212 Mr Neil submitted that the respondent wrongly placed a burden ofproof upon the Applicant to demonstrate his innocence. It is Mr Neil'ssubmission that the burden of proof falls properly upon the respondent, which ithas failed to discharge.
213 In support of his submissions that the onus lay upon the respondent, Mr Neil referred to the judgment of Hungerford J in PastrycooksEmployees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union(NSW) v Gartrell White (No 3) (1990) 35 IR 70 wherein his Honour said at83-84:
It is undoubted, in my view, and as Mr Walton conceded, that the onus formaking out a case to warrant the intervention of the Commission in orderingreinstatement is on the claimant union ... However, it is also undoubted, in myview, that where an allegation of misconduct is raised as a defence orjustification for a particular course of action by an employer, such as insummarily dismissing an employee, then the legal burden, in an evidentiary senseto establish that fact, shifts from the union to the employer.
214 Mr Neil submitted that there are many illustrations of theerroneous approach by the respondent to the onus of proof. Mr Neil submitted that the respondent attempted to call into question the evidence thatthe steam train excursion referred to by "X" took place on 19 March 1983 late inthe proceedings. Mr Neil submitted that it was the respondent'sobligation to undertake enquiries to verify the assertions of "X", which it didnot do, either during its own investigation (the Cooke enquiry) or during theseproceedings. Mr Neil noted that the only consequence of the respondent'sconduct in this regard was to drive the Applicant to collect and present furthermaterial, demonstrating that the only available conclusion was, consistent withhis initial evidence, that the trip took place on 19 March 1983.
215 Mr Neil submitted that a further and more significant illustrationof the respondent's erroneous approach was its failure to do anything toascertain Mr O'Grady's account of the alleged events, submitting that if therespondent had bothered to read the transcript of his evidence at his trial theywould have discovered an account of the alleged events that reconciled many ofthe weaknesses and inconsistencies in the other accounts and entirely exculpatesthe applicant from any involvement.
216 Mr Neil identified the appropriate test as the civil standard asdescribed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Mr Murphy alsoreferred to Briginshaw at greater length from pp 360 to 362. It isappropriate to reproduce the passage here with emphasis to that relied upon byMr Neil:
At common law two different standards of persuasion developed. It becamegradually settled that in criminal cases an accused person should be acquittedunless the tribunal of fact is satisfied beyond reasonable doubt of the issuesthe burden of proving which lie upon the prosecution. In civil cases such adegree of certainty is not demanded. The distinction obtained long before thepublication in 1824 of Starkie's Law of Evidence; but the form in whichthe higher standard of persuasion is described is said to have been influencedby passages in that work. The learned author, who occupied the Downing Chair ofCommon Law, wrote:- "It is to be observed, that the measure of proof sufficientto warrant the verdict of a jury varies much, according, to the nature of thecase. Evidence which satisfies the minds of the jury of the truth of the fact indispute, to the entire exclusion of every reasonable doubt, constitutes fullproof of the fact; absolute mathematical or metaphysical certainty is notessential and in the course of judicial investigations would be usuallyunattainable. Even the most direct evidence can produce nothing more than such ahigh degree of probability as amounts to moral certainty. From the highestdegree it may decline, by an infinite number of gradations, until it produce inthe mind nothing more than a mere preponderance of assent in favour of theparticular fact. The distinction between full proof and mere preponderance ofevidence is in its application very important. In all criminal cases whatsoever,it is essential to a verdict of condemnation that the guilt of the accusedshould be fully proved; neither a mere preponderance of evidence, nor any weightof preponderant evidence, is sufficient for the purpose, unless it generate fullbelief of the fact to the exclusion of all reasonable doubt " (1st ed. (1824),pp, 450, 451; 4th ed. (1853), pp. 817, 818). When, however, he passes to thestandard of proof in other cases, he describes it in less positive and definiteterms (1st ed. (1824), p 451; 4th ed. (1853), p. 818):- "But in many cases of acivil nature, where the right is dubious, and the claims of the contestingparties are supported by evidence nearly equipoised, a mere preponderance ofevidence on either side may be sufficient to turn the scale. This happens, as itseems, in all cases where no presumption of law, or prima-facie right, operatesin favour of either party; as, for example, where the question between theowners of contiguous estates is, whether a particular tree near the boundarygrows on the land of one or of the other. But even where the contest is as tocivil rights only, a mere preponderance of evidence, such as would induce a juryto incline to the one side rather than the other, is frequently insufficient. Itwould be so in all cases where it fell short of fully disproving a legal rightonce admitted or established, or of rebutting a presumption of law." This modeof stating the rule for civil issues appears to acknowledge that the degree ofsatisfaction demanded may depend rather on the nature of the issue. In thecourse of a discussion of the matter containing no less wisdom than learning,Professor Wigmore says:- "In civil cases it should beenough to say that the extreme caution and the unusual positiveness ofpersuasion required in criminal cases do not obtain. But it is customary to gofurther, and here also to attempt to define in words the quality of persuasionnecessary. It is said to be that state of mind in which there is felt to be a 'preponderance of evidence' in favour of the demandant's proposition.Here, too, moreover, this simple and suggestive phrase has not been allowed tosuffice; and in many precedents sundry other phrases- 'satisfied', 'convinced',and the like have been put forward as equivalents, and their propriety as a formof words discussed and sanctioned or disapproved, with much waste of judicialeffort " (Wigmore on Evidence, 2nd ed. (1923), vol. v., see.2498). It is evident that Professor Wigmore countenances as muchflexibility in the statement and application of the civil requirement as did Mr. Starkie. The truth is that, when the law requires the proof of anyfact, the tribunal must feel an actual persuasion of its occurrence or existencebefore it can be found. It cannot be found as a result of a mere mechanicalcomparison of probabilities independently of any belief in its reality. No doubtan opinion that a state of facts exists may be held according to indefinitegradations of certainty; and this has led to attempts to define exactly thecertainty required by the law for various purposes. Fortunately, however, atcommon law no third standard of persuasion was definitely developed. Except uponcriminal issues to be proved by the prosecution, it is enough that theaffirmative of an allegation is made out to the reasonable satisfaction of thetribunal. But reasonable satisfaction is not a state of mind that is attained orestablished independently of the nature and consequence of the fact or facts tobe proved. The seriousness of an allegation made, the inherent unlikelihood ofan occurrence of a given description, or the gravity of the consequences flowingfrom a particular finding are considerations which must affect the answer to thequestion whether the issue has been proved to the reasonable satisfaction of thetribunal. In such matters "reasonable satisfaction" should not be produced byinexact proofs, indefinite testimony, or indirect inferences. Everyone must feelthat, when, for instance, the issue is on which of two dates an admittedoccurrence took place, a satisfactory conclusion may be reached on materials ofa kind that would not satisfy any sound and prudent judgment if the question waswhether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: " No doubt the court is bound to see that a case offraud is clearly proved, but on the question at what time the persons who couldhave been guilty of that fraud commenced it, the court is to draw reasonableinferences from their conduct.
217 In addressing the standard of proof required, Mr Neil referred meto the judgment of the Full Bench of the Commission in Wang v CrestellIndustries Pty Ltd (1997) 73 IR 454 in which the Bench said at 463-464:
The principle applicable in relation to the onus and standard of proof in areinstatement case concerning summary dismissal for serious misconduct involvingcriminal activity by the employee is that the employer must establish to thereasonable satisfaction of the Commission, that the employee was guilty of themisconduct alleged. The onus of proof in such a case is on the employer and thestandard of proof must be such as to enable a positive finding that themisconduct occurred. The standard is, of course, the civil and not the criminalone, but the requisite degree of satisfaction must have regard to theseriousness of the alleged conduct and the gravity of the consequences of thefinding.
218 Mr Neil further referred me to the judgment of the High Court in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 wherein the Court said at170-171:
The ordinary standard of proof required of a party who bears the onus incivil litigation in this country is proof on the balance of probabilities. Thatremains so even where the matter to be proved involves criminal conduct orfraud. On the other hand, the strength of the evidence necessary to establish afact or facts on the balance of probabilities may vary according to the natureof what it is sought to prove. Thus, authoritative statements have often beenmade to the effect that clear or cogent or strict proof is necessary "where soserious a matter as fraud is to be found". Statements to that effect should not,however, be understood as directed to the standard of proof. Rather, they shouldbe understood as merely reflecting a conventional perception that members of oursociety do not ordinarily engage in fraudulent or criminal conduct and ajudicial approach that a court should not lightly make a finding that, on thebalance of probabilities, a party to civil litigation has been guilty of suchconduct.
219 Mr Neil reinforced this submission by reference to In re H. andOthers (Minors)  AC 563, a decision of the House of Lords, relying inparticular upon the comments of Lord Nicholls of Birkenhead at 586:
The balance of probability standard means that a Court is satisfied an eventoccurred if the Court considers that, on the evidence, the occurrence of theevent was more likely than not. When assessing the probabilities the Court willhave in mind as a factor, to whatever extent is appropriate in the particularcase, that the more serious the allegation the less likely it is that the eventoccurred and, hence, the stronger should be the evidence before the Courtconcludes that the allegation is established on the balance of probabilities.Fraud is usually less likely than negligence. Deliberate physical injury isusually less likely than accidental physical injury. A stepfather is usuallyless likely to have repeatedly raped and had non-consensual oral sex with hisunder age stepdaughter than on some occasion to have lost his temper and slappedher. Built into the preponderance of probability standard is a generous degreeof flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a seriousallegation is in issue the standard of proof required is higher. It means onlythat the inherent probability or improbability of an event is itself a matter tobe taken into account when weighing the probabilities and deciding whether, onbalance, the event occurred. The more improbable the event, the stronger must bethe evidence that it did occur before, on the balance of probability, itsoccurrence will be established.
220 Mr Neil relied upon the judgment of a Full Bench of thisCommission in Four Sons Pty Ltd v Limsiripothong (2000) 98 IR 1 tosupport his submission that the more grave the offence, the higher degree ofsatisfaction required; citing in particular the comments of the Bench at p 10:
In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court affirmed the principlethat there is only one standard of proof applicable in civil matters, namely, onthe balance of probabilities. However, it was held that the strength of theevidence necessary to establish a matter on the balance of probabilities mayvary according to the nature or gravity of the fact to be proved.
And further at p 15:
Ordinarily, the principle in Briginshaw v Briginshaw is applicable tofindings of criminal conduct or fraud (see, for example, Neat Holdings), however, the statements of principle may be applied to allegations of abroader nature. In all matters, it is necessary for a tribunal to consider thenature and seriousness of the allegation made before finding it proved at therequisite level.
221 Mr Neil noted that the nature and gravity of the allegationsinvolve such a degree of moral turpitude and delinquency that, if made out,would attract substantially the same degree of censure and ruin as many chargesof criminal conduct, and accordingly the allegations should be judged asrequiring the highest standard of proof.
222 Mr Neil submitted that the allegation is inherently so improbableas to be utterly incredible. Mr Neil submitted that the assertion by "X"that the Applicant had no reaction of any kind to the event said to be observed,to the extent that his response was allegedly entirely neutral, does not accordwith ordinary human experience. Mr Neil submitted that conduct of thekind alleged is inconsistent with any known conduct on the part of the Applicantand every known assessment of his character.
223 Mr Neil relied upon the Applicant's 27 year career with the choir,during which he put there had never been another complaint or hint of conduct ortype of conduct alleged, by any official of the respondent, parent or choirmember.
224 Mr Neil noted that parents and choir members continue a unanimousand enthusiastic support for the Applicant's return to employment as Director ofthe choir.
225 Mr Neil submitted that the respondent has been unable to make outany motive for the behaviour alleged and has not established any connectionbetween Mr O'Grady and the Applicant other than that imposed upon the Applicantby the respondent by pressing the Applicant to take Mr O'Grady as a boarder. Mr Neil submitted that the weight against the probability of inactionincreases given the tenuous connection between the Applicant and Mr O'Grady.
226 In reply Mr Murphy submitted that the issue of motive is unhelpfulas the offence is one of inaction not action. Mr Murphy put that it isdangerous and productive of error to apply the principles of motive espoused inallegations of positive criminal conduct to situations of inaction.
227 Mr Murphy accepted that without establishing a motive for someonedoing something, then a court will be reluctant or slow to condemn that personof otherwise good character. Mr Murphy submitted that in this case motiveis neutral
228 Mr Murphy put that the absolute denial by the Applicant is notpermissive of an exploration of motive as the Applicant contends there was noaction or inaction to consider.
229 Mr Murphy put that notwithstanding the absence or explanation ofmotive, it was open to consider that inaction arose from a condonement of theevents witnessed, embarrassment that they were in his home, or fear of MrO'Grady.
230 Mr Neil submitted that in the absence of any suggestion of amotive, the only available conclusion is that the respondent's allegationinvolves conduct on the part of the Applicant which is utterly inexplicable andaccordingly inherently unlikely to have occurred.
231 Mr Murphy put that such a conclusion was not available, submittingthat inaction when confronted with an unpleasant and difficult situation is farmore consistent with ordinary human behaviour.
