Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2004] NSWIRComm 65 (1 June 2004)

Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2004] 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 [2004] 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

PARTIES:

APPLICANT

David Russell

RESPONDENT

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Counsel

Mr I Neil

Solicitors

Harmers Workplace Lawyers

RESPONDENT

Counsel

Mr J Murphy

Instructed by Mr G McKay, CCER

CASES CITED: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with NSW Fisheries re alleged treatment of employee in restructure [1999] NSWIRComm 135

Waterford and The Commonwealth of Australia [1987] 163 CLR 54

Alcoota Aboriginal Corporation and Another v Gray and others [2001] 161 FLR 95

Gough & Gilmour v Catepillar (No1) [2001] NSWIRComm 73

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 2) [1990] 35 IR 60

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70

Franklins Ltd v Webb [1996] 72 IR 257

Wang v Crestell Industries Pty Ltd [1997] 73 IR 454

Bounouar v The Spanish Club Ltd [1998] 94 IR 166

Transport Industries Insurance Co v Longmuir [1997] 1 VR 125

Briginshaw v Briginshaw [1938] 60 CLR 336

Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] 67 ALJR 170

G v H [1994] 181 CLR 387

In re H. and others (Minors) [1996] AC 563

In re Dellow's Will Trusts [1964] 1 WLR 451

Whitlam v Australian Securities and Investment Commission [2003] 199 ALR 674

Four Sons Pty Ltd v Sakchai Limsiripothong [2000] 98 IR 1

Coles Myer Ltd v Shop Distributive and Allied Employees Association [1989] 27 IR 299

Bigg v NSW Police Service [1998] 80 IR 434

Helton v Allen [1940] 63 CLR 691

Bhandari v Advocate's Committee [1956] 1 WLR 1442

Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510

Barten v Williams [1978] 20 ACTR 10

Wilcox v Sing [1985] 2 Qd R 66

R V Hull Prison Board of Visitors [1979] 3 All ER 545

Rainsford v Governor of Her Majesty's Prison at Ararat [2000] VSC 141

Doggett v The Queen [2001] 208 CLR 343

Director of Public Prosecutions v Hester [1973] AC 296

Director of Public Prosecutions v Boardman [1975] AC 421

Longman v R [1989] 168 CLR 79

Kelleher v R [1974] 131 CLR 534

R v Vawdrey NSW Court of Criminal Appeal, 16/4/98, unreported

R v Murray [1987] 11 NSWLR 12

Crampton v R [2000] 206 CLR 161

State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] 73 ALJR 306

Palmer v R [1998] 193 CLR 1

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Kilby v R [1973] 129 CLR 460

Attorney General of Hong Kong and Wong Muk Ping [1987] 1 AC 501

Ian Ueckert and Australian Water Technologies Pty Ltd [2000] NSWIRComm 123

Ross v GN Comtext (Australia) Pty Limited [2000] NSWIRComm 133

Bankstown City Council v Paris [1999] 100 IR 363

Mills v Industrial Fish Tasmania Pty Ltd (Receivers and Managers Appointed) [1993] 49 IR 416

Burut v The Public Prosecutor [1995] 2 AC 579

Mohd. Ali Bin Burut and others and Public Prosecutor [1995] 2 AC 579

R v Spencer [1987] 1 AC 128

Hollington and F Hewthorn & Co Ltd KB 1943 587

Gonzales and Claridades [2003] NSWSC 508

Wheeler v Philip Morris Ltd (1989) 97 ALR 282;

Ross v GN Comtext (Australia) Pty Limited [2000] NSWIRComm 133.

Browne v Dunn (1894) 6 R 67

LEGISLATION CITED: Industrial Relations Act 1996

Evidence Act 1995

JUDGMENT:

- 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

DECISION

[2004] NSWIRComm 65

1 The application in this matter was filed on 17 February 2003. The matter was subject to proceedings for the purpose of Conciliation and Directions on 20 February 2003 resulting in further conciliation proceedings on 25 March 2003.

2 The matter was unable to be resolved by conciliation and directions issued for the conduct of arbitration proceedings over five days from 23 to 27 June 2003. In the event, almost three days of that time 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 the respondent, instructed by Mr G McKay for the Catholic Commission of Employment Relations (CCER).

6 Mr Neil brought evidence from:

· Mr David Russell The applicant

A Ms Helen Kennedy A flight attendant, the mother of 2 boys aged 10 and 12 currently members of St Mary's Cathedral Choir

· Ms Irene Szady A legal secretary, the mother of a son a member of the St Mary's Cathedral Choir and student at the Cathedral High School from Year 5 (age 11) to the present time at age 17

· Mr John Mitchell A retired teacher, a friend of the Applicant and a frequent visitor to his home.

· Ms Elizabeth Vierboom A music teacher, the mother of a son a member of the Cathedral Choir and student at the Cathedral High School from age 10 to 18.

· Mrs Judith Mitchell A primary school teacher, and the wife of Mr John Mitchell.

· Mr Peter Smith A retired customs officer, a friend of the Applicant and frequent visitor to his home.

· Mr Sean O'Dea A former member of choir, past music teacher, and past boarder at the Applicant's residence.

· Mr James McCarthy A friend of the Applicant and fellow model train enthusiast

· Dr Leonie Hammer A veterinary surgeon and breeder of German Shorthaired Pointer dogs

7

Mr Murphy brought evidence from:

· Mr "X" The identity of this witness is suppressed by Order issued on 16 June 2003. This witness puts the allegation giving rise to the termination of the Applicant's employment.

· Dr Andrew Soddy A psychiatrist who had care of "X" from 1980 to 1984 in his capacity as Senior Staff Specialist and Chairman, Department of Child and Family Psychiatry at the Prince of Wales Hospital, Randwick.

· Mr John Cooke Appointed by CCER to conduct enquiry into allegations by "X" ("the Cooke enquiry").

· Mr Brian Donnelly Professional Officer with the Image Analysis Laboratory, School of Surveying and Spatial Information Systems, University of New South Wales

· Father A. Doherty Dean of St Mary's Cathedral

· Mr Peter Little A Barrister briefed by the Director of Public Prosecutions for the prosecution of David O'Grady on eight charges of indecent assault.

· Mr Gregory McKay Senior Employment Relations Advisor for the Catholic Commission for Employment Relations

8

Mr Russell, the Applicant, was employed as the Director of Music at St Mary's Cathedral ("the Cathedral") by the Trustees of the Roman Catholic Church, the respondent, from 1975 to the termination of thatemployment on 31 January 2003. The application filed states that remuneration 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 the management of the Cathedral choir. His duties included private tuition to the members of the choir, conducting the choir at Church services held 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 large contingent of primary and secondary school children from the St Mary's Cathedral School ("the School").

PRINCIPAL EVENTS SURROUNDING TERMINATION OF EMPLOYMENT

11 In 1998/99 allegations of sexual assault were made against the Applicant and a David O'Grady by Mr Daniel Buckley, a former pupil of the School and, whilst at the school, a member of the choir. Mr Buckley alleged that he was the victim of events which, in his statement prepared for criminal proceedings against Mr O'Grady is said to be from 1979 to 1983, and during the course of those proceedings said to be in the period January 1981 to December 1983. Mr O'Grady was at the time a sacristan at the Cathedral.

12 The evidence of the Applicant is that Mr O'Grady occupied a room at 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 any improper conduct and any knowledge of improper conduct by Mr O'Grady towards children whilst he was boarding at the Applicant's residence or at any other time.

14 In 2000 Mr O'Grady was charged with nine counts of indecent assault on Mr Buckley. He was convicted on one count of indecent assault, being an event at the Applicant's residence witnessed by "X".

15 Three charges alleging indecent assault were laid against the Applicant. These allegations were denied. The charges were not pursued at the committal proceedings on 13 March 2000 when Mr Buckley, the complainant, failed to appear.

16 On conclusion of the proceedings of 13 March 2000 the Applicant returned to his duties and continued to discharge his obligations as Director of Music.

17 In August 2002 the Office of the NSW Ombudsman requested that aninvestigation of the applicant's conduct take place pursuant to Part 3Aof the Ombudsman Act 1974. Arising from this request the Respondent appointed Mr John Cooke to conduct an investigation into the conduct of the Applicant ("the Cooke enquiry").

18 The application details three areas of the Cooke enquiry: the first described as the "primary allegations", that being those subject to the criminal charges not pressed; an additional allegation that the Applicant had seen but did not act upon an incident at his home involving O'Grady and three children; and an alternative allegation that the Applicant had witnessed and taken no action in respect to an event involving Mr O'Grady, Mr Buckley and another child, identified for the purpose of these proceedings as "X". This allegation is referred to in these proceedings as "the walking in" allegation or event.

19 The findings of the Cooke enquiry are contained in a report to the Respondent (Exhibit 22) in which Mr Cooke concludes that the primary allegations are not sustained, the additional allegation is not sustained, and that the walking in allegation is on the balance of probability sustained. These conclusions were accepted by the Respondent, which acted to terminate the Applicant's employment on the basis 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 of the NSW Police Force attached to the Child Protection Enforcement Agency during the course of an investigation into the allegations against Mr O'Grady by Mr Buckley.

21 "X" describes events in which he and Mr Buckley were seduced by Mr O'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 was standing 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 boys to lay on either side of him and he masturbated them. On completion Mr O'Grady exhorted the boys to secrecy.

24 The evidence of "X" is that he became aware during the course of events at the Applicant's residence as described by him that these actions were wrong. He is not able to depose at which point in the events he developed this feeling. The evidence of "X" is that he subsequently confided in his mother to a limited extent and was able to put 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 that he 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 upon documentation made available to him by the respondent and by the applicant and/or his representatives.

28 Mr Murphy contends that the evidence supports a finding that the walking in allegation is substantiated and that any flaws in the Cooke enquiry are minor and inconsequential against the finding of fact.

THE COOKE ENQUIRY

29 The evidence of Father Doherty in his affidavit (exhibit 24) is that in 1999 he was informed by the NSW Police of their intention to prosecute Mr O'Grady and the Applicant on charges of sexual abuse. The evidence of Fr Doherty is that the Applicant was arrested on 8 July1999 and that, in accordance with standing protocol, he could be stood down from his position as choir director until the matter was resolved. The Applicant was informed that a final determination would be made by the respondent the following day, 9 July 1999.

30 Father Doherty deposed that on 9 July 1999 the Applicant voluntarily stood down from position pending resolution of the matter. On 23 August 1999 a determination was made by the court allowing the Applicant to resume his role as choir director on the condition that he"be with choir boys only in the company of a responsible adult". The Applicant was required to arrange his own supervisor, which he did.

31 Father Doherty deposed that on 13 March 2000 the Applicant attended the Downing Centre Court and the charge against him was dropped because of the non-attendance of the accuser. The Applicant then resumed his normal duties.

32 Father Doherty deposed that on 13 August 2002 the NSW Ombudsman's Office requested the CCER, and through them the Cathedral, to furnish a report concerning the allegations of abuse by the Applicant and that the matter be attended to urgently. The allegations to be investigated were those of Mr Buckley left unresolved by the collapse of court proceedings 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. This correspondence recites events as understood by the Ombudsman, including the allegation by Mr Buckley of the applicant walking in on him, Mr O'Grady and another student (then not identified) in their underpants, and doing nothing about it. The correspondence is critical of the failure of the CCER to conduct a risk assessment in respect to the Applicant as previously requested by the Ombudsman. The correspondence of 13 August 2002 states inter alia:

Having considered the available information, the significant delays in CCER's investigation, the inadequate risk assessment and limited documentation that has been provided by CCER in relation to its investigation, 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:

· The adequacy of CCER's handling of and decision making in relation to child protection issues associated with Mr David Russell's current employment as a choirmaster at St Mary's Cathedral.

· The use made of information CCER had in relation to child abuse allegations against Mr David Russell and the provision of that information to the Ombudsman.

· 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 of fairness and objectivity an independent investigation into the earlier allegations was the most appropriate approach, and subsequently Mr Cooke was appointed by the CCER to undertake the investigation. The evidence of Father Doherty is that he understood that Mr Cooke had previously conducted similar types of investigations for the Professional 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, was tendered by Mr Neil (exhibit 29).

36 The evidence of Father Doherty is that he received a preliminary report from Mr Cooke on 21 November 2002 (attachment F to Mr Cooke's affidavit, exhibit 22).

37 This report reveals that Mr Cooke had an interview with Mr Buckley on 24 September 2002 in the chambers of counsel representing Mr Buckley, Mr Adrian McInnes QC, in the presence of the solicitor representing Mr Buckley, Mr Ken Harrison. Mr Cooke also relied upon documentary 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 his report. The subsequent extract is edited to comply with the suppression order in respect to the identity of "X" and to exclude from publication the identity of other named participants who have not had the opportunity to consider application for suppression of their identities in these proceedings.

