Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney  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 the Archdiocese 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 NSWFisheries re 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 FLR 95
Gough & Gilmour v Catepillar (No1)  NSWIRComm 73
Pastrycooks Employees, Biscuit Makers Employees & Flour andSugar Goods Workers Union (NSW) v Gartrell White (No 2)  35 IR 60
Pastrycooks Employees, Biscuit Makers Employees & Flour andSugar Goods Workers 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  27 IR 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 THE ARCHDIOCESE 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. Thematter was subject to proceedings for the purpose of Conciliation andDirections on 20 February 2003 resulting in further conciliationproceedings on 25 March 2003.
2 The matter was unable to be resolved by conciliation anddirections issued for the conduct of arbitration proceedings over fivedays from 23 to 27 June 2003. In the event, almost three days of thattime was taken up by further attempts at conciliation pursuant to s 87(2) of the Industrial Relations Act 1996 ("the Act") which were also unsuccessful.
3 Arbitration proceedings continued throughout the latter part of 2003 with final written submissions on 15 December 2003.
4 Mr I Neil of Counsel appeared on behalf of the applicant, instructed by Harmers Workplace Lawyers.
5 Mr J Murphy of Counsel appeared on behalf of therespondent, instructed by Mr G McKay for the Catholic Commission ofEmployment Relations (CCER).
6 Mr Neil brought evidence from:
Â· Mr David Russell The applicant
Â· Ms Helen Kennedy A flight attendant, the mother of 2 boys aged 10 and 12 currently members of St Mary's Cathedral Choir
Â· Ms Irene Szady A legal secretary, the mother of a son a member ofthe St Mary's Cathedral Choir and student at the Cathedral High Schoolfrom Year 5 (age 11) to the present time at age 17
Â· Mr John Mitchell A retired teacher, a friend of the Applicant and a frequent visitor to his home.
Â· Ms Elizabeth Vierboom A music teacher, the mother of a son amember of the Cathedral Choir and student at the Cathedral High Schoolfrom age 10 to 18.
Â· Mrs Judith Mitchell A primary school teacher, and the wife of Mr John Mitchell.
Â· Mr Peter Smith A retired customs officer, a friend of the Applicant and frequent visitor to his home.
Â· Mr Sean O'Dea A former member of choir, past music teacher, and past boarder at the Applicant's residence.
Â· Mr James McCarthy A friend of the Applicant and fellow model train enthusiast
Â· Dr Leonie Hammer A veterinary surgeon and breeder of German Shorthaired Pointer dogs
Mr Murphy brought evidence from:
Â· Mr "X" The identity of this witness is suppressed by Order issuedon 16 June 2003. This witness puts the allegation giving rise to thetermination of the Applicant's employment.
Â· Dr Andrew Soddy A psychiatrist who had care of "X" from 1980 to1984 in his capacity as Senior Staff Specialist and Chairman,Department of Child and Family Psychiatry at the Prince of WalesHospital, Randwick.
Â· Mr John Cooke Appointed by CCER to conduct enquiry into allegations by "X" ("the Cooke enquiry").
Â· Mr Brian Donnelly Professional Officer with the Image AnalysisLaboratory, School of Surveying and Spatial Information Systems,University of New South Wales
Â· Father A. Doherty Dean of St Mary's Cathedral
Â· Mr Peter Little A Barrister briefed by the Director of PublicProsecutions for the prosecution of David O'Grady on eight charges ofindecent assault.
Â· Mr Gregory McKay Senior Employment Relations Advisor for the Catholic Commission for Employment Relations
Mr Russell, the Applicant, was employed as the Director of Music atSt Mary's Cathedral ("the Cathedral") by the Trustees of the RomanCatholic Church, the respondent, from 1975 to the termination of thatemployment on 31 January 2003. The application filed states thatremuneration was approximately $480 per week. The employment is awardfree and is administered by the CCER on behalf of the respondent.
9 As Director of Music the applicant was responsible for themanagement of the Cathedral choir. His duties included private tuitionto the members of the choir, conducting the choir at Church servicesheld at the Cathedral, and directing 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'sCathedral School ("the School").
PRINCIPAL EVENTS SURROUNDING TERMINATION OF EMPLOYMENT
11 In 1998/99 allegations of sexual assault were made against theApplicant and a David O'Grady by Mr Daniel Buckley, a former pupil ofthe School and, whilst at the school, a member of the choir. Mr Buckleyalleged that he was the victim of events which, in his statementprepared for criminal proceedings against Mr O'Grady is said to be from1979 to 1983, and during the course of those proceedings said to be inthe period January 1981 to December 1983. Mr O'Grady was at the time asacristan at the Cathedral.
12 The evidence of the Applicant is that Mr O'Grady occupied a roomat his residence as a boarder for some months in late 1982, early 1983at the request of the then Dean of the Cathedral.
13 The Applicant has strenuously denied any involvement in anyimproper conduct and any knowledge of improper conduct by Mr O'Gradytowards children whilst he was boarding at the Applicant's residence orat any other time.
14 In 2000 Mr O'Grady was charged with nine counts of indecentassault on Mr Buckley. He was convicted on one count of indecentassault, being an event at the Applicant's residence witnessed by "X".
15 Three charges alleging indecent assault were laid against theApplicant. These allegations were denied. The charges were not pursuedat the committal proceedings on 13 March 2000 when Mr Buckley, thecomplainant, failed to appear.
16 On conclusion of the proceedings of 13 March 2000 the Applicantreturned to his duties and continued to discharge his obligations asDirector 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 3Aof the Ombudsman Act 1974. Arisingfrom this request the Respondent appointed Mr John Cooke to conduct aninvestigation into the conduct of the Applicant ("the Cooke enquiry").
18 The application details three areas of the Cooke enquiry: thefirst described as the "primary allegations", that being those subjectto the criminal charges not pressed; an additional allegation that theApplicant had seen but did not act upon an incident at his homeinvolving O'Grady and three children; and an alternative allegationthat the Applicant had witnessed and taken no action in respect to anevent involving Mr O'Grady, Mr Buckley and another child, identifiedfor the purpose of these proceedings as "X". This allegation isreferred to in these proceedings as "the walking in" allegation orevent.
19 The findings of the Cooke enquiry are contained in a report tothe Respondent (Exhibit 22) in which Mr Cooke concludes that theprimary allegations are not sustained, the additional allegation is notsustained, and that the walking in allegation is on the balance ofprobability sustained. These conclusions were accepted by theRespondent, which acted to terminate the Applicant's employment on thebasis of the finding in respect to the walking in allegation.
20 The walking in allegation is detailed in the evidence of "X"(exhibit 1). This statement was made at the request of an officer ofthe NSW Police Force attached to the Child Protection EnforcementAgency during the course of an investigation into the allegationsagainst Mr O'Grady by Mr Buckley.
21 "X" describes events in which he and Mr Buckley were seduced by Mr O'Grady to masturbate him.
22 The walking in allegation is put at item 23 of attachment 1 to exhibit 1 in the following terms:
23. At this point the lounge room door opened and David RUSSELL wasstanding in the doorway. He observed what was occurring and stated,"Oh, I see that your busy, 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 boysto lay on either side of him and he masturbated them. On completion MrO'Grady exhorted the boys to secrecy.
24 The evidence of "X" is that he became aware during the course ofevents at the Applicant's residence as described by him that theseactions were wrong. He is not able to depose at which point in theevents he developed this feeling. The evidence of "X" is that hesubsequently confided in his mother to a limited extent and was able toput the issues aside and move on.
25 In his evidence the Applicant was candid and frank that had suchan event occurred, dismissal would be a proper and appropriate outcome.The Applicant strenuously denied that such an event occurred and thathe had any knowledge whatsoever of the conduct of Mr O'Grady.
26 The substance of the present proceedings requires a finding of fact in respect to the walking in allegation, and in Mr Neil's submission an associated consideration of the competency and procedural fairness of the Cooke enquiry.
27 Mr Cooke did not directly interview "X" and relied upondocumentation made available to him by the respondent and by theapplicant and/or his representatives.
28 Mr Murphy contends that the evidence supports a findingthat the walking in allegation is substantiated and that any flaws inthe Cooke enquiry are minor and inconsequential against the finding offact.
THE COOKE ENQUIRY
29 The evidence of Father Doherty in his affidavit (exhibit 24) isthat in 1999 he was informed by the NSW Police of their intention toprosecute Mr O'Grady and the Applicant on charges of sexual abuse. Theevidence of Fr Doherty is that the Applicant was arrested on 8 July1999 and that, in accordance with standing protocol, he could be stooddown from his position as choir director until the matter was resolved.The Applicant was informed that a final determination would be made bythe respondent the following day, 9 July 1999.
30 Father Doherty deposed that on 9 July 1999 the Applicantvoluntarily stood down from position pending resolution of the matter.On 23 August 1999 a determination was made by the court allowing theApplicant to resume his role as choir director on the condition that he"be with choir boys only in the company of a responsible adult". TheApplicant was required to arrange his own supervisor, which he did.
31 Father Doherty deposed that on 13 March 2000 the Applicantattended the Downing Centre Court and the charge against him wasdropped because of the non-attendance of the accuser. The Applicantthen resumed his normal duties.
32 Father Doherty deposed that on 13 August 2002 the NSW Ombudsman'sOffice requested the CCER, and through them the Cathedral, to furnish areport concerning the allegations of abuse by the Applicant and thatthe matter be attended to urgently. The allegations to be investigatedwere those of Mr Buckley left unresolved by the collapse of courtproceedings as a result of his non-attendance.
33 The correspondence from the NSW Ombudsman is tendered asattachment C to exhibit 22, the affidavit of Mr Cooke. Thiscorrespondence recites events as understood by the Ombudsman, includingthe allegation by Mr Buckley of the applicant walking in on him, MrO'Grady and another student (then not identified) in their underpants,and doing nothing about it. The correspondence is critical of thefailure of the CCER to conduct a risk assessment in respect to theApplicant as previously requested by the Ombudsman. The correspondenceof 13 August 2002 states inter alia:
Having considered the available information, the significant delaysin CCER's investigation, the inadequate risk assessment and limiteddocumentation that has been provided by CCER in relation to itsinvestigation, I have decided to conduct an investigation into thismatter pursuant to section 25G(2) of the Ombudsman Act 1974.
I am now formally notifying you of my decision to conduct an investigation as required by section 16 of the Ombudsman Act 1974.
NOTICE OF INVESTIGATION
The public authority whose conduct is the subject of theinvestigation is: The Catholic Commission for Employment Relations(CCER)
The conduct which is the subject of the investigation is:
Â· The adequacy of CCER's handling of and decision making in relationto child protection issues associated with Mr David Russell's currentemployment as a choirmaster at St Mary's Cathedral.
Â· The use made of information CCER had in relation to child abuseallegations against Mr David Russell and the provision of thatinformation to the Ombudsman.
Â· CCER's response to the Ombudsman's requests for information under 13AA of the Ombudsman Act 1974,
34 Father Doherty deposed that he concluded that in the interests offairness and objectivity an independent investigation into the earlierallegations was the most appropriate approach, and subsequently MrCooke was appointed by the CCER to undertake the investigation. Theevidence of Father Doherty is that he understood that Mr Cooke hadpreviously conducted similar types of investigations for theProfessional Standards Office of the Archdiocese of Sydney.
35 Father Doherty deposed that he attended a meeting on 10 October2002 with the Applicant, his solicitor Mr Chris Mitchell, and Mr Cooke,which he put took approximately an hour. Transcript of that interview,which was tape recorded by agreement of all parties present, wastendered by Mr Neil (exhibit 29).
36 The evidence of Father Doherty is that he received a preliminaryreport from Mr Cooke on 21 November 2002 (attachment F to Mr Cooke'saffidavit, exhibit 22).
37 This report reveals that Mr Cooke had an interview with MrBuckley on 24 September 2002 in the chambers of counsel representing MrBuckley, Mr Adrian McInnes QC, in the presence of the solicitorrepresenting Mr Buckley, Mr Ken Harrison. Mr Cooke also relied upondocumentary material, including the statement made to the NSW Police by"X" on 20 January 1999 (part of exhibit 1 in these proceedings).
38 The conclusions reached by Mr Cooke are set out at page 11 of hisreport. The subsequent extract is edited to comply with the suppressionorder in respect to the identity of "X" and to exclude from publicationthe identity of other named participants who have not had theopportunity to consider application for suppression of their identitiesin these proceedings.
The many inconsistencies in the complainant's claims, allegationsand statements may be attributable to his psychiatric state, whichsuggests that corroboration should be sought, where possible. There isno possibility of any corroboration of his allegations, as weredetailed in the charges, against the accused. This fact, and ["A's"]evidence, suggests that the likelihood of a successful prosecution ofthose charges would have been remote.
What is disturbing is the claim, corroborated by "X", that theaccused condoned the sexual abuse of 10-11 year old boys, whatever theextent of that sexual abuse may have been. The accused strongly refutesthat claim. He suggests that the complainant had the opportunity to see"X's" statement of 20 January 1999 before preparing his statement of 23April 1999, and would have been able to ensure consistency. But theyare not consistent as to dates or detail. Their consistency is in theirrespective versions of the role played by the accused.
Short of collusion with the complainant, there appears to be nological reason why "X" would have given the account that he did, unlessit reflected his recollection. The complainant's psychiatric conditionsuggests that collusion is unlikely. In the unlikely event of someattempt at collusion, it might be expected that their respectiverecollections would not differ as much as they do. At the time heprovided 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 supportthat collusion would have required. It is equally hard to believe thatsuch support would have been provided. I would assume that "X's"recollection of the complainant would not be substantially differentfrom ["A"] who described the complainant as "a fruit loop".
If "X" is to be believed, the accused observed the sexual abuse ofthe boys by O'Grady and did nothing to stop him. It seems that theincident could not have happened in 1981, as the complainant hasstated. Nothing has emerged to contradict the possibility of such anincident having occurred in March 1983. "X's" recall in this respect,and in relation to the presence or otherwise of other boys on thatoccasion, is to be preferred to that of the complainant, for obviousreasons. I have not sought to speak to "X". I consider his statementspeaks for itself. For much the same reason I did not think there wasanything to be gained by speaking to ["A"].
Some question hangs over the accused's credibility through ["A's"]statement that he and other boys were at his house at a time and incircumstances that the accused has denied children were present.
His credibility could be tested by exploring his denial that he evermade any offer to parents to have boys stay overnight at his place. Ihave not pursued this.
39 As noted in Mr Cooke's conclusions he had not interviewed "X".Father Doherty's evidence is that he instructed Mr Cooke to contact "X"by telephone, which he did. Mr Cooke provided a supplementary report toFather Doherty on 2 December 2002 (attachment G to exhibit 22) whichdeals in its entirety with a telephone conversation between Mr Cookeand "X". In his affidavit (exhibit 24) Father Doherty describes thesupplementary report as confirming "X" maintained that he and DanielBuckley definitely stayed overnight at the Applicant's residence on thenight before the train excursion, at the Applicant's invitation, andthat he was quite adamant that the Applicant entered the room andobserved himself and Mr Buckley fondling Mr O'Grady's genitals whilstthey were naked; and that he clearly recalled the Applicant using wordsto the effect of those recorded in his statement (exhibit 1).
40 Mr Cooke provides detailed analysis of the allegation he rejectsbut does not do so in respect to the walking in event, satisfyinghimself that as both Mr Buckley and "X" refer to a walking in eventthat such an event must have occurred.
41 The Applicant and his representatives put strident criticism andcomplaint of the Cooke enquiry to the respondent, detailed inattachments to the Applicant's affidavit. The complaints and criticismgo to procedure, substance, and conclusions reached. In responsethereto Mr Cooke provided a document titled "Observations (followinginitial and supplementary Reports)" dated 13 January 2003 (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 inevent described by Mr Buckley and that described by "X" as two separateevents, confirming that he preferred the version by "X" over MrBuckley's.
43 In accordance with his earlier observation Mr Cooke does notproceed to consideration of the validity of the event described by "X".Mr Cooke further states that his initial decision not to speak to "X"was founded on a conclusion that "X" was unlikely to contradict hisformal statement and, for reasons of time and costs, decided tocomplete the report on the basis of the available material. Mr Cookeconfirms that he made telephone contact with "X" after being requestedto do so by Father Doherty, though saw no utility in speaking to himface to face, nor in contacting the investigating police officer whohad taken the statement, nor in speaking to the other boy whom MrBuckley had said was present during his version of the walking inevent, as he was satisfied that he was not present during the relevantincident and would not be in a position to help.