232 Mr Neil submitted that the Applicant's cooperation with the Cookeenquiry must be viewed to his credit.
233 Mr Neil submitted that the evidence of "X" should not be accepted.In developing this submission Mr Neil put no argument that the evidenceof "X" was throughout knowingly false or misleading. Mr Neil put that theevidence of "X" is of his recollection and that this recollection is bothinherently and in fact unreliable and unsafe, such that it could not induce thedegree of satisfaction required.
234 Mr Neil submitted that the testimony of "X" represented thespecial danger presented by honest, and apparently convincing, but erroneoustestimony against which Kirby J warned in Doggett v The Queen (2001) 208 CLR 343 at 375:
"the memory even of an honest witness might become contaminated".
235 Mr Neil submitted that the version of events given by Mr Buckleyremains untested hearsay and is incapable of attracting any evidentiary orpersuasive value in these proceedings
236 Mr Neil submitted that there is no corroboration for the eventsdeposed by "X", submitting that there were so many material inconsistenciesbetween the accounts of Mr Buckley and "X" that one could not be said tocorroborate the other. Mr Neil noted that the activities described by MrBuckley and "X" are profoundly different, and the version offered by MrBuckley's statement has additional participants. The two versions aresubstantially displaced in time, purpose and circumstance. Mr Neil submitted that failure by the respondent to regard the denials of the other boyswhom Mr Buckley put at the scene is a significant error. Mr Neil submitted that the proper approach is to conclude that the impossibility ofreconciling Mr Buckley's account and that of "X" in his evidence means that bothare an unreliable and unsafe foundation for such a conclusion.
237 In addressing the issue of corroboration Mr Neil relied upon the Director of Public Prosecutions v Hester  AC 296 and the Director of Public Prosecutions v Boardman  AC 421 to support hissubmission that the purpose of corroborative evidence is not to transformunreliable evidence into evidence that is worthy of credit.
238 Mr Neil referred particularly to the statement of Lord Morris ofBorth-y-Guest in Hester at 315:
The essence of corroborative evidence is that one creditworthy witnessconfirms what another creditworthy witness has said. ... ...The purpose ofcorroboration is not to give validity or credence to evidence which is deficientor suspect or incredible but only to confirm and support that which as evidenceis sufficient and satisfactory and credible: and corroborative evidence willonly fill its role if it itself is completely credible evidence.
239 Mr Neil submitted that having regard to the nature of theallegations, the age of "X" at the time the alleged incident occurred, and thelong delay in pursuing the allegation, it is unsafe to make a finding of guilton the uncorroborated evidence of "X".
240 In addressing the issue of the age of "X" at the time of the allegedevent Mr Neil relied upon the judgment of Lord Diplock in Hester at p 324:
"... experience shows the danger that fantasy may supplant or supplementgenuine recollection."
241 Mr Neil further relied upon the judgment of McHugh J in Longmanv R (1989) 168 CLR 79 wherein he puts the High Courtrecognised that human recollection, and particularly the recollection of eventsoccurring in childhood, is frequently erroneous and liable to distortion byreason of various factors; and that the possibility of child fantasy aboutsexual matters could not be ignored. Mr Neil further relied on Longman at 101 wherein it is said:
"It is in the context of the nature of the offences that the length of timebetween alleged offence and first complaint assumes great significance. Thepossibility of child fantasy about sexual matters, particularly in relation tooccurrences when the child is half-asleep or between periods of sleep, cannot beignored. The borderline between fantasy and reality can be an uncertain one.Contemporaneous questioning of the child may distinguish fantasy from reality.The long passage of time can harden fantasy or semi-fantasy into the absoluteconviction of reality. So to say is not to suggest that the allegations of thecomplainant in the present case arose from fantasy or semi-fantasy. It is simplyto explain why it seems to me that, in the particular circumstances of the case,the complainant's evidence of the alleged offences which was not given until solong after their alleged occurrence required to be scrutinized with very greatcare indeed. It was not merely a matter of whether the jury was satisfied beyondreasonable doubt that the complainant was an honest witness and that theapplicant was not. It was a question of the intrinsic reliability of the onlyevidence which was capable of sustaining a finding of the applicant's guilt."
242 Mr Neil relied on the following passages from Longman at107 and 108 to support his submission that the evidence of "X", though honestlygiven, is inherently unsafe:
The fallibility of human recollection and the effect on imagination, emotion,prejudice and suggestion on the capacity to "remember" is well documented. Thelonger the period between an "event" and its recall, the greater the margin forerror. Interference with a person's ability to "remember" may also arise fromtalking or reading about or experiencing other events of a similar nature orfrom the persons own thinking or recalling. Recollection of events whichoccurred in childhood is particularly susceptible to error and is also subjectto the possibility that it may not even be genuine.
Experience derived from forensic contests, experimental psychology andautobiography demonstrates only too clearly how utterly false the recollectionsof honest witnesses can be...
243 Mr Neil submitted that it is necessary to look beyond thecompeting depositions of "X" and the Applicant to see whether there are anycontemporaneous facts which support either version.
244 Mr Neil put that there is nothing of a contemporaneous nature thatsupports the allegation against Mr Russell and that such evidence that hassurvived the passage of time is against the allegation.
245 Mr Neil submitted that the Applicant is a person well known to therespondent having served in the position of Director of Music for some 27 years.Mr Neil put that all knowledge of the Applicant's character and behaviouris against the probability of him walking into the scene described by "X" anddoing nothing about it.
246 Mr Murphy contended that it is dangerous and accordingly illadvised to import the principles expressed in Longman to a civil case andthat there should be no departure or dilution of the principles enunciated in Briginshaw.
247 Mr Murphy rejected the proposition advanced by Mr Neil thatwhen a witness is found to be unreliable then all of the evidence from thatwitness must be rejected.
248 Mr Murphy relied upon the judgments in Attorney General of HongKong v Wong Muk Ping  1 AC 501; Mills v Industrial Fish TasmaniaPty Ltd (Receivers and Managers Appointed) (1993) 49 IR 416; Wheeler vPhilip Morris Ltd (1989) 97 ALR 282; Bankstown City Council v Paris (1999) 100 IR 363; and Ross v GN Comtext (Australia) Pty Limited  NSWIRComm 133.
249 Mr Murphy submitted that the approach adopted by Mr Cooke wasprecisely consistent with the principles so determined. Mr Murphy thenput (TR p732):
The complaint was then made that Buckley's accounts were unsworn, unproven,untested and untestable and reference was made to the objection to the tender orthe acceptance into evidence of Buckley's statement and in that debate it wasconsidered in our part that the weight that might be given to anything in thatstatement given on its own would be very slight and that appears at transcriptpage 337 but that ultimately what utility or weight was to be given to it was amatter for the Commission once all the evidence was in and the submissions madeconsistent with the approach in the Attorney General of Hong Kong.
Now section 63 of the Evidence Act specifically contemplates theadmission of such statements into evidence in civil proceedings in circumstanceswhere the maker of the statement is not available to give evidence and thatprovision in section 63 of the Evidence Act is an exception to the hearsay rule.
Now the fact that such statements where the maker of them is unavailable andfor that we rely on the affidavit of Mr Carter - I don't think any of that isput in issue - that's in exhibit 33.
If the admission of a statement made by a person who was unavailable to giveevidence is to be allowed in civil proceedings then was to be regarded as havingno weight at all then the exception to the hearsay rule enshrined in section 63 of the Evidence Act would be negatory - would be renderedmeaningless. We accept that caution has to be exercised in relation to thatstatement. We accept that in these proceedings there's not been the opportunityfor the applicant to test it by cross-examination of Mr Buckley but that mustalways be the case where the deponent is not available to give evidence and section 63 allows admission into evidence and itmust be for a purpose and the purpose in this case is that the Commission canreceive it and give it what weight the Commission thinks it should.
250 Mr Murphy stressed that the only part of Mr Buckley's statementrelied upon is the reference to a walking in event. Mr Murphy concededthat the statement by Mr Buckley alone would not support termination ofemployment.
251 Mr Neil submitted that the decision making process adopted by therespondent was presumptive of guilt and overwhelmed by the only consistencybetween Mr Buckley and "X", which is reference to a walking in event involvingthe Applicant. Mr Neil put that the fixation on this point blinded thedecision makers to all other elements, particularly those suggesting that theconduct alleged was improbable. Mr Neil put that a prime example of thiswas refusal to accept the position of Mr Butler (who Mr Buckley said was there)that no such event occurred.
252 Mr Neil put that the possibility that "X" and Mr Buckley hadtalked about this type of event as children could not be discounted. Mr Neil noted that this possibility had been acknowledged by "X" in crossexamination.
253 Mr Neil put that "X's" recollection involved some substitutedreconstruction. Mr Neil referred to the evidence of "X" that he recalledthe choir trip to Germany and that the trip was after the walking in event. Mr Neil put that this had to be a reconstruction as the Germany trip tookpace in January 1982, prior to "X" commencing at the school and with the choiron 3 February 1982. Mr Neil put that over time this reconstruction hadhardened into absolute conviction of reality.
254 Mr Neil submitted that central to the respondent's position is itsacceptance of the verdict convicting Mr O'Grady on the corroboration of "X", anda belief that a walking in event took place as both Mr Buckley and "X" refer tosuch an event, albeit in startlingly difference circumstances.
255 Mr Neil relied upon the decision of the Kings Bench in Hollington and F Hewthorn & Co Ltd KB 1943 587 at 601 where it isheld that:
A conviction of a criminal offence did not even provide prima facie evidenceof the facts on which it is based.
256 Mr Neil further referred to the judgment of his Honour CampbellJ., in Gonzales and Claridades  NSWSC 508 wherein the rule in Hollington was applied.
257 Mr Neil submitted that, subject to the exception allowed by s 92 of the Evidence Act 1995 ("the Evidence Act"), Hollington representsthe law in New South Wales. Mr Neil put that s 92 of the Evidence Act does not allow admission of theconviction of Mr O'Grady as evidence against the Applicant in this matter.
258 Mr Neil further submitted that the delay in making the allegationsoccasioned unfair prejudice upon the Applicant in answering the allegationseffectively and completely, necessitating great caution in evaluating thoseallegations.
259 Mr Neil submitted that the evidence of "X" should be considered byexamination of the relevant characteristics as it was in 1983. Mr Neil submitted that chronic psychogenic illness suffered by "X" as a child providesan opportunity to gain appropriate insight. Mr Neil submitted that "X" atthat time was perceived by skilled medical practitioners as demanding,manipulative at a conscious level, highly excitable and attention seeking,making him a child whose perception and recollection could not be relied uponwith confidence.
260 Mr Neil noted that the episodes of psychogenic vomiting sufferedby "X" were, in Dr Soddy's diagnosis, triggered by circumstances of stress orexcitement. Mr Neil submitted that ordinary human experience suggeststhat if the allegation made by "X" is accurate, it is likely to have occasionedstress or excitement, at least to the same degree as the events whichprecipitated bouts of vomiting. Mr Neil noted that there is no recordedevent of vomiting at the time, though admissions to hospital prior to and post19 March 1983 confirm the susceptibility of "X" to that affliction at the time.
261 Mr Neil submitted that it is, for every practical purpose,inconceivable according to ordinary human experience that, if the events allegedby "X" occurred, they would have effected no stated or observable change inattitude towards the school or the choir.
262 Mr Neil relied upon the clinical relationship between Dr Soddy and"X" and the specific training and expertise of Dr Soddy in detecting childsexual abuse, to support his submission that if anything had occurred in themanner alleged, it would not have escaped Dr Soddy's notice entirely.
263 In rebutting the submission by Mr Murphy that the evidence of "X"should be taken as inherently credible as there is no motive for him not to tellthe truth, Mr Neil relied upon the judgment of Levine J in Marsden vAmalgamated Television Services Pty Ltd  NSWSC 510. Mr Neil put that in Marsden Levine J was asked to pose, and give weight to, the question: Whywould the complainant lie? His Honour held:
Such a question asked in the course of submissions is essentially futile. Inthe criminal law the Court of Criminal Appeal and the High Court have on anumber of occasions emphasised the dangers in a Crown submission to this effectby reason of the risk of it being perceived that there is thereby placed uponthe accused an onus to discharge some evidentiary obligation and indeed of itbeing perceived that the substantive onus of proof has been reversed.
264 Mr Neil noted that his Honour referred to inter alia, Palmer vR (1998) 193 CLR 1 where it says:
.... a complainant's account gains no legitimate credibility from the absenceof evidence of motive...The correct view is that absence of proof of motive isentirely neutral.
His Honour went on to say:
"Although the trial judge in a civil action is taken to be "conscious" ofwhere the onus of proof rests (and of the standard of proof) and the shifts inevidentiary burdens, it would nonetheless be quite imprudent of a trial judge insuch a case as this to allow himself to be seduced by the allurements implicitin the question "why would the complainant lies (sic)" in the absence of thelitigation of an issue as to whether in fact the witness had a reason to lie orin fact lied.
265 The approach taken by Levine J in Marsden was endorsed by theCourt of Appeal.
266 Mr Neil submitted that the case put by the respondent provided notone corroborative fact to assist the allegations of "X". Mr Neil submitted that the evidence of contemporaneous conduct of any person associatedwith the allegation is inconsistent therewith.
267 In expanding this argument Mr Neil noted that there is noproximate complaint by "X" or his mother or anyone else arising from the allegedevent; and there is a complete absence of any rumour or gossip surrounding theApplicant or his conduct.