Conclusion

The many inconsistencies in the complainant's claims, allegations and statements may be attributable to his psychiatric state, which suggests that corroboration should be sought, where possible. There is no possibility of any corroboration of his allegations, as were detailed in the charges, against the accused. This fact, and ["A's"] evidence, suggests that the likelihood of a successful prosecution of those charges would have been remote.

What is disturbing is the claim, corroborated by "X", that the accused condoned the sexual abuse of 10-11 year old boys, whatever the extent of that sexual abuse may have been. The accused strongly refutes that claim. He suggests that the complainant had the opportunity to see"X's" statement of 20 January 1999 before preparing his statement of 23 April 1999, and would have been able to ensure consistency. But they are not consistent as to dates or detail. Their consistency is in their respective versions of the role played by the accused.

Short of collusion with the complainant, there appears to be no logical reason why "X" would have given the account that he did, unless it reflected his recollection. The complainant's psychiatric condition suggests that collusion is unlikely. In the unlikely event of some attempt at collusion, it might be expected that their respective recollections would not differ as much as they do. At the time he provided the statement, "X" was living in ........ He was a ................. ["X's" occupation] The statement contained evidence he was prepared to give in Court proceedings. It is hard to believe that the complainant would have been capable of enlisting the level of support that collusion would have required. It is equally hard to believe that such support would have been provided. I would assume that "X's "recollection of the complainant would not be substantially different from ["A"] who described the complainant as "a fruit loop".

If "X" is to be believed, the accused observed the sexual abuse of the boys by O'Grady and did nothing to stop him. It seems that the incident could not have happened in 1981, as the complainant has stated. Nothing has emerged to contradict the possibility of such an incident having occurred in March 1983. "X's" recall in this respect,and in relation to the presence or otherwise of other boys on that occasion, is to be preferred to that of the complainant, for obvious reasons. I have not sought to speak to "X". I consider his statement speaks for itself. For much the same reason I did not think there was anything 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 in circumstances that the accused has denied children were present.

His credibility could be tested by exploring his denial that he ever made any offer to parents to have boys stay overnight at his place. I have 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 to Father Doherty on 2 December 2002 (attachment G to exhibit 22) which deals in its entirety with a telephone conversation between Mr Cooke and "X". In his affidavit (exhibit 24) Father Doherty describes the supplementary report as confirming "X" maintained that he and Daniel Buckley definitely stayed overnight at the Applicant's residence on the night before the train excursion, at the Applicant's invitation, and that he was quite adamant that the Applicant entered the room and observed himself and Mr Buckley fondling Mr O'Grady's genitals whilst they were naked; and that he clearly recalled the Applicant using words to the effect of those recorded in his statement (exhibit 1).

40 Mr Cooke provides detailed analysis of the allegation he rejects but does not do so in respect to the walking in event, satisfying himself that as both Mr Buckley and "X" refer to a walking in eventt hat such an event must have occurred.

41 The Applicant and his representatives put strident criticism and complaint of the Cooke enquiry to the respondent, detailed in attachments to the Applicant's affidavit. The complaints and criticism go to procedure, substance, and conclusions reached. In response thereto Mr Cooke provided a document titled "Observations (following initial and supplementary Reports)" dated 13 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 separate events, confirming that he preferred the version by "X" over Mr Buckley's.

43 In accordance with his earlier observation Mr Cooke does not proceed 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 his formal statement and, for reasons of time and costs, decided to complete the report on the basis of the available material. Mr Cooke confirms that he made telephone contact with "X" after being requested to do so by Father Doherty, though saw no utility in speaking to him face to face, nor in contacting the investigating police officer who had taken the statement, nor in speaking to the other boy whom Mr Buckley had said was present during his version of the walking inevent, as he was satisfied that he was not present during the relevant incident and would not be in a position to help.

44 Mr Cooke further observed that he did not regard Mr Buckley's evidence as corroborative of anything, reiterating his preference to believe "X" and discard Mr Buckley's recollection. The Cooke reports accept and reiterate the version of events set out by "X" in his statement to Police without dilution, exposition or analysis.

45 Mr Cooke observes that he accepted that the steam train excursion took place on 19 March 1983 on the basis that it was stated as a fact to have taken place on that date by the Applicant in his statement of 22 October 2002. Mr Cooke notes that the Applicant's statement puts that O'Grady boarded at his house for about three months during late1982 and/or early 1983 and that Sean O'Dea boarded with the Applicant from August 1983 until February 1985, noting in his observation that the actual date of the train excursion and the associated date of the incident which is alleged to have preceded it, is of limited significance as is O'Grady's status as a boarder at the time.

46 The evidence of Father Doherty is that subsequent to further discussions with the Applicant and his representative in which they raised 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 a number of factors: firstly, my respect for the person of David Russell and his long-time contribution to the community and the musical life of the Cathedral; secondly, the obvious respect he enjoys with the choir itself, both the adult and young adults in the choir, and the enthusiastic support that was expressed by choir parents when issues were first raised in 1999; and thirdly, his reputation in the wider musical world of Sydney. All these factors weighed in David Russell's favour in my mind.

22. In the face of this, and his denials, was the evidence from the Preliminary Report of the Cooke investigation which gave me serious cause to examine the situation as dispassionately as possible, given the responsibility that fell upon me as an employer. However, I believe that it was the Supplementary Report, which included statements from "X", and which provided what I believed to be corroborating evidence of the issue in question, that provided me with what I believed to be compelling reasons, on the balance of probabilities, to move to dismissal. The interview of January 31, was organised so that Mr Russell and his legal counsel had a further opportunity of throwing more light on the facts that could allow some other final determination. Nothing that was said in that final interview altered my conclusion.

47 It is apparent from this evidence that Father Doherty was the final decision maker in the process leading to the termination of the Applicant's employment and that his decision turned heavily upon the supplementary report from Mr Cooke which dealt only with Mr Cooke's telephone conversation with "X".

THE EVIDENCE OF "X" - DETAILED RECOLLECTION OF EVENTS

48 The evidence of "X" is that between 1980 and 1981 he lived with his mother and sister in the Wollongong region and attended primary school in Southern Sydney. He auditioned for a position in the Cathedral choir and was accepted along with 12 other boys, whom he was able to name in his statement. The position in the choir entitled him to fee free tuition at the School, which he commenced in 1982 at theage of eleven years. "X" provides a detailed recollection of the composite year 5/6 class (he was in year 5) and the identity of his teacher. The recollection of "X" is that the majority of 6th class students, whom he was able to name (including Daniel Buckley), were members of the choir.

49 The statement details the days of the week, times and circumstances of choir practice at that time. "X" recalls the role of the Applicant as choirmaster, though cannot recall detail of the pianoplayer other than that he was red headed, had a beard and was largely considered a "good bloke" by the choirboys. The recollection of "X" is that there was little association between the adult male members of the choir and the scholastic members and he has little recollection in respect thereto.

50 "X" deposed that at Sunday Masses there were a number of additional males associated with the choir, whom he recalls were largely members of the clergy and some others carrying out formal duties associated with the Mass ceremony, all of whom he has a vague recollections other than Mr O'Grady whom he put was "out of the norm ashe had long blonde hair."

51 The recollection of "X" is that Mr O'Grady was made known to him about half way through his first year with the choir (1982). "X" recalled that Mr O'Grady came to have more presence with the choir in and around the third quarter of 1982, attending choir social functions and evening practice on Tuesdays and Thursdays and making the acquaintance of all of the school based members of the choir. There collection of "X" is that later in the year Mr O'Grady seemed to be always present and had become popular as he would give attention to the children and organise games during breaks, unlike other adult male members of the choir who, on the recollection of "X", showed little interest and gave no attention.

52 The recollection of "X" is that there was always competition between the young choir members to be the best singer and that the Applicant 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 other choirboys were rewarded for singing achievements with a trip on a steam train 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 not remember. "X" could not remember the particular destination of the train 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 participants would be otherwise involved with Sunday masses.

54 The recollection of "X" is that as his residence was an hour and a 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 back to where [he] lived".

55 "X" recalled that Daniel Buckley lived a similar distance west and on that basis the Applicant suggested that they both stay at his home for the night and take the steam train trip the next day.

56 "X" recalled that after school he and Daniel Buckley met the Applicant in the choir room and went with him to his residence. "X"could not recall the name of the suburb but remembered that the residence 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 bred golden retrievers" and that he remembered distinctly trying to pat onewhilst it was eating. "X" recalled that it turned to attack him, the Applicant telling him that he should not touch the dogs whilst they were eating.

57 "X" details the subsequent events in paras 21 to 27 of attachment 1 to exhibit 1 in the following terms:

21. We watched a little television for an undesignated amount of time and then David O'GRADY suggested that we do something else. I can't recall whether the television was turned off or not. David O'GRADY then suggested that we all take our clothes off. Danny BUCKLEY and myself concurred with me believing it to be harmless at the time.David O'GRADY then took his clothes off and laid vertically opposite the 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 but again complied with his request. Eventually he asked Danny BUCKLEY if he would touch his penis. I can't remember how I came to be touching his legs but that was where I was when the question was asked of Danny. Danny BUCKLEY started to touch his penis and then came explicit instructions on how he should be touching his penis, stating that he was to grasp his penis in his hand and move it up and down. He then asked me if I would also participate in touching his penis, to which at that time assessing that Danny (being the older) was participating so concluded that I too would touch his penis also and thus participated in masturbating David O'GRADY's penis by moving my hand up and down on his penis. All directions were directed at both of us unless otherwise specified.

23. At this point the lounge room door opened and David RUSSELL was standing 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 side with distance between us in the same position that he had previously been laying to which we complied. He then sat down between us and started to touch our penis's simultaneously, stating, "Now doesn't that feel good."

25. After some time he desisted in his actions and we adorned our clothes again. Upon completion of the acts he distinctly stated that we were not to tell anybody about this but that it was our secret or words to that effect. These particular acts took place over an unspecified amount of time and I am unable to relay the exact time frame of the incident.

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 the Applicant in his capacity as choirmaster. "X" put that this contact could not have been avoided, adding that:

"however my mother did not perceive him to be the principal offender although she did recognise that he had allowed the offence to continue."

60 The evidence of "X" is that he was not subject to the offer of presents, gifts or invitations subsequent to the incident and that shortly after there was a separate and unrelated incident, the result of which persons he regarded as the natural leaders of the class, whom he names, branded Mr O'Grady "a faggot", resulting in his losing popularity, becoming unwelcome around the choir room and eventually disappearing.

61 In cross examination "X" deposed that he had forgotten what he described as insignificant portions of the day. When asked by Mr Neilwhether he had reconstructed events by deduction, "X" put that he had made some assumptions where memory had failed but had not applied any process of deduction.

62 An assumption conceded by "X" is that the steam train trip took place on a Saturday.

63 Mr Neil questioned "X" closely on his recollection and reconstruction of these events. This evidence is found at pp 61 to 64 of transcript:

Q. Do you remember that on that occasion in July 2000 you were asked some questions about what happened when the three of you were in the lounge room - remember that?

A. Yes.

Q. On the day in question, remember that?

A. Yes.

Q. Do you remember that on that occasion in July 2000 you said of those events - to begin with it was just fun but then it progressed to the next stages - remember saying that?

A. I don't remember saying it, no.

Q. I want you to assume you did?

A. Okay.

Q. And what I want to know from you is this. That statement does not accord with your present recollection does it?

A. No.

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?

A. Yes.

Q. Now, what I want to explore with you for a moment is this; why is it do you think that your recollection about that aspect of the incident 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?

A. Yes.

Q. So it is something relevant, you accept that?

A. No, I am actually saying it is probably not relevant so therefore my 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?

A. No.

Q. Now, I think we have agreed haven't we, that on the 20 January 1999 when you wrote your statement - signed it, I am sorry - you put everything in your statement that you could remember - agreed?

A. Yes.

Q. And nothing that you could not remember, agreed?

A. Yes that's correct.

Q. And you haven't in your statement in connection with the incident in the lounge room, you haven't in your statement used any words to this effect have you - to begin with it was just fun but then progressed to the next stages - haven't used any words to that effect have you?

A. No.

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 that elapsed between 20 January 1999 and July 2000 you remembered something about 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 your memory 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 to understand it. As to the statement about the events in the lounge room on the day in question to begin with it was just fun but then progressed to the next stages - as to that statement you had no such recollection on the 20 January 1999, you remembered it in July 2000 and you have forgotten it again?

A. Yes.

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 the question, does your memory get better then get worse then get better again?

A. No.

Q. Your memory, doesn't it get worse over time, at least that's what you have told us?

A. Yes.

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.

A. Yes.

Q. Alright, now paragraph 25 marks the end of your account of the incident that you say occurred in the lounge room on the day in question - 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 end of the events that you say occurred in the lounge room, is that right?