44 Mr Cooke further observed that he did not regard Mr Buckley'sevidence as corroborative of anything, reiterating his preference tobelieve "X" and discard Mr Buckley's recollection. The Cooke reportsaccept and reiterate the version of events set out by "X" in hisstatement to Police without dilution, exposition or analysis.
45 Mr Cooke observes that he accepted that the steam train excursiontook place on 19 March 1983 on the basis that it was stated as a factto have taken place on that date by the Applicant in his statement of22 October 2002. Mr Cooke notes that the Applicant's statement putsthat O'Grady boarded at his house for about three months during late1982 and/or early 1983 and that Sean O'Dea boarded with the Applicantfrom August 1983 until February 1985, noting in his observation thatthe actual date of the train excursion and the associated date of theincident 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 furtherdiscussions with the Applicant and his representative in which theyraised a number of issues of procedural fairness and strenuous denial,he arrived at the conclusions set out in paras 21 and 22 of exhibit 24:
21. In my consideration of this matter I have taken into account anumber of factors: firstly, my respect for the person of David Russelland his long-time contribution to the community and the musical life ofthe Cathedral; secondly, the obvious respect he enjoys with the choiritself, both the adult and young adults in the choir, and theenthusiastic support that was expressed by choir parents when issueswere first raised in 1999; and thirdly, his reputation in the widermusical 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 seriouscause to examine the situation as dispassionately as possible, giventhe responsibility that fell upon me as an employer. However, I believethat it was the Supplementary Report, which included statements from"X", and which provided what I believed to be corroborating evidence ofthe issue in question, that provided me with what I believed to becompelling reasons, on the balance of probabilities, to move todismissal. The interview of January 31, was organised so that MrRussell and his legal counsel had a further opportunity of throwingmore light on the facts that could allow some other finaldetermination. Nothing that was said in that final interview altered myconclusion.
47 It is apparent from this evidence that Father Doherty was thefinal decision maker in the process leading to the termination of theApplicant's employment and that his decision turned heavily upon thesupplementary report from Mr Cooke which dealt only with Mr Cooke'stelephone conversation with "X".
THE EVIDENCE OF "X" - DETAILED RECOLLECTION OF EVENTS
48 The evidence of "X" is that between 1980 and 1981 he lived withhis mother and sister in the Wollongong region and attended primaryschool in Southern Sydney. He auditioned for a position in theCathedral choir and was accepted along with 12 other boys, whom he wasable to name in his statement. The position in the choir entitled himto fee free tuition at the School, which he commenced in 1982 at theage of eleven years. "X" provides a detailed recollection of thecomposite year 5/6 class (he was in year 5) and the identity of histeacher. The recollection of "X" is that the majority of 6th classstudents, whom he was able to name (including Daniel Buckley), weremembers of the choir.
49 The statement details the days of the week, times andcircumstances of choir practice at that time. "X" recalls the role ofthe Applicant as choirmaster, though cannot recall detail of the pianoplayer other than that he was red headed, had a beard and was largelyconsidered a "good bloke" by the choirboys. The recollection of "X" isthat there was little association between the adult male members of thechoir and the scholastic members and he has little recollection inrespect thereto.
50 "X" deposed that at Sunday Masses there were a number ofadditional males associated with the choir, whom he recalls werelargely members of the clergy and some others carrying out formalduties associated with the Mass ceremony, all of whom he has a vaguerecollections other than Mr O'Grady whom he put was "out of the norm ashe had long blonde hair."
51 The recollection of "X" is that Mr O'Grady was made known to himabout half way through his first year with the choir (1982). "X"recalled that Mr O'Grady came to have more presence with the choir inand around the third quarter of 1982, attending choir social functionsand evening practice on Tuesdays and Thursdays and making theacquaintance of all of the school based members of the choir. Therecollection of "X" is that later in the year Mr O'Grady seemed to bealways present and had become popular as he would give attention to thechildren and organise games during breaks, unlike other adult malemembers 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 competitionbetween the young choir members to be the best singer and that theApplicant was adept at encouragement and criticism, resulting in"everyone performing at their optimum level".
53 The evidence of "X" describes an event wherein he and four otherchoirboys were rewarded for singing achievements with a trip on a steamtrain to leave from Central Station for a southern destination. "X"recalled that those to go on the trip were himself, Daniel Buckley, oneother choir member whom he named, and two others whom he could notremember. "X" could not remember the particular destination of thetrain though recalled that it went south past his place of residence.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 beena school day and it could not have been a Sunday as the participantswould be otherwise involved with Sunday masses.
54 The recollection of "X" is that as his residence was an hour anda half by train from the city "it was deemed fruitless that I travelall the way home only to come back the next day to catch a train backto where [he] lived".
55 "X" recalled that Daniel Buckley lived a similar distance westand on that basis the Applicant suggested that they both stay at hishome for the night and take the steam train trip the next day.
56 "X" recalled that after school he and Daniel Buckley met theApplicant in the choir room and went with him to his residence. "X"could not recall the name of the suburb but remembered that theresidence was a town house and that the vehicle had to be parked on thestreet, which was on a slight upward gradient. The recollection of "X"was that the Applicant had two dogs which he described as "pure bredgolden retrievers" and that he remembered distinctly trying to pat onewhilst it was eating. "X" recalled that it turned to attack him, theApplicant telling him that he should not touch the dogs whilst theywere eating.
57 "X" details the subsequent events in paras 21 to 27 of attachment 1 to exhibit 1 in the following terms:
21. We watched a little television for an undesignated amount oftime and then David O'GRADY suggested that we do something else. Ican't recall whether the television was turned off or not. DavidO'GRADY then suggested that we all take our clothes off. Danny BUCKLEYand myself concurred with me believing it to be harmless at the time.David O'GRADY then took his clothes off and laid vertically oppositethe entry to the lounge room and started to instruct us to touch him.
22. First he instructed us to touch his chest to which we complied.He then asked if we would touch him lower, that being just above thepubic hair area of his body, at this time I was slightly hesitant butagain complied with his request. Eventually he asked Danny BUCKLEY ifhe would touch his penis. I can't remember how I came to be touchinghis legs but that was where I was when the question was asked of Danny.Danny BUCKLEY started to touch his penis and then came explicitinstructions on how he should be touching his penis, stating that hewas to grasp his penis in his hand and move it up and down. He thenasked me if I would also participate in touching his penis, to which atthat time assessing that Danny (being the older) was participating soconcluded that I too would touch his penis also and thus participatedin masturbating David O'GRADY's penis by moving my hand up and down onhis penis. All directions were directed at both of us unless otherwisespecified.
23. At this point the lounge room door opened and David RUSSELL wasstanding in the doorway. He observed what was occurring and stated,"Oh, I see that your busy, 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 sidewith distance between us in the same position that he had previouslybeen laying to which we complied. He then sat down between us andstarted to touch our penis's simultaneously, stating, "Now doesn't thatfeel good."
25. After some time he desisted in his actions and we adorned ourclothes again. Upon completion of the acts he distinctly stated that wewere not to tell anybody about this but that it was our secret or wordsto that effect. These particular acts took place over an unspecifiedamount of time and I am unable to relay the exact time frame of theincident.
58 At para 31 of exhibit 1 "X" refers to a trip to Germany by the choir in the following term:
31. I recall the trip to Germany however I had moved interstate to Queensland prior to the trip taking place.
59 The evidence of "X" is that he maintained contact with theApplicant in his capacity as choirmaster. "X" put that this contactcould not have been avoided, adding that:
"however my mother did not perceive him to be the principal offenderalthough she did recognise that he had allowed the offence tocontinue."
60 The evidence of "X" is that he was not subject to the offer ofpresents, gifts or invitations subsequent to the incident and thatshortly after there was a separate and unrelated incident, the resultof which persons he regarded as the natural leaders of the class, whomhe names, branded Mr O'Grady "a faggot", resulting in his losingpopularity, becoming unwelcome around the choir room and eventuallydisappearing.
61 In cross examination "X" deposed that he had forgotten what hedescribed as insignificant portions of the day. When asked by Mr Neilwhether he had reconstructed events by deduction, "X" put that he hadmade some assumptions where memory had failed but had not applied anyprocess of deduction.
62 An assumption conceded by "X" is that the steam train trip took place on a Saturday.
63 Mr Neil questioned "X" closely on his recollection andreconstruction of these events. This evidence is found at pp 61 to 64of transcript:
Q. Do you remember that on that occasion in July 2000 you were askedsome questions about what happened when the three of you were in thelounge room - remember that?
Q. On the day in question, remember that?
Q. Do you remember that on that occasion in July 2000 you said ofthose events - to begin with it was just fun but then it progressed tothe 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 accord with your present recollection does it?
Q. Did it accord upon the assumption that you said it in July 2000,do you think 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 isit do you think that your recollection about that aspect of theincident has changed between 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 thereforemy mind'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 January1999 when you wrote your statement - signed it, I am sorry - you puteverything in your statement 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 incidentin the lounge room, you haven't in your statement used any words tothis effect have you - to begin with it was just fun but thenprogressed to the next stages - haven't used any words to that effecthave you?
Q. And do you think or any words that suggested such a period in the sequence of events, you agree?
A. Yes I agree.
Q. Now that must be mustn't it because when you signed your statement on 20 January 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 you could 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 20 January 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 thatelapsed between 20 January 1999 and July 2000 you remembered somethingabout the sequence 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 yourmemory of these aspects of the incident improved between 20 January1999 and July 2000?
A. I don't have a transcript in front of me so I don't know what context it was used but no I don't.
Q. So your evidence on this question is this is it; I want tounderstand it. As to the statement about the events in the lounge roomon the day in question to begin with it was just fun but thenprogressed to the next stages - as to that statement you had no suchrecollection on the 20 January 1999, you remembered it in July 2000 andyou 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 a period of time?
A. I don't have a transcript.
Q. Answer the question - that's nothing to do with it -answer thequestion, does your memory get better then get worse then get betteragain?
Q. Your memory, doesn't it get worse over time, at least that's what you have told us?
Q. There was another boy with you in the lounge room you say on the day in question, is that right?
A. Yes that's correct.
Q. And look at your statement please, paragraph 25, please read that to yourself. Let me know when you have done so.
Q. Alright, now paragraph 25 marks the end of your account of theincident that you say occurred in the lounge room on the day inquestion - that's right isn't it?
A. That would appear so from the statement, yes.
Q. And according, do you say, to your recollection, it marks the endof the events that you say occurred in the lounge room, is that right?
Q. After those, immediately after the events that you have describedin paragraph 25 of your statement, do you have any recollection at allabout what you did?
A. No they would only be deductions.
Q. So you have got absolutely no recollection have you about anyevents that occurred immediately after those that you have described inparagraph 25 and those that you have described in paragraph 26, is thatright?
A. I have -- they would be deductions, yes.
Q. You have absolutely no actual memory of the events of whatoccurred between the events you described in paragraph 23 and those youdescribed in 26?
A. That's correct.
64 "X" describes the report to his mother as possibly a traumaticand embarrassing event, conceding that he did not inform his mother ofall of the detail of events preceding the steam train trip and mostcertainly did not include detail of masturbation. In particular "X"deposed that he made no specific mention of the Applicant to his motherin the report to her after the steam train trip.
65 The relevant evidence of "X" is found at pp 12 and 13 of transcript in the following terms:
Q. Do you remember what you said to her?
A. I don't remember what I said to her but I remember her distinctlytelling me not to hang around with the gentleman in question.
Q. One thing you can recall may we take it is you didn't mention David Russell'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 asgood as anything else you recall about the report you made to yourmother?
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 DavidRussell's name to your mother when you made your report to her on theday immediately after these events, is that right?
A. I would like to reiterate it is over 25 years ago now but yeah I am pretty sure I didn't mention Mr Russell.
Q. Take it from me you can reiterate that, could we be confident onthat score, can his Honour be confident that you have no recollectionof mentioning David Russell's name when you made your report to yourmother on the day immediately 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 recalledtelling his mother of some involvement of the Applicant which was thefoundation for his statement in the Police report that his mother hadrecognised that the Applicant had allowed the event to continue.
67 When pressed by Mr Neil (TR p22), "X" put that therecollection found in the Police report should be preferred to hisevidence of pp 12 and 13 of transcript as set out above.
68 There was no formal complaint laid by "X" or his mother to anyperson in respect to these events. "X" remained at the school and inthe choir, participating in all the usual events of both, until 4 May1984 when he moved with his mother and sister to Queensland. "X"subsequently returned to the school for a brief period on return fromQueensland.
69 There is no evidence from "X's" mother as to any of the issues.When put to him in cross examination (TR pp 36 and 37) "X" deposed thatin discussion with his mother two nights prior to this evidence, shedid not recall the report to her of the events.
70 Mr Murphy produced a doctor's certificate from a dulyqualified medical practitioner and an associated report (exhibit 36)which details the reasons mitigating against the availability of "X's"mother to give evidence in these proceedings.
71 Mr Neil established that "X" is a vocationally experiencedwitness and comprehends the evidentiary value of an early andcontemporary report of events. Mr Neil then put to "X" that hehad maintained his evidence of the report to his mother in his 1999statement, knowing that she did not support it by her independentrecollection. "X" deposed that he was aware of his mother's lack ofrecollection, putting that he had been vague to her in the report atthe time due to the embarrassment involved. "X" remained adamant thathe had told his mother, putting that she was his only adult confidantat the time and, having told her, put the event behind him and got onwith life.
72 In addressing this point found in his 1999 statement "X" put thathe had not intended to convey that he had told his mother all of thedetail of the evening, but that he had told her the nature of events.
73 In re-examination Mr Murphy addressed the issue of anincomplete report by "X" to his mother to which "X" responded that inaddition to the embarrassment involved, his mother at the time wasworking two jobs and attending university; inferring that he wished tospare her additional responsibility and concern.
74 During the course of cross examination Mr Neil put to "X"that he had told a journalist that it (an event of this nature) hadnever happened to him before or after so it is "fairly clear" in hismind. An examination of recollection ensued. "X" put that he hadgreater difficulty in remembering words but held a recollection of theevents subject to these proceedings as a series of moving pictures inhis mind, with bits missing or gaps lost to memory. "X" accepted thatso long as the events remained sequential he may have filled gaps inhis recollection by deduction to produce a seamless recollection. Theconclusion of this evidence is found at p 49 of transcript in thefollowing terms:
Q. And after 22 years of thinking about those events what you wouldbe left with is a seamless memory that contains bits of what youactually remember, bits of what you have deduced and each of them inyour 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 eventswith Mr O'Grady. The evidence is that both "X" and Daniel Buckley wereacting on Mr O'Grady's instructions. Mr Neil sought arecollection of precise instructions from Mr O'Grady in the sequence ofevents. "X" was unable to recall the precise detail, relying on hisstatement and additional recollection that he and Mr Buckley wereinstructed to lie on the floor on either side of Mr O'Grady who laydown 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,putting his height in the vicinity of six feet.
76 Mr Neil put to "X" that a large coffee table had occupieda substantial area of floor space in the lounge room, putting that itwould have been impossible for he, Buckley and O'Grady to occupy thepositions described. "X" deposed that he had no recollection of thecoffee table anywhere in the room.
77 In further cross examination Mr Neil took X" to hisrecollection of the two "pure bred golden retrievers", which he deposedhe remembered distinctly as one had nearly bitten him. Mr Neilput a photograph of two dogs to "X" (exhibit 13), showing one to begolden and one deep brown in colour, asserting that these were the dogsliving with the Applicant as at March 1983. "X" conceded that hisrecollection may be inexact on this point.
78 At p 93 of transcript "X" conceded that his recollection ofevents surrounding the steam train trip and at the Applicant'sresidence may be equally inexact. The relevant evidence is set outhereunder:
Q. Tell me, Mr X, if your recollection of the two large golden dogsbeing present in the house on the day before the steam train trip, isat least as clear as your recollection of anything else that occurredon that day, would you accept that in your recollection of anythingelse that you say occurred on that day, 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 beingpresent in the house on that day, then you may very well have made amistake about anything 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'sresidence contained within exhibit 1, and asked for his recollection ofitems in the kitchen/dining room area of the house. "X" could notrecall anything in particular or out of the ordinary. "X" had norecollection of a large model train set in the area.
80 Mr Neil tendered two photographs of a train set (exhibit15). The evidence of "X" is that he would certainly have remembered thetrain set if it had been there though he had no recollection of it. Thetrain set is a large table mounted model of considerable detail,measuring approximately 3m x 1m with elaborate mountain scenery, anumber of stations, tunnels, surrounding countryside and severaltrains.