268 Mr Neil submitted that the appropriate remedy is reinstatementwith consequential relief of payment of wages and continuity of service.
269 Mr Murphy accepted that the onus of proof to establish that thewalking in event took place rests upon the respondent. Mr Murphy reliedupon the judgment of Hungerford J in Pastrycooks which he put clearlyplaces the onus upon the respondent. Mr Murphy rejected Mr Neil's assertion that the gravity of the offence supports the application of theprobability test at the highest level approaching the reasonable doubt test. Mr Murphy submitted that the balance of probability test is to thecomfortable satisfaction of the tribunal, not otherwise.
270 In consideration of the principles enunciated by Dixon J in Briginshaw Mr Murphy submitted that in this matter the direct testimony providedby the eye witness, "X", is to be preferred, and is not diminished by failure torecall peripheral issues. Mr Murphy put that the direct evidence of "X"of the walking in event withstood the test of three days of testimony and crossexamination.
271 Mr Murphy put that Father Doherty accepted the truth of thecontents of the statement made by "X" subsequent upon investigation by Mr Cooke.Mr Murphy emphasised that the statement made by "X" was made in relationto criminal charges against Mr O'Grady who was subsequently convicted ofindecent assault upon Mr Buckley in the Applicant's lounge room. Mr Murphy submitted that on a fair and balanced consideration of all of theevidence in this matter, comfortable satisfaction should be achieved that thewalking in event occurred and that termination of the Applicant's employment wasthe only available outcome.
272 In defending the credit of "X" Mr Murphy put that "X" had nothingto gain and potential significant loss from making the statement found inexhibit 1. In this regard Mr Murphy noted that "X" had no complaint oraction against Mr O'Grady, the Applicant or the respondent, and had merelycooperated with the Police investigation subsequent to the matter beingidentified by Mr Buckley.
273 Mr Murphy submitted that there is no dispute that "X" participatedin a steam train excursion to the South Coast of New South Wales whilst a memberof the choir. Mr Murphy submitted that the evidence establishes that "X"spent the night before the excursion at the Applicant's residence. Mr Murphy put that, notwithstanding a period of some 20 years passing fromthe evening prior to the excursion to the making of his statement, "X" was ableto provide a remarkably accurate description of the layout of the Applicant'sresidence. Mr Murphy put that the suggestion by the Applicant that thefeatures described by "X" would apply to any terrace house conforming to afairly common plan could not be accepted.
274 Mr Murphy relied upon the inspection of the residence and adescription of surrounding houses observed during the course of that inspectionto support this submission, noting that the only terrace house of similarappearance in the vicinity was a residence immediately next door, putting thatthe other houses in the area were a mixture of double and single storyresidences which were nothing like the Applicant's residence. Mr Murphy further put that if "X" had never been to the applicant's house he would havehad no way of knowing that it was a terrace construction.
275 Mr Murphy submitted that "X" held a clear recollection that therewere two dogs present in the house at the time he was there. Mr Murphy described the evidence brought on behalf of the Applicant in respect to thecolour, breed and nature of the dogs as confused, confusing and contradictory,failing to diminish the veracity of the recollection of "X" that two dogsresided with the Applicant.
276 In dealing with the model train set Mr Murphy submitted that theevidence positioning the train set in the kitchen/family room area at therelevant time is inconclusive and does not provide any damage to the credit of"X". Mr Murphy submitted that it is equally plausible that "X" had simplyforgotten the train set with the passage of time, or that he may simply not haveseen it during his visit.
277 Mr Murphy submitted that the testimony of "X" was subject to amost searching, aggressive and at times brutal cross examination over threedays, and that, while attempts were made to question the quality of hisrecollection in respect to the events and the vague description provided to hismother subsequently, "X" was never shaken in relation to his very clearrecollection of the walking in event.
278 Mr Murphy submitted that nothing could be made from the limitedrecollection of "X's" mother as the evidence reveals that at best she had beengiven a vague and broad description of the events consistent with the need for"X" to confide in an adult at the time but not burden his mother with furtherresponsibility. In putting this submission Mr Murphy noted that "X",whilst admitting to being uncomfortable and embarrassed by the events, was nottraumatised thereby.
279 Mr Murphy submitted that the evidence of psychometric vomitingsuffered by "X" as a child does nothing to diminish his capacity to accuratelyremember events, nor lay a foundation for a conclusion that events might becreated by hallucination and subsequently recalled as real.
280 Mr Murphy was critical of the suggestion put by Mr Neil incross examination that "X" had deliberately sought to mislead the jury in theO'Grady trial by not making mention of the walking in event or the Applicantduring those proceedings. Mr Murphy relied upon the evidence of Mr PeterLittle, the Crown Prosecutor in the O'Grady trial, which makes it clear that "X"was directed not to refer to the walking in event in those proceedings, andaccordingly there was absolutely no basis for criticism of "X" or diminution ofhis credit arising therefrom.
281 Mr Murphy submitted that there were a number of compelling reasonsthat the evidence of the Applicant should not be accepted where it conflictswith that of "X". Mr Murphy submitted that the assertion by the Applicantthat the charges brought against him on the complaint of Mr Buckley were "soconclusively found to be false" as erroneous and intentionally misleading. Mr Murphy submitted that the charges against the Applicant were never foundto be false, conclusively or otherwise. They were dismissed by the Magistratebecause the complainant, Mr Buckley, failed to attend court. Mr Murphy submitted that this could not be conveniently explained away, as attempted bythe Applicant in cross examination, by the assertion "naturally in any case,defending oneself one will attempt always to push the positive".
282 Mr Murphy pointed to a direct contradiction in the Applicant'sevidence wherein he denied that he had discussed the proposition with JohnMitchell that if "X" did not remember the train set then his evidence ought notto be believed (TR p177 ln34). Mr Murphy put that this was latercontradicted by Mr Mitchell (TR p317 ln6-12).
283 Mr Murphy further noted that the Applicant allowed his Counsel toput the proposition to "X" that the train set was in the dining room when it wascontended to be in the kitchen area and had conceded that it was quite possibleto have had dinner at his dining table without seeing the train set or goinginto the room in which it was located (TR p184 ln8).
284 Mr Murphy put that the Applicant's evidence that the dogs were fedin the covered area at the back of the house led to the conclusion that if "X"had attempted to pat one of them whilst it was being fed he would have had towalk past the train set, was later contradicted by Mr Mitchell who deposed thatthe dogs were fed in the dining room.
285 Mr Murphy submitted that criticism of the Cooke enquiry isunfounded and, when examined, reveals internal inconsistencies in the evidenceof the Applicant.
286 Mr Murphy cites transcript reference of evidence by the Applicantwhich he puts is against the Applicant's assertion that he was not aware thatthe walking in allegation was subject to enquiry by Mr Cooke.
287 Mr Murphy urged extreme caution in accepting the Applicant'sevidence that the steam train trip took place on 19 March 1983, noting that thespecial train notice referred to by Mr McCarthy was never produced.
288 Mr Murphy submitted that the evidence of Mr John Mitchell and MrsJudith Mitchell should be treated with some caution. Mr Murphy does notcontend that they intentionally gave false evidence, but in the course of theirtestimony moved from witness to advocate on behalf of the Applicant and sodisplayed a bias or inappropriate influence upon their evidence.
289 Mr Murphy put that the evidence of Mr Smith is inaccurate in hisinsistence that the coffee table was much larger than in fact it was, andconflicts with that of the Applicant in the identity of the dogs in photographicexhibits.
290 Mr Murphy put that Mr O'Dea was clearly not a witness of credit.
291 Mr Murphy referred to the evidence of Mr O'Dea in respect to thesize of the coffee table, in particular Mr O'Dea's deposition that he hadobtained a photograph of the coffee table from the present owner, to whom he hadsold it "more than a year ago", quite independent of and separate to theseproceedings. Mr O'Dea was unable to recall or was unwilling to identify theidentity of the current owner and could not recall why he had requested thephotograph. Mr Murphy described this evidence as fanciful. Thisproposition is supported by Mr O'Dea's subsequent concession that he obtainedthe photograph for the purpose of these proceedings and his action in being ableto obtain the coffee table from the present owner for the purpose of inspection.
292 Mr Murphy accepted the evidence of Mr McCarthy whom he put had notexhibited a tendency to exaggerate in order to assist the Applicant's case. Mr Murphy notes that Mr McCarthy stated candidly his inability to recallwhen the model railway was built, but that it was in the early 1980's. Mr Murphy put that it might have been expected that, given Mr McCarthy'srole in construction of the model railway, he would have had a clearrecollection in respect to it.
293 Mr Murphy noted that Mr McCarthy, unlike some other witnesses, wasprepared to consider that his recollection of the lounge room layout may beinaccurate. Mr Murphy further noted that despite his involvement in theorganisation of and participation in the steam train trip on the South Coastline in 1983, Mr McCarthy conceded that there was more than one such trip peryear in 1982/1983 and that he may be wrong about the trip he recalled with theApplicant and a number of boys, including Daniel Buckley, being on 19 March1983.
The Cooke Enquiry
294 Mr Murphy defended the Cooke enquiry, submitting that Mr Cooke wasa lawyer of considerable experience. Mr Murphy submitted that Mr Cookewas appointed by the Professional Standards Office of the respondent and wasprovided with appropriate information, including correspondence from the NSWOmbudsman to the CCER of 13 August 2002 which contained a summary of MrBuckley's allegations against the Applicant, including the walking in event, andadvice that this could be corroborated by the other student present. Mr Murphy noted that Mr Cooke was informed of the identity of the otherstudent present (i.e. "X") by Mr Buckley and his solicitor during the course ofan interview with them.
295 Mr Murphy submitted that Mr Cooke provided a detailed report inwhich he reviewed all of the material available to him, including thepsychiatric reports of Dr Carolyn Quadrio in respect to Mr Buckley, and thewritten response of the Applicant. Mr Murphy noted that Mr Cooke formedthe view that the evidence of Mr Buckley could not be relied upon unlesscorroborated, and that he considered the statement of "X" to the Police ascorroboration of the walking in event.
296 Mr Murphy submitted that the statement by Mr Nicholas Butler thathe recalled going to the Applicant's house on one occasion in 1983 to watch themovie "Star Wars" was contrary to the Applicant's evidence that he only ever hadchoirboys in his house in the later part of 1984 in the lead up to the trip tothe USA in January 1985. Mr Murphy noted that an affidavit by Mr Butlerwas filed and served in these proceedings but he was not called and theaffidavit was not read.
297 Mr Murphy submitted that the Applicant's record and the unanimoussupport of the parents and complete absence of any further matters being broughtforward by rumour or gossip as a result of the arrest of July 1999, were ofmarginal relevance at best to Mr Cooke's task which was to investigate specificallegations by Mr Buckley against the Applicant, including the walking in eventcorroborated by "X".
298 Mr Neil in response submitted that this approach and dismissal byMr Cooke of any other information concerning the Applicant's character, conductor behaviour was a fatal infection of the Cooke enquiry, rendering it unfair andinvalid.
299 Mr Murphy contended that the reluctance by Mr Cooke to acceptanything from Mr Buckley without corroboration demonstrated a completelybalanced approach to the enquiry which, in Mr Murphy's submission, ifanything, tended to favour the Applicant.
300 Mr Murphy further relied upon the evidence of Father Doherty andhis instruction to Mr Cooke to make direct contact with "X" as a demonstrationof the even handed and fair approach of the investigation by the respondent.
301 Mr Murphy noted that Father Doherty deposed that he took theApplicant's reputation into account when considering Mr Cooke's report. Mr Murphy noted that Father Doherty's evidence also identified the issue ofcorroboration of one another by Mr Buckley and "X" as the turning point in hisdetermination to conclude that the allegation of the walking in event was madeout.
302 Mr Murphy supported his submission that the Cooke enquiry andsubsequent decision making process were fair and reasonable by reference toFather Doherty affording the Applicant a further opportunity to demonstrate thatsuch a conclusion was not sound at a meeting on 31 January 2003.
303 Mr Murphy submitted that neither Father Doherty or Mr Cooke couldbe properly criticised for not obtaining a statement from Mr O'Grady. Mr Murphy submitted that the proposition that Mr O'Grady's opinion shouldhave been sought was ludicrous as the very incident that the Applicant isalleged to have walked in on is the one for which Mr O'Grady was convicted ofindecent assault upon Mr Buckley despite his plea of not guilty. Mr Murphy put that it was most unlikely that anything that Mr O'Grady mighthave offered concerning the incident could be given any weight whatsoever.
304 Mr Murphy refuted Mr Neil's assertion that because theallegations were based on evidence which occurred such a long time ago, therespondent in some way acted unfairly by investigating them. Mr Murphy accepts that the investigation of such events is not a simple task. Mr Murphy emphasised that the jurisprudence which has developed regardingthis issue is entirely based on criminal trials where, he put, it is the libertyof the subject which is at stake and the accepted standard of proof is beyondreasonable doubt. Mr Murphy put that it would be erroneous to apply thesame degree of rigour when assessing evidence of facts in civil proceedings sucha these.
305 Mr Murphy submitted that the Briginshaw approach requiringcomfortable satisfaction that the events occurred is the appropriate test,adding that in application of that test consideration of the respondent'songoing child protection obligations must be born in mind.