A. Yes.

Q. After those, immediately after the events that you have described in paragraph 25 of your statement, do you have any recollection at all about what you did?

A. No they would only be deductions.

Q. So you have got absolutely no recollection have you about any events that occurred immediately after those that you have described in paragraph 25 and those that you have described in paragraph 26, is that right?

A. I have -- they would be deductions, yes.

Q. You have absolutely no actual memory of the events of what occurred between the events you described in paragraph 23 and those you described in 26?

A. That's correct.

64 "X" describes the report to his mother as possibly a traumatic and embarrassing event, conceding that he did not inform his mother of all of the detail of events preceding the steam train trip and most certainly did not include detail of masturbation. In particular "X"deposed that he made no specific mention of the Applicant to his mother in 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 distinctly telling 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 your mother?

A. No I would not say that.

Q. The reaction would be memorable?

A. I just remember telling her.

Q. We can be confident you have no recollection of mentioning David Russell's name to your mother when you made your report to her on the day 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 on that score, can his Honour be confident that you have no recollection of mentioning David Russell's name when you made your report to your mother 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 recalled telling his mother of some involvement of the Applicant which was the foundation for his statement in the Police report that his mother had recognised that the Applicant had allowed the event to continue.

67 When pressed by Mr Neil (TR p22), "X" put that the recollection found in the Police report should be preferred to his evidence of pp 12 and 13 of transcript as set out above.

68 There was no formal complaint laid by "X" or his mother to any person in respect to these events. "X" remained at the school and in the 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 from Queensland.

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 that in discussion with his mother two nights prior to this evidence, she did not recall the report to her of the events.

70 Mr Murphy produced a doctor's certificate from a duly qualified 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 experienced witness and comprehends the evidentiary value of an early and contemporary report of events. Mr Neil then put to "X" that he had maintained his evidence of the report to his mother in his 1999 statement, knowing that she did not support it by her independent recollection. "X" deposed that he was aware of his mother's lack of recollection, putting that he had been vague to her in the report at the time due to the embarrassment involved. "X" remained adamant that he had told his mother, putting that she was his only adult confidant at the time and, having told her, put the event behind him and got on with life.

72 In addressing this point found in his 1999 statement "X" put that he had not intended to convey that he had told his mother all of the detail of the evening, but that he had told her the nature of events.

73 In re-examination Mr Murphy addressed the issue of an incomplete report by "X" to his mother to which "X" responded that in addition to the embarrassment involved, his mother at the time was working two jobs and attending university; inferring that he wished to spare 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) had never happened to him before or after so it is "fairly clear" in his mind. An examination of recollection ensued. "X" put that he had greater difficulty in remembering words but held a recollection of the events subject to these proceedings as a series of moving pictures in his mind, with bits missing or gaps lost to memory. "X" accepted that so long as the events remained sequential he may have filled gaps in his recollection by deduction to produce a seamless recollection. The conclusion of this evidence is found at p 49 of transcript in the following terms:

Q. And after 22 years of thinking about those events what you would be left with is a seamless memory that contains bits of what you actually remember, bits of what you have deduced and each of them in your mind indistinguishable?

A. Is that what you are suggesting?

Q. Yes?

A. Some portion may be yes.

Q. That's the way your mind works isn't it ?

A. Yes.

The Coffee Table

75 Mr Neil took "X" to the specific allegations of the events with Mr O'Grady. The evidence is that both "X" and Daniel Buckley were acting on Mr O'Grady's instructions. Mr Neil sought a recollection of precise instructions from Mr O'Grady in the sequence of events. "X" was unable to recall the precise detail, relying on his statement and additional recollection that he and Mr Buckley were instructed 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 was slightly 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 occupied a substantial area of floor space in the lounge room, putting that it would have been impossible for he, Buckley and O'Grady to occupy the positions described. "X" deposed that he had no recollection of the coffee table anywhere in the room.

The Dogs

77 In further cross examination Mr Neil took X" to his recollection of the two "pure bred golden retrievers", which he deposed he remembered distinctly as one had nearly bitten him. Mr Neilput a photograph of two dogs to "X" (exhibit 13), showing one to be golden and one deep brown in colour, asserting that these were the dogs living with the Applicant as at March 1983. "X" conceded that his recollection may be inexact on this point.

78 At p 93 of transcript "X" conceded that his recollection of events surrounding the steam train trip and at the Applicant's residence may be equally inexact. The relevant evidence is set outhereunder:

Q. Tell me, Mr X, if your recollection of the two large golden dogs being present in the house on the day before the steam train trip, isat least as clear as your recollection of anything else that occurred on that day, would you accept that in your recollection of anything else 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?

A. Yes.

Q. If you have made a mistake about the two large golden dogs being present in the house on that day, then you may very well have made a mistake 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's residence contained within exhibit 1, and asked for his recollection of items in the kitchen/dining room area of the house. "X" could not recall anything in particular or out of the ordinary. "X" had no recollection 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 the train set if it had been there though he had no recollection of it. The train set is a large table mounted model of considerable detail, measuring approximately 3m x 1m with elaborate mountain scenery, a number of stations, tunnels, surrounding countryside and several trains.

81 In response to Mr Neil "X" put that his inability to remember the train set may arise from a defect in memory or a mistake in the date of the steam train trip, which is his reference point for the date of the preceding events, suggesting that if the train set had been in the Applicant's house in March 1983 the steam train trip may have been at another time.

Medical History Of "X"

82 During the course of cross examination Mr Neil questioned"X" concerning admissions to hospitals for treatment for severe vomiting; statements by him to psychiatrists in respect to problems with a teacher, other students, lack of friends at school; and the diagnosis of vomiting as psychogenic in origin.

83 "X" recalled hospitalisation for severe vomiting and "a few dramas with some kids at school" but had no recollection of detail or of informing a psychiatrist in respect to the issues put to him.

84 "X" did not challenge records put to him by Mr Neil that he had been admitted to the Prince of Wales Hospital on 58 separate occasions between May 1980 and October 1988. He was able to recall that he had some contact with a psychiatrist but could not recall whether that was before or after he commenced school at the Cathedral.

85 Mr Neil put to "X" that on or about July 1980 a psychiatrist had expressed a diagnosis that "X" exhibited a pattern of demanding and manipulative behaviour. "X" had no recall of these events. He recalled that he had been required to take medication including 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 to recall these events. It was put to him that on both occasions he had expressed his satisfaction with and enjoyment of his school life and involvement 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 the choir.

87 Mr Neil put to "X" that he had not informed the treating psychiatrists of the events involving Mr O'Grady and the allegations against the Applicant because they had not happened in the way he nowalleges. This proposition was flatly rejected by "X" who contended that he had no particular recollection of his discussion with psychiatric staff. "X" recalled that a purpose of psychiatric interview was to discover the cause of the vomiting, postulating that as the O'Grady event occurred after the onset of this affliction he would not have considered it relevant to a consideration of cause.

Dr Soddy

88 The evidence of Dr Soddy confirms that "X" was under his care between 1980 to 1984 and that he saw him twice on a consultation basis in 1987. Dr Soddy qualified his evidence on the basis that it was approximately 16 years since he last saw "X" and regarded his case as"out of time" and that his own notes had been destroyed. Dr Soddy refreshed his memory by reference to a letter he had written on 7 May 1984 introducing "X" to Queensland doctors (exhibit 21), which hedeposed provides a useful overview. Dr Soddy deposed that he had also read copies of hospital notes and discharge summaries from Sutherland and Prince of Wales hospitals covering the period 1980 to 1987 and had read the statement of "X" to NSW Police.

89 Dr Soddy confirmed that "X" suffered from recurrent bouts of severe vomiting for which no physical cause was found and which appeared to be related to anxiety or excitement. Dr Soddy deposed that the general picture of "X" was of rapid onset of severe vomiting leading to significant dehydration which in turn produced withdrawal and some irritability but which quickly disappeared after rehydration.Dr Soddy's evidence is that when normally hydrated "X" presented as an intelligent, helpful and pleasant boy.

90 Dr Soddy detailed medication provided to "X": Largactil, Melleril, Phenergan, Valium, Inderal, Maxolon, Mylanta, pethidine, Ampicillin and Cloxacillin/Gentamycin. Dr Soddy described themedication as antibiotic, antinausea, antianxiety, and antihistamine with some sedative properties. Dr Soddy acknowledged that Largactil andMelleril have some use in psychiatry, deposing that "X" at no time demonstrated any signs of psychiatric disorder, and in his case the medication 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 the mental state.

The Proceedings Against Mr O'Grady

91 Mr Neil then took "X" to his evidence in the criminal proceedings arising from the charges against Mr O'Grady, subsequently tendered 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 the offence by Mr O'Grady and makes no mention of the walking in event. The relevant question and answer are found in the transcript of 7 July 2000in the following terms:

CROWN PROSECUTOR: And did you have dinner?

A. Yeah.

Q. And what happened after that?

A. With Mr O'Grady, Daniel and myself went to the living area. I don't know where David Russell was at the time and we watched television for a little while and then at Mr O'Grady's suggestion he asked if we wanted to play a game and he asked us to remove our clothes down to our underpants. And at the time I thought it was a little bit strange 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 romping around for a while. Do you wish me to continue?

Q. And did something happen as far as Daniel was concerned?

A. Yeah, at Mr O'Grady's instruction we were told to lay adjacent to each 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?

A. Yes.

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 as far as that goes, yeah I had contact with him but nothing in the manner where we were.

Q. Since that night, through to when the police contacted you concerning this investigation had you had any conversation with Daniel Buckley about the events of this night.

A. No.

<WITNESS STOOD DOWN

92 The evidence of "X" is that he did not mention the walking in event or make further reference to the Applicant during the O'Grady trial on instruction from the investigating police officer on the basis that the Applicant was not a defendant in those proceedings.

93 At the time "X" gave his evidence there were no charges outstanding against the Applicant. It is contended that in these circumstances and on the basis that "X" made no complaint against the Applicant he was restrained by direction of the presiding Judge not to refer to any activity involving himself and the Applicant in those proceedings.

94 "X" conceded that the jury in that matter was left with the understanding that only he and Buckley were privy to the events with O'Grady and that there had not been any other witnesses. "X" conceded that this is inconsistent with his allegation of the walking in event, which placed the Applicant as an additional witness to the abuse by O'Grady.

95 "X" denied that the failure to mention the walking in event was motivated by a belief that the evidence of the Applicant if called would not support his version of events. "X" also refuted the proposition from Mr Neil that he made no mention of the Applicant in the proceedings against O'Grady because at the time he had no recollection of the walking in event or that the walking in event never 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. Exhibit 34 discloses that he was the barrister briefed by the Director of Public Prosecutions to prosecute Mr O'Grady.

97 Mr Little describes the pre-trial and trial procedures in which information in respect to the walking in event was made available to the defendant's representatives and an objection by them dealt with on the voir dire by the trial judge who ruled this and other material not relevant to those proceedings inadmissible. The evidence of Mr Little confirms the evidence of "X" that he was acting in accordance with instructions and his understanding of his responsibility in the matter.

The Walking In Allegation

98 In addressing the walking in allegation "X" was firm in his evidence that the door opened, the Applicant spoke the words: "I see that you're busy, I'll come back later", without entering the room, and the door closed. There is no other allegation of involvement of the Applicant. "X" could not recall any other detail, in particular the time involved, the appearance of the Applicant, his facial expressions or the clothing he wore, or how far the door opened.

99 In the course of cross examination "X" conceded that he may be mistaken in regard to the actual words used by the Applicant though was unshaken in his insistence that the door to the lounge room opened, he observed 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 words were spoken. "X" put that he had not included this aspect in his statement as he had not regarded it as relevant at the time and considered 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:

· the train set;

· where he slept on the night;

· the dark brown dog;

· when the alleged incidents took place in relation to the choir's trip to Germany.

101 Mr Neil put to "X" that he had never been to the Applicant's residence or had no recollection of being there, that the walking 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 the proposition that he had not been to the Applicant's residence at a time when a dark brown dog lived there, which he conceded was possible.

RE-EXAMINATION OF "X"

102 During re-examination Mr Murphy raised the prospect that there was no report to school authorities as "X" did not wish to jeopardise his scholarship which provided free tuition on the basis that he continued in the choir. Mr Murphy sought evidence from"X" to the effect that he felt there was no inconsistency between these events and informing medical practitioners prior to and thereafter thathe enjoyed school and the choir and that he was on a singing scholarship and was doing well.

103 Mr Murphy concluded his re-examination by seeking clarity from "X" in respect to the walking in event. This evidence is found atpp 152 and 153 of transcript in the following terms:

Q. Are you certain it was Mr Russell in the doorway?

A. Yes.

Q. How are you certain?

A. How am I certain?.

Q . Yes

A. My memories are that that was the person who was standing in that doorway and that I looked straight up at him when I was sitting on the floor 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 b yDaniel Buckley on 23 April 1999 (exhibit 18) in which Mr Buckley gives his version of the walking in event and circumstances leading to it.