81 In response to Mr Neil "X" put that his inability toremember the train set may arise from a defect in memory or a mistakein the date of the steam train trip, which is his reference point forthe date of the preceding events, suggesting that if the train set hadbeen in the Applicant's house in March 1983 the steam train trip mayhave 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 severevomiting; statements by him to psychiatrists in respect to problemswith a teacher, other students, lack of friends at school; and thediagnosis of vomiting as psychogenic in origin.
83 "X" recalled hospitalisation for severe vomiting and "a fewdramas with some kids at school" but had no recollection of detail orof informing a psychiatrist in respect to the issues put to him.
84 "X" did not challenge records put to him by Mr Neil thathe had been admitted to the Prince of Wales Hospital on 58 separateoccasions between May 1980 and October 1988. He was able to recall thathe had some contact with a psychiatrist but could not recall whetherthat was before or after he commenced school at the Cathedral.
85 Mr Neil put to "X" that on or about July 1980 apsychiatrist had expressed a diagnosis that "X" exhibited a pattern ofdemanding and manipulative behaviour. "X" had no recall of theseevents. He recalled that he had been required to take medicationincluding Droperidol and Ligactil.
86 Mr Neil put to "X" that records revealed that his 17thadmission to the Prince of Wales Hospital was on 5 March 1983,apparently two weeks prior to the steam train trip of 19 March 1983;and the 18th admission took place on 27 March 1983. "X" was unable torecall these events. It was put to him that on both occasions he hadexpressed his satisfaction with and enjoyment of his school life andinvolvement in the choir. "X" was also unable to recall these events.He deposed that a statement to that effect could have been made and, ifso, would have properly reflected his attitude towards school and thechoir.
87 Mr Neil put to "X" that he had not informed the treatingpsychiatrists of the events involving Mr O'Grady and the allegationsagainst the Applicant because they had not happened in the way he nowalleges. This proposition was flatly rejected by "X" who contended thathe had no particular recollection of his discussion with psychiatricstaff. "X" recalled that a purpose of psychiatric interview was todiscover the cause of the vomiting, postulating that as the O'Gradyevent occurred after the onset of this affliction he would not haveconsidered it relevant to a consideration of cause.
88 The evidence of Dr Soddy confirms that "X" was under his carebetween 1980 to 1984 and that he saw him twice on a consultation basisin 1987. Dr Soddy qualified his evidence on the basis that it wasapproximately 16 years since he last saw "X" and regarded his case as"out of time" and that his own notes had been destroyed. Dr Soddyrefreshed his memory by reference to a letter he had written on 7 May1984 introducing "X" to Queensland doctors (exhibit 21), which hedeposed provides a useful overview. Dr Soddy deposed that he had alsoread copies of hospital notes and discharge summaries from Sutherlandand Prince of Wales hospitals covering the period 1980 to 1987 and hadread the statement of "X" to NSW Police.
89 Dr Soddy confirmed that "X" suffered from recurrent bouts ofsevere vomiting for which no physical cause was found and whichappeared to be related to anxiety or excitement. Dr Soddy deposed thatthe general picture of "X" was of rapid onset of severe vomitingleading to significant dehydration which in turn produced withdrawaland some irritability but which quickly disappeared after rehydration.Dr Soddy's evidence is that when normally hydrated "X" presented as anintelligent, helpful and pleasant boy.
90 Dr Soddy detailed medication provided to "X": Largactil,Melleril, Phenergan, Valium, Inderal, Maxolon, Mylanta, pethidine,Ampicillin and Cloxacillin/Gentamycin. Dr Soddy described themedication as antibiotic, antinausea, antianxiety, and antihistaminewith some sedative properties. Dr Soddy acknowledged that Largactil andMelleril have some use in psychiatry, deposing that "X" at no timedemonstrated any signs of psychiatric disorder, and in his case themedication was used exclusively as antiemetic and antianxiety agents.Dr Soddy's evidence is that the only medication he prescribed for "X"as an outpatient was Inderal which he put has no known effect on themental state.
The Proceedings Against Mr O'Grady
91 Mr Neil then took "X" to his evidence in the criminalproceedings arising from the charges against Mr O'Grady, subsequentlytendered in these proceedings as exhibit 30. Mr Neil put to "X"that his evidence in that matter, found at pp 116 and 117 of exhibit30, is that he did not know where the Applicant was at the time of theoffence by Mr O'Grady and makes no mention of the walking in event. Therelevant question and answer are found in the transcript of 7 July 2000in 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. Idon't know where David Russell was at the time and we watchedtelevision for a little while and then at Mr O'Grady's suggestion heasked if we wanted to play a game and he asked us to remove our clothesdown to our underpants. And at the time I thought it was a little bitstrange but Daniel being the older was complying so I thought, oh well,it must be okay and we played, just some sort of wrestling or rompingaround 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 toeach other 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 on his 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 he us 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 our own little fun and games.
Q. And I take IT later on you went to bed and went on your train trip the next 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 asfar as that goes, yeah I had contact with him but nothing in the mannerwhere we were.
Q. Since that night, through to when the police contacted youconcerning this investigation had you had any conversation with DanielBuckley about the events of this night.
<WITNESS STOOD DOWN
92 The evidence of "X" is that he did not mention the walking inevent or make further reference to the Applicant during the O'Gradytrial on instruction from the investigating police officer on the basisthat the Applicant was not a defendant in those proceedings.
93 At the time "X" gave his evidence there were no chargesoutstanding against the Applicant. It is contended that in thesecircumstances and on the basis that "X" made no complaint against theApplicant he was restrained by direction of the presiding Judge not torefer to any activity involving himself and the Applicant in thoseproceedings.
94 "X" conceded that the jury in that matter was left with theunderstanding that only he and Buckley were privy to the events withO'Grady and that there had not been any other witnesses. "X" concededthat this is inconsistent with his allegation of the walking in event,which placed the Applicant as an additional witness to the abuse byO'Grady.
95 "X" denied that the failure to mention the walking in event wasmotivated by a belief that the evidence of the Applicant if calledwould not support his version of events. "X" also refuted theproposition from Mr Neil that he made no mention of theApplicant in the proceedings against O'Grady because at the time he hadno recollection of the walking in event or that the walking in eventnever occurred.
96 This controversy is clarified by the evidence of Mr Peter Little, tendered by Mr Murphy(exhibit 34). Mr Little was not required for cross examination. Exhibit34 discloses that he was the barrister briefed by the Director ofPublic 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 tothe defendant's representatives and an objection by them dealt with onthe voir dire by the trial judge who ruled this and other material notrelevant to those proceedings inadmissible. The evidence of Mr Littleconfirms the evidence of "X" that he was acting in accordance withinstructions and his understanding of his responsibility in the matter.
The Walking In Allegation
98 In addressing the walking in allegation "X" was firm in hisevidence that the door opened, the Applicant spoke the words: "I seethat you're busy, I'll come back later", without entering the room, andthe door closed. There is no other allegation of involvement of theApplicant. "X" could not recall any other detail, in particular thetime involved, the appearance of the Applicant, his facial expressionsor the clothing he wore, or how far the door opened.
99 In the course of cross examination "X" conceded that he may bemistaken in regard to the actual words used by the Applicant though wasunshaken in his insistence that the door to the lounge room opened, heobserved the Applicant who spoke to the three then in the lounge room.The evidence of "X" is that he recalls the manner in which these wordswere spoken. "X" put that he had not included this aspect in hisstatement as he had not regarded it as relevant at the time andconsidered it a minor detail of the events.
100 Mr Neil concluded his cross examination by putting firm propositions to "X" that he could not remember:
Â· the train set;
Â· where he slept on the night;
Â· the dark brown dog;
Â· when the alleged incidents took place in relation to the choir's trip to Germany.
101 Mr Neil put to "X" that he had never been to theApplicant's residence or had no recollection of being there, that thewalking in event did not occur and that he had no recollection of it.All of these propositions are denied by "X" with the exception of theproposition that he had not been to the Applicant's residence at a timewhen a dark brown dog lived there, which he conceded was possible.
RE-EXAMINATION OF "X"
102 During re-examination Mr Murphy raised the prospect thatthere was no report to school authorities as "X" did not wish tojeopardise his scholarship which provided free tuition on the basisthat he continued in the choir. Mr Murphy sought evidence from"X" to the effect that he felt there was no inconsistency between theseevents and informing medical practitioners prior to and thereafter thathe enjoyed school and the choir and that he was on a singingscholarship and was doing well.
103 Mr Murphy concluded his re-examination by seeking clarityfrom "X" in respect to the walking in event. This evidence is found atpp 152 and 153 of transcript 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 thatdoorway and that I looked straight up at him when I was sitting on thefloor conducting the 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 byDaniel Buckley on 23 April 1999 (exhibit 18) in which Mr Buckley giveshis version of the walking in event and circumstances leading to it.
105 Mr Murphy submitted that Mr Buckley could not be locatedfor the purpose of giving evidence in these proceedings, his statementwas admitted over the objection of Mr Neil.
106 Mr Buckley's statement refers to one particular night during theschool year of 1979 when he went to the Applicant's house with "X" andtwo other boys on the basis that they had been invited by the Applicantto watch a video, which he identified as Raiders of the Lost Ark. MrBuckley deposed that he, "X" and another boy were wrestling with MrO'Grady in the lounge room and that the Applicant was in the kitchengetting ice cream. Mr Buckley described the events as Mr O'Gradysitting on the floor in his underpants and the three boys runningaround him trying to fight and wrestle with him, during the course ofwhich Mr O'Grady grabbed him, and on his version the other boys, on theoutside of their underpants, touching their penises whilst exhortingthem to secrecy.
107 Mr Buckley stated that whilst this was going on the Applicant"walked into the lounge room and saw us in our underwear and he said;'I'll leave you to it then' or words to that effect". In his statementMr Buckley gives his age as eight 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 haddiscussed the events with Mr Buckley. "X" deposed that he was awarethat Mr Buckley's version of events differed from his own in thatBuckley had included a third boy in the event. "X" deposed that he hadnot seen Buckley's statement and knew nothing of it other than theinclusion of the third boy.
109 The evidence of "X" is that he took the view that as Buckley hadbeen involved in several other experiences with O'Grady that Buckleymay have confused detail of separate events in his recollection. "X"deposed that this was the view expressed to Mr Cooke in the onetelephone conversation with him on 24 September 2002 when thisinconsistency had arisen.
Refusal of Mr Buckley To Give Evidence
110 The affidavit of Mr Greg McKay (exhibit 33) details his attemptsto have Mr Buckley give evidence in these proceedings. Mr McKay deposedthat he spoke to Mr Buckley's solicitor, Mr Kenneth Harrison, on atleast two occasions prior to 20 May 2003 and was informed that therewas difficulty in contacting Mr Buckley as he lived in another state.Mr McKay testified that he had a further conversation with Mr Harrisonand developed an understanding that Mr Buckley might be prepared togive evidence and on 23 May 2003 emailed an affidavit proforma for MrBuckley to complete.
111 Mr McKay's evidence is that on 3 June 2003 Mr Harrison wrote tohim requesting that certain conditions be met relating to otherproceedings prior to Mr Buckley being prepared to give evidence in thismatter. The correspondence (Ex 33 Annex. B) seeks a waiver of any outof time defence by the respondent in separate proceedings broughtagainst them by Mr Buckley. This request was rejected and eventually asummons for Mr Buckley to give evidence was served upon Mr Harrison on13 June 2003.
112 Mr McKay's evidence is that he received a written response dated13 June 2003 (Ex 33 Annex. D) from Mr Harrison advising that he hadreceived specific instructions not to accept service of summons inthese proceedings. Mr McKay's evidence is that Mr Harrison informed himthat "we should not hold out hope" of contacting Mr Buckley to appearas a witness.
113 Mr McKay deposed that further attempts were made to serve thesummons on Mr Buckley however the process server engaged was not ableto ascertain Mr Buckley's contact details and the summons was not ableto be served.
114 Mr McKay deposed that he received further correspondence from MrHarrison dated 20 June 2003 (Ex 33 Annex. F) referring to the previousdiscourse and advising that Mr Buckley had instructed he would not giveevidence in this matter and that the cheque provided for conduct moneywould be returned.
115 The only sworn evidence of Mr Buckley is that given in theO'Grady trial (exhibit 30) before her Honour Payne J. of the DistrictCourt of NSW - Criminal Jurisdiction, and a jury of twelve. Theevidence of Mr Buckley is at pp 12, 13 and 14 of transcript of 5 July2000 in that matter.
116 In that evidence Mr Buckley deposed that he and "X" were invitedto the Applicant's residence by Mr O'Grady to watch a video version ofthe movie "Raiders of the Lost Ark". Mr Buckley deposed that afterwatching the video Mr O'Grady suggested they play a wrestling game andlater that they strip to their underwear. Mr Buckley's evidence is thatall touching was on the outside of the underwear, but for one occasionwhen Mr O'Grady put his hands inside Mr Buckley's underwear. MrBuckley's evidence is that he "freaked out" and "it" stopped soon afterthat. Mr Buckley deposed that he did not stay the night at theApplicant'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 Honourwas required to make a ruling in respect to the evidence of "X". HerHonour ruled that "X" could say what happened to Mr Buckley but not inrespect to himself, and therefore Mr Buckley could not say whathappened to "X".
118 In cross examination at page 42 of transcript of 6 July 2000 MrBuckley put that the overnight stay to watch videos and the eventinvolving Mr O'Grady and "X" was around Easter 1981. Later, at page 43he put that the invitation to watch the video "Raiders of the Lost Ark"could have been 1982 but certainly no later. It is put, without proofor dissent, that "Raiders of the Lost Ark" was not released in videoformat until 1984.
119 At page 44 of transcript of 6 July 2000 Mr Buckley was certainthat only he and "X" were present on this occasion and that he waspresent with "X" and another boy on a separate occasion.
120 At page 66 of transcript of 7 July 2000 the proposition was putto Mr Buckley that he and "X" had stayed overnight at the Applicant'sresidence in October 1983 prior to a steam train trip the followingday. Mr Buckley was able to recall the steam train trip, was unsure ofthe date and could make no connection between the train trip andstaying over at the Applicant's residence.
121 Agreed facts in the O'Grady trial were that Mr Buckley commencedat the School on a choir scholarship on 28 January 1981 in Year 5; "X"commenced on a choir scholarship on 3 February 1982 in Year 5. There isno record of Mr Buckley finishing at the School. "X" left the School on4 May 1984.
122 It is not disputed in any way that the choir undertook a trip toGermany at the end of 1981, early 1982. Mr Buckley's evidence at p 76of transcript in the O'Grady trial (exhibit 30) is that as a first yearmember of the choir he was ineligible to take part, however, Mr O'Grady"would put in a good word with the choirmaster" to assist his selectionfor the trip to Germany. Mr Buckley was not selected for the Germanytour. "X" did not commence at the School till after the Germany tour.The choir next toured to the United States of America in late 1984,early 1985. "X" had by that time left the school, Mr Buckley toured asone of two soloists.
123 At page 99 of transcript of 7 July 2000 documentary evidence is alluded to which put the steam train trip in October 1983.
124 At page 101 Mr Buckley says he was at the Applicant's residencewith "X" on only one occasion. Mr Buckley deposed that he had attendedthe Applicant's residence on three occasions; one preceding the traintrip, the "video night" involving "X"; and another occasion.
125 The evidence of "X" in the O'Grady trial is very brief, found atpages 115, 116 and 117 of transcript of 7 July 2000. "X" was notsubject to cross examination.
126 The evidence of Mr O'Grady commences at page 150 of transcripton 10 July 2000. At page 151 Mr O'Grady deposes that he resided at theApplicant's residence for 12 months, from November 1982 to November1983. His evidence is that Mr Buckley and "X" stayed over at theApplicant's residence prior to a steam train trip some time afterSeptember 1983. Mr O'Grady put that all choir boys who lived away fromtheir fathers were invited.
127 Mr O'Grady's evidence is that he brought both Mr Buckley and "X"to the house where they had a meal, which he prepared. Mr O'Gradydeposed that as the boys were not familiar with the property there wasa fair bit of looking around. Mr O'Grady further put:
There were two dogs lived on the property as well, and I can'taccount much more the exact details of what they did, they did what 12year old boys like to do. There were trees in the back yard - I reallycan't account for the details.
128 Mr O'Grady deposed that after the meal they watched a video,there were a few minutes of harmless horseplay in which allparticipated and were fully clothed.
