R v HAY

[2025] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HAY

Criminal Trial by Judge Alone

[2025] SADC 21

Reasons for Ruling and Verdict of his Honour Auxiliary Judge Barrett 

7 March 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND SEXUAL ABUSE OF A CHILD

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

The accused is charged with sexual offences against three female students in his primary school class. There are two Counts alleging Aggravated Indecent Assault relating to one student and one Count of Sexual Abuse of a Child in respect of each of the other two students. The evidence of the charged acts is cross-admissible for improbability and propensity purposes.

The accused exercised his right not to give evidence.

Held:  The accused is guilty of all four counts.

Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to.
R v O’Loughlin [2018] SADC 73; R v Cronin (2018) 131 SASR 111, [2018] SASCFC 61; R v Sparks [2017] SASCFC 171; R v P, G [2019] SASCFC 7 ; R v S, T [2017] SASCFC 67 ; R v Harkin (1989) 38A Crim R 296 ; R v Court [1989] AC 28; Hamra v The Queen (2017) 260 CLR 479 , [2017] HCA 38; Eddy (a pseudonym) v The King [2024] SASCA 115 ; R v C, CA [2013] SASCFC 137 ; Hughes v The Queen [2017] HCA 20; R v Lomman [2014] SASCFC 55; (2014) 119 SASR 463; R v J, AP (2012) 113 SASR 529 ; R v Fergusson [2024] SACA 63 ; R v M, BJ (2011) 110 SASR 1; [2011] SASCFC 50 ; R v C, CA [2013] SASCFC 137 ; Sexton v The Queen [2022] SASCA 73 , considered.

R v HAY
[2025] SADC 21

1. The accused is a Primary School teacher who is charged with sexual offences against three girls who were members of his Indonesian class in Whyalla. The girls were between Reception and Year 2.

2. A Nolle Prosequi was entered in relation to Count 1 on the Information.

3. Counts 2 and 3 allege that the accused indecently assaulted AC by touching her on the vagina and bottom respectively. The charges take the aggravated because AC was under 14 at the time. It is alleged that the offences occurred between 31 December 2022 and 30 June 2023 when AC was aged between 5 and 6.

4. Count 4 alleges the accused sexually abused LF by touching her on the bottom on more than one occasion. It is alleged that the offending occurred between 1 October 2022 and 30 June 2023 when she was aged 5.

5. Count 5 alleges the accused sexually abused LH by touching her more than once on the vagina and bottom. It is alleged that the offending occurred between 31 December 2022 and 30 June 2023 when she was aged 7.

6. The accused was aged between 45 and 46 at the time of the alleged offending.

   Course of the trial

7. The accused elected to be tried by Judge alone.

8. There were two interlocutory applications. The first, filed on 14 October 2024, sought two orders, one severing the counts dealing with each complainant and the other seeking the exclusion of the evidence of Dr Duncan Taylor, a DNA expert.

9. I ruled that there should be no severance.[1] All counts were heard together. I will deliver reasons for that ruling as part of this judgment.

   [1]     T 68.

10. The prosecution did not lead the evidence of Dr Taylor.

11. The second application, filed on 11 November 2024, sought the exclusion of the two audiovisual records conducted with AC and LF. The grounds upon which each was sought to be excluded were slightly different. Each asserted that significant portions of the record were inaudible and that the witness’s face was not always captured.

12. In respect of AC, it was further asserted that she had not unambiguously undertaken to tell the truth. In respect of LF it was asserted that there were instances of impermissible leading questions of the witness which misstated her evidence. I ruled that each recording was admissible.[2] I will set out my reasons for those rulings shortly.

    [2]     Audibility point T 44, undertaking point T 48, leading questions point T 52.

13. The prosecution called AC and her two parents, PC and TC, LF and her two parents, DF and KF, and finally LH and her mother KH. The prosecution also called the school principal, a school employee and a DNA expert, Ms Louise Harkin. There were agreed facts.

14. There was no evidence given or called by the accused. I draw no inference adverse to the accused because he exercised his right to silence.

    Interlocutory applications

    Audibility of interviews

15. Mr Walker submitted that there were passages in each of the interviews with AC and LF which were not audible. If the passages were not audible to me, they should be excluded. The transcriptions of each of the interviews included occasional notations ‘inaudible’, or ‘not heard’ indicating that the transcriber could not hear what was said, but there were other passages where what is transcribed is said to be inaudible. Mr Walker’s first submission was that I should listen to the interviews without reference to the transcriptions. I considered that submission, but could not see how in practice I could make a note of what I was unable to hear. I concluded that I should hear the recordings while reading the transcripts. I could then make a note on the transcripts of anything that I could not hear.

16. I accept that the evidence of an interview is what is heard, not what is read from the transcript. Routinely, jurors are directed to that effect. It is explained to them that the transcripts are not evidence. Accordingly, transcripts are marked for identification. They do not become exhibits. Ordinarily the transcripts are taken away from the jury after the interviews are played, but the jury is told that they can further resort to the transcript if they need to replay the recordings during their deliberations. Usually what is contemplated in that exercise is that an individual juror may hear something different from what they read. If that is so, they must rely on what they hear, rather than what they have read.