105 Mr Murphy submitted that Mr Buckley could not be located for the purpose of giving evidence in these proceedings, his statement was admitted over the objection of Mr Neil.

106 Mr Buckley's statement refers to one particular night during the school year of 1979 when he went to the Applicant's house with "X" and two other boys on the basis that they had been invited by the Applicant to watch a video, which he identified as Raiders of the Lost Ark. Mr Buckley deposed that he, "X" and another boy were wrestling with Mr O'Grady in the lounge room and that the Applicant was in the kitchen getting ice cream. Mr Buckley described the events as Mr O'Grady sitting on the floor in his underpants and the three boys running around him trying to fight and wrestle with him, during the course of which Mr O'Grady grabbed him, and on his version the other boys, on the outside of their underpants, touching their penises whilst exhorting them 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 statement Mr 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 had discussed the events with Mr Buckley. "X" deposed that he was aware that Mr Buckley's version of events differed from his own in that Buckley had included a third boy in the event. "X" deposed that he had not seen Buckley's statement and knew nothing of it other than the inclusion of the third boy.

109 The evidence of "X" is that he took the view that as Buckley had been involved in several other experiences with O'Grady that Buckley may have confused detail of separate events in his recollection. "X" deposed that this was the view expressed to Mr Cooke in the one telephone conversation with him on 24 September 2002 when this inconsistency had arisen.

Refusal of Mr Buckley To Give Evidence

110 The affidavit of Mr Greg McKay (exhibit 33) details his attempts to have Mr Buckley give evidence in these proceedings. Mr McKay deposed that he spoke to Mr Buckley's solicitor, Mr Kenneth Harrison, on at least two occasions prior to 20 May 2003 and was informed that there was difficulty in contacting Mr Buckley as he lived in another state.Mr McKay testified that he had a further conversation with Mr Harrison and developed an understanding that Mr Buckley might be prepared to give evidence and on 23 May 2003 emailed an affidavit proforma for Mr Buckley to complete.

111 Mr McKay's evidence is that on 3 June 2003 Mr Harrison wrote to him requesting that certain conditions be met relating to other proceedings prior to Mr Buckley being prepared to give evidence in this matter. The correspondence (Ex 33 Annex. B) seeks a waiver of any out of time defence by the respondent in separate proceedings brought against them by Mr Buckley. This request was rejected and eventually a summons 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 had received specific instructions not to accept service of summons in these proceedings. Mr McKay's evidence is that Mr Harrison informed him that "we should not hold out hope" of contacting Mr Buckley to appear as a witness.

113 Mr McKay deposed that further attempts were made to serve the summons on Mr Buckley however the process server engaged was not able to ascertain Mr Buckley's contact details and the summons was not able to be served.

114 Mr McKay deposed that he received further correspondence from Mr Harrison dated 20 June 2003 (Ex 33 Annex. F) referring to the previous discourse and advising that Mr Buckley had instructed he would not give evidence in this matter and that the cheque provided for conduct money would be returned.

115 The only sworn evidence of Mr Buckley is that given in the O'Grady trial (exhibit 30) before her Honour Payne J. of the District Court of NSW - Criminal Jurisdiction, and a jury of twelve. The evidence 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 invited to the Applicant's residence by Mr O'Grady to watch a video version of the movie "Raiders of the Lost Ark". Mr Buckley deposed that after watching the video Mr O'Grady suggested they play a wrestling game and later that they strip to their underwear. Mr Buckley's evidence is that all touching was on the outside of the underwear, but for one occasion when Mr O'Grady put his hands inside Mr Buckley's underwear. Mr Buckley's evidence is that he "freaked out" and "it" stopped soon after that. Mr Buckley deposed that he did not stay the night at the Applicant's residence but was driven home to his grandmother's house.

117 On the second day of the O'Grady trial, 6 July 2000, her Honour was required to make a ruling in respect to the evidence of "X". Her Honour ruled that "X" could say what happened to Mr Buckley but not in respect to himself, and therefore Mr Buckley could not say what happened to "X".

118 In cross examination at page 42 of transcript of 6 July 2000 Mr Buckley put that the overnight stay to watch videos and the event involving 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 proof or dissent, that "Raiders of the Lost Ark" was not released in video format until 1984.

119 At page 44 of transcript of 6 July 2000 Mr Buckley was certain that only he and "X" were present on this occasion and that he was present with "X" and another boy on a separate occasion.

120 At page 66 of transcript of 7 July 2000 the proposition was put to Mr Buckley that he and "X" had stayed overnight at the Applicant's residence in October 1983 prior to a steam train trip the following day. Mr Buckley was able to recall the steam train trip, was unsure of the date and could make no connection between the train trip and staying over at the Applicant's residence.

121 Agreed facts in the O'Grady trial were that Mr Buckley commenced at 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 is no 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 to Germany at the end of 1981, early 1982. Mr Buckley's evidence at p 76 of transcript in the O'Grady trial (exhibit 30) is that as a first year member 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 selection for the trip to Germany. Mr Buckley was not selected for the Germany tour. "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 as one 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 residence with "X" on only one occasion. Mr Buckley deposed that he had attended the Applicant's residence on three occasions; one preceding the train trip, the "video night" involving "X"; and another occasion.

125 The evidence of "X" in the O'Grady trial is very brief, found atpages 115, 116 and 117 of transcript of 7 July 2000. "X" was not subject to cross examination.

126 The evidence of Mr O'Grady commences at page 150 of transcript on 10 July 2000. At page 151 Mr O'Grady deposes that he resided at the Applicant's residence for 12 months, from November 1982 to November1983. His evidence is that Mr Buckley and "X" stayed over at the Applicant's residence prior to a steam train trip some time after September 1983. Mr O'Grady put that all choir boys who lived away from their 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'Grady deposed that as the boys were not familiar with the property there was a fair bit of looking around. Mr O'Grady further put:

There were two dogs lived on the property as well, and I can't account much more the exact details of what they did, they did what 12 year old boys like to do. There were trees in the back yard - I really can't account for the details.

128 Mr O'Grady deposed that after the meal they watched a video, there were a few minutes of harmless horseplay in which all participated and were fully clothed.

129 Of interest to the present proceedings is the absence of any reference by Mr O'Grady to the Applicant or the train set. Mr O'Grady's evidence in respect to the layout of the house and location of furniture is different to that of "X" and the Applicant. In particular, the front room is regarded as the lounge room, containing a piano, television and stereo and is closed off by a door. He makes no mention of the lounges or coffee table. In cross examination Mr O'Grady deposed that the events took place in an open lounge area he likened to a library. 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 chairs against one wall and fairly bare of other furnishings. A carpet square on the ground.

Q. Sensational memory for the furnishing in a room in a house you lived 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 piano and it was the room right at the bottom of the stairs that I walked down 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 train trip 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 association with the choir which he put, over the years of his involvement, comprised about 40 percent adult members and 60 percent children attending the school.

134 Mr Russell's evidence recites without dispute the events related in the evidence of Father Doherty of arrest, charge, voluntary stand down, and return to his duties following the collapse of the charges brought against him in respect to Mr Buckley.

135 Mr Russell deposed that around June or July 2002 Father Doherty enquired as to his intentions towards retirement in a passing conversation, inviting the inference that there existed a preference for the issues to be resolved by his departure.

136 Mr Russell deposed that in August 2002 Father Doherty informed him of the Ombudsman's interest in the matter and arrangements were made that he again be supervised during choir practice pending resolution. Mr Russell deposed that he was shocked and angered by there-opening of the matter. He agreed to the supervision and was required to arrange it himself, which he did.

137 Mr Russell's evidence is that he engaged Mr Chris Mitchell of Corrs Chambers Westgarth to assist him and sought further clarification of the requirements of him and to expedite the matter. Mr Mitchell was a member of the choir as a child and continues as an adult member of the choir and has known the Applicant in that capacity for many years.

138 Mr Russell's first affidavit (exhibit 3) sets out in some detail his attempts to assist expedition, his representations and those of his solicitors to that end, and involvement in meetings and discussions with Father Doherty, Mr Michael McDonald, the Executive Director of CCER, and Mr Cooke.

139 Mr Russell deposed that in early December 2002 he was informed of the outcome of the Cooke enquiry and asked to respond to the preliminary findings that he had walked into the lounge room (of his home) 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 his response to Mr McDonald and Father Doherty at para 41 of Ex 3 in the following terms:

As you can see, I am extremely distressed and upset. I can't believe that such a finding could be made. This was not one of the original charges 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 who says that it did not occur. How could this happen? I just can't believe it.

141 Mr Russell's evidence is that Mr Mitchell then made a number of enquiries on his behalf seeking access to the Cooke report identifying persons interviewed by Mr Cooke and whether he could talk to persons named. Mr Mitchell was afforded access to an edited version of the Cooke report in mid December 2002. Mr Russell deposed that he worked with Mr Mitchell to prepare a detailed reply to the edited version of the Cooke report made available to them. Mr Russell's evidence is that a complete copy of the report was not available to him or Mr Mitchell until return of summons in these proceedings on 20 March 2003.

142 Mr Russell continued his duties as Director of the choir under supervision. 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 Mr Mitchell. 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 - no conclusion yet, but it is now resolved that it has been sustained. The Cathedral regards this as serious and wants to know whether anything else has to be considered.

Father Doherty No verdict has been reached on the matter by the employer. I am the employer and I represent the Church.

Mr McDonald Mr Cooke has looked at the materials and the Cathedral has considered it. It believes that there is a case to answer in relation 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 view in relation to the Cooke report and take a view as the employer.

143 Mr Russell deposed that he was then asked to consider what he might put by way of mitigation and was given a few minutes to consult with Mr Mitchell. The reply is recounted at para 52 of Ex 3 in the following terms:

52. Mr Mitchell then put certain matters to Father Doherty and Mr McDonald. To my recollection, those matters were to the following effect:

(a) the finding is based on statements from totally unreliable sources, being Mr Buckley and "X", and in circumstances where there was an entirely unsatisfactory inquiry by the police, including the fact that "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 comments other than to suggest that an adjournment occur. We adjourned for about30 minutes.

144 On resumption of the meeting Father Doherty informed Mr Russell of the termination of his employment. Monies due to him were paid by cheque that evening.

145 Mr Russell maintains an absolute denial that he observed any improper conduct of the type alleged. At para 56 of Ex 3 Mr Russell takes issue with the observation of Mr Cooke that:

If "X" is to be believed, the accused observed the sexual abuse of the boys by O'Grady and did nothing to stop him. It seems that the incident 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 the allegations, deposing that had he knowingly observed such conduct, he would have immediately taken steps to stop it and would have reported it to the proper authorities.

147 Mr Russell deposes in Ex 4 that he has no recollection of "X" orMr Buckley ever staying overnight at his residence, whether while Mr O'Grady was boarding there or at any other time. In this deposition Mr Russell draws attention to what he describes as a number of inaccuracies relating to the work of the choir, the layout of his residence in 1982 and 1983 and the content thereof, which he deposes he would 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 in his residence to his knowledge. His evidence is that choirboys had only ever 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 in January 1985. Mr Russell's evidence is that there were always a number of boys present and the events conducted by other adults as part of a reward and recognition system directed to improving presentation of the choir ahead of the concert tour.

149 In response to a question by Mr Murphy, Mr Russell conceded that Mr Buckley was part of that trip and he might have visited the residence as part of those events but he did not particularly recall him being there. "X" did not participate, having left the school on 4 May 1984.

Mr O'Grady As A Boarder In The Applicant's Residence

150 Mr Russell's evidence describes the manner in which Mr O'Grady came to board at his residence. Mr Russell's recollection is that Mr O'Grady came to the Cathedral some time in 1982 and to the best of his recollection in early 1983 he was approached by Father McGloin, thethen Dean of the Cathedral. His recollection of their conversation is found at para 58 of Ex 3 in the following terms:

Father McGloin:

David, it is not appropriate that David O'Grady continues living in the Cathedral Presbytery. He has no money. Would there be anyone in the Choir who could give him some accommodation until he has enough money for a bond?

