A tendency to wrongful convictions?

Andrew L. Urban.

Is justice served when a false accusation of sexual abuse is supported by another false accusation of sexual abuse and the court accepts the second accusation as tendency evidence proving wrongdoing? A preliminary assessment of his case suggests that is what happened to retired public servant Noel Greenaway, now 85, sentenced to 20 years jail just over three years ago. With a writing pad on his knees, he rages against his injustice from his cell. Our investigation continues.

“The Royal Commission into Institutional Responses to Child Sexual Abuse was initiated by then Prime Minister Julia Gillard with participation of the Australian States and Territories as she announced to Parliament on 12 November 2012.

“From ‘on high’ came the word, obviously, that someone had to be made responsible for the bad publicity received by NSW and other Governments which followed from the Royal Commission hearings. The Commission was only too happy to hear the ‘stories’ told by people such as ex-inmates of Institutions.

“Witnesses, in Private Sessions, and before the Commission were free to besmirch Institutions and individuals at will. This approach by the Commission has led to many people being named adversely and then being prosecuted by the Police. This of course was to protect the reputation of the Government at the expense of Institutions such as the Churches, and State and private care homes and Training Schools for delinquent children.

“The prosecution of individuals was also designed to appease those in the community who were naïve enough to believe the fabrications, lies and general criticism which was designed by ex-inmates and their supporters to name individuals out of revenge and to enhance their chances of claiming redress for concocted crimes committed against them. Their stories, in most cases were nothing but fantasies. Some of this is expanded on in the following pages.

The prosecution of an innocent person, only for the purpose of protecting another person or entity is malicious and to do this should not be excused by the state especially where the entity being protected can only be regarded as a state entity. This is malicious prosecution at its worst.

“It is hoped that the new NSW State Government (March 2023) will look at my case through ‘fresh eyes’. The decision from ‘on high’ as I have described it was obviously a political decision made at quite a senior level and handed down to the Police and/or the DPP. Whoever was involved in this decision should be ashamed of himself or herself. It was a naive decision probably made in a panic to try to protect the position of the Department and the Government.

“It should never have been made especially when it would have been clear to anyone who had Residential Care experience which would have revealed that the ex-inmates of Institutions can have ulterior motives for fabricating stories. Whoever made the decision did not care that a retired former officer could spend years in prison as a result of the Legal System in New South Wales not being equipped to see the whole picture. The result has been a catastrophic failure of the Legal System.”

first red flag

The alleged abuse occurred in the 60s at Parramatta Girls Training School, a prison-like institution run on rigid disciplinary lines. Noel’s case involved a long list of historical allegations of physical and sexual abuse by five juvenile inmates, now matrons, which had never before come to the attention of authorities. That is the first red flag for our investigation, given the sheer volume and severity of the allegations.

Found guilty by majority of the jury:

*Four counts of common assault
*Three counts of assault occasioning actual bodily harm
*Four counts of indecent assault on a female
*One count of indecent assault on a female under 16 years
*Five counts of rape
*One count of buggery

The judge directed the jury to enter verdicts of not guilty as there was no evidence presented to support four counts:

*Two counts of indecent assault on a female
*Two counts of common assault

The jury entered a verdict of not guilty on:
*One count of indecent assault on a female
*Three counts of assault occasioning actual bodily harm
*One count of rape
*One count of common assault

The jury were no doubt swayed by the tendency evidence, which was explained by the trial judge to the jury:

In my opinion, the counts said to demonstrate the sexual tendency ought to be admitted as tendency evidence. Taking all the evidence at its highest and as a whole, I am satisfied that the test in section 97(1) of the Evidence Act is met, that the evidence demonstrates the common features set out by the Crown, and that it has significant probative value. To paraphrase the majority in Hughes, such is the significance of the common features, that evidence of each alleged offence has significant probative value in proof of each other charged offence.

I am not satisfied that there is a risk that the jury will misuse the evidence in an unfair way, and appropriate directions will be given in due course. In my opinion, the probative value of the sexual tendency evidence substantially outweighs any prejudicial effect it may have on the defendant.