306 In reply Mr Neil submitted that the consequences of an adversefinding to the Applicant were the ruin of his reputation and that the conductalleged is of sufficient moral turpitude to warrant the highest standard ofproof. Mr Neil put that the ongoing child protection obligations, whilstimportant and significant obligations, had no relevance to a finding of fact.
307 Mr Murphy submitted that despite the long delay between the eventand Mr O'Grady's trial, he was convicted by a jury applying the beyondreasonable doubt test, having in mind the same concerns enunciated by McHugh Jin Longman. Mr Murphy submitted that in this case the ultimatepersuasion of the respondent was that the walking in event had been rememberedby two boys, albeit in different contexts, independently of each other but bothsaid they were there at the time being indecently assaulted by Mr O'Grady.
308 Mr Murphy submitted that to ignore the conviction of Mr O'Gradyover the evidence of Mr Buckley and "X" would constitute a form of judicialblindness. Mr Murphy invited consideration of this issue in accordancewith s 163 of the Act which provides that the Commission is notbound by the rules of evidence and is to act according to equity and goodconscience and the substantial merits of the case, without regard totechnicalities or legal forms.
309 Mr Murphy put that it is inherently unlikely that both boys wouldhave independently of each other included reference to the walking in event intheir statements, prepared for the purpose of charges against Mr O'Grady, unlessit did in fact occur. Mr Murphy submitted that it is unsurprising andentirely consistent with human experience that one event is remembereddifferently by two people in respect to peripheral aspects. Mr Murphy described the surrounding issues of dinner, the dogs, and television watching,as minor quibbles involving some inconsistency involving television or video,and Mr McCarthy's recollection of Mr Buckley on the train trip, all surroundedthe one consistent recollection of the Applicant walking in on Mr O'Grady, MrBuckley and "X".
310 In reply Mr Neil took issue with the assumption of independentrecollection.
311 Mr Murphy submitted that whilst criticisms of the procedure anddecision making process adopted by the respondent are rejected, he notes thatthe Commission is now placed in a far superior position than the employer at thetime of the decision to terminate the Applicant's employment, given that theCommission now has before it all of the material available to the respondent aswell as additional material such as parts of the transcript of the O'Gradytrial. Mr Murphy submitted that the Commission as also had the benefit ofdirect testimony by "X" under expert and searching cross examination, thoroughlytested on every conceivable aspect of his memory of events.
312 Mr Murphy submitted that on the basis of this substantialinformation and evidence, the Commission should come to the conclusion that itis comfortably satisfied on the balance of probabilities that the walking inevent did occur and therefore the termination of the Applicant's employment wasjustified.
313 Mr Murphy noted that the respondent relied heavily on theproposition that the allegation is inherently improbable and out of characterfor the Applicant. Mr Murphy submitted that these matters were heavilyweighed by Father Doherty, who considered that the more compelling evidence wasthe allegation by Mr Buckley, corroborated by "X".
314 Mr Murphy submitted that it is difficult to weigh the absence ofadverse opinion as none of the deponents to the Applicant's good character hadthe opportunity to observe him in a similar situation.
315 In supplementary written submissions Mr Neil and Mr Murphy debated the principles to be found in the decision of the Privy Council in Attorney General of Hong Kong v Wong Muk Ping  1 AC 501, and theeffect of otherwise on the discussion in R v Hester  AC 296 and R v Kilbourne  AC 729.
316 Mr Murphy referred me also to a decision of the Privy Council in Burut v The Public Prosecutor  2 AC 579, which he put consideredwith approval the judgement of Lord Bridge in Wong Muk Ping at 510applicable to the evidence of all witnesses, not just those from the establishedclasses of "suspect" witnesses:
.... ... that it is dangerous to assess the credibility of the evidence givenby any witness in isolation from other evidence in the case which is capable ofthrowing light on its reliability.
317 Mr Neil in reply takes issue with Mr Murphy's approach,putting that Mr Buckley does not fall into any of the established categories of"suspect" witnesses. Mr Neil put that on analysis by Mr Cooke, Mr Buckleyis found to be unreliable and lacking credit, therefore his evidence cannotcorroborate and accordingly the evidence of "X" must stand alone.
318 Issues of procedural fairness and the conduct of the Cooke enquiry areput with some force by Mr Neil. The Cooke enquiry suffered from a lack ofinvestigation and confusion as to who would be the ultimate decision maker inthe process.
319 I am invited to the inference that the Cooke enquiry took a hasty and illconsidered position adverse to the Applicant due to pressure upon it by theOmbudsman. It is not necessary to determine this issue, as put by Mr Murphy, the Commission is now better placed than Mr Cooke to determinethe central question of fact.
320 The submissions of Messrs Neil and Murphy dealt extensivelywith the appropriate tests to be applied to the evidence and the means by whichrecollections as a child by an adult giving evidence of time elapsed eventsshould be approached. Each acknowledged that the jurisprudence arises frominstructions in jury trials.
321 I acknowledge the utility of these submissions. It is not necessary torecite the jurisprudence in the detail provided, it is sufficient for presentpurposes to note that the test is the civil standard found in Briginshaw, and that the difficulties of distant events and recollections are to beapproached from both directions with extreme care, having regard to the cautionsin Longman and the propensity for action consistent with ordinary humanbehaviour.
322 I acknowledge reference to s 163 of the Act by Mr Murphy. Whilst the Commission is notbound by the rules of evidence, these rules are a useful guide, to be departedfrom in circumstances where consideration of equity, good conscience andsubstantial merit so justify.
323 There is a useful discussion of the relevant principles in respect tosimilar provisions in preceding legislation and the role in Browne v Dunn (1894) 6 R 67 by Hungerford J in Pastrycooks Employees, Biscuit MakersEmployees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No2) (1990) 35 IR 60 where his Honour said at p 68:
In a real sense, of course, the very rule in Browne v Dunn is basedupon the concepts of equity and fairness, and, therefore, the approach which Iam suggesting is quite consistent. In Earl v Slater & Wheeler (Airlyne)Ltd  1 All ER 145 at 150, the National Industrial RelationsCourt in England said in this respect:
"The subsection goes on to provide that this question 'shall be determined inaccordance with equity and the substantial merits of the case'. This does not,in our judgment, mean that the principles of 'equity' as contrasted with the'common law' are applicable as such, but rather that in considering whether theemployer acted reasonably or unreasonably the tribunal should adopt a broadapproach of common sense and common fairness, eschewing all legal or othertechnicality. In other words they should constitute themselves an industrial'special jury'."
The approach of common sense and common fairness towards the reception ofevidence in a case is, in my view, completely consistent with s 83 of the Act, and as referred to by the Commission inCourt Session in PDS Rural Products Limited v Corthorn (1987) 19 IR 153 at 155 and in Amalgamated Metal Workers' Union vElectricity Commission (NSW) (1989) 28 IR 155 at 161, I need only addreference to what Evatt J, as his Honour then was, said in the High Court in R v War Pensions Entitlement Appeal Tribunal; Exp Bott:
"Some stress has been laid by the present respondents upon the provision thatthe Tribunal is not, in the hearing of appeals, 'bound by any rules ofevidence'. Neither it is. But this does not mean that all rules of evidence maybe ignored as of no account. After all, they represent the attempt made, throughmany generations, to evolve a method of inquiry best calculated to prevent errorand elicit truth. No tribunal can, without grave danger of injustice, set themon one side and resort to methods of inquiry which necessarily advantage oneparty and necessarily disadvantage the opposing party. In other words, althoughrules of evidence, as such, do not bind, every attempt must be made toadminister 'substantial justice'." (1933) 50 CLR 228 at 256.
324 It is appropriate, in my view, to approach the present task by firstconsidering whether the evidence of "X" can be accepted over the denial of theApplicant.
325 A consideration of probability where accusation and denial counter eachother must be by consideration of the objective facts available and thesurrounding circumstances in order to determine the probability or otherwise ofan event.
326 Having regard to the length of time between the evidence and the eventsrecalled, the age of "X" at the time of the events, and the lack ofcorroboration, it is unsafe to simply accept what is put. In the absence ofcorroboration the veracity of the testimony by "X" must stand or fall on itsinternal consistency, or lack thereof.
327 Mr Neil relied upon the medical record of "X" as a child, whichrevealed frequent hospitalisation arising from a psychosomatic disorder, tosupport his submission that "X's" recollection of those times is unreliable.
328 It is not possible to disregard the effect of these circumstances inconsideration of the reliability of "X's" recall of events at that time.
329 The circumstances giving rise to the allegation are said to precede asteam train trip, to be held on Saturday, 19 March 1983, for some members of thechoir. The evidence of "X" is that he and Daniel Buckley, due to the remoteresidence of each, were to stay overnight at the applicant's house toparticipate in the train trip. The train was to travel from Central RailwayStation to the Wollongong region ("X" resided in this region at the time), thearrangement being that "X" would complete the forward journey, and on the returnjourney would alight at the station nearest his home.
330 The evidence of "X" is that he and Daniel Buckley were each given a mealand watched some television prior to the event involving O'Grady, andsubsequently remained at the applicant's house, participating in the steam traintrip the next day.
331 The evidence of Mr McCarthy is that a steam train trip was organised forsome choir members, this trip most likely took place on 19 March 1983, and thatMr Buckley participated. Mr McCarthy was not able to directly recall the otherboys participating.
332 Mr Neil challenged the recollection of "X" on the basis that hecould not recall a large model train set measuring approximately 3m x 1m mountedon a table in an area adjacent to the dining room of the applicant's house where"X" deposed that he had taken a meal prior to the alleged offence.
333 I am informed by the evidence of Mr and Mrs Mitchell and Messrs Smith,McCarthy and O'Dea that the large model train set was in the residence in March1983. I find it incredible that an eleven year old boy about to embark upon asteam train trip did not notice or recall the existence of this item.
334 The evidence of "X" is that he recalled two large golden coloured dogs atthe applicant's house on the day of the offence. Mr Neil brought evidencefrom the applicant and others that there were two dogs at the applicant'sresidence in March 1983, though only one of them was golden in colour (the othera dark brown).
335 I am satisfied by the evidence of the Applicant, Mr and Mrs Mitchell andMr O'Dea that the dogs in residence in March 1983 were Tristan, a goldenLabrador cross, and Liobe, a German Short Haired Pointer brown in colour.
The Lounge Room Events
336 Mr Neil further attacked the recollection of "X" in probing thelayout of the lounge room in which the offence was said to have taken place.
337 Mr Neil submitted that the events as described by "X" could nothave taken place without reconfiguration of the furniture, of which "X" gave noevidence or had any recollection.
338 There is substance in this submission, however, it is less likely that aneleven year old boy would take much notice of the furniture in a room, orwhether it had been moved.
339 I accept the submission of Mr Neil that the accounts given by MrBuckley and "X" are so removed from each other that neither can support theother in any way. It is not open to take the only similarity, that of anallegation of a walk in by the Applicant, as proof that a walking in eventoccurred.
340 In Mr Buckley's version there were other boys present, they were inunderwear and there was inappropriate touching by Mr O'Grady. In the versionoffered by "X" only he, Mr O'Grady and Mr Buckley were there, all were naked andparticipating in genital manipulation whilst laying on the floor.
341 I am asked to believe "X", substantially on the basis of his evidencethat the Applicant made eye contact with him whilst in the doorway, creating anindelible memory of that moment. "X" deposed that he held such memory of beingsnapped at by the dog and being naked with Mr O'Grady.
342 I have extreme difficulty in doing so. Had this been the case, I amcompelled to a view that "X" would have an equally indelible memory of themoments immediately after.
343 The evidence of "X" is that all three lay naked on the floor andcontinued genital manipulation at Mr O'Grady's behest. Such a reaction to"discovery" is profoundly counter intuitive.
344 The Applicant presents as a distant and aloof character, unlikely to takeany particular notice of a sacristan and newly arrived students who are yet toestablish themselves in the choir. The position of authority so demonstrated issupported by the evidence of "X" that the Applicant, in the position ofchoirmaster, was adept at motivating and developing members of the choir bybalancing criticism and attention. The position of authority and prominenceoccupied by the Applicant made him a subject of much discussion and conjectureamong the students and any visit to his home a matter of great interest andsubsequent curiosity.
345 I am unable to accept that the appearance of a person "X" describes as anauthority figure to he and Mr Buckley, and on all evidence to Mr O'Grady, wouldfail to provoke an immediate disengagement and a scurry for cover and clothing.
346 The proceedings in the O'Grady trial offer some assistance in adetermination of this matter.
347 Mr O'Grady was convicted and appropriate weight must be given to thefindings of fact by the jury in that trial in assessing the probability of thewalking in event.
348 The testimony by Mr O'Grady before the District Court must be approachedwith extreme caution given his conviction. That is not to say that everythingput by Mr O'Grady must be considered as untruthful or unhelpful in this matter.
349 Mr O'Grady conceded that Mr Buckley and "X" were with him at theApplicant's residence on a Friday night preceding a steam train trip forchoirboys living without a male parent.
350 Mr O'Grady's version is that he drove Mr Buckley and "X" to the residenceand cooked dinner for them. This aspect of events was not challenged at theO'Grady trial
351 The evidence suggests some confusion as to the timing of the trip. TheO'Grady trial proceeded on the basis that this took place in October 1983. Theevidence of Mr McCarthy in this matter is that he organised the trip and, to thebest of his recollection, the trip took place in March 1983.