David Russell:

That is a difficult one, father. I've got two empty bedrooms, but I work two jobs and he would have to look after himself. There is no way I can supply anything else but shelter. "

Father McGloin:

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 David O'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 certain matter of most exhaustion after taking them around Europe, et cetera, took some time off the Cathedral and didn't arrive back until the end of March 1982. When I arrived back, I found there was a new Dean. We left with Dean Willoughby. We came back and there was Dean Michael McGloin. Later in that year, and I can't know why, I was aware that there was a new resident who happened to be David O'Grady who was living 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 I don't know when, Dean McGloin approached me and said he thought it was probably inappropriate for David O'Grady stayed in the Cathedral House any longer, would I ask anyone in the choir if they could possibly provide accommodation. Now, that is a very difficult thing to ask of a voluntary 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 and you know I do two jobs and the best I can offer him is shelter and that was agreed upon and that's how David O'Grady came into my life at the request of the Cathedral Dean and, surely, you can't get a stronger recommendation, 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 week she observed Mr O'Grady to be continuously deeply depressed and informed him that he would have to obtain help or move out. Mr Russell deposed that in response to Mr O'Grady's reply that he had no money to obtain help, he arranged for a counsellor, identified as Beresford Waterman,to see Mr O'Grady. Mr Russell's evidence is that some time after that Mr O'Grady threatened suicide and subsequent thereto he insisted that Mr O'Grady leave his residence. Mr Russell's estimates that Mr O'Grady resided at his home for about six months at the longest.

Layout of Residence

153 The Applicant was subject to detailed examination in chief and cross examination in respect to features of his residence and the content thereof in 1982/1983.

154 Mr Neil first addressed the layout of Mr Russell's residence in 1983 by reference to exhibit 12, which Mr Russell confirmed depicted the location and layout of furniture on the ground floor of his residence at that time. Mr Russell deposed that the furniture 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 the kitchen area. The lounge room where the walking in event is alleged to have occurred has a large corner lounge, piano, audio cabinet, and freestanding speakers surrounding a coffee table positioned in the centre of 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 furniture contained therein. Mr Russell described the lounge room as crowded with furniture. He is supported in this evidence by Mr and Mrs Mitchell and Mr O'Dea.

156 There was extensive evidence in respect to the layout of the lounge room and, in particular, a large coffee table said to dominate the space. This conjecture was subsequently resolved by inspection of the residence on 19 August 2003.

157 On inspection the room was presented by the Applicant as he deposed it was at 1983. The coffee table had been obtained on loan from its present owner; the applicant retains in his present residence the majority of furniture which was relocated for the purpose of inspection with the co-operation of the present occupant.

The Dogs

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 brown German Short Haired Pointer named Liobe. Also appearing in the photograph is a female described as a visitor from Germany whom Mr Russell 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 his parents dated Easter 1982. Attachment B to exhibit 31 is a photograph of 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 was also taken in the late part of 1982.

160 A further photograph is provided, identified as DR 1, showing Mr Russell with Tristan and Liobe, which he deposed is a photograph sent to him in approximately 1984/85 taken by a person identified as Hans Bernhardt whilst visiting from Germany. The photograph has a handwritten 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 Siegfried Koessler was the Domkapelmeister at Wuerzburg. They held these posts from before 1976, when I first met them.

161 This evidence is supported by the affidavit of Ms Hammer, a veterinary surgeon (exhibit 32) in which she deposed that she has examined the photograph of the puppies (attachment A to exhibit 32) and DR1, the photograph of October 1983, and confirms that from her professional observation the dark coloured puppy is a German Short Haired Pointer approximately eight to ten weeks of age, and the dark coloured dog in attachment B to exhibit 32 is also a German Short Haired Pointer aged between nine months to two years, which appears to be fully grown but still very young, exhibiting the muscle structure of a young adult dog. Ms Hammer adds that from her experience German Short Haired Pointers are generally fully grown at approximately nine months of age.

162 During cross examination Mr Russell deposed that he has always kept two dogs and that the dogs in residence had been quite a feature of his household. Mr Russell's evidence is that Mr O'Dea would take up residence and care for the dogs when Mr Russell was away on tour with the choir.

163 The Applicant was firm in his response to Mr Murphy that he had never owned two golden retrievers. The Applicant put that thedogs preceding Tristan and Liobe were named Johnnie Walker, a white Labrador, and Arwen, a Labrador cross, which he described as a yellowish, honey coloured dog of similar colour to Tristan.

164 The Applicant conceded that it would be possible for an 11 year old boy to confuse pure bred golden retrievers with a light coloured Labrador. 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 raised the issue of identification of the dogs with Mr Cooke, inferring that the issue of the identification of the dogs by "X" was a later concoction.

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 the breed. 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 the model railway layout Mr Russell deposed that he commenced construction in 1982 and completed it to the state shown in exhibit 15 by late 1982, early 1983. In cross examination Mr Russell deposed that model trains had been a life long hobby and that the display situated in the kitchen area during the course of 1982/83 had previously occupied an upstairs bedroom, the process of removal being undertaken over a period of four to five months, completing during the 1982/83 Christmas vacation period. Mr Russell's evidence is that he had taken the choir on a concert tour of Europe, in particular Germany, returning at the end of January 1982. His evidence is that on his return he decided to remodel the train layout on German lines, undertaking the task late in 1982 asdeposed. Mr Russell's evidence is that he was assisted in this process by Mr McCarthy, a fellow enthusiast, and that Mr John Mitchell had wired the layout for him.

169 Mr Russell's evidence is that the model railway layout remained in his residence until 1986. Mr Russell's evidence is that he retained the components but has not reassembled the display.

170 Exhibit 14 is a photograph of the dining area showing the location of the dining table and two timber and glass doors leading from the dining room to the kitchen where the model railway display was situated, some two and half feet on the other side of the doors in the kitchen area. In the photograph the doors are closed. Mr Russell's evidence is that this photograph was taken by a real estate agent for marketing purposes and that the doors were normally left open.

171 Mr Russell's evidence is that the bathroom and toilet were located on the ground floor, access to which was via doors from the dining area, through the kitchen past the model railway layout to the area at the rear of the dwelling.

172 During further cross examination by Mr Murphy, Mr Russell deposed that it was not his practice to put any protective cover over the train set at any time, including absences of four to five weeks whilst leading overseas tours of the choir.

173 Mr Russell conceded that it may have been hypothetically possible to have dinner in the dining room and not be aware of the model train set, however, had "X" gone to the area adjacent to the toilet and bathroom at the rear of the house where the dogs were fed,he must pass through the kitchen adjacent to the train set. Mr Russell's response to Mr Murphy's questions in this regard maintain his position that "X" had never been to his residence. Mr Russell questioned the validity of the version by "X" on the basis that, had he been in the residence for the period of time asserted and nearly been bitten by one of dogs whilst it was eating, it was inconceivable that he had not needed to use the toilet nor had gone to the area where the dogs were fed and to do so must walk through the kitchen, past the train set, at which stage it could not have beenover looked.

Date of Steam Train Excursion

174 Mr Murphy questioned the fixing of the steam train excursion at 19 March 1983. Mr Russell's evidence is that the date wasby reference to the NSW State Rail records which revealed that the only excursion organised by the NSW Steam Railway Museum on the Illawarra line in 1983 took place on that date. Mr Murphy put to the applicant that another organisation ran steam train trips on the south coast line in 1982/83 on approximately a monthly basis on weekends. Mr Russell denied any knowledge in respect to this, putting that the excursion undertaken by the choir had been organised by Mr McCarthy, a member of the historical steam train organisation. Mr Russell deposed that such trips were published in a magazine published by the historical steam train group and the trip of March 1983 was the only trip 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 Transport Museum since 1973. His evidence is that he has had an association with the applicant since the late 1960's as a musician, and from the 1970'sas a fellow railway enthusiast. Mr McCarthy recalls the applicant raising the prospect with him of organising a steam train trip for the single parent and disadvantaged boys of the choir, which he did, noting that it was the only train trip he ever went on with the choir.

176 Mr McCarthy's evidence is that such trips were subject to a special train notice applicable to all non-timetable trains and that it was his practice to keep copies of those notices for trips upon which he travelled or organised. Mr McCarthy deposed that a search of his records 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 the years 1981 to 1985 inclusive and found no evidence that he had travelled on any other "Steam to the Seashore" train trip during that time, certain in his evidence that had he done so he would have kept the relevant notice as a memento.

177 Mr McCarthy deposed that he recalled the presence of Daniel Buckley, whom he described as a larrikin but a bright and smiling child, on the trip of 19 March 1983. Mr McCarthy could not specifically recall any other participant.

The Walking In Allegation Cross Examination

178 Mr Murphy put the applicant to detailed cross examination in respect to the versions of the walking in event described by Mr Buckley and "X". Mr Murphy also put the applicant to detailed cross examination in respect to the Cooke enquiry and his responses thereto, in which the applicant speculated on collusion between MrBuckley and "X" and the role of the investigating police officer in preparation 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 of collusion between Mr Buckley and "X" and the role of the investigating police officer was mere speculation on his part as he had been asked to put an explanation and, in an attempt to comply with that request, had speculated in order to explain the inexplicable as the events described by 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 teacher and has known the Applicant since 1978, visiting his house on more than50 occasions during the years 1982, 1983 and 1984.

181 Mr Mitchell's evidence is that the general layout of the ground floor 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 Mitchell's evidence that he visited the residence on a number of occasions in late 1982 and early 1983 to assist the Applicant to build a model train set, deposing that he constructed the electrical wiring and various control components which involved long periods at the house connecting and modifying wiring over several weeks.

183 Mr Mitchell identified a photograph of the train set (exhibit 15, initially MFI 4) which he deposed was located in the kitchen/family room of the house.

184 Mr Mitchell's evidence is that the train set measured about three meters long and 0.9 meters wide and was, on his recollection, visible through the doors from the dining room to the kitchen/family room area when open or closed. Mr Mitchell deposed that in his recollection the doors were usually open.

185 Mr Mitchell's evidence is that the dogs owned by the Applicant in January 1983 were a brown German Short Haired Pointer and a cross Labrador named Liobe and Tristan as depicted in exhibit 13. Mr Mitchell's evidence is that he recalls the Applicant had previously owned a golden coloured dog by the name of Johnnie Walker which haddied in late 1982, early 1983 and was replaced by the German Short Haired Pointer named Liobe.

186 Mr Mitchell deposed that in his recollection the dogs were occasionally fed from bowls on the floor of the kitchen and sometimes from the dining room table.

Mrs Judith Mitchell

187 The evidence of Mrs Judith Mitchell (exhibit 8) is that she has known the Applicant since 1979 and was a frequent visitor to his residence. Her evidence accords with that of the Applicant and Mr Mitchell in respect to the layout of the ground floor of the house, the arrangements of the furniture in the lounge room, which she recalls was "a little over crowded with furniture".

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 the lounge room as the coffee table obstructed heat to the lounge and thaton occasions when she wore a certain coloured jumper with large buttons, the dogs would lick the buttons thinking they were lollies. Mrs Mitchell recalled two gold dogs being replaced by a light coloured dog and a brown dog. She was uncertain in respect to the names given to the dogs.

Mr Sean O'Dea

190 The evidence of Mr Sean O'Dea (exhibit 9) is that he has known the Applicant professionally from 1975 and on a personal basis from 1979. Mr O'Dea's evidence is that he stayed at the Applicants residence on a number of occasions, some associated with major choir events,concerts or rehearsals, as a matter of travel convenience; and on other occasions, whilst the Applicant was on overseas concert tours with the choir, as a carer for the dogs.

191 Mr O'Dea's evidence is that he stayed at the Applicant's residence over Easter 1983 and that Mr O'Grady was no longer resident there. Mr O'Dea's evidence is that he met Mr O'Grady on one occasion some four to six weeks prior to a major concert at the Opera House on July 29 1983 for which he had arranged the musical scores and the Applicant was conducting. Mr O'Dea's evidence is that he attended the Applicant's residence to present the musical scores and discuss them with the Applicant and on this occasion met Mr O'Grady and was informed by the Applicant that Mr O'Grady was departing and had come to collect property described as a canoe or canoes which had been left in the backyard during the time he was boarding there.

192 Mr O'Dea's evidence is that he commenced renting a room at the Applicant's residence in August 1983 and continued in residence until late February 1985 on return from a concert tour of the United States of America and Canada in January 1985 in which he participated as amember of the choir. Mr O'Dea's evidence is that he again rented accommodation in the Applicant's residence from March 1991 until 1994.

193 Mr O'Dea's evidence is that he has never known the Applicant to invite choir boys to stay at his house. Mr O'Dea's evidence is that on his recollection the only occasions when choir boys attended the Applicant's residence were associated with pre-tour activities and that there was always a group of parents present and the boy choristers were directly supervised by another adult. Mr O'Dea deposed that Mr O'Grady was not present on any such occasion.

194 The evidence of Mr O'Dea accords with that of Mr and Mrs Mitchell in respect to the general layout of the ground floor of the Applicant's residence, the furniture in the lounge room, and the trainset, which Mr O'Dea deposed was "'a talking point of David's home". Mr O'Dea's evidence is that he enjoyed operating the train set and had observed others enjoying the activity.

