Look into my eyes, can't you see they're open wide? Would I lie to you, baby, would I lie to you? (Roxette)


  Theo Overberg SJ                     Brian McCoy SJ                    Peter Quin SJ           Stephen Sinn SJ
The Theo Overberg case began back in 2020. He was charged with 3 counts of indecent assault at St. Iganatius College, Riverview, in 1975

History:
Outcome of hearing on Dec. 23, 2020 . R v THEODORE GERARD OVERBERG , 20 January 2021, CASE NUMBER 2020/00254180, Criminal,Local Court HORNSBY NSW

July 15, 2023
Today he was found guilty of indecent assault (the more serious charge the cops were going for) of 3 students at Riverview.
Sentencing is scheduled for 19th September.

January 9, 2024
Theo Overberg is sentenced to 2 years jail with 5 months non-probationary period.
The Society of Jesus immediately appealed. He is out on bail waiting for the appeal.
♦ /www.austlii.edu.au

Appeal Upheld Decision Date: 7 February 2025
District Court New South Wales
Overberg v DPP [2025] NSWDC 18 (7 February 2025)
Hearing Date(s): 11 and 12 December 2024
♦ The judgement - www.austlii.edu.au

The essence of the judgement is:
"Nor am I satisfied ...that the method or circumstances of such strapping was not moderate or reasonable."

"I am, therefore, of the opinion that the Crown has not established that that form of chastisement was not a form of lawful chastisement available to the accused."
The judge also said there were no sexual overtones in Overberg's actions.
Very disappointing.... and a kick in the guts for the survivors.

The appeal judge could not be bothered reading the trial evidence.
A summary of that evidence was undertaken by the solicitor advocate for the Crown.


Evidence given at the trial by Brian McCoy SJ, Stephen Sinn SJ and Peter Quin SJ.

"Father McCoy gave evidence that strapping on the bare buttocks of boys was an acceptable practice at the time of the alleged offences. This did not mean it was practiced by all, but it was practiced by some as an extreme measure."

"Father Sinn gave evidence that strappings delivered to the bare buttocks was an acceptable form of punishment"

These statements by McCoy and Sinn are suspect and not supported by any evidence.
McCoy graduated from Xavier College in 1964, in 1975, the year he gave evidence about, he was about 27 years old and would only have been an ordained Jesuit a a few years.

Sinn also was about that age in 1974-75 when he was a scholastic and teacher at St. Ignatius College , Athelstone, Adelaide.

To our knowledge neither McCoy or Sinn were ever at Riverview in 1975. Can anyone confirm this?
Sinn was in Adelaide at the time, how would he know what goes on at Riverview?
How would McCoy know? I don't know he was ever in a school. he seems to speaking from a broad general perspective about all Jesuit schools.

The trial judge said “Strapping on the naked buttocks was not the norm, and was outside the usual practice of the school, and was frowned upon by the headmaster, Peter Quinn, at the time.”

I find this confusing. If naked buttocks was the norm then it attracted the common law defence of lawful chastisement.
But what about society at large in 1975? Was it acceptable and legal?

Could any former student please let us know his memory of strappings? Hands, backside, bare backside.
Was bare backside strapping common and accepted?

My own memory is struggling about strappings at Xavier College.
I don't recall an actual incident of bare backside strapping, only that one student put newspaper in his pants in case he was hit on the backside, clothed obviously.
At Xavier College there is no known incident of bare backside strapping.

You need to prove two things beyond reasonable doubt to convict:
(a) the accused assaulted the relevant complainant; and
(b) the relevant assault was indecent in that it was contrary to the ordinary standards of respectable people in the community.

It seems a fault that there is no evidence from or about "the ordinary standards of respectable people in the community".
The only evidence is from Jesuits who have a vested interest in saying it was acceptable.
Even if it were acceptable in Jesuit schools that does not make it acceptable to "respectable people in the community".
If it had been done to me in 1966-67 (13-14yo) and I told my father, he would have immediately driven 160 miles from western victoria to Xavier College and told them it was totally and utterly unacceptable. He had attended the school and knew the culture.

The trial judge said strapping a clothed backside in a "moderate and reasonable" manner was lawful at the time.

"The administration of punishment by means of strapping on the backside at Riverview at the time of the alleged offences included strapping on the bare buttocks, but that was not a practice followed by all members of staff."
There is no evidence to support this except the "unreliable" biased evidence from 3 jesuits.

The judgement says "that the lights were on and that the door to the bedroom (Overberg's) was probably open – and thereby visible to anybody in the vicinity, including those students in the dormitory."

"complainant 3 was not sure if the door was open, but it probably was left open by the accused"

I have received information that Overberg's door was closed while strapping the boys and that it is not possible to see the bedroom from inside the dormitory.
So how did the trial evidence get so messed up that the appeal judge concluded the above?
Or was it because he didn't read the trial transcript and relied on a summary?

This is important evidence because the appeal judge was swayed by believing the bedroom door was open and boys in the dormitory could see inside.

"(complainant 3) was totally naked, that the lights were on and that the door to the bedroom was probably open – and thereby visible to anybody in the vicinity, including those students in the dormitory. This, in my opinion, was an unlikely scenario . "

Riverview students: Is it possible to see inside the master's bedroom from the dormitory?

So now the appeal judge doesn't believe complainant 3 was naked and does believe Overberg was telling the truth. Question now is, is non-naked bare buttock strapping lawful chastisement or not (assault occasioning actual bodily harm)? And did it have a sexual intention (that makes it indecent assault)?

The trial judge said there was " “an inescapable inference” that the conduct of the accused, in each case, applying an objective standard, had a sexual element or connotation. ""

The appeal judge did not accept this. "the strapping of each complainant on his buttocks as an act of chastisement did not unambiguously give rise to a sexual connotation to those actions. "
The appeal judge then quoted case law:
"The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent." "
(R v Court [1998] 2 All ER 221, Lord Griffiths - from 1988 in England).

"why was he behaving in this way? "
(Lord Ackner in the same case above.)

The appeal judge said you need actual proof of sexual intent or gratification, perhaps meaning the accused would have to be masturbating or something.

This strict literal legal interpretation ignores anecdotal and psychological evidence (not introduced) of the nexus between physical and sexual abuse.
The appeal judge thinks he needs to know the unknowable, what is going on the head of the perpetrator?

Why is it necessary to lie a boy on your bed to strap his bare backside?
Bent over a table or chair would be easier I think. But a boy lying face down on your bed is much more vulnerable isn't he?

I am reminded of a former Jesuit scholastic who left the order when he found himself getting an erection when he strapped boys, it disturbed him that much.
♦ more about Theo Overberg

"there was a strict rule of silence (“the great silence”)" , “the great silence” as a thing is a total fabrication.
This is lawful chastisement. It has no sexual intent. It was moderate and resonable. So says Judge Andrew Colefax SC