129 Of interest to the present proceedings is the absence of anyreference by Mr O'Grady to the Applicant or the train set. Mr O'Grady'sevidence in respect to the layout of the house and location offurniture 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 makes no mentionof the lounges or coffee table. In cross examination Mr O'Grady deposedthat the events took place in an open lounge area he likened to alibrary. Mr O'Grady claimed clear recollection of the room at page 161of transcript 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 chairsagainst one wall and fairly bare of other furnishings. A carpet squareon the ground.
Q. Sensational memory for the furnishing in a room in a house you lived in for about 12 months around 16 or 18 years ago?
A. I did spend a lot of time in that room because I played the pianoand it was the room right at the bottom of the stairs that I walkeddown to every morning that I came down the stairs.
130 Mr O'Grady put that the television and stereo were in a different room he described as the "front room".
131 Mr O'Grady's evidence is that he also went on the steam traintrip at the invitation of the organiser, a person whom he did not name,describing him as a person not associated with the choir.
THE EVIDENCE OF THE APPLICANT
132 The evidence of Mr Russell is found in three affidavits,exhibits 3, 4 and 31. He was subject to extensive cross examination.
133 Mr Russell's evidence details his long and involved associationwith the choir which he put, over the years of his involvement,comprised about 40 percent adult members and 60 percent childrenattending the school.
134 Mr Russell's evidence recites without dispute the events relatedin the evidence of Father Doherty of arrest, charge, voluntary standdown, and return to his duties following the collapse of the chargesbrought against him in respect to Mr Buckley.
135 Mr Russell deposed that around June or July 2002 Father Dohertyenquired as to his intentions towards retirement in a passingconversation, inviting the inference that there existed a preferencefor the issues to be resolved by his departure.
136 Mr Russell deposed that in August 2002 Father Doherty informedhim of the Ombudsman's interest in the matter and arrangements weremade that he again be supervised during choir practice pendingresolution. Mr Russell deposed that he was shocked and angered by there-opening of the matter. He agreed to the supervision and was requiredto arrange it himself, which he did.
137 Mr Russell's evidence is that he engaged Mr Chris Mitchell ofCorrs Chambers Westgarth to assist him and sought further clarificationof the requirements of him and to expedite the matter. Mr Mitchell wasa member of the choir as a child and continues as an adult member ofthe choir and has known the Applicant in that capacity for many years.
138 Mr Russell's first affidavit (exhibit 3) sets out in some detailhis attempts to assist expedition, his representations and those of hissolicitors to that end, and involvement in meetings and discussionswith Father Doherty, Mr Michael McDonald, the Executive Director ofCCER, and Mr Cooke.
139 Mr Russell deposed that in early December 2002 he was informedof the outcome of the Cooke enquiry and asked to respond to thepreliminary findings that he had walked into the lounge room (of hishome) and saw children and Mr O'Grady engaged in sexual activity, didnothing, and walked out.
140 Mr Russell deposed that he was very distressed and recalls hisresponse to Mr McDonald and Father Doherty at para 41 of Ex 3 in thefollowing terms:
As you can see, I am extremely distressed and upset. I can't believethat such a finding could be made. This was not one of the originalcharges and has never been raised as a charge. It is just not true.This is all false. I did not do any such thing. There is a witness whosays that it did not occur. How could this happen? I just can't believeit.
141 Mr Russell's evidence is that Mr Mitchell then made a number ofenquiries on his behalf seeking access to the Cooke report identifyingpersons interviewed by Mr Cooke and whether he could talk to personsnamed. Mr Mitchell was afforded access to an edited version of theCooke report in mid December 2002. Mr Russell deposed that he workedwith Mr Mitchell to prepare a detailed reply to the edited version ofthe Cooke report made available to them. Mr Russell's evidence is thata 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 forexpedition of the process, culminating in a meeting on 31 January 2003with Father Doherty and Mr McDonald which he attended accompanied by MrMitchell. Mr Russell recalls the opening conversation at para 50 of Ex3 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 - noconclusion yet, but it is now resolved that it has been sustained. TheCathedral regards this as serious and wants to know whether anythingelse has to be considered.
Father Doherty No verdict has been reached on the matter by the employer. I am the employer and I represent the Church.
Mr McDonald Mr Cooke has looked at the materials and the Cathedralhas considered it. It believes that there is a case to answer inrelation to the allegation.
Father Doherty There is no verdict yet, but the matter has come to a moment of decision.
Mr McDonald Now the Cathedral as the employer must finalise its viewin relation to the Cooke report and take a view as the employer.
143 Mr Russell deposed that he was then asked to consider what hemight put by way of mitigation and was given a few minutes to consultwith Mr Mitchell. The reply is recounted at para 52 of Ex 3 in thefollowing terms:
52. Mr Mitchell then put certain matters to Father Doherty and MrMcDonald. To my recollection, those matters were to the followingeffect:
(a) the finding is based on statements from totally unreliablesources, being Mr Buckley and "X", and in circumstances where there wasan entirely unsatisfactory inquiry by the police, including the factthat "X" was not spoken to 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 history with and commitment to the Choir has been ignored.
Neither Mr McDonald nor Father Doherty responded to those commentsother than to suggest that an adjournment occur. We adjourned for about30 minutes.
144 On resumption of the meeting Father Doherty informed Mr Russellof the termination of his employment. Monies due to him were paid bycheque that evening.
145 Mr Russell maintains an absolute denial that he observed anyimproper conduct of the type alleged. At para 56 of Ex 3 Mr Russelltakes issue with the observation of Mr Cooke that:
If "X" is to be believed, the accused observed the sexual abuse ofthe boys by O'Grady and did nothing to stop him. It seems that theincident could not have happened in 1981, as the complainant [Buckley]has stated. Nothing has emerged to contradict the possibility of suchan incident having occurred in March 1983.
146 Exhibit 4 is a further affidavit directed in response to Ex 1,the statement of "X", in which Mr Russell reiterates his denial of theallegations, deposing that had he knowingly observed such conduct, hewould have immediately taken steps to stop it and would have reportedit to the proper authorities.
147 Mr Russell deposes in Ex 4 that he has no recollection of "X" orMr Buckley ever staying overnight at his residence, whether while MrO'Grady was boarding there or at any other time. In this deposition MrRussell draws attention to what he describes as a number ofinaccuracies relating to the work of the choir, the layout of hisresidence in 1982 and 1983 and the content thereof, which he deposes hewould give evidence in due course if it became relevant to do so.
148 Mr Russell's evidence is that "X" and Mr Buckley were never inhis residence to his knowledge. His evidence is that choirboys had onlyever visited his residence on a small number of occasions in late 1984as a lead up to a concert tour of the United States of America inJanuary 1985. Mr Russell's evidence is that there were always a numberof boys present and the events conducted by other adults as part of areward and recognition system directed to improving presentation of thechoir ahead of the concert tour.
149 In response to a question by Mr Murphy, Mr Russellconceded that Mr Buckley was part of that trip and he might havevisited the residence as part of those events but he did notparticularly recall him being there. "X" did not participate, havingleft 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'Gradycame to board at his residence. Mr Russell's recollection is that MrO'Grady came to the Cathedral some time in 1982 and to the best of hisrecollection in early 1983 he was approached by Father McGloin, thethen Dean of the Cathedral. His recollection of their conversation isfound at para 58 of Ex 3 in the following terms:
David, it is not appropriate that David O'Grady continues living inthe Cathedral Presbytery. He has no money. Would there be anyone in theChoir who could give him some accommodation until he has enough moneyfor a bond?
That is a difficult one, father. I've got two empty bedrooms, but Iwork two jobs and he would have to look after himself. There is no wayI can supply anything else but shelter. "
I'll talk to him.
151 Mr Russell expands upon this evidence at page 274 of transcript in the following 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 DavidO'Grady was a person of no consequence in terms of in my case - well,when we returned from the European tour in 1982 I, because of a certainmatter of most exhaustion after taking them around Europe, et cetera,took some time off the Cathedral and didn't arrive back until the endof March 1982. When I arrived back, I found there was a new Dean. Weleft with Dean Willoughby. We came back and there was Dean MichaelMcGloin. 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 wasliving in the Cathedral House and he was interacting, as a young man,with the choir boys in the break. At some stage during that year, and Idon't know when, Dean McGloin approached me and said he thought it wasprobably inappropriate for David O'Grady stayed in the Cathedral Houseany longer, would I ask anyone in the choir if they could possiblyprovide accommodation. Now, that is a very difficult thing to ask of avoluntary group of people to take on board someone who they don't know.So I said to him that that's a hard ask but I have a spare bedroom andyou know I do two jobs and the best I can offer him is shelter and thatwas 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 sometime after that. Mr Russell deposed that after approximately four weekshe observed Mr O'Grady to be continuously deeply depressed and informedhim that he would have to obtain help or move out. Mr Russell deposedthat in response to Mr O'Grady's reply that he had no money to obtainhelp, he arranged for a counsellor, identified as Beresford Waterman,to see Mr O'Grady. Mr Russell's evidence is that some time after thatMr O'Grady threatened suicide and subsequent thereto he insisted thatMr O'Grady leave his residence. Mr Russell's estimates that Mr O'Gradyresided at his home for about six months at the longest.
Layout of Residence
153 The Applicant was subject to detailed examination in chief andcross examination in respect to features of his residence and thecontent thereof in 1982/1983.
154 Mr Neil first addressed the layout of Mr Russell'sresidence in 1983 by reference to exhibit 12, which Mr Russellconfirmed depicted the location and layout of furniture on the groundfloor of his residence at that time. Mr Russell deposed that thefurniture had been arranged in the manner depicted in exhibit 12 from1979 and remained that way until he sold the property in 1996-97.Exhibit 12 shows a model train layout of substantial dimension in thekitchen area. The lounge room where the walking in event is alleged tohave occurred has a large corner lounge, piano, audio cabinet, and freestanding speakers surrounding a coffee table positioned in the centreof the room.
155 Exhibit 15 is two photographs of a very elaborate model railway.Exhibit 16 is a scale drawing of the lounge room and furniturecontained therein. Mr Russell described the lounge room as crowded withfurniture. He is supported in this evidence by Mr and Mrs Mitchell andMr O'Dea.
156 There was extensive evidence in respect to the layout of thelounge room and, in particular, a large coffee table said to dominatethe space. This conjecture was subsequently resolved by inspection ofthe residence on 19 August 2003.
157 On inspection the room was presented by the Applicant as hedeposed it was at 1983. The coffee table had been obtained on loan fromits present owner; the applicant retains in his present residence themajority of furniture which was relocated for the purpose of inspectionwith the co-operation of the present occupant.
158 In addressing the type and colour of dogs present in March 1983,Mr Russell identified a photograph (exhibit 13) of two dogs which heput were a cross Labrador/Golden Labrador named Tristan and a brownGerman Short Haired Pointer named Liobe. Also appearing in thephotograph is a female described as a visitor from Germany whom MrRussell deposed had stayed with him over the Christmas/New Year period1983-1984.
159 Attachment A to exhibit 31 is a photograph of Mr Russell and hisparents dated Easter 1982. Attachment B to exhibit 31 is a photographof Mr Russell with the aforementioned Tristan and Liobe as puppies,which he deposed, by reference to his appearance in the photographs,suggests and confirms that the photograph of him with the puppies wasalso taken in the late part of 1982.
160 A further photograph is provided, identified as DR 1, showing MrRussell with Tristan and Liobe, which he deposed is a photograph sentto him in approximately 1984/85 taken by a person identified as HansBernhardt whilst visiting from Germany. The photograph has ahandwritten date "Oktober '83 Sydney" on the back. The word "Siegfried"also appears, which Mr Russell put refers to Siegfried Koessler. Atpara 8 of exhibit 31, his affidavit of evidence, Mr Russell says:
... Hans Bernhardt was the Domkapelmeister at Limburg and SiegfriedKoessler was the Domkapelmeister at Wuerzburg. They held these postsfrom before 1976, when I first met them.
161 This evidence is supported by the affidavit of Ms Hammer, aveterinary surgeon (exhibit 32) in which she deposed that she hasexamined the photograph of the puppies (attachment A to exhibit 32) andDR1, the photograph of October 1983, and confirms that from herprofessional observation the dark coloured puppy is a German ShortHaired Pointer approximately eight to ten weeks of age, and the darkcoloured dog in attachment B to exhibit 32 is also a German ShortHaired Pointer aged between nine months to two years, which appears tobe fully grown but still very young, exhibiting the muscle structure ofa young adult dog. Ms Hammer adds that from her experience German ShortHaired Pointers are generally fully grown at approximately nine monthsof age.
162 During cross examination Mr Russell deposed that he has alwayskept two dogs and that the dogs in residence had been quite a featureof his household. Mr Russell's evidence is that Mr O'Dea would take upresidence and care for the dogs when Mr Russell was away on tour withthe choir.
163 The Applicant was firm in his response to Mr Murphy thathe had never owned two golden retrievers. The Applicant put that thedogs preceding Tristan and Liobe were named Johnnie Walker, a whiteLabrador, and Arwen, a Labrador cross, which he described as ayellowish, honey coloured dog of similar colour to Tristan.
164 The Applicant conceded that it would be possible for an 11 yearold boy to confuse pure bred golden retrievers with a light colouredLabrador. The Applicant remained firm that the dogs in residence in1983 were Tristan and Liobe, the latter brown in colour.
165 Mr Murphy put to the Applicant that he had never raisedthe issue of identification of the dogs with Mr Cooke, inferring thatthe issue of the identification of the dogs by "X" was a laterconcoction.
166 The Applicant deposed that he had been asked to respond to Mr Cooke's report which did not mention the dogs.
167 The Applicant further deposed that Liobe died two years ago(2001) at age 19 years, being a world record for the longevity of thebreed. On this evidence the 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 themodel railway layout Mr Russell deposed that he commenced constructionin 1982 and completed it to the state shown in exhibit 15 by late 1982,early 1983. In cross examination Mr Russell deposed that model trainshad been a life long hobby and that the display situated in the kitchenarea during the course of 1982/83 had previously occupied an upstairsbedroom, the process of removal being undertaken over a period of fourto five months, completing during the 1982/83 Christmas vacationperiod. Mr Russell's evidence is that he had taken the choir on aconcert tour of Europe, in particular Germany, returning at the end ofJanuary 1982. His evidence is that on his return he decided to remodelthe train layout on German lines, undertaking the task late in 1982 asdeposed. Mr Russell's evidence is that he was assisted in this processby Mr McCarthy, a fellow enthusiast, and that Mr John Mitchell hadwired the layout for him.
169 Mr Russell's evidence is that the model railway layout remainedin his residence until 1986. Mr Russell's evidence is that he retainedthe components but has not reassembled the display.
170 Exhibit 14 is a photograph of the dining area showing thelocation of the dining table and two timber and glass doors leadingfrom the dining room to the kitchen where the model railway display wassituated, some two and half feet on the other side of the doors in thekitchen area. In the photograph the doors are closed. Mr Russell'sevidence is that this photograph was taken by a real estate agent formarketing purposes and that the doors were normally left open.
171 Mr Russell's evidence is that the bathroom and toilet werelocated on the ground floor, access to which was via doors from thedining area, through the kitchen past the model railway layout to thearea at the rear of the dwelling.
172 During further cross examination by Mr Murphy, Mr Russelldeposed that it was not his practice to put any protective cover overthe train set at any time, including absences of four to five weekswhilst leading overseas tours of the choir.
173 Mr Russell conceded that it may have been hypotheticallypossible to have dinner in the dining room and not be aware of themodel train set, however, had "X" gone to the area adjacent to thetoilet and bathroom at the rear of the house where the dogs were fed,he must pass through the kitchen adjacent to the train set. MrRussell's response to Mr Murphy's questions in this regardmaintain his position that "X" had never been to his residence. MrRussell questioned the validity of the version by "X" on the basisthat, had he been in the residence for the period of time asserted andnearly been bitten by one of dogs whilst it was eating, it wasinconceivable that he had not needed to use the toilet nor had gone tothe area where the dogs were fed and to do so must walk through thekitchen, past the train set, at which stage it could not have beenoverlooked.
Date of Steam Train Excursion
174 Mr Murphy questioned the fixing of the steam trainexcursion at 19 March 1983. Mr Russell's evidence is that the date wasby reference to the NSW State Rail records which revealed that the onlyexcursion organised by the NSW Steam Railway Museum on the Illawarraline in 1983 took place on that date. Mr Murphy put to theapplicant that another organisation ran steam train trips on the southcoast line in 1982/83 on approximately a monthly basis on weekends. MrRussell denied any knowledge in respect to this, putting that theexcursion undertaken by the choir had been organised by Mr McCarthy, amember of the historical steam train organisation. Mr Russell deposedthat such trips were published in a magazine published by thehistorical steam train group and the trip of March 1983 was the onlytrip recorded on the Illawarra line in the period 1982/1983.