195 A substantial amount of Mr O'Dea's evidence went to the size and location of the coffee table, both in the residence at the relevant time 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 coloured Labrador and a cream coloured Labrador cross which Mr O'Dea deposed were the two dogs owned by the Applicant in the period ending in or about 1981. Mr O'Dea identified these dogs as having been named Johnnie Walker and Arwen. Mr O'Dea's evidence is that on their passing these dogs were replaced by those shown in exhibit 13, a Labrador cross and a dark coloured German Short Haired Pointer, which he identified as Tristan and Liobe. Mr O'Dea was unable to be precise in respect to the arrival of Tristan and Liobe.

Mr Peter Smith

198 The evidence of Mr Peter Smith (exhibit 10) is that he has known the Applicant since 1967 and that he visited the Applicant's residence on a regular basis from that time. Mr Smith deposed that he visited the Applicant's residence only once through 1974 to 1981 due to his wife's illness; however, from 1982, when he and his family moved into the same suburb, he visited at least 50 times a year in the period 1982, 1983 and 1984 in pursuit of their shared interest in model railways.

199 Mr Smith's evidence in respect to the layout of the ground floor of the property, the furniture in the lounge room, and the size and location of the train set is consistent with that of the Applicant, Mr and Mrs Mitchell, and Mr O'Dea.

200 Mr Smith deposed that the model train set was erected during late 1982 and early 1983 and remained in the family/kitchen area for five or six years. His evidence is that the train set was visible from the dining area through the glass doors, though in his recollection the doors were almost always left open.

201 Mr Smith's evidence in respect to the dogs owned by the Applicant is identical to that of Mr O'Dea. Mr Smith identified two golden coloured dogs as Johnnie Walker and Arwen by reference to the same photograph as Mr O'Dea (Att. L to exhibit 10). Mr Smith deposed that the Applicant purchased two puppies, a brown German Short HairedPointer and a cross Labrador, on the passing of the two golden coloured dogs shown in Att. L. Mr Smith's evidence is that the two dogs shown in exhibit 13 are the two dogs which the Applicant purchased as puppies in 1982 or thereabouts.

Statement of Nicholas Butler

202 Attachment 4 to exhibit 3 is a statement by Mr Nicholas Butler dated 29 February 2000. The statement is admitted with the evidence of the Applicant without objection. Mr Butler was not required to give evidence.

203 Mr Butler's statement puts that he was a member of the choir from 1982 and that he was about 11 years of age when he joined the choir and the School.

204 Mr Butler states that he knows Mr Buckley and "X", however he asserts that he had never been to the Applicant's residence with either of them, putting that he had attended there on only one occasion with a number of other boys in 1983.

205 Mr Butler puts that as a soloist in the choir he spent a lot of time with the Applicant, both in the choir and "one on one". Mr Butler puts:

I can say categorically that at no time did David Russell behave in any way towards me improperly. I did not detect in any way, shape or form, 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 within the choir to return to his duties, which he put were in the care of temporary replacements. Mr Russell's evidence concludes with the following statement:

I consider that if I were reinstated to my position as Director of Music, I could with complete confidence and propriety resume my career and the performance of all my duties and responsibilities without restrictions or conditions. I have sought to the best of my ability to faithfully serve the Church, the Choir and its music with honour and dignity. I wish to do so again.

Ms Helen Kennedy, Ms Irene Szady, Ms Elizabeth Vierboom

207 The evidence of Ms Kennedy, Ms Szady and Ms Vierboom is by affidavit, exhibits 5, 6 and 11 respectively. None were required for cross examination. The evidence of each is that they have had a long association with the Applicant, resulting from their children's participation in the choir (and in the case of Ms Vierboom, her husband's membership), and have developed a high regard for his professional ability. Each deposed that they are informed of the present circumstances by reading the Cooke report, the affidavit of Father Doherty, and the affidavit of "X". The conclusion of each is adequately expressed in the final paragraph of Ms Vierboom's affidavit in the following terms:

I have never had, nor do I now have, any reservations about having my son in the care of David Russell. Upon his reinstatement, I look forward to him returning to his position as Director of Music at St Mary's Cathedral and as choirmaster to my son and husband.

208 This deposition is supported by a petition of 80 adult members of the choir (exhibit 28) declaring their total confidence and trustin, and full support of, the Applicant.

SUBMISSIONS

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 the Cooke enquiry and the decision making process surrounding it are so profound that the respondent's conduct must be condemned as incompetent, 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 properly satisfying a reasonable employer or this Commission that the Applicant was 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 the Commission in ordering reinstatement is on the claimant union ...However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that 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 the evidence that the steam train excursion referred to by "X" took place on 19 March 1983 late in the proceedings. Mr Neil submitted that it was the respondent's obligation to undertake enquiries to verify the assertions of "X", which it did not do, either during its own investigation (the Cooke enquiry) or during these proceedings. Mr Neilnoted that the only consequence of the respondent's conduct in this regard was to drive the Applicant to collect and present further material, 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 significant illustration of the respondent's erroneous approach was its failure to do anything to ascertain Mr O'Grady's account of the alleged events,submitting that if the respondent had bothered to read the transcript of his evidence at his trial they would have discovered an account of the alleged events that reconciled many of the weaknesses and inconsistencies in the other accounts and entirely exculpates the applicant 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. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. 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 is said to have been influenced by passages in that work. The learned author, who occupied the Downing Chair of Common Law, wrote:- "It is to be observed, that the measure of proof sufficient to warrant the verdict 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 fact in dispute, to the entire exclusion of every reasonable doubt, constitutes full proof of the fact; absolute mathematical or metaphysical certainty is not essential and in the course of judicial investigations would be usually unattainable. Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest degree it may decline, by an infinite number of gradations, until it produce in the mind nothing more than a mere preponderance of assent in favour of the particular fact. The distinction between full proof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt " (1st ed. (1824), pp, 450,451; 4th ed. (1853), pp. 817, 818). When, however, he passes to the standard of proof in other cases, he describes it in less positive and definite terms (1st ed. (1824), p 451; 4th ed. (1853), p. 818):- "But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale. This happens, as it seems, in all cases where no presumption of law, or prima-facie right, operates in favour of either party; as, for example, where the question between the owners of contiguous estates is, whether a particular tree near the boundary grows 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 as would 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 fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law." This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says:- "In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said to be that state of mind in which there is felt to be a 'preponderance of evidence' in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases- 'satisfied', 'convinced', and the like have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial 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. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may beheld according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved 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 admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involvingg rave moral delinquency. Thus, Mellish L.J. says: " No doubt the 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 of that fraud commenced it, the court is to draw reasonable inferences from 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 of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of 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 the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

219 Mr Neil reinforced this submission by reference to In re H. and Others (Minors)[1996] AC 563, a decision of the House of Lords, relying in particular upon the comments of Lord Nicholls of Birkenhead at 586:

The balance of probability standard means that a Court is satisfied an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

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, the higher degree of satisfaction required; citing in particular the comments of the Bench at p 10:

In Briginshaw v Briginshaw (1938) 60 CLR 336,the High Court affirmed the principle that there is only one standard of proof applicable in civil matters, namely, on the balance of probabilities. However, it was held that the strength of the evidence necessary to establish a matter on the balance of probabilities may vary 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 the nature and seriousness of the allegation made before finding it proved at the requisite level.

221 Mr Neil noted that the nature and gravity of the allegations involve such a degree of moral turpitude and delinquency that, if made out, would attract substantially the same degree of censure and ruin as many charges of criminal conduct, and accordingly the allegations should be judged as requiring the highest standard of proof.

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 reaction of any kind to the event said to be observed, to the extent that his response was allegedly entirely neutral, does not accord with ordinary human experience. Mr Neil submitted that conduct of the kindalleged is inconsistent with any known conduct on the part of the Applicant and every known assessment of his character.

223 Mr Neil relied upon the Applicant's 27 year career with the choir, during which he put there had never been another complaintor hint of conduct or type of conduct alleged, by any official of the respondent, parent or choir member.

224 Mr Neil noted that parents and choir members continue a unanimous and enthusiastic support for the Applicant's return to employment as Director of the choir.

225 Mr Neil submitted that the respondent has been unable to make out any motive for the behaviour alleged and has not established any connection between Mr O'Grady and the Applicant other than that imposed upon the Applicant by the respondent by pressing the Applicant to take Mr O'Grady as a boarder. Mr Neil submitted that the weight against the probability of inaction increases given the tenuous connection 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 the principles of motive espoused in allegations of positive criminal conduct to situations of inaction.

227 Mr Murphy accepted that without establishing a motive for someone doing something, then a court will be reluctant or slow to condemn 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 Applicant is not permissive of an exploration of motive as the Applicant contends there was no action or inaction to consider.

229 Mr Murphy put that notwithstanding the absence or explanation of motive, it was open to consider that inaction arose from a condonement of the events witnessed, embarrassment that they were in his home, or fear of Mr O'Grady.

230 Mr Neil submitted that in the absence of any suggestion of a motive, the only available conclusion is that the respondent's allegation involves conduct on the part of the Applicant which is utterly inexplicable and accordingly inherently unlikely to have occurred.

231 Mr Murphy put that such a conclusion was not available, submitting that inaction when confronted with an unpleasant and difficult situation is far more consistent with ordinary human behaviour.

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 this recollection is both inherently and in fact unreliable and unsafe, such that it could not induce the degree of satisfaction required.

234 Mr Neil submitted that the testimony of "X" represented the special danger presented by honest, and apparently convincing, but erroneous 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 Mr Buckley remains untested hearsay and is incapable of attracting any evidentiary or persuasive value in these proceedings

236 Mr Neil submitted that there is no corroboration for the events deposed by "X", submitting that there were so many material inconsistencies between the accounts of Mr Buckley and "X" that one could not be said to corroborate the other. Mr Neil noted that the activities described by Mr Buckley and "X" are profoundly different, and the version offered by Mr Buckley's statement has additional participants. The two versions are substantially displaced in time, purpose and circumstance. Mr Neil submitted that failure by the respondent to regard the denials of the other boys whom Mr Buckley put at the scene is a significant error. Mr Neilsubmitted that the proper approach is to conclude that the impossibility of reconciling Mr Buckley's account and that of "X" in his evidence means that both are an unreliable and unsafe foundation for such a conclusion.

237 In addressing the issue of corroboration Mr Neil relied upon the Director of Public Prosecutions v Hester [1973] AC 296 and the Director of Public Prosecutions v Boardman[1975] AC 421 to support his submission that the purpose of corroborative evidence is not to transform unreliable evidence into evidence 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 credit worthy witness confirms what another credit worthy witness has said. ... ...The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.

239 Mr Neil submitted that having regard to the nature of the allegations, the age of "X" at the time the alleged incident occurred,and the long delay in pursuing the allegation, it is unsafe to make a finding 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, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors; and that the possibility of child fantasy about sexual matters could not be ignored. Mr Neil further relied on Longman at 101 wherein it is said:

"It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliabilityo f the only evidence which was capable of sustaining a finding of the applicant'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 well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the persons own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.

... ...

Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be...

243 Mr Neil submitted that it is necessary to look beyond the competing depositions of "X" and the Applicant to see whether there are any contemporaneous facts which support either version.

244 Mr Neil put that there is nothing of a contemporaneous nature that supports the allegation against Mr Russell and that such evidence that has survived the passage of time is against the allegation.

245 Mr Neil submitted that the Applicant is a person well known to the respondent having served in the position of Director of Music for some 27 years. Mr Neil put that all knowledge of the Applicant's character and behaviour is against the probability of him walking 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 [1987] 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 [2000] 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 the objection to the tender or the acceptance into evidence of Buckley's statement and in that debate it was considered in our part that the weight that might be given to anything in that statement given on its own would be very slight and that appears at transcript page 337 but that ultimately what utility or weight was to be given to it was a matter for the Commission once all the evidence was in and the submissions made consistent with the approach in the Attorney General of Hong Kong.

Now section 63 of the Evidence Actspecifically contemplates the admission of such statements into evidence in civil proceedings in circumstances where the maker of the statement 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 is unavailable and for that we rely on the affidavit of Mr Carter - I don'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 that caution has to be exercised in relation to that statement. We accept that in these proceedings there's not been the opportunity for the applicant to test it by cross-examination of Mr Buckley but that must always be the case where the deponent is not available to give evidence and 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 process adopted by the respondent was presumptive of guilt and overwhelmed by the only consistency between Mr Buckley and "X", which is reference toa walking in event involving the Applicant. Mr Neil put that the fixation on this point blinded the decision makers to all other elements, particularly those suggesting that the conduct alleged was improbable. Mr Neil put that a prime example of this was refusal to accept the position of Mr Butler (who Mr Buckley said was there) that no such event occurred.

