A FORMER St Stanislaus’ College dorm master found guilty on a string of sexual assaults has lost an appeal to have his conviction overturned.
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Richard McPhillamy, formerly of Bathurst, appealed to the Court of Criminal Appeal in the Supreme Court to overturn his conviction.
The appeal was based on the argument that an admission of tendency evidence in his trial that McPhillamy had a sexual interest in young boys had resulted in a miscarriage of justice.
At the trial, the Crown relied on the evidence of two witnesses regarding sexual assaults committed upon them 10 years earlier.
That evidence was relied upon as tendency evidence to prove McPhillamy had a sexual interest in young teenage boys and had a tendency to act “in a particular way.”
At the start of the criminal trial, before Judge King, Judge King admitted the evidence as tendency evidence, but the reasons for that ruling were never delivered.
The subsequent appeal was based on whether the admission of the tendency evidence was a miscarriage of justice, on three grounds.
Ground one was that at the commencement of the trial, before the jury was empanelled, the trial judge erred in ruling the evidence was admissible as tendency evidence.
Ground two was the decision to admit the tendency evidence resulted in a miscarriage of justice, and ground three, that the judge’s failure to provide reasons for admitting the evidence as tendency evidence resulted in a miscarriage of justice.
However, on Wednesday, the appeal before Justices Meagher, Harrison and Hulme was dismissed.
The court heard consideration was given to the very detailed argument advanced by counsel for McPhillamy on the issue.
In the end however, the view of the court was that there was no miscarriage of justice.
“That conclusion is based principally on the fact this is a case which despite the absence of reasons, it is possible for this Court to determine whether his Honour erred in ruling the evidence was admissible, and we are of the opinion he did not err,” wrote Justices Harrison and Hulme in their published conclusion.
“We have also regard to the fact that there was no complaint during the course of the trial about the absence of reasons and this was not contended that there was any practical (as opposed to theoretical) impediment to the way in which the case was conducted by any party.”