175 Mr McCarthy's evidence, given by affidavit (exhibit 23) andorally, confirms that he has been a member of the NSW Rail TransportMuseum since 1973. His evidence is that he has had an association withthe applicant since the late 1960's as a musician, and from the 1970'sas a fellow railway enthusiast. Mr McCarthy recalls the applicantraising the prospect with him of organising a steam train trip for thesingle parent and disadvantaged boys of the choir, which he did, notingthat it was the only train trip he ever went on with the choir.
176 Mr McCarthy's evidence is that such trips were subject to aspecial train notice applicable to all non-timetable trains and that itwas his practice to keep copies of those notices for trips upon whichhe travelled or organised. Mr McCarthy deposed that a search of hisrecords revealed a special train notice headed "Steam to the Seashore"(Annexure A to exhibit 23) which was undertaken on Saturday, 19 March1983. Mr McCarthy further deposed that he searched his records for theyears 1981 to 1985 inclusive and found no evidence that he hadtravelled on any other "Steam to the Seashore" train trip during thattime, certain in his evidence that had he done so he would have keptthe relevant notice as a memento.
177 Mr McCarthy deposed that he recalled the presence of DanielBuckley, whom he described as a larrikin but a bright and smilingchild, on the trip of 19 March 1983. Mr McCarthy could not specificallyrecall any other participant.
The Walking In Allegation Cross Examination
178 Mr Murphy put the applicant to detailed cross examinationin respect to the versions of the walking in event described by MrBuckley and "X". Mr Murphy also put the applicant to detailedcross examination in respect to the Cooke enquiry and his responsesthereto, in which the applicant speculated on collusion between MrBuckley and "X" and the role of the investigating police officer inpreparation of their statements.
179 The applicant was unshaken in his denial that any form of thewalking in event took place. The applicant conceded that the notion ofcollusion between Mr Buckley and "X" and the role of the investigatingpolice officer was mere speculation on his part as he had been asked toput an explanation and, in an attempt to comply with that request, hadspeculated in order to explain the inexplicable as the events describedby Mr Buckley and "X" were not within his knowledge and did not occur.
Mr John Mitchell
180 The evidence of Mr John Mitchell is that he is a retired teacherand has known the Applicant since 1978, visiting his house on more than50 occasions during the years 1982, 1983 and 1984.
181 Mr Mitchellâ€™s evidence is that the general layout of the groundfloor of the dwelling, and in particular the furniture in the loungeroom depicted by exhibits 12 and 16, accord with his recollection.
182 It is Mr Mitchellâ€™s evidence that he visited the residence on anumber of occasions in late 1982 and early 1983 to assist the Applicantto build a model train set, deposing that he constructed the electricalwiring and various control components which involved long periods atthe house connecting and modifying wiring over several weeks.
183 Mr Mitchell identified a photograph of the train set (exhibit15, initially MFI 4) which he deposed was located in the kitchen/familyroom of the house.
184 Mr Mitchellâ€™s evidence is that the train set measured aboutthree meters long and 0.9 meters wide and was, on his recollection,visible through the doors from the dining room to the kitchen/familyroom area when open or closed. Mr Mitchell deposed that in hisrecollection the doors were usually open.
185 Mr Mitchellâ€™s evidence is that the dogs owned by the Applicantin January 1983 were a brown German Short Haired Pointer and a crossLabrador named Liobe and Tristan as depicted in exhibit 13. MrMitchellâ€™s evidence is that he recalls the Applicant had previouslyowned a golden coloured dog by the name of Johnnie Walker which haddied in late 1982, early 1983 and was replaced by the German ShortHaired Pointer named Liobe.
186 Mr Mitchell deposed that in his recollection the dogs wereoccasionally fed from bowls on the floor of the kitchen and sometimesfrom the dining room table.
Mrs Judith Mitchell
187 The evidence of Mrs Judith Mitchell (exhibit 8) is that she hasknown the Applicant since 1979 and was a frequent visitor to hisresidence. Her evidence accords with that of the Applicant and MrMitchell in respect to the layout of the ground floor of the house, thearrangements of the furniture in the lounge room, which she recalls wasâ€œa little over crowded with furnitureâ€.
188 Mrs Mitchell's evidence confirms the existence of the train set and that it was erected during late 1982, early 1983.
189 Mrs Mitchell recalls that she would stand beside the fire in thelounge room as the coffee table obstructed heat to the lounge and thaton occasions when she wore a certain coloured jumper with largebuttons, the dogs would lick the buttons thinking they were lollies.Mrs Mitchell recalled two gold dogs being replaced by a light coloureddog and a brown dog. She was uncertain in respect to the names given tothe dogs.
Mr Sean O'Dea
190 The evidence of Mr Sean O'Dea (exhibit 9) is that he has knownthe Applicant professionally from 1975 and on a personal basis from1979. Mr O'Dea's evidence is that he stayed at the Applicants residenceon a number of occasions, some associated with major choir events,concerts or rehearsals, as a matter of travel convenience; and on otheroccasions, whilst the Applicant was on overseas concert tours with thechoir, as a carer for the dogs.
191 Mr O'Dea's evidence is that he stayed at the Applicant'sresidence over Easter 1983 and that Mr O'Grady was no longer residentthere. Mr O'Dea's evidence is that he met Mr O'Grady on one occasionsome four to six weeks prior to a major concert at the Opera House onJuly 29 1983 for which he had arranged the musical scores and theApplicant was conducting. Mr O'Dea's evidence is that he attended theApplicant's residence to present the musical scores and discuss themwith the Applicant and on this occasion met Mr O'Grady and was informedby the Applicant that Mr O'Grady was departing and had come to collectproperty described as a canoe or canoes which had been left in thebackyard during the time 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 untillate February 1985 on return from a concert tour of the United Statesof America and Canada in January 1985 in which he participated as amember of the choir. Mr O'Dea's evidence is that he again rentedaccommodation in the Applicant's residence from March 1991 until 1994.
193 Mr O'Dea's evidence is that he has never known the Applicant toinvite choir boys to stay at his house. Mr O'Dea's evidence is that onhis recollection the only occasions when choir boys attended theApplicant's residence were associated with pre-tour activities and thatthere was always a group of parents present and the boy choristers weredirectly supervised by another adult. Mr O'Dea deposed that Mr O'Gradywas not present on any such occasion.
194 The evidence of Mr O'Dea accords with that of Mr and MrsMitchell in respect to the general layout of the ground floor of theApplicant's residence, the furniture in the lounge room, and the trainset, which Mr O'Dea deposed was "'a talking point of David's home". MrO'Dea's evidence is that he enjoyed operating the train set and hadobserved others enjoying the activity.
195 A substantial amount of Mr O'Dea's evidence went to the size andlocation of the coffee table, both in the residence at the relevanttime and its current location.
196 This evidence, much of which was curiously vague and inconsistent, was overtaken by the inspection.
197 Attachment L to exhibit 9 is a photograph of a cream colouredLabrador and a cream coloured Labrador cross which Mr O'Dea deposedwere the two dogs owned by the Applicant in the period ending in orabout 1981. Mr O'Dea identified these dogs as having been named JohnnieWalker and Arwen. Mr O'Dea's evidence is that on their passing thesedogs were replaced by those shown in exhibit 13, a Labrador cross and adark coloured German Short Haired Pointer, which he identified asTristan and Liobe. Mr O'Dea was unable to be precise in respect to thearrival of Tristan and Liobe.
Mr Peter Smith
198 The evidence of Mr Peter Smith (exhibit 10) is that he has knownthe Applicant since 1967 and that he visited the Applicant's residenceon a regular basis from that time. Mr Smith deposed that he visited theApplicant's residence only once through 1974 to 1981 due to his wife'sillness; however, from 1982, when he and his family moved into the samesuburb, he visited at least 50 times a year in the period 1982, 1983and 1984 in pursuit of their shared interest in model railways.
199 Mr Smith's evidence in respect to the layout of the ground floorof the property, the furniture in the lounge room, and the size andlocation of the train set is consistent with that of the Applicant, Mrand Mrs Mitchell, and Mr O'Dea.
200 Mr Smith deposed that the model train set was erected duringlate 1982 and early 1983 and remained in the family/kitchen area forfive or six years. His evidence is that the train set was visible fromthe dining area through the glass doors, though in his recollection thedoors were almost always left open.
201 Mr Smith's evidence in respect to the dogs owned by theApplicant is identical to that of Mr O'Dea. Mr Smith identified twogolden coloured dogs as Johnnie Walker and Arwen by reference to thesame photograph as Mr O'Dea (Att. L to exhibit 10). Mr Smith deposedthat the Applicant purchased two puppies, a brown German Short HairedPointer and a cross Labrador, on the passing of the two golden coloureddogs shown in Att. L. Mr Smith's evidence is that the two dogs shown inexhibit 13 are the two dogs which the Applicant purchased as puppies in1982 or thereabouts.
Statement of Nicholas Butler
202 Attachment 4 to exhibit 3 is a statement by Mr Nicholas Butlerdated 29 February 2000. The statement is admitted with the evidence ofthe Applicant without objection. Mr Butler was not required to giveevidence.
203 Mr Butler's statement puts that he was a member of the choirfrom 1982 and that he was about 11 years of age when he joined thechoir and the School.
204 Mr Butler states that he knows Mr Buckley and "X", however heasserts that he had never been to the Applicant's residence with eitherof them, putting that he had attended there on only one occasion with anumber of other boys in 1983.
205 Mr Butler puts that as a soloist in the choir he spent a lot oftime with the Applicant, both in the choir and "one on one". Mr Butlerputs:
I can say categorically that at no time did David Russell behave inany way towards me improperly. I did not detect in any way, shape orform, any behaviour on his part that could be in any way construed assexually improper or having any sexual connotation at all.
Support From Choir
206 Mr Russell deposed that he has experienced strong support withinthe choir to return to his duties, which he put were in the care oftemporary replacements. Mr Russell's evidence concludes with thefollowing statement:
I consider that if I were reinstated to my position as Director ofMusic, I could with complete confidence and propriety resume my careerand the performance of all my duties and responsibilities withoutrestrictions or conditions. I have sought to the best of my ability tofaithfully serve the Church, the Choir and its music with honour anddignity. 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 byaffidavit, exhibits 5, 6 and 11 respectively. None were required forcross examination. The evidence of each is that they have had a longassociation with the Applicant, resulting from their children'sparticipation in the choir (and in the case of Ms Vierboom, herhusband's membership), and have developed a high regard for hisprofessional ability. Each deposed that they are informed of thepresent circumstances by reading the Cooke report, the affidavit ofFather Doherty, and the affidavit of "X". The conclusion of each isadequately expressed in the final paragraph of Ms Vierboom's affidavitin the following terms:
I have never had, nor do I now have, any reservations about havingmy son in the care of David Russell. Upon his reinstatement, I lookforward to him returning to his position as Director of Music at StMary's Cathedral and as choirmaster to my son and husband.
208 This deposition is supported by a petition of 80 adult membersof the choir (exhibit 28) declaring their total confidence and trustin, and full support of, the Applicant.
209 Mr Neil submitted that the termination of the Applicant's employment 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 theCooke enquiry and the decision making process surrounding it are soprofound that the respondent's conduct must be condemned asincompetent, incomplete and partial, rendering it unfair.
211 In addressing the substance of the termination of employment Mr Neilsubmitted that the evidence available is incapable of properlysatisfying a reasonable employer or this Commission that the Applicantwas guilty of the conduct alleged.
212 Mr Neil submitted that the respondent wrongly placed a burden of proof upon the Applicant to demonstrate his innocence. It is Mr Neil's submission that the burden of proof falls properly upon the respondent, which it has 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 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 wherein his Honour said at 83-84:
It is undoubted, in my view, and as Mr Walton conceded, that theonus for making out a case to warrant the intervention of theCommission in ordering reinstatement is on the claimant union ...However, it is also undoubted, in my view, that where an allegation ofmisconduct is raised as a defence or justification for a particularcourse of action by an employer, such as in summarily dismissing anemployee, then the legal burden, in an evidentiary sense to establishthat fact, shifts from the union to the employer.
214 Mr Neil submitted that there are many illustrations of the erroneous approach by the respondent to the onus of proof. Mr Neilsubmitted that the respondent attempted to call into question theevidence that the steam train excursion referred to by "X" took placeon 19 March 1983 late in the proceedings. Mr Neil submittedthat it was the respondent's obligation to undertake enquiries toverify the assertions of "X", which it did not do, either during itsown investigation (the Cooke enquiry) or during these proceedings. Mr Neilnoted that the only consequence of the respondent's conduct in thisregard was to drive the Applicant to collect and present furthermaterial, demonstrating that the only available conclusion was,consistent with his initial evidence, that the trip took place on 19March 1983.
215 Mr Neil submitted that a further and more significantillustration of the respondent's erroneous approach was its failure todo anything to ascertain Mr O'Grady's account of the alleged events,submitting that if the respondent had bothered to read the transcriptof his evidence at his trial they would have discovered an account ofthe alleged events that reconciled many of the weaknesses andinconsistencies in the other accounts and entirely exculpates theapplicant from any involvement.
216 Mr Neil identified the appropriate test as the civil standard as described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Mr Murphy also referred to Briginshaw at greater length from pp 360 to 362. It is appropriate to reproduce the passage here with emphasis to that relied upon by Mr Neil:
At common law two different standards of persuasion developed. Itbecame gradually settled that in criminal cases an accused personshould be acquitted unless the tribunal of fact is satisfied beyondreasonable doubt of the issues the burden of proving which lie upon theprosecution. In civil cases such a degree of certainty is not demanded.The distinction obtained long before the publication in 1824 of Starkie's Law of Evidence; butthe form in which the higher standard of persuasion is described issaid to have been influenced by passages in that work. The learnedauthor, who occupied the Downing Chair of Common Law, wrote:- "It is tobe observed, that the measure of proof sufficient to warrant theverdict of a jury varies much, according, to the nature of the case.Evidence which satisfies the minds of the jury of the truth of the factin dispute, to the entire exclusion of every reasonable doubt,constitutes full proof of the fact; absolute mathematical ormetaphysical certainty is not essential and in the course of judicialinvestigations would be usually unattainable. Even the most directevidence can produce nothing more than such a high degree ofprobability as amounts to moral certainty. From the highest degree itmay decline, by an infinite number of gradations, until it produce inthe mind nothing more than a mere preponderance of assent in favour ofthe particular fact. The distinction between full proof and merepreponderance of evidence is in its application very important. In allcriminal cases whatsoever, it is essential to a verdict of condemnationthat the guilt of the accused should be fully proved; neither a merepreponderance of evidence, nor any weight of preponderant evidence, issufficient for the purpose, unless it generate full belief of the factto 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 anddefinite terms (1st ed. (1824), p 451; 4th ed. (1853), p. 818):- "Butin many cases of a civil nature, where the right is dubious, and theclaims of the contesting parties are supported by evidence nearlyequipoised, a mere preponderance of evidence on either side may besufficient to turn the scale. This happens, as it seems, in all caseswhere no presumption of law, or prima-facie right, operates in favourof either party; as, for example, where the question between the ownersof contiguous estates is, whether a particular tree near the boundarygrows on the land of one or of the other. But even where the contest isas to civil rights only, a mere preponderance of evidence, such aswould induce a jury to incline to the one side rather than the other,is frequently insufficient. It would be so in all cases where it fellshort of fully disproving a legal right once admitted or established,or of rebutting a presumption of law." This mode of stating the rulefor civil issues appears to acknowledge that the degree of satisfactiondemanded may depend rather on the nature of the issue. In the course ofa discussion of the matter containing no less wisdom than learning,Professor Wigmore says:- "In civil cases it shouldbe enough to say that the extreme caution and the unusual positivenessof persuasion required in criminal cases do not obtain. But it iscustomary to go further, and here also to attempt to define in wordsthe quality of persuasion necessary. It is said to be that state ofmind in which there is felt to be a 'preponderance of evidence' infavour of the demandant's proposition. Here, too, moreover, this simpleand suggestive phrase has not been allowed to suffice; and in manyprecedents sundry other phrases- 'satisfied', 'convinced', and the likehave been put forward as equivalents, and their propriety as a form ofwords discussed and sanctioned or disapproved, with much waste ofjudicial effort " (Wigmore on Evidence, 2nd ed. (1923), vol. v., see. 2498). It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr. Starkie. Thetruth is that, when the law requires the proof of any fact, thetribunal must feel an actual persuasion of its occurrence or existencebefore it can be found. It cannot be found as a result of a meremechanical comparison of probabilities independently of any belief inits reality. No doubt an opinion that a state of facts exists may beheld according to indefinite gradations of certainty; and this has ledto attempts to define exactly the certainty required by the law forvarious purposes. Fortunately, however, at common law no third standardof persuasion was definitely developed. Except upon criminal issues tobe proved by the prosecution, it is enough that the affirmative of anallegation is made out to the reasonable satisfaction of the tribunal.But reasonable satisfaction is not a state of mind that is attained orestablished independently of the nature and consequence of the fact orfacts to be proved. The seriousness of an allegation made, the inherentunlikelihood of an occurrence of a given description, or the gravity ofthe consequences flowing from a particular finding are considerationswhich must affect the answer to the question whether the issue has beenproved to the reasonable satisfaction of the tribunal. In such matters"reasonable satisfaction" should not be produced by inexact proofs,indefinite testimony, or indirect inferences. Everyone must feel that,when, for instance, the issue is on which of two dates an admittedoccurrence took place, a satisfactory conclusion may be reached onmaterials of a kind that would not satisfy any sound and prudentjudgment if the question was whether some act had been done involvinggrave moral delinquency. Thus, Mellish L.J. says: " No doubtthe court is bound to see that a case of fraud is clearly proved, buton the question at what time the persons who could have been guilty ofthat fraud commenced it, the court is to draw reasonable inferencesfrom their conduct.
