R v McIver [2019] NSWDC 672

R v McIver [2019] NSWDC 672

The judge rejected significant parts of the accused's evidence and found him unreliable, but treated that as not relieving the Crown of its burden. AM and DC were found honest, accurate and reliable on the indecent assault allegations, proving counts 2 and 5 beyond reasonable doubt. CN was also found honest and accurate on the buggery allegations, and his accounts were supported by details of the premises, routines, the accused's accommodation and dog; counts 8 and 10 were proved beyond reasonable doubt. Counts 1 and 6 were not proved because, although the underlying physical contact was accepted, the Crown had not ruled out lawful correction in the circumstances. Counts 3, 4 and 7 were...

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Criminal / Judge Alone Trial Judgment and Verdicts
Outcome
Accused found guilty of counts 2 and 5 of indecent assault and counts 8 and 10 of buggery; found not guilty of counts 1 and 6; directed verdicts of not guilty entered on counts 3, 4 and 7; alternative count 9 not considered because count 8 was proved.
Legal Topics
['historical Child Sexual Assault' 'indecent Assault' 'buggery' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'lawful Correction' 'recognition Evidence' 'forensic Disadvantage From Delay' 'bexley Boys Home' 'salvation Army']
['criminal Law'] ['historical Child Sexual Assault' 'indecent Assault' 'buggery' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'lawful Correction' 'recognition Evidence' 'forensic Disadvantage From Delay' 'bexley Boys Home' 'salvation Army']

Case Brief

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Procedural Posture

Criminal / Judge Alone Trial Judgment and Verdicts

Legal Issues

  1. 1 ['Whether the Crown proved beyond reasonable doubt that the accused committed each charged sexual or physical offence against the complainants.' "Whether the complainants' historical evidence was honest, accurate and reliable despite delay, absence of corroboration, absence or delay in complaint, and alleged forensic disadvantage to the accused." 'Whether the accused was correctly identified or recognised as the perpetrator of alleged offences occurring decades earlier.' 'Whether, for the assault and assault occasioning actual bodily harm counts, the Crown negatived lawful correction or lawful chastisement.' 'Whether the alleged touching in counts 2 and 5 was indecent and whether the alleged conduct in counts 8 and 10 amounted to buggery.']

Ratio Decidendi

The judge rejected significant parts of the accused's evidence and found him unreliable, but treated that as not relieving the Crown of its burden. AM and DC were found honest, accurate and reliable on the indecent assault allegations, proving counts 2 and 5 beyond reasonable doubt. CN was also found honest and accurate on the buggery allegations, and his accounts were supported by details of the premises, routines, the accused's accommodation and dog; counts 8 and 10 were proved beyond reasonable doubt. Counts 1 and 6 were not proved because, although the underlying physical contact was accepted, the Crown had not ruled out lawful correction in the circumstances. Counts 3, 4 and 7 were...

Court Disposition

Accused found guilty of counts 2 and 5 of indecent assault and counts 8 and 10 of buggery; found not guilty of counts 1 and 6; directed verdicts of not guilty entered on counts 3, 4 and 7; alternative count 9 not considered because count 8 was proved.

Orders

  • ['Directed verdict of not guilty on count 3.' 'Directed verdict of not guilty on count 4.' 'Directed verdict of not guilty on count 7.' 'Verdict of not guilty on count 1.' 'Verdict of guilty on count 2.' 'Verdict of guilty on count 5.' 'Verdict of not guilty on count 6.' 'Verdict of guilty on count 8.' 'Count 9 not...