352 Curiosity arises from the absence of any reference by Mr O'Grady to theApplicant. If Mr Russell was there for dinner, or any other part of the evening,it is more likely that Mr O'Grady would have referred to his presence in his owndefence. The lack of any reference to Mr Russell by Mr O'Grady is consistentwith the position put by Mr Russell that choirboys were never present in hishouse to his knowledge or at any time that he was there, other than in anorganised group prior to the January 1985 USA tour.
353 The suggestion by "X" that the event took place in some proximity to thetrip to Germany by the choir, the absence of any recollection of the modelrailway set, his recall of two golden dogs, the dogs being fed in the kitchen,and the evidence of the Applicant that he was requested to take Mr O'Grady as aboarder by a new Dean on return from the Germany trip, put the events in earlyto mid 1982. Had "X" been in the Applicant's residence in early 1982 he wouldhave seen two golden dogs and he would not have seen the model train set.
354 The assertion by Mr Buckley at the O'Grady trial that Mr O'Grady offeredto put in a good word with the choirmaster to assist Mr Buckley's selection forthe Germany tour, undertaken from 2 January to 29 January 1982, places MrO'Grady at the school in late 1981.
355 The Applicant's evidence that Mr O'Grady boarded with him from late 1982to early 1983 is consistent with his recollection that he was approached to findaccommodation for Mr O'Grady by the Dean in 1982 following his recuperation fromthe Germany tour, but could not recall when during that year.
356 The consideration is not assisted by the fact that Mr Buckley makes noconnection between the overnight stay at the Applicant's residence and the steamtrain trip, and his assertion that following the abuse by Mr O'Grady he did notremain at the residence but was taken to his grandmother's house.
357 The possibility of the event involving "X", Mr Buckley and Mr O'Gradytaking place in 1982 diminishes the probability that the Applicant was in hisresidence on that occasion, or was aware that Mr O'Grady had brought the boys tohis residence in his absence.
358 It is reasonable to expect that in early 1982 the Germany trip was atopic of some interest given that the choir had just returned. By March 1983 itis reasonable to expect that this event had receded, having been overtaken bycontemporary events.
359 The presence of Mr Buckley's grandmother living in the city area isinconsistent with the recollection of "X" that Mr Buckley was also invited tostay over as it was too far for Mr Buckley to travel to his residence in WesternSydney. The detail of recollection proffered by "X" of the walking in event isinconsistent with his failure to recall the other boys on the train trip, whereit went, and Mr Buckley's assertion that he did not stay at the Applicant'sresidence after the event with Mr O'Grady.
360 I am compelled to the conclusion that "X" is mistaken in respect to hisrecollection of relevant events.
361 I accept that an event involving Mr Grady took place at the Applicant'sresidence. The issues of conjecture are when that event took place, whether theApplicant was present, and whether a walking in event occurred. The facts inthis matter are confused as to when the event took place.
362 The evidence brought by the Applicant is one of absolute denial. It isnecessary to put this evidence to the similar test of internal consistency. Thisis a more difficult task as there is little more the Applicant can do butprotest his denial.
363 Internal inconsistencies suggested by Mr Murphy, for example, theconspiracy theory of collusion between "X" and Mr Buckley, arise from pressureupon the Applicant to "offer an explanation". The response to this line ofenquiry is unnecessarily co-operative by the Applicant and cannot be heldagainst him.
364 "X's" knowledge of Mr Buckley being involved in other events with MrO'Grady raises a concern. It was not established that the only source of "X's"knowledge was the O'Grady trial. The propensity for "X" and Mr Buckley to havediscussed events as school children, or for the investigating Police Officer tohave questioned "X" about a walking in event and the Germany trip based oninformation obtained from Mr Buckley, cannot be dismissed.
365 In cross examination "X" conceded that he may have discussed matters withMr Buckley whilst at school but could not recall.
366 The credibility of the Applicant's testimony is supported by the evidenceof Mr and Mrs Mitchell, Mr Smith and Mr McCarthy, all of whom were constant andregular visitors to the Applicant's residence and who are consistent in theirdeposition that choir boys were never at the Applicant's residence.
367 The evidence of Mr O'Dea was overly partisan, to the extent that, in myopinion, it is safer not to rely upon it.
368 Further, in support of the Applicant's credibility, is the absolute lackof further or additional allegation of any conduct that could be remotelyconnected to the alleged conduct or other impropriety. The absolute support ofMs Kennedy, Ms Szady and Ms Vierboom, supported by the petition of 80parishioners directly connected to the choir, is indicative of contemporarystanding which in my view must carry some weight positive to the Applicant whenconsidering the allegations of conduct in 1983.
369 There is a complete silence in respect to any allegation of improprietyagainst the Applicant during his entire career with the choir.
370 The reference by Mr Butler that he had been to the Applicant's residence"to watch videos" is untested. Mr Butler's statement is supportive of theApplicant. There has been no enquiry as to whether the one occasion on which hevisited the Applicant's residence was in connection with the USA tour, or not.
371 Having regard to the internal inconsistencies in the evidence against theApplicant, and the surrounding support for his denial, I am unable to achievethe necessary comfortable satisfaction that the walking in allegation issustained.
372 I am mindful of the principles enunciated in Briginshaw that inestablishing the proof of any fact:
"...the tribunal must feel an actual persuasion of its occurrence orexistence before it can be found. It cannot be found as a result of a meremechanical comparison of probabilities independently of any belief in itsreality. ... ... 'reasonable satisfaction' should not be produced by inexactproofs, indefinite testimony, or indirect inferences.
373 The difficulty encountered in this case is that the proofs are inexact,the testimony is indefinite, and the inferences are largely indirect.
374 I am unable on the evidence to form the requisite belief in the realityof the walking in event.
375 Considering the same evidence, I am able to achieve the necessary levelof comfortable satisfaction that the walking in event did not occur, and that tothe extent this is recalled by "X", it is a reconstruction.
376 I find the termination of the Applicant's employment harsh, unreasonableand unjust. I do not consider reinstatement impractical. Accordingly, I orderreinstatement with restitution of wages and continuity of service for allpurposes.
377 The Applicant is directed to file the necessary Orders giving effect tothis decision within seven days of today's date.
LAST UPDATED: 02/06/2004
Rapist held in 'inhumane' conditions
By Evan Schwarten
November 21, 2006 12:00
A NOTORIOUS serial rapist serving an indefinite life sentence in Queenslandis being held in "inhumane" conditions, his lawyer has said.
Raymond Henry Garland, 35, has been held in isolation since he was jailed in1998 and prison authorities are reluctant to release him into the regular prisonsystem because of his history of sexually assaulting inmates.
His lawyerMarshall Cooke told Queensland's Court of Appeal his client should be placed ona rehabilitation program aimed at progressively moving him out of maximumsecurity.
Mr Cooke said his client's mental health was suffering frombeing held in a small prison cell, with limited furniture, from which he wasonly allowed to leave for exercise for two hours a day.
Garland has nocontact with anyone other than prison workers, a chaplain, legal representativesand Aboriginal elders.
Mr Cooke labelled the conditions inhumane andsaid his client was suffering from depression.
"If you have somebody inthat situation, with no light at the end of the tunnel, that has a detrimentaleffect on the being,'' he said.
Barrister John Logan said CorrectiveServices officers has decided against moving Garland into the regular prisonsystem before of his shocking history, which included sexually assaultinginmates and threatening prison officers.
But Mr Cooke said his clienthad shown "exemplary'' behaviour for the past six years and had not displayedany sign of threatening behaviour.
Garland is serving four indefinitesentences for a string of sexual offences against teenagers, committed while onbail in 1997.
They included kidnapping a brother and sister, afive-month pregnant woman and her boyfriend at Mackay in Central Queensland.
He held the group at gunpoint for five hours while he raped bothfemales.
Garland also abducted and raped a 14-year-old girl in Brisbaneand sodomised a teenage boy.
The three judge panel hearing the case,Justices Margaret McMurdo, Richard Chesterman and
Catherine Holmes, agreedmore should be done to improve Garland's standard of life.
However, theyquestioned whether they had the authority to overturn the Corrective Servicesdecision.
|They reserved their decision.
20 years on and help is still needed
November 21, 2006
THE South West Centre Against Sexual Assault has had to limit the number ofvisits victims can make because of a of lack resources.
But the centre's co-ordinator Helen Wilson said the centre had received extrafunding and put on two new staff members, one full-time and one part-time, inthe past few months.
At its 20th annual general meeting last night it was reported that the numberof visits allowed for those who had been victims of sexual assault was five.
Ms Wilson said this was partly because more people were becoming aware of theservice and how damaging sexual assault was and were seeking help.
``There's increasing recognition that sexual assault can impact very badly onpeople so over the years we're receiving more references, also people themselvesknow more about counselling and there's less stigma, but the increase in fundinghasn't kept pace with that.''
She said over the years more had been discovered about sexual assault andthis had made helping victims increasingly complicated.
``It's a bit like the more we know the more work there is to be done,especially with children.''
Ms Wilson said the extra staff had allowed the centre to resume weekly visitsto Hamilton and provide a visiting service to a Warrnambool school.
The annual report also revealed that sexual assault perpetrators were largelymen and often a parent or sibling of the victim.
In 92 per cent of cases the offender was male, in five per cent female and inthree per cent unknown.
Out of the 135 assaults reported to the centre last year, in 19 cases theoffender was a parent of the victim, in 17 cases a sibling and in 14 astranger.
Ms Wilson said the community could still work on helping to try to preventand respond to sexual assaults.
``It's about holding offenders responsible, it shouldn't have happened but ifit does early disclosure is useful, if a child tells you suspend your disbeliefenough to act and let police and child protection investigate,'' shesaid.
Sex offenders on agenda
The Shadow Minister for Police, Emergency Services and Corrections Kim Wellsvisited Ararat on Wednesday to meet local groups with Liberal candidate forRipon Vic Dunn.
Coincidently, Mr Wells' political opponent Tim Holding was also in Araratannouncing the Bracks Government's plans to build a new Police station in Araratif re-elected.
Mr Wells was in the area to listen to local residents' concerns regarding theplacement of paedophiles in the community.
He slammed the Bracks Government for deceiving the people of Beaufort overits resurrected plans to make Beaufort the paedophile capital of Australiafollowing the state election on November 25.
He said while Labor's `paedophile plan' for the Beaufort community was put onhold earlier this year due to community outcry, Labor's recent changes tolegislation relating to where sex offenders on extended supervision orders canbe housed, have again raised fears that Beaufort is soon to become the dumpingground for Victoria's most notorious child sex predators.
"Labour recently made amendments to the Serious Sex Offenders Monitoring Actwhich were supposedly designed to ensure Mr Baldy could be housed within theconfines of the Ararat prison's grounds, however, the legislation is notexplicitly specific to the Ararat Prison but rather applies to all prisons,"said Mr Wells.
"These legislative changes made by Labor are concrete proof that the originalplans to house paedophiles at Langi Kal Kal prison will be resurrected andauctioned after the state election.
"The people of Beaufort should know that Labour is planning once again tohouse a cluster of paedophiles within the perimeter of Langi Kal Kal."
Man charged over child sex abuse
November 20, 2006 12:00
A 45-year-old man has been charged with sexually abusing four young girls heknew through a West Australian country church.
The man has been charged with sex offences against the four girls, then agedbetween nine and 15 years, between 1976 and 1989, police said today.
"Detectives will allege the man sexually abused the girls while he andhis victims were associated with a country church,'' police said in a statement.
Investigating officers are conducting inquiries to determine if thereare other victims.
Officers said the man was charged with ten counts ofindecently dealing with a child under 13 years, three counts of indecentlydealing with a child aged between 13 and 16 years, and seven counts of sexuallypenetrating a child under 13 years.
He is due to appear in MerredinMagistrate's Court on November 23.
Female teacher in court on 229 sex charges
By Christine Flatley
November 20, 2006 12:00
A FEMALE high school teacher and a young female student regularly met outsideschool to kiss and cuddle during a two-year sexual affair, a court has beentold.
The 26-year-old teacher, who cannot be named for legal reasons, appeared inthe Beenleigh Magistrates Court today for the first day of a three-day committalhearing.
She faces 229 charges of indecent dealing with a young studentover a two-year period starting in 2003 when the girl was just 13.
Shewas not required to enter a plea.
Several witnesses told the court theyhad seen the pair kissing and touching each other.
A woman who had beena trainee teacher at the school told the court her colleague had openlydiscussed her sex life with a person named "Katie" and had admitted they were inlove.
The witness said the teacher later admitted that "Katie" was afalse name and she told the court she was "99 per cent positive" her colleaguehad used the name to conceal the identity of a student.
A male witnesssaid he had seen the teacher and student kissing on the beach at SurfersParadise one night and that the teacher was also touching the young girl'sbreasts.
He said he had also seen the pair having oral sex at a localpark.
A neighbour, 17, who lives near the student said he saw themembracing one afternoon.
"It was two people with their arms around eachother and it certainly appeared to me that they were kissing," he said.
"It definitely wasn't a peck on the cheek."