217 In addressing the standard of proof required, Mr Neil referred me to the judgment of the Full Bench of the Commission in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 in which the Bench said at 463-464:
The principle applicable in relation to the onus and standard ofproof in a reinstatement case concerning summary dismissal for seriousmisconduct involving criminal activity by the employee is that theemployer must establish to the reasonable satisfaction of theCommission, that the employee was guilty of the misconduct alleged. Theonus of proof in such a case is on the employer and the standard ofproof must be such as to enable a positive finding that the misconductoccurred. 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 consequencesof the finding.
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 at 170-171:
The ordinary standard of proof required of a party who bears theonus in civil litigation in this country is proof on the balance ofprobabilities. That remains so even where the matter to be provedinvolves criminal conduct or fraud. On the other hand, the strength ofthe evidence necessary to establish a fact or facts on the balance ofprobabilities may vary according to the nature of what it is sought toprove. Thus, authoritative statements have often been made to theeffect that clear or cogent or strict proof is necessary "where soserious a matter as fraud is to be found". Statements to that effectshould not, however, be understood as directed to the standard ofproof. Rather, they should be understood as merely reflecting aconventional perception that members of our society do not ordinarilyengage in fraudulent or criminal conduct and a judicial approach that acourt should not lightly make a finding that, on the balance ofprobabilities, a party to civil litigation has been guilty of suchconduct.
219 Mr Neil reinforced this submission by reference to In re H. and Others (Minors) AC 563, a decision of the House of Lords, relying in particularupon the comments of Lord Nicholls of Birkenhead at 586:
The balance of probability standard means that a Court is satisfiedan event occurred if the Court considers that, on the evidence, theoccurrence of the event was more likely than not. When assessing theprobabilities the Court will have in mind as a factor, to whateverextent is appropriate in the particular case, that the more serious theallegation the less likely it is that the event occurred and, hence,the stronger should be the evidence before the Court concludes that theallegation is established on the balance of probabilities. Fraud isusually less likely than negligence. Deliberate physical injury isusually less likely than accidental physical injury. A stepfather isusually less likely to have repeatedly raped and had non-consensualoral sex with his under age stepdaughter than on some occasion to havelost his temper and slapped her. Built into the preponderance ofprobability standard is a generous degree of flexibility in respect ofthe seriousness of the allegation.
Although the result is much the same, this does not mean that wherea serious allegation is in issue the standard of proof required ishigher. It means only that the inherent probability or improbability ofan event is itself a matter to be taken into account when weighing theprobabilities and deciding whether, on balance, the event occurred. Themore improbable the event, the stronger must be the evidence that itdid occur before, on the balance of probability, its occurrence will beestablished.
220 Mr Neil relied upon the judgment of a Full Bench of this Commission in Four Sons Pty Ltd v Limsiripothong (2000)98 IR 1 to support his submission that the more grave the offence, thehigher degree of satisfaction required; citing in particular thecomments of the Bench at p 10:
In Briginshaw v Briginshaw (1938) 60 CLR 336,the High Court affirmed the principle that there is only one standardof proof applicable in civil matters, namely, on the balance ofprobabilities. However, it was held that the strength of the evidencenecessary 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 to findings of criminal conduct or fraud (see, for example, Neat Holdings), however,the statements of principle may be applied to allegations of a broadernature. In all matters, it is necessary for a tribunal to consider thenature and seriousness of the allegation made before finding it provedat the requisite level.
221 Mr Neil noted that the nature and gravity of theallegations involve such a degree of moral turpitude and delinquencythat, if made out, would attract substantially the same degree ofcensure and ruin as many charges of criminal conduct, and accordinglythe allegations should be judged as requiring the highest standard ofproof.
222 Mr Neil submitted that the allegation is inherently so improbable as to be utterly incredible. Mr Neilsubmitted that the assertion by "X" that the Applicant had no reactionof any kind to the event said to be observed, to the extent that hisresponse was allegedly entirely neutral, does not accord with ordinaryhuman experience. Mr Neil submitted that conduct of the kindalleged is inconsistent with any known conduct on the part of theApplicant and every known assessment of his character.
223 Mr Neil relied upon the Applicant's 27 year career withthe choir, during which he put there had never been another complaintor hint of conduct or type of conduct alleged, by any official of therespondent, parent or choir member.
224 Mr Neil noted that parents and choir members continue aunanimous and enthusiastic support for the Applicant's return toemployment as Director of the choir.
225 Mr Neil submitted that the respondent has been unable tomake out any motive for the behaviour alleged and has not establishedany connection between Mr O'Grady and the Applicant other than thatimposed upon the Applicant by the respondent by pressing the Applicantto take Mr O'Grady as a boarder. Mr Neil submitted that theweight against the probability of inaction increases given the tenuousconnection between the Applicant and Mr O'Grady.
226 In reply Mr Murphy submitted that the issue of motive is unhelpful as the offence is one of inaction not action. Mr Murphyput that it is dangerous and productive of error to apply theprinciples of motive espoused in allegations of positive criminalconduct to situations of inaction.
227 Mr Murphy accepted that without establishing a motive forsomeone doing something, then a court will be reluctant or slow tocondemn that person of otherwise good character. Mr Murphy submitted that in this case motive is neutral
228 Mr Murphy put that the absolute denial by the Applicantis not permissive of an exploration of motive as the Applicant contendsthere was no action or inaction to consider.
229 Mr Murphy put that notwithstanding the absence orexplanation of motive, it was open to consider that inaction arose froma condonement of the events witnessed, embarrassment that they were inhis home, or fear of Mr O'Grady.
230 Mr Neil submitted that in the absence of any suggestionof a motive, the only available conclusion is that the respondent'sallegation involves conduct on the part of the Applicant which isutterly inexplicable and accordingly inherently unlikely to haveoccurred.
231 Mr Murphy put that such a conclusion was not available,submitting that inaction when confronted with an unpleasant anddifficult situation is far more consistent with ordinary humanbehaviour.
232 Mr Neil submitted that the Applicant's cooperation with the Cooke enquiry 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 evidence of "X" was throughout knowingly false or misleading. Mr Neilput that the evidence of "X" is of his recollection and that thisrecollection is both inherently and in fact unreliable and unsafe, suchthat it could not induce the degree of satisfaction required.
234 Mr Neil submitted that the testimony of "X" representedthe special danger presented by honest, and apparently convincing, buterroneous testimony 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 MrBuckley remains untested hearsay and is incapable of attracting anyevidentiary or persuasive value in these proceedings
236 Mr Neil submitted that there is no corroboration for theevents deposed by "X", submitting that there were so many materialinconsistencies between the accounts of Mr Buckley and "X" that onecould not be said to corroborate the other. Mr Neil noted thatthe activities described by Mr Buckley and "X" are profoundlydifferent, and the version offered by Mr Buckley's statement hasadditional participants. The two versions are substantially displacedin time, purpose and circumstance. Mr Neil submitted thatfailure by the respondent to regard the denials of the other boys whomMr Buckley put at the scene is a significant error. Mr Neilsubmitted that the proper approach is to conclude that theimpossibility of reconciling Mr Buckley's account and that of "X" inhis evidence means that both are an unreliable and unsafe foundationfor 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 his submission that the purpose ofcorroborative evidence is not to transform unreliable evidence intoevidence that is worthy of credit.
238 Mr Neil referred particularly to the statement of Lord Morris of Borth-y-Guest in Hester at 315:
The essence of corroborative evidence is that one creditworthywitness confirms what another creditworthy witness has said. ... ...Thepurpose of corroboration is not to give validity or credence toevidence which is deficient or suspect or incredible but only toconfirm and support that which as evidence is sufficient andsatisfactory and credible: and corroborative evidence will only fillits 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 the long delay in pursuing the allegation, it is unsafe to make afinding of guilt on the uncorroborated evidence of "X".
240 In addressing the issue of the age of "X" at the time of the alleged event Mr Neil relied upon the judgment of Lord Diplock in Hester at p 324:
"... experience shows the danger that fantasy may supplant or supplement genuine recollection."
241 Mr Neil further relied upon the judgment of McHugh J in Longman v R (1989) 168 CLR 79wherein he puts the High Court recognised that human recollection, andparticularly the recollection of events occurring in childhood, isfrequently erroneous and liable to distortion by reason of variousfactors; and that the possibility of child fantasy about sexual matterscould 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 lengthof time between alleged offence and first complaint assumes greatsignificance. The possibility of child fantasy about sexual matters,particularly in relation to occurrences when the child is half-asleepor between periods of sleep, cannot be ignored. The borderline betweenfantasy and reality can be an uncertain one. Contemporaneousquestioning of the child may distinguish fantasy from reality. The longpassage of time can harden fantasy or semi-fantasy into the absoluteconviction of reality. So to say is not to suggest that the allegationsof the complainant in the present case arose from fantasy orsemi-fantasy. It is simply to explain why it seems to me that, in theparticular circumstances of the case, the complainant's evidence of thealleged offences which was not given until so long after their allegedoccurrence required to be scrutinized with very great care indeed. Itwas not merely a matter of whether the jury was satisfied beyondreasonable doubt that the complainant was an honest witness and thatthe applicant was not. It was a question of the intrinsic reliabilityof the only evidence which was capable of sustaining a finding of theapplicant's guilt."
242 Mr Neil relied on the following passages from Longman at 107 and 108 to support his submission that the evidence of "X", though honestly given, is inherently unsafe:
The fallibility of human recollection and the effect on imagination,emotion, prejudice and suggestion on the capacity to "remember" is welldocumented. The longer the period between an "event" and its recall,the greater the margin for error. Interference with a person's abilityto "remember" may also arise from talking or reading about orexperiencing other events of a similar nature or from the persons ownthinking or recalling. Recollection of events which occurred inchildhood is particularly susceptible to error and is also subject tothe possibility that it may not even be genuine.
Experience derived from forensic contests, experimental psychologyand autobiography demonstrates only too clearly how utterly false therecollections of 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 areany contemporaneous facts which support either version.
244 Mr Neil put that there is nothing of a contemporaneousnature that supports the allegation against Mr Russell and that suchevidence that has survived the passage of time is against theallegation.
245 Mr Neil submitted that the Applicant is a person wellknown to the respondent having served in the position of Director ofMusic for some 27 years. Mr Neil put that all knowledge of theApplicant's character and behaviour is against the probability of himwalking into the scene described by "X" and doing nothing about it.
246 Mr Murphy contended that it is dangerous and accordingly ill advised to import the principles expressed in Longman to a civil case and that there should be no departure or dilution of the principles enunciated in Briginshaw.
247 Mr Murphy rejected the proposition advanced by Mr Neil that when a witness is found to be unreliable then all of the evidence from that witness must be rejected.
248 Mr Murphy relied upon the judgments in Attorney General of Hong Kong v Wong Muk Ping  1 AC 501; Mills v Industrial Fish Tasmania Pty Ltd (Receivers and Managers Appointed) (1993) 49 IR 416; Wheeler v Philip 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 was precisely consistent with the principles so determined. Mr Murphy then put (TR p732):
The complaint was then made that Buckley's accounts were unsworn,unproven, untested and untestable and reference was made to theobjection to the tender or the acceptance into evidence of Buckley'sstatement and in that debate it was considered in our part that theweight that might be given to anything in that statement given on itsown would be very slight and that appears at transcript page 337 butthat ultimately what utility or weight was to be given to it was amatter for the Commission once all the evidence was in and thesubmissions made consistent with the approach in the Attorney Generalof Hong Kong.
Now section 63 of the Evidence Actspecifically contemplates the admission of such statements intoevidence in civil proceedings in circumstances where the maker of thestatement is not available to give evidence and that provision 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 isunavailable and for that we rely on the affidavit of Mr Carter - Idon't think any of that is put in issue - that's in exhibit 33.
If the admission of a statement made by a person who was unavailableto give evidence is to be allowed in civil proceedings then was to beregarded as having no weight at all then the exception to the hearsayrule enshrined in section 63 of the Evidence Actwould be negatory - would be rendered meaningless. We accept thatcaution has to be exercised in relation to that statement. We acceptthat in these proceedings there's not been the opportunity for theapplicant to test it by cross-examination of Mr Buckley but that mustalways be the case where the deponent is not available to give evidenceand section 63allows admission into evidence and it must be for a purpose and thepurpose in this case is that the Commission can receive it and give itwhat weight the Commission thinks it should.
250 Mr Murphy stressed that the only part of Mr Buckley's statement relied upon is the reference to a walking in event. Mr Murphy conceded that the statement by Mr Buckley alone would not support termination of employment.
251 Mr Neil submitted that the decision making processadopted by the respondent was presumptive of guilt and overwhelmed bythe only consistency between Mr Buckley and "X", which is reference toa walking in event involving the Applicant. Mr Neil put thatthe fixation on this point blinded the decision makers to all otherelements, particularly those suggesting that the conduct alleged wasimprobable. Mr Neil put that a prime example of this wasrefusal to accept the position of Mr Butler (who Mr Buckley said wasthere) that no such event occurred.
252 Mr Neil put that the possibility that "X" and Mr Buckley had talked about this type of event as children could not be discounted. Mr Neil noted that this possibility had been acknowledged by "X" in cross examination.
253 Mr Neil put that "X's" recollection involved some substituted reconstruction. Mr Neilreferred to the evidence of "X" that he recalled the choir trip toGermany and that the trip was after the walking in event. Mr Neilput that this had to be a reconstruction as the Germany trip took pacein January 1982, prior to "X" commencing at the school and with thechoir on 3 February 1982. Mr Neil put that over time this reconstruction had hardened into absolute conviction of reality.
254 Mr Neil submitted that central to the respondent'sposition is its acceptance of the verdict convicting Mr O'Grady on thecorroboration of "X", and a belief that a walking in event took placeas both Mr Buckley and "X" refer to such an event, albeit instartlingly 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 is held that:
A conviction of a criminal offence did not even provide prima facie evidence of the facts on which it is based.
256 Mr Neil further referred to the judgment of his Honour Campbell J., 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 represents the law in New South Wales. Mr Neil put that s 92 of the Evidence Act does not allow admission of the conviction of Mr O'Grady as evidence against the Applicant in this matter.
258 Mr Neil further submitted that the delay in making theallegations occasioned unfair prejudice upon the Applicant in answeringthe allegations effectively and completely, necessitating great cautionin evaluating those allegations.
259 Mr Neil submitted that the evidence of "X" should be considered by examination of the relevant characteristics as it was in 1983. Mr Neil submitted that chronic psychogenic illness suffered by "X" as a child provides an opportunity to gain appropriate insight. Mr Neilsubmitted that "X" at that time was perceived by skilled medicalpractitioners as demanding, manipulative at a conscious level, highlyexcitable and attention seeking, making him a child whose perceptionand recollection could not be relied upon with confidence.