252 Mr Neil put that the possibility that "X" and Mr Buckley 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 to Germany and that the trip was after the walking in event. Mr Neilput that this had to be a reconstruction as the Germany trip took pace in January 1982, prior to "X" commencing at the school and with the choir 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's position is its acceptance of the verdict convicting Mr O'Grady on the corroboration of "X", and a belief that a walking in event took place as both Mr Buckley and "X" refer to such an event, albeit in startlingly difference circumstances.

255 Mr Neil relied upon the decision of the Kings Bench in Hollington and F Hewthorn & Co Ltd KB 1943 587 at 601 where it 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 [2003] 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 the allegations occasioned unfair prejudice upon the Applicant in answering the allegations effectively and completely, necessitating great caution in 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 medical practitioners as demanding, manipulative at a conscious level, highly excitable and attention seeking, making him a child whose perception and recollection could not be relied upon with confidence.

260 Mr Neil noted that the episodes of psychogenic vomiting suffered by "X" were, in Dr Soddy's diagnosis, triggered by circumstances of stress or excitement. Mr Neil submitted that ordinary human experience suggests that if the allegation made by "X" is accurate, it is likely to have occasioned stress or excitement, at least to the same degree as the events which precipitated bouts of vomiting. Mr Neil noted that there is no recorded event of vomiting at the time, though admissions to hospital prior to and post19 March 1983 confirm the susceptibility of "X" to that affliction at the time.

261 Mr Neil submitted that it is, for every practical purpose, inconceivable according to ordinary human experience that, if the events alleged by "X" occurred, they would have effected no stated or observable change in attitude towards the school or the choir.

262 Mr Neil relied upon the clinical relationship between Dr Soddy and "X" and the specific training and expertise of Dr Soddy in detecting child sexual abuse, to support his submission that if anything had occurred in the manner alleged, it would not have escaped Dr Soddy's notice entirely.

263 In rebutting the submission by Mr Murphy that the evidence of "X" should be taken as inherently credible as there is no motive for him not to tell the truth, Mr Neil relied upon the judgment of Levine J in Marsden v Amalgamated Television Services Pty Ltd [2001] 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 essentially futile. In the criminal law the Court of Criminal Appeal and the High Court have on a number of occasions emphasised the dangers in a Crown submission to this effect by reason of the risk of it being perceived that there is thereby placed upon the accused an onus to discharge some evidentiary obligation and indeed of it being perceived that the substantive 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 from the absence of evidence of motive...The correct view is that absence of proof 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 of proof) and the shifts in evidentiary burdens, it would nonetheless be quite imprudent of a trial judge in such a case as this to allow himself to be seduced by the allurements implicit in the question "why would the complainant lies (sic)" in the absence of the litigation of an 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 no proximate complaint by "X" or his mother or anyone else arising from the alleged event; and there is a complete absence of any rumour or gossip surrounding the Applicant or his conduct.

268 Mr Neil submitted that the appropriate remedy is reinstatement with consequential relief of payment of wages and continuity 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 of the probability test at the highest level approaching the reasonable doubt 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 to recall peripheral issues. Mr Murphy put that the direct evidence of "X" of the walking in event withstood the test of three days of testimony and cross examination.

271 Mr Murphy put that Father Doherty accepted the truth of the contents of the statement made by "X" subsequent upon investigation by Mr Cooke. Mr Murphy emphasised that the statement made by "X" was made in relation to criminal charges against Mr O'Grady who was subsequently convicted of indecent assault upon Mr Buckley in the Applicant's lounge room. Mr Murphy submitted that on a fair and balanced consideration of all of the evidence in this matter, comfortable satisfaction should be achieved that the walking in event occurred and that termination of the Applicant's employment was the only available outcome.

272 In defending the credit of "X" Mr Murphy put that "X" had nothing to gain and potential significant loss from making the statement found in exhibit 1. In this regard Mr Murphy noted that "X" had no complaint or action against Mr O'Grady, the Applicant or the respondent, and had merely cooperated with the Police investigation 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 South Wales 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 the evening prior to the excursion to the making of his statement, "X" was able to provide a remarkably accurate description of the layout of the Applicant's residence. Mr Murphy put that the suggestion by the Applicant that the features described by "X" would apply to any terrace house 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 that inspection to support this submission, noting that the only terracehouse of similar appearance in the vicinity was a residence immediately next door, putting that the other houses in the area were a mixture of double and single story residences which were nothing like the Applicant's residence. Mr Murphy further put that if "X" had never been to the applicant's house he would have had no way of knowing that 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 to the colour, breed and nature of the dogs as confused, confusing and contradictory, 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 submitted that the evidence positioning the train set in the kitchen/family room area at the relevant time is inconclusive and does not provide any damage to the credit of "X". Mr Murphy submitted that it is equally plausible that "X" had simply forgotten the train set with the passage of time, or that he may simply not have seen it during his visit.

277 Mr Murphy submitted that the testimony of "X" was subject to a most searching, aggressive and at times brutal cross examination over three days, and that, while attempts were made to question the quality of his recollection in respect to the events and the vague description provided to his mother subsequently, "X" was never shaken in 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 at best she had been given a vague and broad description of the events consistent with the need for "X" to confide in an adult at the time but not burden his mother with further responsibility. In putting this submission 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 psychometric vomiting suffered by "X" as a child does nothing to diminish his capacity to accurately remember events, nor lay a foundation for a conclusion that events might be created by hallucination and subsequently recalled as real.

280 Mr Murphy was critical of the suggestion put by Mr Neilin cross examination that "X" had deliberately sought to mislead the jury in the O'Grady trial by not making mention of the walking in eventor the Applicant during those proceedings. Mr Murphy relied upon the evidence of Mr Peter Little, the Crown Prosecutor in the O'Grady trial, which makes it clear that "X" was directed not to refer to the walking in event in those proceedings, and accordingly there was absolutely no basis for criticism of "X" or diminution of his credit arising therefrom.

281 Mr Murphy submitted that there were a number of compelling reasons that the evidence of the Applicant should not be accepted where it conflicts with that of "X". Mr Murphysubmitted that the assertion by the Applicant that the charges brought against him on the complaint of Mr Buckley were "so conclusively found to be false" as erroneous and intentionally misleading. Mr Murphysubmitted that the charges against the Applicant were never found to be false, conclusively or otherwise. They were dismissed by the Magistrate because the complainant, Mr Buckley, failed to attend court. Mr Murphysubmitted that this could not be conveniently explained away, as attempted 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 the Applicant's evidence wherein he denied that he had discussed the proposition 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 his Counsel to put the proposition to "X" that the train set was in the dining room when it was contended to be in the kitchen area and had conceded that it was quite possible to have had dinner at his dining table without seeing the train set or going into the room in which it was located (TR p184 ln8).

284 Mr Murphy put that the Applicant's evidence that the dogs were fed in the covered area at the back of the house led to the conclusion that if "X" had attempted to pat one of them whilst it was being fed he would have had to walk past the train set, was later contradicted by Mr Mitchell who deposed that the dogs were fed in the dining room.

285 Mr Murphy submitted that criticism of the Cooke enquiry is unfounded and, when examined, reveals internal inconsistencies in the evidence of the Applicant.

286 Mr Murphy cites transcript reference of evidence by the Applicant which he puts is against the Applicant's assertion that he was not aware that the walking in allegation was subject to enquiry byMr Cooke.

287 Mr Murphy urged extreme caution in accepting the Applicant's evidence that the steam train trip took place on 19 March1983, noting that the special train notice referred to by Mr McCarthy was 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 in the course of their testimony moved from witness to advocate on behalf of the Applicant and so displayed a bias or inappropriate influence upon their evidence.

289 Mr Murphy put that the evidence of Mr Smith is in accuratein his insistence that the coffee table was much larger than in fact it was, 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 respect to the size of the coffee table, in particular Mr O'Dea's deposition that he had obtained a photograph of the coffee table from the present owner, to whom he had sold it "more than a year ago", quite independent of and separate to these proceedings. Mr O'Dea was unable to recall or was unwilling to identify the identity of the current owner and could not recall why he had requested the photograph. Mr Murphydescribed this evidence as fanciful. This proposition is supported by Mr O'Dea's subsequent concession that he obtained the photograph for the purpose of these proceedings and his action in being able to obtain the coffee table from the present owner for the purpose of inspection.

292 Mr Murphy accepted the evidence of Mr McCarthy whom he put had not exhibited a tendency to exaggerate in order to assist the Applicant's case. Mr Murphy notes that Mr McCarthy stated candidly his inability to recall when the model railway was built, but that it was in the early 1980's. Mr Murphy put that it might have been expected that, given Mr McCarthy's role in construction of the model railway, he would have had a clear recollection in respect toit.

293 Mr Murphy noted that Mr McCarthy, unlike some other witnesses, was prepared to consider that his recollection of the loungeroom layout may be inaccurate. Mr Murphy further noted that despite his involvement in the organisation of and participation in the steam train trip on the South Coast line in 1983, Mr McCarthy conceded that there was more than one such trip per year in 1982/1983 and that he may be wrong about the trip he recalled with the Applicant and a number 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 Standards Office of the respondent and was provided with appropriate information, including correspondence from the NSW Ombudsman to the CCER of 13 August 2002 which contained a summary of Mr Buckley's allegations against the Applicant, including the walking in event, and advice that this could be corroborated by the other student present. Mr Murphynoted that Mr Cooke was informed of the identity of the other student present (i.e. "X") by Mr Buckley and his solicitor during the course of an interview with them.

295 Mr Murphy submitted that Mr Cooke provided a detailed report in which he reviewed all of the material available to him, including the psychiatric reports of Dr Carolyn Quadrio in respect to Mr Buckley, and the written response of the Applicant. Mr Murphynoted that Mr Cooke formed the view that the evidence of Mr Buckley could not be relied upon unless corroborated, and that he considered the statement of "X" to the Police as corroboration of the walking inevent.

296 Mr Murphy submitted that the statement by Mr Nicholas Butler that he recalled going to the Applicant's house on one occasion in 1983 to watch the movie "Star Wars" was contrary to the Applicant's evidence that he only ever had choirboys in his house in the later part of 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 these proceedings but he was not called and the affidavit was not read.

297 Mr Murphy submitted that the Applicant's record and the unanimous support of the parents and complete absence of any further matters being brought forward by rumour or gossip as a result of the arrest of July 1999, were of marginal relevance at best to Mr Cooke's task which was to investigate specific allegations by Mr Buckley against the Applicant, including the walking in event corroborated by"X".

298 Mr Neil in response submitted that this approach and dismissal by Mr Cooke of any other information concerning the Applicant's character, conduct or behaviour was a fatal infection of the Cooke enquiry, rendering it unfair and invalid.

299 Mr Murphy contended that the reluctance by Mr Cooke to accept anything from Mr Buckley without corroboration demonstrated a completely 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 Father Doherty and his instruction to Mr Cooke to make direct contact with "X"as a demonstration of the even handed and fair approach of the investigation 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 of corroboration of one another by Mr Buckley and "X" as the turning point in his determination to conclude that the allegation of the walking inevent was made out.

302 Mr Murphy supported his submission that the Cooke enquiry and subsequent decision making process were fair and reasonable by reference to Father Doherty affording the Applicant a further opportunity to demonstrate that such a conclusion was not sound at a meeting on 31 January 2003.

303 Mr Murphy submitted that neither Father Doherty or MrCooke could be properly criticised for not obtaining a statement from Mr O'Grady. Mr Murphy submitted that the proposition that Mr O'Grady's opinion should have been sought was ludicrous as the very incident that the Applicant is alleged to have walked in on is the one for which Mr O'Grady was convicted of indecent assault upon Mr Buckley despite his plea of not guilty. Mr Murphy put that it was most unlikely that anything that Mr O'Grady might have offered concerning the incident could be given any weight whatsoever.

304 Mr Murphy refuted Mr Neil's assertion that because the allegations were based on evidence which occurred such a long time ago, 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 this issue is entirely based on criminal trials where, he put, it is the liberty of the subject which is at stake and the accepted standard of proof is beyond reasonable doubt. Mr Murphy put that it would be erroneous to apply the same degree of rigour when assessing evidence of facts in civil proceedings such a these.

305 Mr Murphy submitted that the Briginshaw approach requiring comfortable satisfaction that the events occurred is the appropriate test, adding that in application of that test consideration of the respondent's ongoing child protection obligations must be bornin mind.

306 In reply Mr Neil submitted that the consequences of an adverse finding to the Applicant were the ruin of his reputation and that the conduct alleged is of sufficient moral turpitude to warrant the highest standard of proof. Mr Neil put that the on goingchild protection obligations, whilst important and significant obligations, had no relevance to a finding of fact.

307 Mr Murphy submitted that despite the long delay between the event and Mr O'Grady's trial, he was convicted by a jury applying the beyond reasonable doubt test, having in mind the same concerns enunciated by McHugh J in Longman. Mr Murphy submitted that in this case the ultimate persuasion of the respondent was that the walking in event had been remembered by two boys, albeit indifferent contexts, independently of each other but both said they were there at the time being indecently assaulted by Mr O'Grady.