Some people, including this author, respectfully disagree with the learned judge on that last point, certainly for those accused who are unjustly found guilty as a result of tendency evidence. Especially vulnerable are men accused of sexual abuse, who are sometimes prey to unscrupulous women, who may seek fame and fortune – or plain revenge, justified or not.

character counts

Unseen by the jury are some 30 character references from family and friends, most of which were provided to the judge prior to sentencing. They collectively demonstrate that Noel Greenaway is and has always been of impeccable character; in that light, the alleged offences seem absurd and inherently unlikely. Here is a taste of what the referees had to say:

Rowena Greenaway

Your Honour, I write to you not only as the deeply loved wife of Noel Greenaway, but also as the only person in your court room who has lived the times of the alleged offences. I must use the term alleged as I know Noel is innocent of all the charges. He was at home with me each and every hour he was not on duty.

If I had my time again, and knowing what I know now, without hesitation I can say, I would still marry Noel Frederick Greenaway.
Rowena Greenaway (wife)

I have always felt enormous pride about who my father is, as people have always looked up to and respected him as a kind and generous man, who is always willing to encourage and assist those in need.

As you would have witnessed in your courtroom each day, Dad was not alone in his fight to clear his name. We all stood proudly along side him, and we will continue to be there for him, no matter what unfolds. I have no hesitation in telling people about Dad’s current situation, because anyone who knows my father or our family knows that the crimes that he has been found guilty of cannot possibly be true.
(daughter)

I first meet Mr Noel Greenway in 1960. We were both employed by the New South Wales department of child and social welfare.

His gentle, engaging and respectful manner enabled him to establish a good emotional tone in the workplace. He created a pleasant and harmonious rapport with both staff and inmates. He enjoyed a sober, honourable and diligent life.

I feel unable to adequately express my sorrow at the outcome of Mr.Greenway’s trial.

He is a man of high principles and integrity. His values and quality of character do not relate to the charges of which he was found guilty.
Don Wright

I have known Noel Greenaway since I was 14 years old.

I know that Noel is a man of such high morals and integrity that if he were aware of anything inappropriately happening to the girls in the institutions that it would have been him who alerted authorities and he would have gone above and beyond to ensure that it stopped, and that the perpetrators were held accountable. I also know that he, himself, would be so appalled and disgusted by the thought of such criminal behaviour, that there is no possible way he could have committed such a crime. In particular I remember during my time with Noel Greenaway that he was insistent regarding the correct, appropriate and respectful treatment of women.
Kendra Herrera

When the allegations of his earlier behaviour in institutions were made, I was both shocked and had disbelief, as I had never heard or suspected that he might have participated in such abusive behaviour. I had always regarded him as a gentle, honest and unassuming family man who treated me and I believed all women with respect.

I have always regarded Noel Greenaway as a person of good character, a supportive husband and father with four children who have significant professional status in their communities. In the light of him having been found guilty of serious criminal offences having occurred over 47 years ago, I find it difficult to believe him to be capable of such criminal offending.
Mrs Robyn Dalton BA Dip Ed Grad Dip Health Service Management

Noel has always been extremely law abiding and honest, he raised his children to respect the law, as we were, and he has never been charged with anything in his life previous to these outrageous charges. All aspects of his life have been above reproach.

I have always looked up to Noel as the loving and supportive big brother, I love him dearly and know that with his loving caring nature he would not be capable of the allegations he has had to face.
Margaret E. Hope (sister)

Noel is married to my husband’s sister, Rowena Greenaway.

I have always found Noel to be beyond reproach in my interactions with him and nothing I have observed in his behaviour, language, remarks, opinions and/or interactions with others, my then (in 1989) teenage daughters included, has ever given me the slightest unease; on the contrary I believe he is a gentleman through and through.
Sylvia F. Reardon

“I would describe Mr Greenaway as a gentleman. I am not religious in any manner at all, but respect Mr Greenaway as a man of integrity, honesty and exceptional conduct who always displayed a genuineness with Christian morals and actions. He was known to always treat other staff and people in his care with absolute respect.”
Colin Edmond Chambers (former employee of the Department of Child Welfare. From 1965 to 1992)

These references may not be legally exculpatory, but to a reasonable person, they challenge the uncorroborated evidence given by claimants at trial. Character counts.