17. I had never encountered a situation where it is said that a passage in a transcript cannot be heard by the fact finder, that is, something apparently heard by the transcriber with their superior skill and equipment but which cannot be heard by the fact finder who is not so equipped.

18. This situation has been considered in this court. In R v O’Loughlin[3] her Honour, then Judge Chapman, was faced with the impossibility of hearing some passages in the transcript of a child’s interview. That was a prospective trial by jury. In addition, there were very brief parts of the recording where the child’s face was not visible. That is so in the present case as well.

    [3] [2018] SADC 73.

19. I deal first with the visual aspect. In my view, the very brief occasions when the complainant’s face in this case was not visible was so few and so brief that they do not deprive the recording of its audio-visual character which is provided for in s 13BA of the Evidence Act. Her Honour Judge Chapman ruled in the same way.

20. That factor and that ruling are to be distinguished from the facts in the case of R v Cronin[4]  where, at about the beginning of the interview, the camera slipped, leaving only the image of a wall and the top of the witness’s head. The court held that those facts did deprive the record of its audio-visual character and held that the record was inadmissible. The principle arising from that case is that Parliament envisaged that the audio-visual recording provided for in s 13BA would largely take the place of viva voce evidence by the witness. That is frequently the case with child witnesses.

    [4] (2018) 131 SASR 111, [2018] SASCFC 61.

21. Vanstone J observed:-

    ‘If the Tribunal is not to have the benefit of the witness giving evidence in the courtroom, then it would be expected that what is seen in the recording has some of the important features of evidence given in person’.[5]

    [5] At [21].

22. In O’Loughlin the trial judge listened to the recording without resorting to the transcript. She then listened to it again having regard to the transcript. She discerned more of the interview. She was conscious of the suggestibility of the transcript, bearing in mind that it is the recording that is the evidence, not the transcript. Her Honour observed that there were multiple occasions when the transcribed words did not accord with what she had heard. She also found that there were multiple occasions when the witness was inaudible.

23. Her Honour excluded the interview. She said it was critical that the child was both heard and capable of being understood. One factor in her Honour’s deliberations was a concern that if the record was admitted the jury might become distracted by debating about what they actually heard.

24. Her Honour rejected the prosecution’s submission that the transcript could be edited so as to delete those portions of the recording which were inaudible or indecipherable.

25. In my view, there are relevant differences between the facts of O’Loughlin and the present case. This case is not being heard by a jury. I will not be distracted in the way a jury might be. The number of inaudible passages in each of the interviews is not large. In some of them, the interviewer either repeats the question or says something which impliedly repeats the inaudible answer. I give an example. At item 51 in the interview with AC, the interviewer asks AC to tell her what she has come to talk about. The transcribed but inaudible answer is ‘I don’t know’ whereupon the questioner suggests in a non leading way why she might be there. That implies that AC has not been able to answer the question. The new question quickly leads to an account of the allegations (see items 54, 56, and 58).

26. In my view the inaudible passages do not deprive the recording of its audio visual character.

27. As I have already indicated I listened to the recording. I marked passages in the transcript which I could note hear. I gave copies of the marked transcript to counsel for further consideration.[6] After hearing further argument I ruled that I would admit the two interviews. I concluded that I should not rely upon any passage in either interview which I could not hear. In the case of LF’s interview there was very little I could not hear. There were more inaudible passages in AC’s interview. I have transposed the markings from my copy of the two transcripts to the court copy.

    [6]     T 27-33.

28. There was one further challenge to the admissibility of each interview.

29. In respect of AC’s interview, it was submitted that she had given an ambiguous undertaking to tell the truth. At the outset of the interview, the officer sought to comply with the requirements prescribed for questioning vulnerable witnesses. Section 74EB(c) of the Summary Offences Act provides that interviews must meet the prescribed requirements provided in Regulation 23(7) of the Summary Offences Regulations 2016. I reproduce that regulation.

    23(7)For the purposes of section 74EB(c), the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if—

    (a)     so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and

    (b)     the vulnerable witness appears to understand that he or she must tell the truth; and

    (c)     the interview is conducted in accordance with this regulation.

30. It is to be noted that for the purposes of admitting unsworn evidence, s 9(2) of the Evidence Act provides that the Judge must be satisfied that the person understands the difference between the truth and a lie and must tell a person that it is important to tell the truth. Further, the person must indicate that they will tell the truth. This last indication is not included in the prescribed requirements in the Summary Offences Regulations.

31. In the interview with AC the officer asked questions which demonstrated that she knew the difference between the truth and a lie.[7] She told AC it was important to tell the truth and she asked ‘will you tell me the truth?’.[8] AC gave no audible answer. The transcriber noted ‘could not hear’,[9] however AC can be observed giving a slight nod of her head.