308 Mr Murphy submitted that to ignore the conviction of Mr O'Grady over the evidence of Mr Buckley and "X" would constitute a form of 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 or legal forms.

309 Mr Murphy put that it is inherently unlikely that both boys would have independently of each other included reference to thewalking in event in their statements, prepared for the purpose of charges against Mr O'Grady, unless it did in fact occur. Mr Murphysubmitted that it is unsurprising and entirely consistent with human experience that one event is remembered differently by two people in respect to peripheral aspects. Mr Murphy described the surrounding issues of dinner, the dogs, and television watching, as minor quibbles involving some inconsistency involving television or video, and Mr McCarthy's recollection of Mr Buckley on the train trip, all surrounded the one consistent recollection of the Applicant walking in 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 the procedure and decision making process adopted by the respondent are rejected, he notes that the Commission is now placed in a far superior position than the employer at the time of the decision to terminate the Applicant's employment, given that the Commission now has before it all of the material available to the respondent as well as additional material such as parts of the transcript of the O'Grady trial. Mr Murphysubmitted that the Commission as also had the benefit of direct testimony 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 substantial information and evidence, the Commission should come to the conclusion that it is comfortably satisfied on the balance of probabilities that the walking in event did occur and therefore the termination of the Applicant's employment was justified.

313 Mr Murphy noted that the respondent relied heavily on the proposition that the allegation is inherently improbable and out of character for the Applicant. Mr Murphy submitted that these matters were heavily weighed by Father Doherty, who considered that the more compelling evidence was the allegation by Mr Buckley, corroborated by "X".

314 Mr Murphy submitted that it is difficult to weigh the absence of adverse opinion as none of the deponents to the Applicant's good character had the opportunity to observe him in a similar situation.

315 In supplementary written submissions Mr Neil and Mr Murphy debated the principles to be found in the decision of the Privy Council in Attorney General of Hong Kong v Wong Muk Ping [1987] 1 AC 501, and the effect of otherwise on the discussion in R v Hester [1973] AC 296 and R v Kilbourne [1973] AC 729.

316 Mr Murphy referred me also to a decision of the Privy Council in Burut v The Public Prosecutor [1995] 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 the evidence given by any witness in isolation from other evidence in the case 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 unreliable and lacking credit, therefore his evidence cannot corroborate and accordingly the evidence of "X" must stand alone.

CONSIDERATION

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 confusion as to who would be the ultimate decision maker in the process.

319 I am invited to the inference that the Cooke enquiry took a hasty and ill considered position adverse to the Applicant due to pressure upon it by the Ombudsman. It is not necessary to determine this 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 dealt extensively with the appropriate tests to be applied to the evidence and the means by which recollections as a child by an adult giving evidence of time elapsed events should be approached. Each acknowledged that the jurisprudence arises from instructions in jury trials.

321 I acknowledge the utility of these submissions. It is not necessary to recite the jurisprudence in the detail provided, it is sufficient for present purposes to note that the test is the civil standard found in Briginshaw, and that the difficulties of distant events and recollections are to be approached from both directions 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 of evidence, these rules are a useful guide, to be departed from in circumstances where consideration of equity, good conscience and substantial merit so justify.

323 There is a useful discussion of the relevant principles in respect 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 [1973] 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 be determined in accordance with equity and the substantial merits of the case'. This does not, in our judgment, mean that the principles of 'equity' as contrasted with the 'common law' are applicable as such,but rather that in considering whether the employer acted reasonably or unreasonably the tribunal should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In other words they should constitute themselves an industrial 'special jury'."

The approach of common sense and common fairness towards the reception of evidence in a case is, in my view, completely consistent with 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 the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'." (1933) 50 CLR 228 at 256.

324 It is appropriate, in my view, to approach the present task by first considering whether the evidence of "X" can be accepted over the denial of the Applicant.

325 A consideration of probability where accusation and denial counter each other must be by consideration of the objective facts available and the surrounding circumstances in order to determine the probability or otherwise of an event.

326 Having regard to the length of time between the evidence and the events recalled, the age of "X" at the time of the events, and the lack of corroboration, it is unsafe to simply accept what is put. In the absence of corroboration the veracity of the testimony by "X" must stand 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 psychosomatic disorder, to support his submission that "X's" recollection of those times is unreliable.

328 It is not possible to disregard the effect of these circumstances in consideration of the reliability of "X's" recall of events at that time.

329 The circumstances giving rise to the allegation are said to precede a steam train trip, to be held on Saturday, 19 March 1983, for some members of the choir. The evidence of "X" is that he and Daniel Buckley, due to the remote residence of each, were to stay overnight at the applicant's house to participate in the train trip. The train was to 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 would alight at the station nearest his home.

330 The evidence of "X" is that he and Daniel Buckley were each given a meal and watched some television prior to the event involving O'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 was organised 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 basis that he could not recall a large model train set measuring approximately 3m x 1m mounted on a table in an area adjacent to the dining room of the applicant's house where "X" deposed that he had taken a meal prior to the alleged offence.

333 I am informed by the evidence of Mr and Mrs Mitchell and Messrs Smith, McCarthy and O'Dea that the large model train set was in the residence in March 1983. I find it incredible that an eleven year old boy about to embark upon a steam train trip did not notice or recall the existence of this item.

334 The evidence of "X" is that he recalled two large golden coloured dogs at the applicant's house on the day of the offence. Mr Neilbrought evidence from the applicant and others that there were two dogs at the applicant's residence in March 1983, though only one of them was golden in colour (the other a dark brown).

335 I am satisfied by the evidence of the Applicant, Mr and Mrs Mitchell and Mr O'Dea that the dogs in residence in March 1983 were Tristan, 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" in probing the layout of the lounge room in which the offence was said to have taken place.

337 Mr Neil submitted that the events as described by "X" could not have taken place without reconfiguration of the furniture, of which "X" gave no evidence or had any recollection.

338 There is substance in this submission, however, it is less likely that an eleven year old boy would take much notice of the furniture in a room, or whether it had been moved.

339 I accept the submission of Mr Neil that the accounts given by Mr Buckley and "X" are so removed from each other that neither can support the other in any way. It is not open to take the only similarity, that of an allegation of a walk in by the Applicant, as proof that a walking in event occurred.

340 In Mr Buckley's version there were other boys present, they were in underwear and there was inappropriate touching by Mr O'Grady. In the version offered by "X" only he, Mr O'Grady and Mr Buckley were there, all were naked and participating in genital manipulation whilst laying on the floor.

341 I am asked to believe "X", substantially on the basis of his evidence that the Applicant made eye contact with him whilst in the doorway, creating an indelible memory of that moment. "X" deposed that he held such memory of being snapped at by the dog and being naked with Mr O'Grady.

342 I have extreme difficulty in doing so. Had this been the case, I am compelled to a view that "X" would have an equally indelible memory of the moments immediately after.

343 The evidence of "X" is that all three lay naked on the floor and continued genital manipulation at Mr O'Grady's behest. Such a reaction to "discovery" is profoundly counter intuitive.

344 The Applicant presents as a distant and aloof character, unlikely to take any particular notice of a sacristan and newly arrived students who are yet to establish themselves in the choir. The position of authority so demonstrated is supported by the evidence of "X" that the Applicant, in the position of choirmaster, was adept at motivating and developing members of the choir by balancing criticism and attention. The position of authority and prominence occupied by the Applicant made him a subject of much discussion and conjecture among the students and any visit to his home a matter of great interest and subsequent 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 all evidence to Mr O'Grady, would fail to provoke an immediate dis engagement 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 to the findings of fact by the jury in that trial in assessing the probability of the walking in event.

348 The testimony by Mr O'Grady before the District Court must be approached with extreme caution given his conviction. That is not to say that everything put by Mr O'Grady must be considered as untruthful or unhelpful in this matter.

349 Mr O'Grady conceded that Mr Buckley and "X" were with him at the Applicant's residence on a Friday night preceding a steam train trip for choirboys living without a male parent.

350 Mr O'Grady's version is that he drove Mr Buckley and "X" to the residence and cooked dinner for them. This aspect of events was not challenged 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 in October 1983. The evidence of Mr McCarthy in this matter is that he organised the trip and, to the best of his recollection, the trip took place in March 1983.

352 Curiosity arises from the absence of any reference by Mr O'Grady to the Applicant. If Mr Russell was there for dinner, or any other part of the evening, it is more likely that Mr O'Grady would have referred to his presence in his own defence. The lack of any reference to MrRussell by Mr O'Grady is consistent with the position put by Mr Russell that choirboys were never present in his house to his knowledge or at any time that he was there, other than in an organised group prior to the January 1985 USA tour.

353 The suggestion by "X" that the event took place in some proximity to the trip to Germany by the choir, the absence of any recollection of the model railway set, his recall of two golden dogs, the dogs being fed in the kitchen, and the evidence of the Applicant that he was requested to take Mr O'Grady as 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 seen two golden dogs and he would not have seen the model train set.

354 The assertion by Mr Buckley at the O'Grady trial that Mr O'Grady offered to put in a good word with the choirmaster to assist Mr Buckley's selection for the Germany tour, undertaken from 2 January to 29 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 was approached to find accommodation for Mr O'Grady by the Dean in 1982following his recuperation from the Germany tour, but could not recall when during that year.

356 The consideration is not assisted by the fact that Mr Buckley makes no connection between the overnight stay at the Applicant's residence and the steam train trip, and his assertion that following the abuse by Mr O'Grady he did not remain at the residence but was taken to his grandmother's house.

357 The possibility of the event involving "X", Mr Buckley and Mr O'Grady taking place in 1982 diminishes the probability that the Applicant was in his residence on that occasion, or was aware that Mr O'Grady had brought the boys to his residence in his absence.

358 It is reasonable to expect that in early 1982 the Germany trip was 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 area is inconsistent with the recollection of "X" that Mr Buckley was also invited to stay over as it was too far for Mr Buckley to travel to his residence in Western Sydney. The detail of recollection proffered by "X" of the walking in event is inconsistent with his failure to recall the other boys on the train trip, where it went, and Mr Buckley's assertion that he did not stay at the Applicant's residence after the event 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 the Applicant's residence. The issues of conjecture are when that event took place, whether the Applicant was present, and whether a walking in event occurred. The facts in this matter are confused as to when the event 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 internal consistency. This is a more difficult task as there is little more the Applicant can do but protest his denial.

363 Internal inconsistencies suggested by Mr Murphy, for example, the conspiracy theory of collusion between "X" and Mr Buckley, arise from pressure upon the Applicant to "offer an explanation". The response to this line of enquiry is unnecessarily co-operative by the Applicant and cannot be held against him.

364 "X's" knowledge of Mr Buckley being involved in other events with Mr O'Grady raises a concern. It was not established that the only source of "X's" knowledge was the O'Grady trial. The propensity for "X" and Mr Buckley to have discussed events as school children, or for the investigating Police Officer to have questioned "X" about a walking inevent and the Germany trip based on information obtained from Mr Buckley, 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 the evidence of Mr and Mrs Mitchell, Mr Smith and Mr McCarthy, all of whom were constant and regular visitors to the Applicant's residence and wh oare consistent in their deposition that choir boys were never at the Applicant's residence.

367 The evidence of Mr O'Dea was overly partisan, to the extent that, in my opinion, it is safer not to rely upon it.

368 Further, in support of the Applicant's credibility, is the absolute lack of further or additional allegation of any conduct that could be remotely connected to the alleged conduct or other impropriety. The absolute support of Ms Kennedy, Ms Szady and Ms Vierboom, supported by the petition of 80 parishioners directly connected to the choir, is indicative of contemporary standing which in my view must carry some weight positive to the Applicant when considering the allegations of conduct in 1983.

369 There is a complete silence in respect to any allegation of impropriety against the Applicant during his entire career with the choir.

370 The reference by Mr Butler that he had been to the Applicant's residence "to watch videos" is untested. Mr Butler's statement is supportive of the Applicant. There has been no enquiry as to whether the one occasion on which he visited the Applicant's residence was in connection with the USA tour, or not.

371 Having regard to the internal inconsistencies in the evidence against the Applicant, and the surrounding support for his denial, I am unable 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 or existence before it can be found. It cannot be found as a result of amere mechanical comparison of probabilities independently of any belief in its reality. ... ... 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

373 The difficulty encountered in this case is that the proofs are inexact, the testimony is indefinite, and the inferences are largely indirect.

374 I am unable on the evidence to form the requisite belief in the reality of the walking in event.

375 Considering the same evidence, I am able to achieve the necessary level of comfortable satisfaction that the walking in event did not occur, and that to the extent this is recalled by "X", it is are construction.

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 and continuity 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.

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LAST UPDATED: 02/06/2004