Another student fromthe school said she saw the teacher try to kiss her friend on a schoolexcursion.
"It was suss and it was strange to me to see our teachertrying to do things," she said.
She said the teacher and her friendwould spend a lot of time together outside of school and that they woulddisappear into an empty classroom most lunchtimes.
The student isexpected to give evidence in closed court tomorrow after an application by theprosecution to prevent her from being cross-examined was dismissed by themagistrate.
Evidently, we forget court's what counts
Greg Ray. Herald. Newcastle, N.S.W.:Nov 18, 2006. p. 2
INNOCENT until proven guilty.
That's the theoretical presumption for people accused of crimes.
The idea is that a fair and unbiased court listens to all the evidence,quizzes
witnesses to see how reliable and truthful they are, weighs up both sides of
the case and delivers a verdict.
If you're guilty you get what's coming to you, but if you're innocent, then
life is supposed to resume as usual.
It doesn't always work perfectly, but it's better than the alternatives.
Bearing all this in mind, some aspects of the case of former Member forSwansea
Milton Orkopoulos have been making me feel a bit uncomfortable.
I'm well aware that the allegations against him that he used public money to
subsidise the drug habits of underage male sexual partners are horrendous.And
I agree that if they are proven then he will deserve stern punishment.
But they aren't proven yet, and however compelling the apparent evidence may
sound at this stage, we've only heard a fraction of the story.
Speaking as a journalist, I seem to spend half my life trying to get lazy,
under-resourced or politicised public authorities to investigate allegationsof
misconduct and bad behaviour of various kinds and to properly punish thosewho
are found guilty. So it goes a bit against my grain to be arguing for more
caution and circumspection over the Orkopoulos matter.
But I am bound to say that I have seen apparently watertight cases against
alleged criminals fall apart in court. I have personally known of behind-the-
scenes briefings by public authorities, putting forward false evidence and
distorted arguments as to why certain people are not to be trusted only to
discover later that the official whispering campaign was maliciouslymotivated.
I'm not saying that's the case here, but it's worth taking a deep breathamidst
all the uproar and remembering that Milton Orkopoulos, like any other accused
person, is entitled to the presumption of innocence.
Appearances to the contrary, the Premier can't find him guilty. Nor can the
police or the media.
He and his accusers will have their days in court, and if the system does its
job he will be fairly judged.
Von Einem question :They call him a model prisoner
The Advertiser. Adelaide, S. Aust.:Nov 20, 2006. p. 14
THE OPPOSITION has demanded to know why the State Government was not aware of
the 20-page signed statement of a prisoner, which alleged convicted sexkiller
Bevan Spencer von Einem had been prescribed a Viagra-like drug in prison.
Leader Iain Evans asked why the Government only learned of the incident on
Friday through the media.
The statement alleged von Einem sexually assaulted the inmate over 18 months
and described how von Einem showed him the tablets before one violent sexual
Lake's murky waters; History of sex scandals, unanswered questions
ANNE DAVIES and ANDREW CLENNELL - SMH. Herald. Newcastle, N.S.W.:Nov 18,2006. p. 21
THE latest child sex charges against former Labor minister, MiltonOrkopoulos,
and his campaign worker, Pat Roughan, have focused attention on LakeMacquarie
Council and the effectiveness of local police.
The council has had its fair share of scandals.
In 1996 a former mayor, Doug Carley, was convicted of indecently assaulting a
15-year-old boy. Mr Carley maintains his innocence saying he did not have the
money to contest the offence and that led to his conviction. Mr Carley also
suffers from bipolar disorder, a factor colleagues believe was relevant tohis
Then in 2002, scandal engulfed the council again when former Labor councillor
Chris Foteff left after gay and bestiality porn was discovered on hiscomputer,
supplied by council.
The pornography was only found when the council engagedPriceWaterhouseCoopers
to follow the porn trail and their team managed to recover 5000 deleted porn
images from Foteff's laptop, including 10 depicting naked children and about
250 showing acts of bestiality.
An earlier police investigation had failed to find any images that warranted
prosecution. It appears the police made the decision not to send the computer
to Sydney for technical analysis and relied only on what they could retrieve
and copy themselves.
Chris Foteff, who followed Milton Orkopoulos onto the council as a Labor
councillor, has always maintained his innocence and said he was the victim ofa
But reopening the investigation in the wake of the PWC report proveddifficult,
as the policeman who had investigated the porn find the first time, Detective
Chief Inspector Ken Henderson, had committed suicide in October 2002.
Lake Macquarie Mayor, Greg Piper, recalled police could not prove beyond
reasonable doubt that images on Mr Foteff's computer were of "under-age" men
and they were also affected by a statute of limitations.
It was reported at the time that Detective Henderson had shot himself withhis
service revolver at Charlestown police station soon after receiving a mystery
He had just returned from a trip to Sydney on official police businessbelieved
to be connected to a Police Integrity Commission Inquiry.
There was no suggestion Detective Henderson was under investigation forcorrupt
conduct but, as there was no coronial inquest, it remains a mystery.
Mayor Piper said he did not believe those incidents or charges against aformer
councillor, Milton Orkopoulos, affected the reputation of the council. But he
said the incidents were "unfortunate".
"The reality is they have occurred over a long period of time," Cr Pipersaid.
He said if people "cast back and clump them together" it made the situation
look worse than it was.
But there had been other complaints about police inaction on child sexual
assaults at the Lake Macquarie local area command.
In March 2001, Senator Bill Heffernan read a letter from a Charlestown woman
into Hansard, detailing her concern about the lack of action taken by police
against the abusers of her sons.
That the abuse had occurred was not questioned her nine-year-old son required
surgery after the abuse.
"No charges have ever been laid," she wrote. "After three years of
investigation from the Ombudsman's Office, Mr Bruce Barber (sic), finally
intervened and asked for an investigation as to why no interviews and charges
have ever been laid in relation to this," she said. SMH
Abuse case quash bid Claim key evidence withheld
Nigel Hunt. The Sunday Mail. Adelaide, S. Aust.:Nov 19, 2006. p. 33
LAWYERS acting for a prominent Adelaide legal identity facing nine child-sex
offences will next month try to have the case quashed.
The man's lawyer, Michael Abbott QC, told the Adelaide Magistrates Court this
week he would be pursuing a stay of proceedings in the case.
He told District Court Judge John Herriman, who is presiding over the case in
the Magistrates Court, that difficulty in obtaining documents from police
needed to prepare his client's defence amounted to "an abuse of process".
Mr Abbott said the defence had sent a letter to the prosecution on October 10
requesting 51 documents and other material for examination.
On October 27 he had received a response stating the letter had beenforwarded
to police, but no documentation had been forthcoming.
Prosecutor Rosemary Steen told the court "a large proportion of the material
requested" was video tapes and photographs.
She said this "continued to be examined by police for evidentiary value" and
the lack of response to Mr Abbott's letter was "not a case of inaction by
"The Pedophile Task Force is swamped with work," Ms Steen told the court.
"It is the Director's submission that the material already filed issufficient
for a case to answer."
Judge Herriman said he was concerned at the situation and urged theprosecution
to apply "greater focus" in providing documents to Mr Abbott.
The accused legal identity, who cannot be identified, is facing nine charges
including one count of rape, five counts of indecent assault and three counts
of unlawful sexual intercourse involving street kids who were aged 15 and 16.
The man was charged in August after a lengthy investigation by Pedophile Task
Force detectives, launched after several alleged victims told the Sunday Mail
about their involvement with the legal identity. The alleged victims alsogave
evidence to the inquiry into the abuse of state wards being conducted by
retired Supreme Court Justice Ted Mullighan QC.
Mr Abbott told the court he had already subpoenaed the investigating officerin
the case and was preparing to issue other subpoenas, including one to Police
Commissioner Mal Hyde, to provide additional documentation in connection with
Mr Abbott said a subpoena faxed to the investigating detective in the case on
November 10 had not been answered.
Ms Steen said she was unaware if he had received it and had not been advisedby
police this had occurred.
Judge Herriman granted a prosecution request for another month to provide all
documentation to the defence, ordering this be done by December 11.
He adjourned Mr Abbott's stay of proceedings application for hearing on
Girls, 14, raped by gang
Carly Crawford in Melbourne. The Sunday Mail. Adelaide, S. Aust.:Nov 19,2006. p. 22
A GANG of youths of Middle Eastern background raped and assaulted two14-year-
old girls near a Melbourne train station, then threatened to kill them.
The gang of six, aged 16 and 17, staged an elaborate stunt to lure their
victims to an isolated industrial area where they took it in turns to violate
The mob laughed as they forced themselves on their terrified victims,demanding
sex in exchange for a mobile phone they had stolen from the girls.
Prosecutors are pursuing four of the boys on 21 charges including rape,
indecent assault, procuring sex by threats and intimidation, making threatsto
kill and sexual penetration of a child under 16. All four entered guiltypleas
in a Children's Court.
It is understood one of the boys also raped another girl two months beforethe
gang rape, which happened in April, 2005.
He was found guilty of the first rape count.
Police allege the girls, from country Victoria, boarded a train at Flinders
Street station about 5.30pm.
The six youths boarded the train and one of the boys struck up aconversation.
When the girls got off the train at Brunswick's Anstey station the gang
One attacker allegedly put his hand up one victim's skirt before stealing her
mobile phone. The girls escaped, but soon after one received a phone callfrom
a gang member who said he had the phone.
He said they could collect it from Anstey train station as long as he got
"something in return".
The girls returned to the station from where the group led them to a nearby
industrial site and then demanded sex in exchange for the phone.
One offender, charged with four counts of indecent acts, has already been
placed on probation for one year.
The remaining three are due to be sentenced in January.
Details of the shocking assault come only weeks after Muslim cleric Sheik Taj
Din al-Hilali said women who exposed their skin incited rape.
$100,000 reward to solve girl's murder
EAMONN DUFF. Sun Herald. Sydney, N.S.W.:Nov 19, 2006. p. 10
A REWARD of $100,000 was posted yesterday by police determined to crack an
unsolved teenage murder.
Michelle Pogmore, 13, was found dead in a bushland reserve 400 metres from
Mount Druitt police station on February 22, 2004.
The teenager had been reported missing by her mother after failing to returnto
her Bidwill home. She was last seen 36 hours earlier after attending a nearby
Strikeforce Icework was formed to investigate the murder but detectives have
exhausted all leads.
Police Minister John Watkins said yesterday he hoped the six-figure reward,
recommended by the NSW Coroner, might persuade people with information tocome
"This was a particularly heinous crime," he said. "This young lady's life was
cut short in its prime and her killer or killers are still at large. Theyneed
to be held to account for their actions and Michelle's grieving family needs
At an inquest at Westmead Coroner's Court in February, it was revealedMichelle
had been a troubled teenager who had battled attention deficit hyperactivity
disorder, experienced mood swings and showed difficult behaviour.
She had repeatedly run away from home, got into fights and skipped school.But
she was undoubtedly bright, loved to read and was trusting of almost everyone
Detectives had investigated a possible link between Michelle's murder and a
rape she suffered several weeks beforehand. She had confided to an uncle thata
man aged between 50 and 60 was responsible.
Police launched a manhunt but never found the offender.
NSW deputy state coroner Carl Milovanovich was unable to determine a definite
cause, time or even place of death.
JAIL PILL FURY Potency drug for Von Einem
Nigel Hunt. The Sunday Mail. Adelaide, S. Aust.:Nov 19, 2006. p. 1
CONVICTED sex killer Bevan Spencer von Einem has been prescribed aViagra-style
drug in prison, sparking outrage from the State Government.
Health Minister John Hill said yesterday he was "furious" at the revelationand
had immediately banned such drugs in SA prisons.
He has also ordered the Crown Solicitor's office to investigate whether any
laws or internal regulations have been broken by the doctor who prescribedthe
erectile dysfunction drug to von Einem.
The doctor, who cannot be named for legal reasons, was suspended lateyesterday
by Health Department chief executive Tony Sherbon while the inquiry is
Mr Hill acted after being told by the Sunday Mail that evidence provided to
police as part of a rape inquiry involving von Einem indicated he had been
prescribed the erectile dysfunction drug Cialis in 2003.
Confirmation of this by Mr Hill provides even more evidence of preferential
treatment towards von Einem, who was convicted of the murder of RichardKelvin
in 1983. He is eligible for parole in 2008.
Continued Page 12
Von Einem jail pill fury
From Page 1
Cialis is identical to Viagra but more potent. A 20mg dose is comparable to a
100mg dose of Viagra.
When briefed by his departmental officers on Friday night after returningfrom
Sydney, Mr Hill said he was angered and found it "hard to imagine anythingmore
"I think the community will be outraged, as I am," he said. "I couldn'tbelieve
the appalling judgment of the doctor who made the decision to prescribe
convicted murderer and deviant von Einem with a Viagra-type drug three years
"I believe it is the biggest lack of judgment possible from a professional ina
position of trust in an institution.
"I was furious when informed of this and I deeply regret any distress thiswill
cause to victims' families.
"I just cannot fathom why any doctor would believe this was a good idea."
Mr Hill said the drug was prescribed to von Einem by the prison healthservice
"without the knowledge of prison authorities" for three months in 2003.