260 Mr Neil noted that the episodes of psychogenic vomitingsuffered by "X" were, in Dr Soddy's diagnosis, triggered bycircumstances of stress or excitement. Mr Neil submitted thatordinary human experience suggests that if the allegation made by "X"is accurate, it is likely to have occasioned stress or excitement, atleast to the same degree as the events which precipitated bouts ofvomiting. Mr Neil noted that there is no recorded event ofvomiting at the time, though admissions to hospital prior to and post19 March 1983 confirm the susceptibility of "X" to that affliction atthe time.
261 Mr Neil submitted that it is, for every practicalpurpose, inconceivable according to ordinary human experience that, ifthe events alleged by "X" occurred, they would have effected no statedor observable change in attitude towards the school or the choir.
262 Mr Neil relied upon the clinical relationship between DrSoddy and "X" and the specific training and expertise of Dr Soddy indetecting child sexual abuse, to support his submission that ifanything had occurred in the manner alleged, it would not have escapedDr 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 tell the truth, Mr Neil relied upon the judgment of Levine J in Marsden v Amalgamated Television Services Pty Ltd  NSWSC 510. Mr Neil put that in Marsden Levine J was asked to pose, and give weight to, the question: Why would the complainant lie? His Honour held:
Such a question asked in the course of submissions is essentiallyfutile. In the criminal law the Court of Criminal Appeal and the HighCourt have on a number of occasions emphasised the dangers in a Crownsubmission to this effect by reason of the risk of it being perceivedthat there is thereby placed upon the accused an onus to discharge someevidentiary obligation and indeed of it being perceived that thesubstantive onus of proof has been reversed.
264 Mr Neil noted that his Honour referred to inter alia, Palmer v R (1998) 193 CLR 1 where it says:
.... a complainant's account gains no legitimate credibility fromthe absence of evidence of motive...The correct view is that absence ofproof of motive is entirely neutral.
His Honour went on to say:
"Although the trial judge in a civil action is taken to be"conscious" of where the onus of proof rests (and of the standard ofproof) and the shifts in evidentiary burdens, it would nonetheless bequite imprudent of a trial judge in such a case as this to allowhimself to be seduced by the allurements implicit in the question "whywould the complainant lies (sic)" in the absence of the litigation ofan issue as to whether in fact the witness had a reason to lie or infact lied.
265 The approach taken by Levine J in Marsden was endorsed by the Court of Appeal.
266 Mr Neil submitted that the case put by the respondent provided not one corroborative fact to assist the allegations of "X". Mr Neil submitted that the evidence of contemporaneous conduct of any person associated with 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 fromthe alleged event; and there is a complete absence of any rumour orgossip surrounding the Applicant or his conduct.
268 Mr Neil submitted that the appropriate remedy isreinstatement with consequential relief of payment of wages andcontinuity of service.
269 Mr Murphy accepted that the onus of proof to establish that the walking in event took place rests upon the respondent. Mr Murphy relied upon the judgment of Hungerford J in Pastrycooks which he put clearly places the onus upon the respondent. Mr Murphy rejected Mr Neil'sassertion that the gravity of the offence supports the application ofthe probability test at the highest level approaching the reasonabledoubt test. Mr Murphy submitted that the balance of probability test is to the comfortable satisfaction of the tribunal, not otherwise.
270 In consideration of the principles enunciated by Dixon J in Briginshaw Mr Murphysubmitted that in this matter the direct testimony provided by the eyewitness, "X", is to be preferred, and is not diminished by failure torecall peripheral issues. Mr Murphy put that the directevidence of "X" of the walking in event withstood the test of threedays of testimony and cross examination.
271 Mr Murphy put that Father Doherty accepted the truth ofthe contents of the statement made by "X" subsequent upon investigationby Mr Cooke. Mr Murphy emphasised that the statement made by"X" was made in relation to criminal charges against Mr O'Grady who wassubsequently convicted of indecent assault upon Mr Buckley in theApplicant's lounge room. Mr Murphy submitted that on a fair andbalanced consideration of all of the evidence in this matter,comfortable satisfaction should be achieved that the walking in eventoccurred and that termination of the Applicant's employment was theonly available outcome.
272 In defending the credit of "X" Mr Murphy put that "X" hadnothing to gain and potential significant loss from making thestatement found in exhibit 1. In this regard Mr Murphy notedthat "X" had no complaint or action against Mr O'Grady, the Applicantor the respondent, and had merely cooperated with the Policeinvestigation subsequent to the matter being identified by Mr Buckley.
273 Mr Murphy submitted that there is no dispute that "X"participated in a steam train excursion to the South Coast of New SouthWales whilst a member of the choir. Mr Murphy submitted that the evidence establishes that "X" spent the night before the excursion at the Applicant's residence. Mr Murphyput that, notwithstanding a period of some 20 years passing from theevening prior to the excursion to the making of his statement, "X" wasable to provide a remarkably accurate description of the layout of theApplicant's residence. Mr Murphy put that the suggestion by theApplicant that the features described by "X" would apply to any terracehouse conforming to a fairly common plan could not be accepted.
274 Mr Murphy relied upon the inspection of the residence anda description of surrounding houses observed during the course of thatinspection to support this submission, noting that the only terracehouse of similar appearance in the vicinity was a residence immediatelynext door, putting that the other houses in the area were a mixture ofdouble and single story residences which were nothing like theApplicant's residence. Mr Murphy further put that if "X" hadnever been to the applicant's house he would have had no way of knowingthat it was a terrace construction.
275 Mr Murphy submitted that "X" held a clear recollection that there were two dogs present in the house at the time he was there. Mr Murphydescribed the evidence brought on behalf of the Applicant in respect tothe colour, breed and nature of the dogs as confused, confusing andcontradictory, failing to diminish the veracity of the recollection of"X" that two dogs resided with the Applicant.
276 In dealing with the model train set Mr Murphy submittedthat the evidence positioning the train set in the kitchen/family roomarea at the relevant time is inconclusive and does not provide anydamage to the credit of "X". Mr Murphy submitted that it isequally plausible that "X" had simply forgotten the train set with thepassage of time, or that he may simply not have seen it during hisvisit.
277 Mr Murphy submitted that the testimony of "X" was subjectto a most searching, aggressive and at times brutal cross examinationover three days, and that, while attempts were made to question thequality of his recollection in respect to the events and the vaguedescription provided to his mother subsequently, "X" was never shakenin relation to his very clear recollection of the walking in event.
278 Mr Murphy submitted that nothing could be made from thelimited recollection of "X's" mother as the evidence reveals that atbest she had been given a vague and broad description of the eventsconsistent with the need for "X" to confide in an adult at the time butnot burden his mother with further responsibility. In putting thissubmission Mr Murphy noted that "X", whilst admitting to being uncomfortable and embarrassed by the events, was not traumatised thereby.
279 Mr Murphy submitted that the evidence of psychometricvomiting suffered by "X" as a child does nothing to diminish hiscapacity to accurately remember events, nor lay a foundation for aconclusion that events might be created by hallucination andsubsequently recalled as real.
280 Mr Murphy was critical of the suggestion put by Mr Neilin cross examination that "X" had deliberately sought to mislead thejury in the O'Grady trial by not making mention of the walking in eventor the Applicant during those proceedings. Mr Murphy reliedupon the evidence of Mr Peter Little, the Crown Prosecutor in theO'Grady trial, which makes it clear that "X" was directed not to referto the walking in event in those proceedings, and accordingly there wasabsolutely no basis for criticism of "X" or diminution of his creditarising therefrom.
281 Mr Murphy submitted that there were a number ofcompelling reasons that the evidence of the Applicant should not beaccepted where it conflicts with that of "X". Mr Murphysubmitted that the assertion by the Applicant that the charges broughtagainst him on the complaint of Mr Buckley were "so conclusively foundto be false" as erroneous and intentionally misleading. Mr Murphysubmitted that the charges against the Applicant were never found to befalse, conclusively or otherwise. They were dismissed by the Magistratebecause the complainant, Mr Buckley, failed to attend court. Mr Murphysubmitted that this could not be conveniently explained away, asattempted by the Applicant in cross examination, by the assertion"naturally in any case, defending oneself one will attempt always topush the positive".
282 Mr Murphy pointed to a direct contradiction in theApplicant's evidence wherein he denied that he had discussed theproposition with John Mitchell that if "X" did not remember the trainset then his evidence ought not to be believed (TR p177 ln34). Mr Murphy put that this was later contradicted by Mr Mitchell (TR p317 ln6-12).
283 Mr Murphy further noted that the Applicant allowed hisCounsel to put the proposition to "X" that the train set was in thedining room when it was contended to be in the kitchen area and hadconceded that it was quite possible to have had dinner at his diningtable without seeing the train set or going into the room in which itwas located (TR p184 ln8).
284 Mr Murphy put that the Applicant's evidence that the dogswere fed in the covered area at the back of the house led to theconclusion that if "X" had attempted to pat one of them whilst it wasbeing fed he would have had to walk past the train set, was latercontradicted by Mr Mitchell who deposed that the dogs were fed in thedining room.
285 Mr Murphy submitted that criticism of the Cooke enquiryis unfounded and, when examined, reveals internal inconsistencies inthe evidence of the Applicant.
286 Mr Murphy cites transcript reference of evidence by theApplicant which he puts is against the Applicant's assertion that hewas not aware that the walking in allegation was subject to enquiry byMr Cooke.
287 Mr Murphy urged extreme caution in accepting theApplicant's evidence that the steam train trip took place on 19 March1983, noting that the special train notice referred to by Mr McCarthywas never produced.
288 Mr Murphy submitted that the evidence of Mr John Mitchell and Mrs Judith Mitchell should be treated with some caution. Mr Murphydoes not contend that they intentionally gave false evidence, but inthe course of their testimony moved from witness to advocate on behalfof the Applicant and so displayed a bias or inappropriate influenceupon their evidence.
289 Mr Murphy put that the evidence of Mr Smith is inaccuratein his insistence that the coffee table was much larger than in fact itwas, and conflicts with that of the Applicant in the identity of thedogs in photographic exhibits.
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 respectto the size of the coffee table, in particular Mr O'Dea's depositionthat he had obtained a photograph of the coffee table from the presentowner, to whom he had sold it "more than a year ago", quite independentof and separate to these proceedings. Mr O'Dea was unable to recall orwas unwilling to identify the identity of the current owner and couldnot recall why he had requested the photograph. Mr Murphydescribed this evidence as fanciful. This proposition is supported byMr O'Dea's subsequent concession that he obtained the photograph forthe purpose of these proceedings and his action in being able to obtainthe coffee table from the present owner for the purpose of inspection.
292 Mr Murphy accepted the evidence of Mr McCarthy whom heput had not exhibited a tendency to exaggerate in order to assist theApplicant's case. Mr Murphy notes that Mr McCarthy statedcandidly his inability to recall when the model railway was built, butthat it was in the early 1980's. Mr Murphy put that it mighthave been expected that, given Mr McCarthy's role in construction ofthe model railway, he would have had a clear recollection in respect toit.
293 Mr Murphy noted that Mr McCarthy, unlike some otherwitnesses, was prepared to consider that his recollection of the loungeroom layout may be inaccurate. Mr Murphy further noted thatdespite his involvement in the organisation of and participation in thesteam train trip on the South Coast line in 1983, Mr McCarthy concededthat there was more than one such trip per year in 1982/1983 and thathe may be wrong about the trip he recalled with the Applicant and anumber of boys, including Daniel Buckley, being on 19 March 1983.
The Cooke Enquiry
294 Mr Murphy defended the Cooke enquiry, submitting that Mr Cooke was a lawyer of considerable experience. Mr Murphysubmitted that Mr Cooke was appointed by the Professional StandardsOffice of the respondent and was provided with appropriate information,including correspondence from the NSW Ombudsman to the CCER of 13August 2002 which contained a summary of Mr Buckley's allegationsagainst the Applicant, including the walking in event, and advice thatthis could be corroborated by the other student present. Mr Murphynoted that Mr Cooke was informed of the identity of the other studentpresent (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 detailedreport in which he reviewed all of the material available to him,including the psychiatric reports of Dr Carolyn Quadrio in respect toMr Buckley, and the written response of the Applicant. Mr Murphynoted that Mr Cooke formed the view that the evidence of Mr Buckleycould not be relied upon unless corroborated, and that he consideredthe statement of "X" to the Police as corroboration of the walking inevent.
296 Mr Murphy submitted that the statement by Mr NicholasButler that he recalled going to the Applicant's house on one occasionin 1983 to watch the movie "Star Wars" was contrary to the Applicant'sevidence that he only ever had choirboys in his house in the later partof 1984 in the lead up to the trip to the USA in January 1985. Mr Murphynoted that an affidavit by Mr Butler was filed and served in theseproceedings but he was not called and the affidavit was not read.
297 Mr Murphy submitted that the Applicant's record and theunanimous support of the parents and complete absence of any furthermatters being brought forward by rumour or gossip as a result of thearrest of July 1999, were of marginal relevance at best to Mr Cooke'stask which was to investigate specific allegations by Mr Buckleyagainst the Applicant, including the walking in event corroborated by"X".
298 Mr Neil in response submitted that this approach anddismissal by Mr Cooke of any other information concerning theApplicant's character, conduct or behaviour was a fatal infection ofthe Cooke enquiry, rendering it unfair and invalid.
299 Mr Murphy contended that the reluctance by Mr Cooke toaccept anything from Mr Buckley without corroboration demonstrated acompletely balanced approach to the enquiry which, in Mr Murphy's submission, if anything, tended to favour the Applicant.
300 Mr Murphy further relied upon the evidence of FatherDoherty and his instruction to Mr Cooke to make direct contact with "X"as a demonstration of the even handed and fair approach of theinvestigation by the respondent.
301 Mr Murphy noted that Father Doherty deposed that he took the Applicant's reputation into account when considering Mr Cooke's report. Mr Murphynoted that Father Doherty's evidence also identified the issue ofcorroboration of one another by Mr Buckley and "X" as the turning pointin his determination to conclude that the allegation of the walking inevent was made out.
302 Mr Murphy supported his submission that the Cooke enquiryand subsequent decision making process were fair and reasonable byreference to Father Doherty affording the Applicant a furtheropportunity to demonstrate that such a conclusion was not sound at ameeting on 31 January 2003.
303 Mr Murphy submitted that neither Father Doherty or MrCooke could be properly criticised for not obtaining a statement fromMr O'Grady. Mr Murphy submitted that the proposition that MrO'Grady's opinion should have been sought was ludicrous as the veryincident that the Applicant is alleged to have walked in on is the onefor which Mr O'Grady was convicted of indecent assault upon Mr Buckleydespite his plea of not guilty. Mr Murphy put that it was mostunlikely that anything that Mr O'Grady might have offered concerningthe incident could be given any weight whatsoever.
304 Mr Murphy refuted Mr Neil's assertion that becausethe allegations were based on evidence which occurred such a long timeago, the respondent in some way acted unfairly by investigating them.Mr Murphy accepts that the investigation of such events is not a simple task. Mr Murphyemphasised that the jurisprudence which has developed regarding thisissue is entirely based on criminal trials where, he put, it is theliberty of the subject which is at stake and the accepted standard ofproof is beyond reasonable doubt. Mr Murphy put that it wouldbe erroneous to apply the same degree of rigour when assessing evidenceof facts in civil proceedings such a these.
305 Mr Murphy submitted that the Briginshaw approachrequiring comfortable satisfaction that the events occurred is theappropriate test, adding that in application of that test considerationof the respondent's ongoing child protection obligations must be bornin mind.
306 In reply Mr Neil submitted that the consequences of anadverse finding to the Applicant were the ruin of his reputation andthat the conduct alleged is of sufficient moral turpitude to warrantthe highest standard of proof. Mr Neil put that the ongoingchild protection obligations, whilst important and significantobligations, had no relevance to a finding of fact.
307 Mr Murphy submitted that despite the long delay betweenthe event and Mr O'Grady's trial, he was convicted by a jury applyingthe beyond reasonable doubt test, having in mind the same concernsenunciated by McHugh J in Longman. Mr Murphy submittedthat in this case the ultimate persuasion of the respondent was thatthe walking in event had been remembered by two boys, albeit indifferent contexts, independently of each other but both said they werethere at the time being indecently assaulted by Mr O'Grady.
308 Mr Murphy submitted that to ignore the conviction of MrO'Grady over the evidence of Mr Buckley and "X" would constitute a formof judicial blindness. Mr Murphy invited consideration of this issue in accordance with s 163 of the Actwhich provides that the Commission is not bound by the rules ofevidence and is to act according to equity and good conscience and thesubstantial merits of the case, without regard to technicalities orlegal forms.