    [7]     Items 7-10.

    [8]     Item 11.

    [9]     Item 12.

32. Mr Walker acknowledged the different requirements of s 9 of the Evidence Act and regulation 23(7) of the Summary Offences Regulations. He acknowledged there was authority for the proposition that s 9 has no application in respect of the admission of an interview pursuant to s 13BA of the Evidence Act.[10] (R v Sparks[11] and R v P, G).[12]

    [10]   T 44.

    [11] [2017] SASCFC 171 at [41-42].

    [12] [2019] SASCFC 7 at [13].

33. I ruled that the ambiguity of the undertaking did not render the interview inadmissible.[13] In my view AC's nod of assent was sufficient, but in any event the undertaking is not prescribed.

    [13]   T 48.

34. In respect of LF’s interview, Mr Walker submitted that the interviewer asked leading questions of LF in contravention of regulation 23(7)(a). He referred to several passages.

35. The first example concerned LF’s account of the last time the accused touched her bottom. At item 46 of MFI P1B she said that he touched her on the bottom ‘a few times’. She was then asked when was the last time. She replied ‘I think he did it, maybe last term’ (item 48). She added ‘I think that was the last time’ (item 50).

36. The interviewer asked when the first time occurred. She prefaced her question by saying ‘so, that was the last time’ (item 57). The criticism is that the interviewer has turned LF’s tentative identification of the last time (‘I think …’) into a certainty.

37. I do not think that is a fair reading of the passage. All the interviewer was doing was putting one topic aside and asking a new question, that is, putting aside the topic of the last time and asking about the first time.

38. Mr Walker submitted that there was a leading question on the topic of the first time. In answer to the question about the first time at item 57, LF replied that she thought it was on the last day in Reception, but she immediately corrected herself to say that it was on the Wednesday of the last week of Reception, not the last day (items 58-64).

39. Mr Walker submitted that the essential quality of the answer LF gave about the first occasion was that she thought the first time was on the last Wednesday of Reception. However, a later question at item 127 omits the tentativeness of the answer. The question was ‘… so you said that he touched you on your bum on the last Wednesday of Reception’. LF answered the question without demur about the occasion.

40. I reject that submission. In my view LF’s correction to the last Wednesday rather than the last day does not necessarily mean that she was uncertain about the Wednesday. In any event, it was an understandable interpretation on the part of the interviewer. The question was repeated at item 163. Again LF did not demur about the occasion.

41. Mr Walker submitted that another example of a leading question occurred from item 235. Earlier in the interview LF had said that the accused had touched her on her back and, as she put it, her bum. Item 235 sought to elicit whether any touching occurred in the preceding school term (‘last term’).

42. LF replied ‘I don’t think, not that I remember’ (item 236).

43. The interviewer asked her to ‘think really hard’. She asked ‘did Pak Trent[14] touch you on the back or the bum last term?’ (item 237). LF replied ‘… I think he might have touched me on the bum because he does that like, a few, in a few lessons but … he won’t do it again’ (item 238).

    [14]   ‘Pak Trent’ is not the real name of the accused but is the name used in the Indonesian class.

44. The interviewer then assumed an assent by LF to touching in the preceding term. She said ‘… so, tell me what happened when Pak Trent touched you on the bum last term’ (item 239).

45. I agree that that question misrepresented the answer given by LF. It removed the tentativeness of her answer. I am not sure that that renders the question a leading question, and on that account impermissible. However, questions are not evidence, and there is nothing in LF’s subsequent answers which indicates that she was asserting the accused touched her in the previous term. Instead, she talks about how she felt (item 240) and that the touching occurred more than once (item 246).

46. Therefore, while I find that the question in item 239 was improper, I do not find that as a result of that question LF asserted that the accused touched her in the preceding term.

47. For the sake of completeness, I make a finding about the question and answer at items 237 and 238. I do not understand Mr Walker to be objecting to the question at item 237, but I find that there was nothing leading or otherwise improper about it. There was in my view nothing wrong with the interviewer asking LF to think hard, nor to focus her attention on the topic of touching in the preceding term. While I do not take LF’s answer at item 238 to be specifically assenting to touching in that term, I do take her to be asserting that he touched her ‘in a few lessons’. She had effectively said that much earlier in the interview (item 46).

48. Finally, Mr Walker submitted that leading questions were particularly important because there was another example of where LF thought something happened, but it evaporated when details were sought.

49. At item 251 the interviewer asked LF to tell her what happened on the last occasion when the accused touched her on the bottom. I do not understand Mr Walker to be submitting that this question was leading or otherwise improper, because in my view it was not, but he was stressing how important it was to exclude leading or improper questions.

50. I do not disagree with Mr Walker’s characterisation of an assertion by LF evaporating. The question at item 251 is towards the end of a long interview and it revisited a topic already discussed (see item 57). It relates to the last time there was touching. LF says that she thought it might have been on the first day of school, but further questions result in discursive answers about a particular class. The ultimate result is that LF could not remember anything happening in that class (item 277).