"When I was informed of this outrage I asked the deputy Crown Solicitor to
conduct an investigation and advise whether there had been any breach of the
law or regulations or whether there had been any improper or unprofessional
conduct by an employee," he said.
Mr Hill said erectile dysfunction medication had only been prescribed twicefor
prisoners. The first occasion was to an unnamed prisoner who was about to be
released in 2001, and to von Einem in 2003.
"No prisoner will ever be prescribed any such drug again in SA's prison
system," he said.
The doctor's actions are revealed in a police statement made by a prisonerwho
alleges von Einem sexually assaulted him over a period of 18 months.
The inmate's 20-page signed statement, which has been obtained by the Sunday
Mail, was taken by Sexual Crime Investigation Branch detectives.
In the statement the inmate describes how von Einem showed him the Cialis
tablets shortly before one violent sexual assault.
He says von Einem had called him into his B Division cell and said "look what
I've got" and "he showed me a box of tablets that were called Cialis".
"I had a look on the box and it had an exact description of what Viagra does.
. . ," he says.
He said von Einem hid the tablets behind his stereo and he named the doctorwho
had prescribed them.
The inmate's mother said last night she was "dumbfounded that any prisoner,let
alone von Einem, was given a drug to encourage sexual activity in prison."
"Why have they given a sexual predator a Viagra-type medication in prison?"she
"I assumed people with a sexual dysfunction would be given drugs to stop this
type of activity. Now we find he has been given a drug doing just theopposite.
"What the hell is going on in there with von Einem?"
The inmate's statement also details how von Einem allegedly told the inmatehis
mother could be "got" unless he co-operated with him.
He says von Einem had told him just prior to the first sexual assault: "I am
going to have my way with you and if you don't return the favour your motheris
going to be visited by some friends and got."
The inmate says von Einem had repeated the threat over the next 18 months as
the assaults continued.
It is understood the police inquiry is in its final stages and the file is
likely to be forwarded to Director of Public Prosecutions Stephen Pallaras QC
for adjudication shortly.
SCIB officer-in-charge Detective Superintendent John Venditto yesterday
declined to comment on the police inquiry on the basis of provisions in the
Evidence Act concerning sexual offences.
The police investigation is separate to an internal inquiry being conductedby
Correctional Services into numerous prison officers who have been purchasing
artwork from von Einem.
Sexual predator gets suspended sentence
A South Australian District Court Judge says low intelligence and mid-lifeboredom does not justify the crime of a man who used the Internet to lure ateenage girl to meet with him for sexual activity.
The man's teenage victim turned out to be an adult police officer workingundercover.
In May 46-year-old Phillip Joseph Holman met what he thought was a teenagegirl on the Internet and sent her naked images of himself.
He arranged to meet her and took steps to disguise his identity, but wasarrested by police at the meeting point.
Holman's lawyer told the court his client was merely curious and had intendedto warn the girl.
He explained the false number plates on Holman's car were there in case hewas caught speeding.
Judge Dean Clayton jailed Holman for two years and three months, with an18-month non-parole period, but suspended the sentence by what he called thebarest of margins.
Holman agreed to a three-year good behaviour bond and walked from court withhis wife.
Under-age sex predator avoids jail
SEAN FEWSTER, COURT REPORTER
November 20, 2006 02:26pm
A MAN who set up a sex rendezvous with a teenage girl - unaware his would-belover was actually a police officer - has narrowly avoided going tojail.
A District Court judge today agreed to suspend Phillip Joseph Holman’stwo-year, three-month jail term because the 46-year-old had "learned hislesson".
Holman pleaded guilty to one count of procuring a child to engage in sexualactivity in May of this year.
While suffering a mid-life crisis, Holman met a 13-year-old girl in aninternet chatroom, seduced her by displaying his genitals over a webcam andsuggested they meet for sex in his car.
Carrying a mobile phone bought under a false name, and with fake licenceplates attached to his car, Holman went to rendezvous with his would-be lover.
Instead of a teenager, he was met by a police officer – who had conducted asting operation – and was arrested.
In court today, Judge Dean Clayton said the only "fortunate aspect" ofHolman’s offence was that "there is no actual victim".
"Your conduct was a combination of low intelligence and a mid-life crisis,leading to a spontaneous decision to engage in an adventure which was anexercise in poor judgment," he said.
Holman had claimed to have good reason for his crime, saying he had nointention of having sex with the girl and only wanted to "give her a warning".
The false licence plates, he said, were in case he was "caught speeding".
Judge Clayton rejected that, saying Holman had displayed his genitals for 20minutes of the 50 minute chat.
"Your interest was certainly sexual ... the talk got down to sex with speedand without niceties," he said.
Asked to suspend the sentence, Judge Clayton said it was "a difficultmatter".
However he agreed to do so because of Holman "had learned his lesson", wasremorseful and had no history of offending.
He ordered Holman serve a three-year, $1000 good behaviour bond and perform200 hours of community service.
'Real killer' known to Leanne's family - Cousin breaks silence to haltStafford deportation
DARRELL GILES. The Sunday Mail. Brisbane, Qld.:Nov 19, 2006. p. 17
A RELATIVE of murder victim Leanne Holland says her convicted killer Graham
Stafford is innocent.
It is the first time in 15 years that a member of Leanne's family hassupported
Stafford's claims he was jailed for a crime he did not commit.
"I and many others in our family, as well as many friends, have alwaysbelieved
in Graham's innocence," the girl's cousin Beverley Miller said yesterday.
"We always believed that eventually the guilty person would be brought to
"Now we are concerned that this young man is to be deported to prevent thereal
culprit from being brought to justice."
Stafford, 43, who always maintained his innocence, was jailed for life in1992
for the rape and murder a year earlier of the 12-year- old from Goodna in
He was given early parole in May this year and his family and supporters
immediately stepped up their campaign to get the State Government to pardon
But The Sunday Mail last week revealed English-born Stafford had suffered a
major setback, with the Immigration Department threatening to deport him.
He was given until Thursday to convince them he should be allowed to stay but
sources say immigration officials are likely to delay making a decision until
Stafford's legal team has put his petition for a pardon to the State
Immigration officials contacted the office of Queensland Attorney- General
Kerry Shine and inquired about timing of the petition.
Stafford's legal team is working frantically to complete the detaileddocument,
which is seen as a final bid to clear his name.
Mrs Miller, of Silverdale, southwest of Ipswich, said Stafford's deportation
battle prompted her to break her silence over her cousin's murder.
She said it would be a "gross miscarriage of justice" if Stafford were kicked
out of the country.
Stafford "did not commit the crime".
"We as a family have our own theory of who was involved. But we have no
evidence," she said.
Mrs Miller identified a known police informant who was connected to theHolland
family as the most likely suspect.
"It's just a gut feeling . . . he was determined to do some damage to the
family," she said. Mrs Miller said family members believed Stafford had been
She said family members had been discouraged from speaking out.
But Leanne's father Terry remains convinced Stafford is guilty.
"I believe he is absolutely guilty. That's all I've ever said," Mr Hollandtold
an Ipswich newspaper.
Judge overruled on reduced rape compo
PETER HANSEN. The Sunday Mail. Brisbane, Qld.:Nov 19, 2006. p. 41
THE State Court of Appeal has reversed the decision of a north Queenslandjudge
who halved a compensation award to a teenage girl raped by her stepfather,
because he had sexually abused her previously.
Women's groups were outraged by the original ruling, based on the fact the
Crown had elected to prosecute only the rape charge and not charge the manover
earlier lesser sex abuse.
Townsville District Court judge Clive Wall, QC, in September cut the girl's
criminal compensation payout by 50 per cent, ruling that part of her
psychological problems could be put down to the earlier abuse she suffered.
The court was told she was 14 at the time of the rape. It was alleged therape
was the culmination of years of abuse which began when she was 10.
Her stepfather was convicted of one count of rape and jailed in 2003 for five
Judge Wall said that the girl had told police she had been abused by her
stepfather over a number of years but the man had not been convicted of these
offences, only the rape.
He said the amount of compensation for post-traumatic stress disorder and
adverse effects she later suffered should be reduced by 50 per cent becauseit
was impossible to divorce the psychological impact of the sexual abuse fromthe
effects of the rape.
The Court of Appeal's Justice Cate Holmes, said there had been a miscarriagein
the exercise of the judge's discretion.
The uncharged acts were part of a course of similar and reprehensible conduct
of which the rape was the culmination.
Also (overlooked) was the fact that the child was powerless, both in thecourse
of what happened to her at the hands of the man, and also in what seemed to
have been a "relatively arbitrary decision" not to charge the stepfather with
the earlier abuse.
The court on Friday reinstated the full amount of compensation,$42,750.
CSI Adelaide SEXUAL ASSAULT Predator lurked in bushes Armed, naked manambushed teenager
The Advertiser. Adelaide, S. Aust.:Nov 18, 2006. p. 51
THE peacefulness of the Para Hills Reserve was shattered earlier this month
when a violent sexual predator lay in waiting for a victim to approach.
Hiding behind bushes while waiting for the unsuspecting victim, the offender
removed his clothes in broad daylight and armed himself with a knife.
As a teenage girl walked by, the predator leaped from the bushes and attacked
Police said the man threatened the girl with the knife before raping her.
"The type of sexual assault carried out was violent and caused the victim,aged
in her early teens, serious psychological trauma," Detective Sergeant Simon
Bell, from the Sex Crimes Branch, said last week.
"We believe the offender had taken his clothes off and was laying in wait in
bushes for a victim to approach, then he pounced. The girl screamed duringthe
attack, which was over fairly quickly, and then the offender fled back to his
clothes, dressed and took to the streets."
The man remains on the loose, with police concerned by the brazen nature ofthe
attack and level of violence used. The attack occurred near Murrell Rdbetween
4.30pm and 5pm on Friday, November 3.
The attacker, who police do not believe was drunk or drugged, was last seen
running north through the reserve towards Severn Court, Para Hills. Police
patrols, a helicopter and sniffer dogs searched unsuccessfully for the manfor
several hours after the attack.
Given the terrain in the reserve, police believe the attacker was familiarwith
the area, which helped him avoid arrest.
The wanted man was described as Caucasian, aged about 25, 182cm tall withbrown
spiked hair, a brown moustache, goatee beard and dark brown eyes.
The victim helped police compile a computer generated image of herattacker.
Molester fought urge School uniform thief considers chemical castration
Shelley Hodgson, County Court reporter. Herald Sun. Melbourne, Vic.:Nov 17,2006. p. 15
A CONFESSED pedophile stole school uniforms to avoid more serious contactwith
children, a court has heard.
And Joseph Edward Poley, 47, is expected to consider chemical castration to
deal with his urges, a judge was told.
The County Court in Ballarat heard yesterday that Poley kept a notebook of 57
boys' addresses, along with physical features he found attractive.
The notations included "hot blonde and nice boy" and "little sweety".
The boys were estimated to be aged 7-11.
The court heard that Poley had never intended to meet the children.
Prosecutor Carolene Gwynn said Poley told police he regularly looked forphotos
of boys in newspapers. He would then look up their addresses and walk his dog
Poley also stole more than 50 pieces of school uniforms from seven Ballarat
primary schools, some belonging to children in his book.
Poley walked past the schools out of hours and saw the clothing left behind.He
then returned in the early hours of the morning to get it.
Ms Gwynn said Poley wore the clothing and admitted being sexually attractedto
"The theft is clearly motivated by a need for sexual gratification, whichfinds
its source in children of primary school age," Ms Gwynn said.
Poley arranged the uniforms in his wardrobe into school groups.
Forensic psychologist Ian Joblin reported that Poley had a serious psycho-
Defence counsel John Goetz said Poley had told Mr Joblin he knew he had an
inappropriate interest in children and took the clothes to try to deal withit,
almost as a diversion to doing other more serious things.
When arrested in May, Poley told police he was glad they'd caught him because
he did not know how much longer he could control his urges.
Mr Goetz said Poley began visiting a local school to cope with the loss of a
"deep friendship" with a young boy.
When he came across a discarded piece of clothing, it reminded him of this.
Collecting clothes developed into an obsession.
Mr Goetz said Poley was attuned to his sexuality by the age of 12 or 13, but
his sexual fantasies had not developed past that point.
He said Poley would explore the possibility of chemical castration: "Hethinks
that would be a very appropriate course and he will explore that at the
Poley, formerly of North Ballarat, pleaded guilty yesterday to seven countsof
theft and seven counts of being a sexual offender loitering near a school
without lawful excuse.
The court heard that Poley had a serious alcohol problem and at one stage was
He has previously been sentenced for indecent assault, loitering near aschool
without reasonable excuse, and stalking.
The Ballarat Magistrates' Court heard earlier this year that during a searchof
Poley's house in May, police also found 78 pairs of boys' underwear, 47 pairs
of girls' underwear, photos of children from nature magazines, and a poster
that read: `Happy Birthday 11- year-old!!! Love you!!!".
Judge Frank Shelton will sentence Poley, who is in custody, today.
Courage to heal a cancer of the soul
Phillip Aspinall. Weekend Australian. Canberra, A.C.T.:Nov 18, 2006. p. 26
The Anglican Church is reaching out to victims of abuse, writes Phillip
LAST weekend a newspaper headline said I had "failed to act" on sex abuse.That
is not true. The headline accompanied a story on Robert Sharwood, a priest
jailed this month for having abused a boy in the 1970s.
