16 May 2019

Trial of man accused of indecently touching boys ends in hung jury

4:49 pm on 16 May 2019

The High Court trial of a former Auckland teacher accused of indecently touching boys has ended in a hung jury.

Former Auckland high school teacher Benjy Swann has appeared in the Auckland High Court and is accused of doing indecent acts on boys.

Benjamin Christopher Missi Swann at the High Court in Auckland. Photo: RNZ / Dan Cook

Benjamin Christopher Missi Swann has been on trial for two weeks at the High Court in Auckland, defending 11 charges of an indecent act on a young person, relating to seven complainants.

Today, after more than 18 hours of deliberation spread across four days, the jury has been discharged by Justice Duffy after not being able to reach a verdict.

The 55-year-old, who strongly denies the charges, stood silently as Justice Duffy said the jury could not break a deadlock on any of the 11 charges.

After notifying Justice Duffy they could not reach a unanimous verdict, she gave the jurors an option to reach a majority verdict of eleven to one, which they could not reach.

Mr Swann is due to re-appear in the High Court next month, where the Crown will decide whether to seek a re-trial. He has been remanded on bail.

Many of the details of the case are suppressed in order to protect the identity of the complainants. This includes the specifics of the allegations, how Mr Swann knew the complainants, and the dates and locations of the alleged offending.

Mr Swann faced 10 charges to start the trial, but one was split into two during the course of the trial for clarity, which he pleaded not guilty to on Monday morning.

It was the Crown's case that Mr Swann touched the genitals of seven teenage boys. The Crown said some were naked at the time, and some were in locked rooms where only the two of them were present. One complainant said he was asleep and woke up to find Mr Swann indecently touching him.

Crown prosecutor David Stevens highlighted the similarities between the seven boys' evidence. He said there was no suggestion that they colluded and therefore, he claimed, they were describing true events.

"It is not by chance that each of the seven boys described a variation of the same conduct. That is not a coincidence. They each describe similar conduct because the defendant did similar things to each boy," he said.

Mr Stevens outlined what he said were a number of implausible claims in Mr Swann's evidence.

Mr Stevens said two of the boys felt confused about what happened, and one thought Mr Swann would be angry if the boy told anyone. He said one complainant initially kept it to himself because he was embarrassed about what had happened.

"They all boil down to the same act: Inappropriate touching of a child's private parts by an adult male.

"The touching happened," Mr Stevens said a number of times throughout the case, which he said was deliberate and indecent.

"If you are sure that touching happened, then that means you are sure of the defendant's guilt," Mr Stevens said.

Mr Swann strongly denied the charges and said the first allegation made was an attempt to sabotage him.

The defence case argued that the complainants lied about critical elements of the claims.

Defence lawyer Sam Wimsett said denied that the defendant touched any of the boys' genitals, that any of them were naked at any time in question, or that any room was locked.

Mr Wimsett said that Mr Swann is respected, of good character and had no prior convictions or issues of the sort during the 30 years that he was a teacher.

"Mr Swann has gone through phases of being in complete shock, of trying to understand or get his head around the accusations, by fighting for his innocence," Mr Wimsett said. "He's now completed the process by telling you in this court under oath that he is innocent of the charges."

He said the sexual misconduct allegations were a nightmare for Mr Swann to have to defend.

Mr Wimsett said the criminal threshold for finding someone guilty - beyond reasonable doubt - is a very high test.

"There are not many greater wrongs in our society than convicting an innocent person."

He said some of the boys' statements contradicted other parts of their own evidence, and the evidence given by other complainants. He called one boy's claims "a deceitful narrative".

"If it's possible that Mr Swann is telling the truth, then that is not guilty, because that is reasonable doubt. Is it possible Mr Swann is telling the truth? Of course it is," Mr Wimsett said. "The defence says the evidence supports his innocence, let alone it being a reasonable possibility.

"There are question marks about each of the complainants. There are implausibilities; there are lies. And when you put all those things together, I say on behalf of Mr Swann the proper outcome is one of not guilty."

Mr Wimsett said in his opening address two weeks ago: "It all sounds very bad. And if it were all true, it would be very bad. But Ben Swann denies the allegations 100 percent."

Mr Swann held a teacher's certificate for 30 years and has taught at a number of schools, the last of which was Ōtāhuhu College.

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