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District Court 13 September 2019

R v McIver

[2019] NSWDC 672

Sexual offencesAssault & violence
HISTORICAL CHILD SEXUAL ASSAULT BEXLEY BOYS HOME SALVATION ARMY COMMON ASSAULT ASSAULT OCCASIONING LAWFUL CHASTISEMENT

Citation: R v McIver [2019] NSWDC 672
Court: District Court of New South Wales
Date: 13 September 2019
Judge: N Williams DCJ

Background

The accused, John Dalziel McIver, faced trial in the District Court on ten counts relating to events alleged to have occurred at the Bexley Boys Home, a Salvation Army institution in New South Wales, spanning various periods between 1968 and 1978. The complainants were four males who had resided at the home as boys. The charges included assault occasioning actual bodily harm, multiple counts of indecent assault, common assault, and two counts of buggery (penetration of the anus with the penis, the relevant offence under law at the time).

The accused elected a trial by judge alone under section 132 of the Criminal Procedure Act, meaning N Williams DCJ acted as both the tribunal of law and the tribunal of fact. The accused pleaded not guilty to all counts and denied committing any sexual or physical act against any of the complainants. His case was that any such acts were perpetrated by someone else and that each complainant had incorrectly identified him as the offender.

Several credibility and reliability issues arose at trial, including allegations that complainants held misdirected grievances against the accused, that one complainant had a history of drug, alcohol, and mental health problems, and that another had sought additional compensation from the Salvation Army. Identification and recognition were also directly contested.

  • Whether the accused committed assault occasioning actual bodily harm against complainant AM (Count 1)
  • Whether the accused committed indecent assault against complainant AM (Count 2)
  • Whether the accused committed indecent assault against complainant DC (Count 5)
  • Whether the accused committed common assault against complainant CN (Count 6)
  • Whether the accused committed acts of buggery against complainant CN (Counts 8 and 10), or in the alternative, indecent assault (Count 9)
  • Whether the Crown had rebutted the defence of lawful chastisement in respect of the physical assault charges
  • Whether directed verdicts of not guilty were appropriate on Counts 3, 4, and 7 due to insufficient specificity in the complainants' evidence

Decision

Directed verdicts: The Crown conceded at the close of its case that Counts 3 and 4 (indecent assault of GW) and Count 7 (indecent assault of CN) lacked sufficient specificity, particularly regarding what are described in the judgment as "S-type" problems, referring to deficiencies that go to the particularity of the alleged conduct. The judge directed verdicts of not guilty on those three counts.

Physical assault counts: The court addressed the accused's argument that, even if physical contact occurred, the Crown needed to disprove the defence of lawful chastisement, reflecting the historical position that those in authority over children could use reasonable physical correction. The judgment addressed this defence in the context of the particular circumstances alleged.

Sexual offence counts: The court carefully assessed the credibility and reliability of each complainant. Regarding complainant CN, the judge found him to be both honest and accurate. His account of the buggery alleged in Count 10, which occurred in the locker area of the home, was found compelling. The judge accepted his evidence beyond reasonable doubt, noting that CN's self-critical explanation for being in the locker room (looking for items to steal) was consistent with the circumstances of a boy in an institutional home with few possessions. Challenges to the plausibility of his evidence about hiding behind lockers and the value of items stored there were rejected.

The judgment records findings on each remaining count individually, with the court ultimately returning guilty findings on those counts where the complainants' evidence was accepted beyond reasonable doubt, and not guilty findings where the evidence did not reach that standard.

Orders Made

• The accused is found guilty of count 8 (act of buggery)
• The accused is found guilty of count 10 (act of buggery)

Key Takeaways

  • In a judge-alone trial under section 132 of the Criminal Procedure Act, the judge is required by section 133 to state the principles of law applied and record the findings of fact relied upon, effectively performing the functions of both judge and jury.
  • Where a complainant's account is self-critical or includes admissions of discreditable conduct, those features may support rather than undermine a finding of honesty and reliability.
  • The defence of lawful chastisement was available historically in proceedings concerning physical discipline applied within institutional care settings, and the Crown bore the burden of rebutting it in relation to the physical assault charges.
  • A directed verdict of not guilty is appropriate where the Crown concedes at the close of its case that a complainant's evidence lacks sufficient particularity to sustain the charge, including in respect of identification or specificity of the alleged conduct.
  • Factors such as a complainant's history of drug and alcohol abuse, mental health conditions, potential financial motive, and alleged personal grievances against the accused were placed before the court as relevant to credibility, but did not automatically defeat a finding that the witness was honest and accurate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1) (assault occasioning actual bodily harm), 61 (common assault), 79 (buggery), 81 (indecent assault)
- Criminal Procedure Act (NSW), ss 132, 133 (trial by judge alone)

Cases:
- R v Trudgett [2008] NSWCCA 62
- Williams v R [2019] NSWCCA 53