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District Court 13 October 2021

R v McIver

[2021] NSWDC 595

Sexual offences

Citation: R v McIver [2021] NSWDC 595
Court: District Court of New South Wales
Date: 13 October 2021
Judge(s): Bennett SC DCJ

Background

This was a retrial of an accused who had previously been convicted of sexual offences against three male complainants, all of whom were children at the relevant times. The Court of Criminal Appeal had set aside those earlier convictions, leading to the matter being remitted for a fresh hearing. The accused elected to be tried by judge alone, with the agreement of the Director of Public Prosecutions.

The alleged offences occurred at a residential children's home in Bexley, New South Wales, between 1968 and 1973. The accused had served in a supervisory role at the home during that period. The three complainants were between approximately eight and fourteen years old at the times of the alleged conduct.

The five counts on the indictment covered indecent assault and acts of buggery against the three complainants, with some counts framed as alternatives to others. The alleged events were between 38 and 45 years in the past by the time of the retrial.

  • Whether the prosecution had proven beyond reasonable doubt that the accused committed indecent assault against complainant AM (Count 1)
  • Whether the prosecution had proven beyond reasonable doubt that the accused committed indecent assault against complainant DC (Count 2)
  • Whether the prosecution had proven beyond reasonable doubt that the accused committed acts of buggery or indecent assault against complainant CN (Counts 3, 4, and 5)
  • How to assess the honesty and accuracy of witnesses giving evidence about events alleged to have occurred decades earlier
  • The proper approach to returning verdicts where counts on a joint indictment involve separate episodes and different complainants

Decision

Bennett SC DCJ acquitted the accused on all five counts. The central issue across each count was whether the complainants' evidence was sufficiently reliable, both in terms of honesty and accuracy, to establish guilt beyond reasonable doubt. The judge noted that reliability encompasses two distinct considerations: the honesty of a witness (including the impression they make when giving evidence) and the accuracy of their recollections.

The judge acknowledged the deeply difficult circumstances of the complainants' childhoods. The home was described as being managed in a manner that, by contemporary standards, amounted to mistreatment, including the use of corporal punishment, regimented control, and an incident in which a child died from an asthma attack without adequate adult intervention. The judge was careful to distinguish those broader management failings from the specific charges before the court, setting aside that contextual evidence when assessing the sexual offence allegations.

In relation to each complainant, the judge found that sufficient doubt existed about the truth and accuracy of the allegations against the accused. In relation to complainant CN, the judge expressly acknowledged that CN had led a tragic life and may well have suffered sexual abuse at someone's hands while in the care of the organisation. However, the judge could not be satisfied beyond reasonable doubt that the accused was the perpetrator. On each count, that doubt was sufficient to require a verdict of not guilty.

Orders Made

  • Count 1 (indecent assault of AM): not guilty
  • Count 2 (indecent assault of DC): not guilty
  • Count 3 (act of buggery with CN): not guilty
  • Count 4 (indecent assault of CN, alternative to Count 3): not guilty
  • Count 5 (act of buggery with CN): not guilty

Key Takeaways

  • In a judge-alone trial, the judge is required under sections 132(2) and 133(3) of the Criminal Procedure Act 1986 (NSW), and as confirmed by the High Court in Fleming v R (1998) 197 CLR 250, to set out the applicable principles of law and apply them expressly to the evidence.
  • Assessing witness reliability involves two analytically distinct inquiries: the honesty of a witness and the accuracy of their evidence. Both must be examined, and weaknesses in accuracy alone can give rise to reasonable doubt even where a witness appears honest.
  • Where allegations concern events occurring decades in the past, the trial court must be satisfied that the evidence is accurate, not merely that the complainant is not deliberately fabricating their account.
  • The District Court confirmed that verdicts on individual counts within a joint indictment are independent. A finding of not guilty on one count does not require, and does not produce, a corresponding verdict on any other count.
  • Contextual evidence painting an unflattering picture of an institution's management does not, without more, establish guilt on specific charges. The court must confine its fact-finding to the evidence directly relevant to the charges as particularised.

Legislation and Cases Referenced

Legislation:
- Child Welfare Act 1939 (NSW)
- Crimes Act 1900 (NSW), ss 79, 81
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 133
- Evidence Act 1995 (NSW)

Cases:
- Fleming v R (1998) 197 CLR 250 (High Court)
- McIver v R [2020] NSWCCA 343 (Court of Criminal Appeal)
- R v McIver [2019] NSWDC 672 (District Court, earlier conviction)