51. While that topic might properly be the subject of comment about LF’s reliability I do not think that the question was improper.

52. For the reasons I have given I declined to exclude individual passages in the interview and I declined to exclude the interview as a whole.[15]

    [15]   T 52.

    Section 13 BA(3)(b) Recorded Interviews

53. The evidence of the three complainants was first presented by way of audiovisual records. Pursuant to s 13BA I admitted the records, being satisfied that there had been compliance with ss 3. I warn myself of the matters contained in ss (6)(b), that is, I draw from the admission of the record no inference adverse to the accused (ss (b)(i)) and I do not allow the form of the evidence to influence the weight to be given to it (ss (b) (ii)).

    Evidence of AC – Counts 2 & 3

54. AC's prescribed interview took place on 13 July 2023 at the Women’s and Children’s Hospital. She was aged six years and three months at the time.

55. Her essential allegations appear in item 58 of MFI P1A. She said that in the accused’s Indonesian classroom he touched her on the vagina (‘fanny’) and bottom (‘bum’). He pulled her pants down. He gave her a lolly. At the end of lunch he kissed her on the head.

56. AC elaborated on that essential account by adding the following elements, although not in this order:

    ·The incident happened at lunch time (item 54)

    ·It occurred when she was ‘colouring my camera’ and the accused was engaged in the same activity with her (items 58, 84, 86, 100, 104, 144, 154, 305)

    ·The accused rubbed her bottom before he rubbed her vagina (item 136)

    ·The touching felt a ‘bit weird’ (items 296, 298, 300)

    ·She was sitting when the accused touched her (item 216)

    ·The incident stopped when the accused heard some people outside being loud (items 128, 132, 134, 222)

    ·The accused got a tissue and wiped his hands (items 130 & 222)

    ·The accused kissed her and gave her a lolly (items 120 & 122)

    ·She left the room and put the lollies in her bag (items 68, 140 & 146)

    ·She demonstrated how she knelt on the chair in the classroom when she was doing her colouring (items 285-294)

    ·AC indicated the vagina and bottom on a figure diagram (items 209-213)

1. Understandably the interviewer sought more details of the essential allegations which had been made at item 58. AC repeated aspects of those allegations at items 84 and 94. When asked to tell the interviewer ‘everything’ (item 97) she replied ‘I think I already told you that’ (item 98).

2. AC was asked for more details and for some time she gave answers (items 136, 148-150, 195-201, 213-223).

3. Later in the interview AC stopped giving further details. She said she couldn’t remember (items 228 & 236) and she didn’t understand (item 234). At item 238 she digressed onto a different topic. When asked if anything like that had happened before she said she didn’t really know (item 250).

4. After saying three times that the touching felt weird (items 296, 298 & 300) she said she couldn’t remember when asked ‘what else’(items 301-302).

5. AC gave evidence in court. Before she did so I spoke to her to see if it was appropriate for her to give unsworn evidence. She was aged 7 years and 7 months at that time. Pursuant to s 9(2)(i) of the Evidence Act I was satisfied that she understood the difference between the truth and a lie. I told her that it was important to tell the truth (ss 2(a)(ii)). AC said she would tell the truth (ss 2(b)).

6. Counsel for both the prosecution and the defence examined and cross-examined AC in accordance with leave that I gave. In examination-in-chief the only addition to what AC had said in her interview was that she said that after the accused stopped what he was doing to her he wiped his hand on a tissue and ‘went to go and say to the kids outside yelling ‘stop yelling go and yell somewhere else’.[16]

   [16]   T 79.

7. In cross-examination AC said that the accused had lollies in a drawer in his classroom, but he did not give students lollies if they were good.[17] She denied that the accused sat next to students in class. She denied that her father had been on a trip to Melbourne when her parents picked her up from school that day. She denied her father picked her up off the ground at the end of the school day.

   [17]   T 79-80.

8. When it was suggested that the accused did not do the things she alleged, she said he did.[18]

   [18]   T 80.

   Evidence of PC, AC's Father

9. PC said that on the day of the alleged offending he and his wife picked up AC and her two younger sisters from school. He said that on that particular day he was:

   … flying home from Melbourne after helping my father-in-law in the morning. Picked up my car, come home to help get the kids ready for school and drop the kids off at school with my wife.

10. He said he had been away for 24 hours.[19] He was not questioned about whether helping his father-in-law in the morning and flying home from Melbourne all occurred on the same day that he took the children to school. In my view that would seem unlikely. That may mean that AC was not mistaken when she denied her father returned from Melbourne on the day she was picked up from school.

    [19]   T 84.

11. PC said that AC seemed quite attached to him at the pick up. He lifted her off the ground because she put up her arms for a cuddle.[20]

    [20]   T 85.