In January 2002, within 24 hours of the victim making a complaint against
Sharwood, the matter was reported to police. Sharwood was immediately stood
aside. He was sacked after an assessment found the victim's report was true.
After becoming Brisbane's archbishop in February 2002, I called anindependent
inquiry into allegations of past mishandling of abuse complaints and opened
more than 150 cases for re-examination.
Last weekend, in discussing the 2002 actions taken, at no stage did I want to
deny the victim's pain or add to it. Rather, I wanted any remaining historic
victims of church abuse to know basic actions that the church and I took.
That the church took decades to take appropriate action in this case cannotbe
forgotten, however. I entirely regret that church leaders who were told ofthis
abuse in the '70s didn't tell police and that proper action against the
perpetrator wasn't taken.
I regret that this no doubt deepened the pain of the victim and his family.And
I regret that trust has been so damaged as a result.
A decade or more of revelations made by victims has brought into focus the
damage inflicted by child abuse and the tragic failures of past practices in
many churches, government institutions and community groups. Thankfully,there
has been radical change.
The first decade of this new millennium has been a period of sackcloth and
ashes for all institutions soiled by historical abuse. While responses have
improved enormously, we have to accept that another consequence of past abuse
is loss of trust between church and the community. Victims shouldn't beasked,
and cannot be expected, to forget that the church got it very wrong in the
past. While the large-scale and ongoing changes to our procedures show our
resolve to tackle abuse, they give us no automatic right to victims' trust.
Some victims may be too hurt and angry to trust us again. That is sad but
understandable, even when proper actions are being taken now. Certainly the
Australian community wants us to prove we've changed.
I recognise that there will be times when even the best processes, appliedwith
the utmost goodwill, sometimes break down. Such failures don't mean thesystem
has failed or that the bad old days have returned. They do show human beings
But the true test of change, I believe, is not that mistakes don't happen but
that church leaders are prepared to do what we can, when we can, to remedy
Church workers giving all they have to respond properly to victims of abusecan
despair in the face of unfounded criticism. When it feels to them as ifnothing
they do is ever enough, I remind them that continuing suspicion is another
legacy of past abuse.
The fact perpetrators hide behind facades such as popularity, good works and
community achievements can lead to deep conflict within church communities.
There is a small, albeit significant, number of church people, including
priests and senior laypeople, who believe I have been too harsh in dealingwith
people accused and found guilty of abuse. My staff and my wife have been
shocked and hurt by some attacks. This is another element of the complex and
far- reaching effects of abuse.
The bravery and dedication of victims to reveal the truth has been a godsendto
the church. That is not to say it is without pain but to acknowledge publiclya
long-held private belief. Were it not for victims' courage, abuse probably
would have continued, a cancer in the soul of the church.
Those who have revealed abuse, and persisted when ignored, have enabled aslow
process of healing to begin for themselves and for our institutions. As we
heal, we become fitter and better able to assist others, including Australian
families, where most abuse occurs.
Like most people, both within and beyond the church, I have travelled a steep
learning curve this past 10 years. I've been humbled by victims' stories.I've
seen the manipulations of pedophiles and learned that the most dangerousthing
is that they keep their crimes secret, that they hide behind a facade that
appears good, caring and trustworthy, and that they often have many victims.
Things in the church have changed greatly and are continuing to change forthe
better. Our protocols in handling child abuse cases are good, are working and
are being improved. Many complaints have been dealt with. The number of old
complaints still emerging has dramatically reduced.
I hope the openness of recent years that has helped so many historic victimsto
come forward may continue to encourage any remaining victims to do so aswell.
We will continue to work at increasing awareness, at healing past hurt and at
protecting today's children and tomorrow's.
Phillip Aspinall is the Anglican Archbishop of Brisbane.
Charged for child assault
Townsville Bulletin. Townsville, Qld.:Nov 17, 2006. p. 7
A MAN was arrested in Townsville this week for allegedly sexually assaultinga
The 41-year-old South Townsville man was charged with one count of indecent
dealing with a child when police arrested him on Wednesday.
Child Protection and Investigation Unit officer-in-charge Detective Senior
Sergeant Cheryl Scanlon said police would also examine a computer that was
seized from the man's address.
Sen-Sgt Scanlon said police investigations were continuing.
The man was granted bail when he appeared in Townsville Magistrates Court
He was ordered to return to court to face the charges on November 29.
Accused predator out on bail
Jasmin Lill. The Courier - Mail. Brisbane, Qld.:Nov 18, 2006. p. 29
A GRANDFATHER accused of taking photographs of himself raping hiseight-month-
old granddaughter has been released on bail.
The 67-year-old appeared in custody in the Brisbane Magistrate's Court
yesterday charged with two counts of rape and four counts of indecenttreatment
of a child.
Detectives from Taskforce Argos also have charged the disability pensionerwith
making, possessing and distributing child exploitation material.
In opposing bail, Sergeant Tina Green said police had found photographs ofthe
man raping the baby which had been taken by him on his digital camera.
Other images captured his granddaughters -- now aged 3 and 4 -- in
"compromising positions", Sgt Green said.
She said the man had the potential to reoffend if he was released.
But defence lawyer Chris Callaghan said his client had no criminal historyand
would not go near his grandchildren.
Magistrate Noel Nunan released the man on bail.
He ordered him not to have any contact with his granddaughters and that he
reappear in court in January.
Brave speaker named for top honour
The Centralian Advocate. Alice Springs, N.W.T.:Nov 14, 2006. p. 8
SPEAKING out about the scourge of violence and abuse in Aboriginal communities
has led to Alice Springs-based NT prosecutor Nanette Rogers being nominated in
the Australian of the Year awards.
Dr Rogers has been the Crown Prosecutor in Alice Springs for more than 12 years
and has been committed to indigenous and social justice issues since her days
as a young solicitor in Sydney's Redfern area.
The accumulated effect of defending men who abuse women and children weighed
her down and she became a prosecutor and coordinator of a Victims Support Unit.
In doing research for her doctoral thesis, she identified the emphasis placed
on customary law in placing the offender in the best light, at the expense of
the voice of the victim.
She found that violence against women and children had become entrenched in
many communities and that many crimes go unreported, the victims too afraid to
Dr Rogers took the difficult decision to release her findings in May to raise
awareness of this crucial social and legal issue.
Almost six months after the release of her work prompted debate about the
sensitive issue of indigenous violence she joins Charles Darwin University
researcher David Bowman, Menzies School of Health researcher Bart Currie and
Nhulunbuy teacher Raymattja Marika as the Territory finalists.
In May Dr Rogers said: "Violence is entrenched in a lot of aspects of
Aboriginal society here."
Her comments embarrassed the NT Government, which was accused of not doing
enough to prevent abuse.
But her interview sparked a passionate and bitter national debate.
Federal Indigenous Affairs Minister Mal Brough clashed with NT Chief Minister
Clare Martin when he suggested "paedophile rings" operated in some communities.
Mr Brough later called a national summit to discuss law and order, while Ms
Martin established an inquiry into the abuse of children in remote communities.
Dr Rogers was unwell and could not comment on her nomination. She has not
spoken publicly since the Lateline interview.
The state and territory winners of each category -- Australian of the Year,
Senior Australian of the Year and Young Australian of the Year -- will be
announced next month before the national winners are named on Australia Day in
There is a judging panel of 17 people to determine the Territory winner.
Court hits delay in ex-senator's case
LINDSAY MURDOCH. The Age. Melbourne, Vic.:Nov 17, 2006. p. 7
A NORTHERN Territory magistrate has criticised delays in the hearing ofchild-
sex charges against former federal Labor minister Bob Collins, saying his
alleged victims "need their day in court".
Magistrate Daynor Trigg said Collins could appear in court via video linkfrom
hospital if he was too unwell to attend a committal hearing into the 21charges
that he set for hearing in April next year. "You cannot avoid a hearingbecause
of ill health," Mr Trigg told the Darwin Magistrates Court yesterday.
Adelaide surgeon James Sweeney told the court in a letter that Collins, 59,had
had several operations since August after being diagnosed with cancer, butthat
he expected him to make a full recovery.
Collins was charged in January 2005 with offences dating back to the 1970s,
when he was a market gardener in the indigenous community of Maningrida, 500
kilometres east of Darwin.
This September, Collins was charged with three more child sex offencesagainst
a 12-year-old boy in Canberra in 1989 when he was a Labor senato for the
The Canberra charges have been adjourned until December 5.
Collins also faces a Northern Territory charge of possessing childpornography.
No date has been set for this to be heard.
Collins denied all the charges in a statement released in September.
Police reveal image of man wanted over child sex attack
ABC Regional News. Sydney:Nov 17, 2006. p. 1
Police have released an image of a man they want to talk to over a sexual
assault on a 13-year-old girl in Bendigo two months ago.
Detectives are appealing for witnesses to the incident at a concert at theold
fire station in View Street on September 4.
They say the girl was behind the building when she was sexually assaulted bya
man who held a knife to her throat.
The man is described as Caucasian, aged 18 to 19, tall with long, straight
black hair and piercings through the bridge of his nose and lower lip.
Kill threat to raped teens
November 19, 2006 12:00am
FOUR youths of Middle Eastern background have pleaded guilty on chargesincluding the rape and sexual assault of two 14-year-old Caucasian girls near aMelbourne train station.
It is alleged that one of the gang members later threatened to kill thevictims for reporting the attack to police.
Four boys in the gang of six are facing 21 charges including rape, indecentassault, procuring sex by threats and intimidation, making threats to kill andsexual penetration of a child under 16.
All four have entered guilty pleas in a Children's Court.
It is believed the gang of six, aged 16 and 17, staged an elaborate stunt tolure their victims to an isolated industrial area where they took it in turns toviolate the girls, who tried to resist.
The mob allegedly jeered and laughed as they forced themselves on theirterrified victims, demanding sex and sexual favours in exchange for a mobilephone they had stolen from the girls.
One of the gang later vowed to find and kill the victims for reporting theattack to police.
The Sunday Herald Sun believes one of the boys also raped another girltwo months before the gang rape, which happened in April last year in Brunswick.
He was found guilty of the first rape count and entered a guilty plea to thealleged gang rape.
The law forbids the Sunday Herald Sun naming the attackers becausethey are under the age of 18.
Police allege the girls, from country Victoria, boarded an Upfield train atFlinders St station about 5.30pm.
Police allege the six youths boarded the train before one of the boys struckup a conversation with one of the girls, touching her inappropriately.
When the girls got off the train at Anstey station, the gang followed.
One attacker put his hand up one victim's skirt and also touched her breastsbefore stealing her mobile phone, police allege.
The girls escaped, but soon after one received a phone call from a gangmember who said he had the other victim's mobile phone.
He said they could collect it from Anstey train station as long as he got"something in return".
The girls returned to the station from where the group led them to a nearbyindustrial site and demanded sex in exchange for the stolen property.
The victims escaped and told their parents, who alerted police.
Detectives later overheard one of the gang members threatening to find thevictims and "f--ing kill them".
Police also found allegedly stolen mobile phones and laptop computers duringraids at the home of the alleged rapist.
Police used train surveillance camera footage to identify the culprits.
One offender, charged with four counts of indecent acts, has been placed onprobation for one year. The remaining three are due to be sentenced inJanuary.
Stepfather found guilty of fracturing girl's ribs
AFTER 10 hours of deliberations yesterday a Mackay jury was unable to agree on the guilt or innocence of a stepfather charged with pouring caustic soda down a baby girl’s throat and on her groin.
A Child Abuse Investigation Unit detective, who was closely involved in the horrific case, broke down and cried last night when she realised what had happened.
The jury’s indecision followed a five-day District Court trial costing tens of thousands of dollars and involving expert medical witnesses especially flown in from the Royal Children’s Hospital.
The stepfather was convicted of just one of four charges he faced.
He was found guilty of fracturing the girl’s ribs.
The jury was discharged at 9.30 last night and went home looking tired, walking to their cars past revelling night clubbers.
The stepfather, 32, had pleaded guilty last Monday to one charge of child cruelty by failing to provide necessary medical care for the child. He is yet to be sentenced.
The mother of the child, 27, who also can not be identified, also pleaded guilty to the same cruelty charge last Monday and was sentenced to five years, to be released on July 13, 2008.
The stepfather also pleaded not guilty to four charges of: 1) Causing five rib fractures by throwing the girl into a wall or crushing her; 2) breaking her arm in two places; 3) pouring caustic soda down her throat; and 4) pouring caustic soda over her groin.
The jury last night found him guilty only of breaking the ribs. They found him not guilty of breaking her arm, which medical experts said could have been the result of an accident.
The stepfather was remanded in custody and will be sentenced in Townsville next Friday on the cruelty and broken rib charges.
He faces a re-trial on the caustic soda charges. The jury watched the four-year-old girl’s pre-recorded evidence for a second time yesterday afternoon. Both viewings were in closed court.
In it, she was described as "gorgeous, enchanting, as cute as a carload of monkeys".
Her injuries include permanent scarring of her groin area for life and she has endured dozens of operations on her severely damaged throat.
Legal experts believe a re-trial on the caustic soda charges will have to be heard in another city because of the publicity and community interest generated by media coverage of the trial this week.