Judge acquitted Catholic brother despite being ‘satisfied’ he had sexually abused schoolboy

By Janet Fife Yeomans
Herald Sun
November 27, 2016

The child abuse case is being held in the NSW District Court.

A judge said he was “well satisfied” that a Catholic brother had sexually abused a boy at school - but then acquitted him of the abuse.

The extraordinary case in the NSW District Court is being examined by the royal commission into child sex abuse but while the victim and the crown prosecutor Lou Lungo will be giving evidence, Judge David Frearson is not being called as a witness.

No judges have been called to the long-running commission to explain their decisions while solicitors have been criticised for the way they have handled cases.

The decision not to call Judge Frearson was made despite the commission being told today that the case “raises a number of issues of importance to the royal commission’s work on criminal justice”.

“This prosecution raises the issue of whether a criminal justice response can be said to be reasonably available to condemn and punish child sexual abuse if an accused is acquitted in circumstances where the judge was ‘well satisfied’ that the accused sexually abused the complainant,” counsel assisting the commission Jeremy Kirk SC said today.

Acquitting Brother Christopher Rafferty, 65, the commission heard that the judge said in his judgment: “I am well satisfied that the accused did sexually abuse the complainant at school and I reject his blanket denial as a reasonable possibility.”

But Judge Frearson said he could not be satisfied of the particular individual incidents beyond reasonable doubt.

The commission is examining whether there should be more joint trials and more coincidence evidence allowed into trials.

In another case being examined as the commission looks at the way the criminal justice system lets down the victims of child sexual assault, a Catholic priest was convicted of sexually abusing six boys, including parishioners and alter boys, but acquitted of sexually assaulting another boy after a NSW District Court judge ruled that boy’s trial be heard separately.

That victim felt “angry and abandoned” when he found out his trial had been separated, Mr Kirk said.

In a similar case in Victoria, the courts ruled that a member of the Salvation Army be given separate trials, with three victims in one trial and another three complainants having separate trials.

The man was convicted by a jury in the joint trial but he was acquitted by juries in the three other trials where only one victim was dealt with.

The commission is sitting in Sydney.


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