12. The family drove to a hardware shop. PC went into the shop, leaving the rest of the family in the car. When he came back his wife told him that AC had just told her that one of the teachers had touched her on the fanny and kissed her on the forehead. He said ‘what’ and AC said ‘yes’.[21] It appeared to PC that AC had been crying.

    [21]   T 86.

13. The parents decided to contact the school and to leave the children with his wife’s grandparents while they did that.

14. PC said that at, or on the way to, the grandparents’ house, AC told him something more about what had happened. He said that she told him that the touching on the vagina had felt good. She told him that she and the teacher were colouring in something in the classroom and that the teacher pulled down her pants and knickers.

15. PC and his wife then went to the school and reported the matter. On the advice of a friend of PC's grandmother-in-law they packed up AC's clothes and made sure she did not wash. They took a urine sample from her. They then reported the matter to the police. The police collected the clothes that day and took a DNA sample from AC's forehead.

16. In cross-examination PC said that AC told him that the teacher was sitting beside her colouring in the camera.[22] He acknowledged that he had not mentioned that to the police.[23]

    [22]   T 95.

    [23]   T 98.

    Evidence of TC, AC's Mother

17. TC said that while PC was in the hardware shop she engaged AC in conversation about her day at school. AC told her that the accused had given her Mentos. He had been sitting next to her doing some colouring in and he had touched her on the fanny.[24] She looked terrified as she spoke.

    [24]   T 102.

18. When her husband returned to the car TC told him what AC had told her. AC added that the accused had kissed her on the head. Before PC returned to the car TC said that AC added that the accused was giving her Mentos because she was a good girl and she had to keep it a secret.[25]

    [25]   T 103.

    Evidence of LF - Count 4

19. LF was interviewed on the 27 July 2023 at the Women’s and Children’s Hospital. She was aged 5 years and 11 months at the time.

20. LF told the interviewer that the accused touched her on the bottom (‘bum’) a few times when she went to tell him something (items 38-46 of MFI P1B).

21. I noted that I could not hear the words ‘a few times’ in (item 46) but there were other audible references to the touching on the bottom occurring more than once.[26] Although there was some repetition in LF’s interview her account was that when the accused would walk past her in class he would pinch or touch her back or head (items 38, 71-72, 92). He rubbed her bottom when she went to his desk (items 97-102, 172-182, 193-197). On one occasion he simply placed his hand on her bottom (item 198-200). There was some uncertainty about whether the touching on the bottom occurred in the last week of Reception (items 51-63), in the preceding term,[27] or on the first day of that term (items 251-252).

    [26]   See items 96, 198 to 200, 245-249.

    [27]   MFI P1B 237.

22. Before LF gave evidence in court I satisfied myself that she knew the difference between the truth and a lie. I told her it was important for her to tell the truth. She agreed to tell the truth.[28] She was aged seven years and two months at the time.

    [28]   T 117.

23. LF was examined and cross-examined in accordance with leave I had given.

24. In examination-in-chief, LF confirmed that the touching she was referring to in her interview occurred on the last Wednesday of Reception, but she said touching also occurred on the first day of Year One.[29]

    [29]   T 119.

25. In cross-examination LF denied that the accused gave lollies to children who were good.[30] She agreed the accused sometimes sat next to other students to help them with their work.[31] She denied that her mother had said that she would have to tell the police after she made her disclosure. She denied she was sad that the accused might have to go to gaol. When it was put to her that the accused did not touch her on the bottom she said he did.[32]

    [30]   T 119.

    [31]   T 120.

    [32]   T 120.

    Evidence of KF, LF’s mother

26. KF is a teacher at the school attended by her children. In July 2023 she received a message addressed to staff requiring their attendance at an emergency meeting. At the meeting the principal explained that some allegations had been made against the accused. No names of other people involved were mentioned. The staff were told that the information was confidential.

27. A few days later KF and her husband had a brief conversation with their children, that is, LF and her older sister. The children were reminded about matters of personal privacy and that they could talk to their parents if anything happened that they wanted to talk about. Neither child raised anything.[33]

    [33]   T 124.

28. A few days after that the parents spoke to the girls again. That later discussion was prompted by a police officer telling KF that LF’s name had come up in an interview with another student. The officer suggested that the parents ask LF about her Indonesian class.

29. When asked about her Indonesian class LF said that sometimes the accused played with her hair, he touched her head, he pulled her between his legs and sometimes rubbed her on the bottom over the top of her clothes.[34]

    [34]   T 125.

30. When asked about how she felt when the accused rubbed her bottom she said that it made her feel ‘yucky’. When asked why she had not mentioned these things in the earlier conversation LF said that she had not been asked about the accused.

31. KF said that when she asked LF to show her what she meant by the accused pulling her between his legs, she demonstrated by opening her father’s legs and putting herself between, them facing outwards.[35]

    [35]   T 126.

32. KF said that LF told her that she did not want her telling anyone, in particular the accused, about what she had said. She was upset for his welfare.