309 Mr Murphy put that it is inherently unlikely that bothboys would have independently of each other included reference to thewalking in event in their statements, prepared for the purpose ofcharges against Mr O'Grady, unless it did in fact occur. Mr Murphysubmitted that it is unsurprising and entirely consistent with humanexperience that one event is remembered differently by two people inrespect to peripheral aspects. Mr Murphy described thesurrounding issues of dinner, the dogs, and television watching, asminor quibbles involving some inconsistency involving television orvideo, and Mr McCarthy's recollection of Mr Buckley on the train trip,all surrounded the one consistent recollection of the Applicant walkingin on Mr O'Grady, Mr Buckley and "X".
310 In reply Mr Neil took issue with the assumption of independent recollection.
311 Mr Murphy submitted that whilst criticisms of theprocedure and decision making process adopted by the respondent arerejected, he notes that the Commission is now placed in a far superiorposition than the employer at the time of the decision to terminate theApplicant's employment, given that the Commission now has before it allof the material available to the respondent as well as additionalmaterial such as parts of the transcript of the O'Grady trial. Mr Murphysubmitted that the Commission as also had the benefit of directtestimony by "X" under expert and searching cross examination,thoroughly tested 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 conclusionthat it is comfortably satisfied on the balance of probabilities thatthe walking in event did occur and therefore the termination of theApplicant's employment was justified.
313 Mr Murphy noted that the respondent relied heavily on theproposition that the allegation is inherently improbable and out ofcharacter for the Applicant. Mr Murphy submitted that thesematters were heavily weighed by Father Doherty, who considered that themore compelling evidence was the allegation by Mr Buckley, corroboratedby "X".
314 Mr Murphy submitted that it is difficult to weigh theabsence of adverse opinion as none of the deponents to the Applicant'sgood character had the opportunity to observe him in a similarsituation.
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 the effect 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 considered with approval the judgement of Lord Bridge in Wong Muk Ping at 510 applicable to the evidence of all witnesses, not just those from the established classes of "suspect" witnesses:
.... ... that it is dangerous to assess the credibility of theevidence given by any witness in isolation from other evidence in thecase which is capable of throwing 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 Neilput that on analysis by Mr Cooke, Mr Buckley is found to be unreliableand lacking credit, therefore his evidence cannot corroborate andaccordingly the evidence of "X" must stand alone.
318 Issues of procedural fairness and the conduct of the Cooke enquiry are put with some force by Mr Neil.The Cooke enquiry suffered from a lack of investigation and confusionas to who would be the ultimate decision maker in the process.
319 I am invited to the inference that the Cooke enquiry took ahasty and ill considered position adverse to the Applicant due topressure upon it by the Ombudsman. It is not necessary to determinethis issue, as put by Mr Murphy, the Commission is now better placed than Mr Cooke to determine the central question of fact.
320 The submissions of Messrs Neil and Murphy dealtextensively with the appropriate tests to be applied to the evidenceand the means by which recollections as a child by an adult givingevidence of time elapsed events should be approached. Each acknowledgedthat the jurisprudence arises from instructions in jury trials.
321 I acknowledge the utility of these submissions. It is notnecessary to recite the jurisprudence in the detail provided, it issufficient for present purposes to note that the test is the civilstandard found in Briginshaw, and that the difficulties ofdistant events and recollections are to be approached from bothdirections with extreme care, having regard to the cautions in Longman and the propensity for action consistent with ordinary human behaviour.
322 I acknowledge reference to s 163 of the Actby Mr Murphy. Whilst the Commission is not bound by the rules ofevidence, these rules are a useful guide, to be departed from incircumstances where consideration of equity, good conscience andsubstantial merit so justify.
323 There is a useful discussion of the relevant principles inrespect to similar provisions in preceding legislation and the role in Browne v Dunn (1894) 6 R 67 by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (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 based upon the concepts of equity and fairness, and, therefore, the approach which I am suggesting is quite consistent. In Earl v Slater & Wheeler (Airlyne) Ltd  1 All ER 145 at 150, the National Industrial Relations Court in England said in this respect:
"The subsection goes on to provide that this question 'shall bedetermined in accordance with equity and the substantial merits of thecase'. 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 the employer acted reasonably orunreasonably the tribunal should adopt a broad approach of common senseand common fairness, eschewing all legal or other technicality. Inother words they should constitute themselves an industrial 'specialjury'."
The approach of common sense and common fairness towards thereception of evidence in a case is, in my view, completely consistentwith s 83 of the Act, and as referred to by the Commission in Court Session in PDS Rural Products Limited v Corthorn (1987) 19 IR 153 at 155 and in Amalgamated Metal Workers' Union v Electricity Commission (NSW) (1989) 28 IR 155 at 161, I need only add reference 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 theprovision that the Tribunal is not, in the hearing of appeals, 'boundby any rules of evidence'. Neither it is. But this does not mean thatall rules of evidence may be ignored as of no account. After all, theyrepresent the attempt made, through many generations, to evolve amethod of inquiry best calculated to prevent error and elicit truth. Notribunal can, without grave danger of injustice, set them on one sideand resort to methods of inquiry which necessarily advantage one partyand necessarily disadvantage the opposing party. In other words,although rules of evidence, as such, do not bind, every attempt must bemade to administer 'substantial justice'." (1933) 50 CLR 228 at 256.
324 It is appropriate, in my view, to approach the present task byfirst considering whether the evidence of "X" can be accepted over thedenial of the Applicant.
325 A consideration of probability where accusation and denialcounter each other must be by consideration of the objective factsavailable and the surrounding circumstances in order to determine theprobability or otherwise of an event.
326 Having regard to the length of time between the evidence and theevents recalled, the age of "X" at the time of the events, and the lackof corroboration, it is unsafe to simply accept what is put. In theabsence of corroboration the veracity of the testimony by "X" muststand or fall on its internal consistency, or lack thereof.
327 Mr Neil relied upon the medical record of "X" as a child,which revealed frequent hospitalisation arising from a psychosomaticdisorder, to support his submission that "X's" recollection of thosetimes is unreliable.
328 It is not possible to disregard the effect of thesecircumstances in consideration of the reliability of "X's" recall ofevents at that time.
329 The circumstances giving rise to the allegation are said toprecede a steam train trip, to be held on Saturday, 19 March 1983, forsome members of the choir. The evidence of "X" is that he and DanielBuckley, due to the remote residence of each, were to stay overnight atthe applicant's house to participate in the train trip. The train wasto travel from Central Railway Station to the Wollongong region ("X"resided in this region at the time), the arrangement being that "X"would complete the forward journey, and on the return journey wouldalight at the station nearest his home.
330 The evidence of "X" is that he and Daniel Buckley were eachgiven a meal and watched some television prior to the event involvingO'Grady, and subsequently remained at the applicant's house,participating in the steam train trip the next day.
331 The evidence of Mr McCarthy is that a steam train trip wasorganised for some choir members, this trip most likely took place on19 March 1983, and that Mr Buckley participated. Mr McCarthy was notable to directly recall the other boys participating.
332 Mr Neil challenged the recollection of "X" on the basisthat he could not recall a large model train set measuringapproximately 3m x 1m mounted on a table in an area adjacent to thedining room of the applicant's house where "X" deposed that he hadtaken a meal prior to the alleged offence.
333 I am informed by the evidence of Mr and Mrs Mitchell and MessrsSmith, McCarthy and O'Dea that the large model train set was in theresidence in March 1983. I find it incredible that an eleven year oldboy about to embark upon a steam train trip did not notice or recallthe existence of this item.
334 The evidence of "X" is that he recalled two large goldencoloured dogs at the applicant's house on the day of the offence. Mr Neilbrought evidence from the applicant and others that there were two dogsat the applicant's residence in March 1983, though only one of them wasgolden in colour (the other a dark brown).
335 I am satisfied by the evidence of the Applicant, Mr and MrsMitchell and Mr O'Dea that the dogs in residence in March 1983 wereTristan, a golden Labrador cross, and Liobe, a German Short HairedPointer brown in colour.
The Lounge Room Events
336 Mr Neil further attacked the recollection of "X" inprobing the layout of the lounge room in which the offence was said tohave taken place.
337 Mr Neil submitted that the events as described by "X"could not have taken place without reconfiguration of the furniture, ofwhich "X" gave no evidence or had any recollection.
338 There is substance in this submission, however, it is lesslikely that an eleven year old boy would take much notice of thefurniture in a room, or whether it had been moved.
339 I accept the submission of Mr Neil that the accountsgiven by Mr Buckley and "X" are so removed from each other that neithercan support the other in any way. It is not open to take the onlysimilarity, that of an allegation of a walk in by the Applicant, asproof that a walking in event occurred.
340 In Mr Buckley's version there were other boys present, they werein underwear and there was inappropriate touching by Mr O'Grady. In theversion offered by "X" only he, Mr O'Grady and Mr Buckley were there,all were naked and participating in genital manipulation whilst layingon the floor.
341 I am asked to believe "X", substantially on the basis of hisevidence that the Applicant made eye contact with him whilst in thedoorway, creating an indelible memory of that moment. "X" deposed thathe held such memory of being snapped at by the dog and being naked withMr O'Grady.
342 I have extreme difficulty in doing so. Had this been the case, Iam compelled to a view that "X" would have an equally indelible memoryof the moments 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 reactionto "discovery" is profoundly counter intuitive.
344 The Applicant presents as a distant and aloof character,unlikely to take any particular notice of a sacristan and newly arrivedstudents who are yet to establish themselves in the choir. The positionof authority so demonstrated is supported by the evidence of "X" thatthe Applicant, in the position of choirmaster, was adept at motivatingand developing members of the choir by balancing criticism andattention. The position of authority and prominence occupied by theApplicant made him a subject of much discussion and conjecture amongthe 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 an authority figure to he and Mr Buckley, and on allevidence to Mr O'Grady, would fail to provoke an immediatedisengagement and a scurry for cover and clothing.
346 The proceedings in the O'Grady trial offer some assistance in a determination of this matter.
347 Mr O'Grady was convicted and appropriate weight must be given tothe findings of fact by the jury in that trial in assessing theprobability of the walking in event.
348 The testimony by Mr O'Grady before the District Court must beapproached with extreme caution given his conviction. That is not tosay that everything put by Mr O'Grady must be considered as untruthfulor 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 tripfor choirboys living without a male parent.
350 Mr O'Grady's version is that he drove Mr Buckley and "X" to theresidence and cooked dinner for them. This aspect of events was notchallenged at the O'Grady trial
351 The evidence suggests some confusion as to the timing of thetrip. The O'Grady trial proceeded on the basis that this took place inOctober 1983. The evidence of Mr McCarthy in this matter is that heorganised the trip and, to the best of his recollection, the trip tookplace in March 1983.
352 Curiosity arises from the absence of any reference by Mr O'Gradyto the Applicant. If Mr Russell was there for dinner, or any other partof the evening, it is more likely that Mr O'Grady would have referredto his presence in his own defence. The lack of any reference to MrRussell by Mr O'Grady is consistent with the position put by Mr Russellthat choirboys were never present in his house to his knowledge or atany time that he was there, other than in an organised group prior tothe January 1985 USA tour.
353 The suggestion by "X" that the event took place in someproximity to the trip to Germany by the choir, the absence of anyrecollection of the model railway set, his recall of two golden dogs,the dogs being fed in the kitchen, and the evidence of the Applicantthat he was requested to take Mr O'Grady as a boarder by a new Dean onreturn from the Germany trip, put the events in early to mid 1982. Had"X" been in the Applicant's residence in early 1982 he would have seentwo 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'Gradyoffered to put in a good word with the choirmaster to assist MrBuckley's selection for the Germany tour, undertaken from 2 January to29 January 1982, places Mr O'Grady at the school in late 1981.
355 The Applicant's evidence that Mr O'Grady boarded with him fromlate 1982 to early 1983 is consistent with his recollection that he wasapproached to find accommodation for Mr O'Grady by the Dean in 1982following his recuperation from the Germany tour, but could not recallwhen during that year.
356 The consideration is not assisted by the fact that Mr Buckleymakes no connection between the overnight stay at the Applicant'sresidence and the steam train trip, and his assertion that followingthe abuse by Mr O'Grady he did not remain at the residence but wastaken to his grandmother's house.
357 The possibility of the event involving "X", Mr Buckley and MrO'Grady taking place in 1982 diminishes the probability that theApplicant was in his residence on that occasion, or was aware that MrO'Grady had brought the boys to his residence in his absence.
358 It is reasonable to expect that in early 1982 the Germany tripwas a topic of some interest given that the choir had just returned. ByMarch 1983 it is reasonable to expect that this event had receded,having been overtaken by contemporary events.
359 The presence of Mr Buckley's grandmother living in the city areais inconsistent with the recollection of "X" that Mr Buckley was alsoinvited to stay over as it was too far for Mr Buckley to travel to hisresidence in Western Sydney. The detail of recollection proffered by"X" of the walking in event is inconsistent with his failure to recallthe other boys on the train trip, where it went, and Mr Buckley'sassertion that he did not stay at the Applicant's residence after theevent with Mr O'Grady.
360 I am compelled to the conclusion that "X" is mistaken in respect to his recollection of relevant events.
361 I accept that an event involving Mr Grady took place at theApplicant's residence. The issues of conjecture are when that eventtook place, whether the Applicant was present, and whether a walking inevent occurred. The facts in this matter are confused as to when theevent took place.
362 The evidence brought by the Applicant is one of absolute denial.It is necessary to put this evidence to the similar test of internalconsistency. This is a more difficult task as there is little more theApplicant can do but protest his denial.
363 Internal inconsistencies suggested by Mr Murphy, forexample, the conspiracy theory of collusion between "X" and Mr Buckley,arise from pressure upon the Applicant to "offer an explanation". Theresponse to this line of enquiry is unnecessarily co-operative by theApplicant and cannot be held against him.
364 "X's" knowledge of Mr Buckley being involved in other eventswith Mr O'Grady raises a concern. It was not established that the onlysource of "X's" knowledge was the O'Grady trial. The propensity for "X"and Mr Buckley to have discussed events as school children, or for theinvestigating Police Officer to have questioned "X" about a walking inevent and the Germany trip based on information obtained from MrBuckley, cannot be dismissed.
365 In cross examination "X" conceded that he may have discussed matters with Mr Buckley whilst at school but could not recall.
366 The credibility of the Applicant's testimony is supported by theevidence of Mr and Mrs Mitchell, Mr Smith and Mr McCarthy, all of whomwere constant and regular visitors to the Applicant's residence and whoare consistent in their deposition that choir boys were never at theApplicant's residence.
367 The evidence of Mr O'Dea was overly partisan, to the extent that, in my opinion, it is safer not to rely upon it.
368 Further, in support of the Applicant's credibility, is theabsolute lack of further or additional allegation of any conduct thatcould be remotely connected to the alleged conduct or otherimpropriety. The absolute support of Ms Kennedy, Ms Szady and MsVierboom, supported by the petition of 80 parishioners directlyconnected to the choir, is indicative of contemporary standing which inmy 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 ofimpropriety against the Applicant during his entire career with thechoir.
370 The reference by Mr Butler that he had been to the Applicant'sresidence "to watch videos" is untested. Mr Butler's statement issupportive of the Applicant. There has been no enquiry as to whetherthe one occasion on which he visited the Applicant's residence was inconnection with the USA tour, or not.
371 Having regard to the internal inconsistencies in the evidenceagainst the Applicant, and the surrounding support for his denial, I amunable to achieve the necessary comfortable satisfaction that thewalking in allegation is sustained.
372 I am mindful of the principles enunciated in Briginshaw that in establishing 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 amere mechanical comparison of probabilities independently of any beliefin its reality. ... ... 'reasonable satisfaction' should not beproduced by inexact proofs, indefinite testimony, or indirectinferences.
373 The difficulty encountered in this case is that the proofs areinexact, the testimony is indefinite, and the inferences are largelyindirect.
374 I am unable on the evidence to form the requisite belief in the reality of the walking in event.
375 Considering the same evidence, I am able to achieve thenecessary level of comfortable satisfaction that the walking in eventdid not occur, and that to the extent this is recalled by "X", it is areconstruction.
376 I find the termination of the Applicant's employment harsh,unreasonable and unjust. I do not consider reinstatement impractical.Accordingly, I order reinstatement with restitution of wages andcontinuity of service for all purposes.
377 The Applicant is directed to file the necessary Orders giving effect to this decision within seven days of today's date.
LAST UPDATED: 02/06/2004