33. KF said that earlier in the year, maybe April or May, LF had told her that the accused had been pinching her back and had rubbed her pant line. She said it made her feel weird. KF said that although she thought such behaviour was odd from a male teacher she decided to take no action.[36]

    [36]   T 128.

34. In cross-examination KF agreed that LF had said that she did not want the accused to go to gaol. LF also told her that she was aware that the accused had touched three other girls, one of whom was AC.[37] However, she mentioned these girls only after she had had her interview with the police at the Women’s and Children’s Hospital.[38]

    [37]   T 133.

    [38]   T 134.

    Evidence of DF, LF’s father

35. DF’s account of his daughter’s disclosure is very similar to that of his wife. He said that in the second conversation KF might have asked LF if the accused had ever touched her. LF replied that he pinched her but that she had already told her mother that. When asked if she had been touched anywhere else, LF said that the accused had massaged her head[39] and touched her bottom. He had done it more than once.[40] LF said that she did not want the accused to get into trouble.[41]

    [39]   T 139.

    [40]   T 140.

    [41]   T 141.

    Evidence of the School Principal

36. The Principal’s evidence related to the accused’s tenure at the school, the school timetables, and events of the day that she learnt of the allegations against the accused.

37. She said that it was not recommended that teachers give students gifts during class. Nevertheless, some teachers did give them gifts of stationary items. She learnt that one of the relief teachers had given students lollies. A parent had raised that matter with her. She had addressed the staff telling them they should not do that. She thought that was in 2022. The accused was a teacher at that time. She thought that he had started teaching in 2017. She was not cross examined.

    Evidence of LH – Count 5

38. LH was interviewed on the 22 July 2023 at the Whyalla Police Station. She was aged 7 years, 8 months at the time.

39. LH said that the accused touched her vagina (‘mini’)(page 2 of MFI P2). He did that more than once (pages 2 and 3). She thought that the first time was in March 2023. It scared her. It ‘kept on happening’ until ‘the next month’ (page 3). It happened when she was standing next to the accused at his desk (page 4). He put his hand inside her skort (a combination of a skirt and shorts), inside her knickers and he moved his hand around her vagina (page 5). His fingers did not go inside her vagina (page 6). He told her that she was ‘special’ and ‘a very good person to work with’(page 6).

40. LH drew a diagram of where she and the accused were in the classroom when this happened (page 9). LH said that the first person she had told was her best friend and fellow student FT (page 12). She told her ‘maybe a week after it happened’ (page 12). She said FT did not believe her. FT told her that the accused would never do that.

41. When asked about other occasions when the touching had occurred LH said that it happened three times in March and again in May (page 14). She said that on the occasion in May, the accused did the touching differently. He put his hand down the front of her clothing then moved it around to the back. She made notes on a diagram of his and her positions on the occasion in May (page 15). This time he moved a ‘wheelie chair’ next to her. He put his hand through an oval hole in the back of her chair (pages 16 to 18).

42. LH then said that the touching, which was to both her front and back, occurred in March. That time she was wearing track pants and knickers (page 17). The touching went on for five or fifteen minutes (page 18). She said a fellow student AF was sitting next to her (page 19).

43. LH said that there was a fourth time. It was also in May (page 20 to 21). She was sitting on her own chair in class, but she moved along the seat when the accused touched her. This time he went down the front of her clothing (pages 21 to 22). This time he did not move his hand when he put it on her vagina (pages 22 to 23). He whispered that she was ‘special’ (page 23).

44. When asked if she saw the accused outside the classroom, she said that she saw him go to the adult toilets whenever she went to the student’s toilet (page 24).

45. LH said that sometimes the accused would call her ‘sweet pea’.

46. LH said that when the accused moved his hand around to her bottom, he ‘kept playing with it’. He only did that once. On that occasion there were no other students in the classroom. It was recess time. The accused hugged her then touched her bottom (pages 25 to 26). She came to be in the classroom because the accused gave her a letter on a sticky note telling her to come and meet him. She threw the note away because she did not want to go (pages 26 to 27), but she then decided that she did want to go. ‘I thought what would he want me to do or something’ (page 27). He gave her a hug and thanked her for coming (page 29).

47. LH said that the accused had actually sent her possibly five such letters, all but the last of which was on a sticky note. The last one was ‘on paper that he cut out’ (page 30). LH said that at about the time her grandmother died and the accused gave her a texta which was shaped like a lolly (page 33).

48. LH said that in answer to the letters the accused had sent her she went to see him four of the five times, but he did not do anything to her. However, he did tell her not to tell her parents about what he had been doing (page 34). LH denied that the accused had ever asked her to touch him (page 34). She said that she liked that the accused kept helping her and it made her very good at her Indonesian (page 35).

49. LH said that she had told her parents about the accused touching her on the vagina, but she had not told them about him touching her on the bottom (page 37).

50. When LH gave evidence, she was aged 9 years and 7 months. Before she gave her evidence, I satisfied myself that she knew the difference between the truth and a lie. I told her it was important to tell the truth, and she agreed to tell the truth. She was examined and cross examined in accordance with leave I gave.

51. In examination-in-chief LH confirmed that the first person she told about what the accused had done to her was her friend FT. The next person she told was another student L. Then she told her parents. She told the most information to them.

52. In cross-examination LH said that she told FT in March or May 2023. When she told FT she had not heard about the accused doing anything to other children.[42]

    [42]   T 173.

53. LH denied that her mother told her she had to go and tell the same story to the police.[43] She maintained her account when it was put to her that the accused had not behaved towards her as she said he did.

    [43]   T 174.

    Evidence of KH, LH’s mother

54. KH said that after she heard from the school that a teacher had been charged with a child sex offence, she had a conversation with LH about inappropriate touching. She told LH that she could tell her if anyone had touched her inappropriately.

55. Later, after another parent told her that LH’s name had come up in relation to the teacher allegations, she had another conversation with LH. She had also heard rumours that the accused was the teacher in question.

56. KH began the conversation by saying that the accused was leaving the school. LH said that she was sad about that because he had told her that she was special. KH asked her that if the accused had ever put his hands down her pants. She said ‘yes’ and that he had done it four times.

57. KH asked if the accused had ever put his finger inside of her, to which she replied ‘yes, his whole hand, and he played with my mini.’[44] KH said that she would have to contact the school principal and the police.

    [44]   T 178.

58. I need not canvass the brief cross-examination of KH.

    DNA Evidence of Ms Louise Harkin

59. Ms Harkin’s DNA report was tendered as P10. Her critical findings were as follows:-

    1.   The swab taken from AC’s forehead was negative to a presumptive test for saliva.

    2.   There was extremely strong support (greater than 100 billion) for the accused being included among three contributors, including AC, to a profile taken from a tape lift from the inner crotch of AC’s underpants.[45]

    3.   There was extremely strong support (greater than 100 billion) for the accused being included in five contributors, including AC, to a profile taken from a tape lift from the outer crotch of AC’s underpants.[46]

    [45]   T 204-5-Item 2.01.03 of page 2 of P10.

    [46]   T 206. Item 2.01.04, page 2 of P10.

60. Ms Harkin said that one possible explanation for the result from the inner crotch tape lift was that the accused had rubbed AC’s vagina and bottom on the inside of her underpants.

61. Another possibility was that the accused had pulled AC’s underpants down, rubbed her vagina and bottom and then the underpants were pulled up. His DNA might first have been on AC’s skin and then transferred to the underpants.[47]

    [47]   T 207.

62. In cross-examination Ms Harkin agreed that the DNA results do not explain the mechanism by which the DNA was deposited. They do not explain whether there was primary or secondary transfer. The results do not explain the cell type from which the DNA is extracted, that is, epithelial, blood or saliva. The time of the deposit cannot be determined.

63. Ms Harkin said that it was possible that there was a secondary transfer from other clothes of AC to the underpants or from furniture in the classroom.

    Addresses of counsel

    Ms Andersen for the Prosecution

64. Ms Andersen divided her address into three sections as follows:-

    (i)The evidence of the complainants

    (ii)Corroborating evidence

    (iii)The applicable law

65. Ms Andersen dealt first with AC’s allegations of the accused touching her on her vagina and bottom. The allegation is that the touching occurred on the same occasion when AC had gone into the classroom at lunchtime to do some colouring.

66. Ms Andersen sought to clarify some potential confusion about when AC said at pages 11 and 12 of her interview that the accused pulled her pants and underpants down. Ms Andersen submitted that what might have been meant is that the accused first put his hand down her pants then pulled them down to have easier access to her bottom and vagina.

67. What is clear from AC’s evidence, Ms Andersen submitted, is that in the classroom at lunchtime the accused touched the skin of AC’s bottom and vagina.

68. Ms Andersen submitted that there were some quite compelling aspects to AC’s evidence.

69. The first is AC saying at item 98 ‘I think I already told you that’. By that stage of the interview AC had in fact told the interviewer several times that the accused had touched her on the bottom and the vagina, but, understandably, the interviewer was testing her recollection. Ms Andersen submitted that AC’s utterance indicates that she was not trying to exaggerate or over develop her account.

70. Ms Andersen submitted that AC’s account of how the incident ended was compelling. AC said the accused stopped when he heard a noise outside and he wiped his hand on a tissue. AC demonstrated how she was kneeling on a chair doing her colouring when the accused touched her.

1. Ms Andersen submitted that inconsistencies between AC and her parents relating to the complaint evidence were minor. It was unsurprising that she did not remember that her father went to Melbourne that day.

2. As to the evidence of the parents themselves, Ms Andersen submitted that their evidence of complaint was organic and credible. Any criticisms, in particular of the father’s evidence, should be seen as understandable, given the shock he said he felt when AC made her complaint.

3. Ms Andersen referred to the judgment of Hinton J, as he then was, in R v S, T[48] where his Honour described the three ways in which complaint evidence can demonstrate consistency, namely, the mere making of a complaint, the complaint being made at time when it might be expected to be made and the concordance of the terms of the complaint with the terms of the allegations in court. Ms Andersen submitted that all three are applicable in this case.

   [48] [2017] SASCFC 67 at [150].

4. Ms Andersen submitted that the DNA evidence corroborates AC’s account. While there was no DNA result from AC’s forehead, that is unsurprising given the lapse in time between the incident at lunch time and the swab being taken at 7:13 pm by the police.[49]

   [49]   Agreed facts P8, 13 and 18.

5. Ms Andersen addressed the suggestion that the accused’s DNA could be on AC’s underwear by way of secondary or tertiary transfer from of her other clothes or from furniture in the classroom. In relation to the underwear, Ms Harkin, the DNA expert, said that so small an item might be less likely to secondary transfer than a larger one.[50]

   [50]   T 209.

6. In relation to the furniture, Ms Andersen submitted that this suggestion is weakened by the likely frequency with which other students came into contact with the same furniture. A more complex profile would be expected if the secondary transfer came from the furniture.

7. Ms Andersen submitted that the most plausible explanation for the accused’s DNA being on AC’s underwear is that he has touched her skin and underwear in the way she alleges.

8. Turning to LF, Ms Andersen said that there are two, perhaps three issues for determination: first, whether the alleged touching on LF’s bottom occurred at all, second, whether LF has mistaken touching on the back for touching on the bottom and third, whether any touching which did occur is indecent.

9. Ms Andersen submitted that LF’s account of the touching was credible and reliable. The surrounding circumstances clearly indicate that the accused had a sexual purpose at the time.

10. At pages 4-5 of her interview LF said that when she went up to the accused’s desk to show him her work he touched and rubbed her bottom. This happened a few times. On one occasion they switched from her worksheet to an iPad. There was another occasion when the accused rested his hand on her bottom. At page 4 of her interview LF clearly differentiated between touching on her back, which was pinching and rubbing her bottom.[51] At items 38 and 40 she demonstrated what she meant. The repetitive nature of the touching and the rubbing tell against a non-sexual purpose.

    [51]   MFI P1B, items 38-43

11. Ms Andersen referred to the NSW case of R v Harkin[52] in which it was held that the offence of indecent assault requires proof of a sexual connotation.

    [52] (1989) 38A Crim R 296 at [301].

12. I note that case was approved and elaborated on to similar effect in the case of R v C, M.[53]

    [53] [2014] SASCFC 116 at [19]–[28], (2013) 246 A Crim R 21.

13. In Harkin, Lee J, with whom the other members of the court agreed, said that sexual connotation may derive from the area of the body being touched. His Honour said that the anus of the person was, among others, a relevant area.

14. I pause to note that in Harkin Lee J said that the purpose or motive of the accused in doing as he did is irrelevant,[54] but later in the judgment, when his Honour was summarising the House of Lords case of R v Court[55] His Honour said:

    ‘…Where the alleged assault is one which is equivocal, in the sense that it may have a sexual import or it may not, then before the assailant can be convicted it must be shown that it intended to have a sexual connotation, that is to obtain sexual gratification from it’.[56]

    [54]   Page 301.9.

    [55] [1989] AC 28.

    [56]   See citation of that passage in R v C, M, Ibid at [25].

15. Ms Andersen submitted that, leaving aside the question of whether it was necessary to prove a sexual motive, the alleged acts themselves amount to circumstances of indecency. Those acts are the touching and rubbing of the bottom of a six year old child by her 45 year old school teacher.

16. Ms Andersen submitted that the accused was ‘testing the waters’ with LF by first touching her back.

17. Ms Andersen referred to LF’s mother’s evidence that, earlier in the year, LF had told her that the accused had touched her on the back, but the matter was not pursued.

18. That evidence is hearsay which does not become admissible by becoming complaint evidence, and, in any event, complaint evidence may not be used as evidence of the truth of what was said (s 34M (4)(b) of the Evidence Act). Ms Andersen did not suggest otherwise, but submitted that I could use the evidence to rebut any alleged prior inconsistent omission. The defence did not make that submission.

19. Ms Andersen submitted that there was a compelling and striking aspect of LF’s evidence. LF demonstrated the touching motions being used by the accused. That was an indication of a real experience. Ms Andersen submitted that LF was a credible and reliable witness.

20. Ms Andersen turned to the evidence of LF’s parents. She submitted that, although there was an initial discussion with LF about rather general matters which elicited no compliant, there was a prompt and congruent complaint once her attention was drawn to the Indonesian class. In addition, LF was at pains to say that she did not want the accused to go to gaol. There was about the complaint, consistency of conduct and account. LF’s being clingy and quiet was also evidence of consistent conduct.

21. Finally, Ms Andersen turned to LH’s evidence. She referred to LH’s evidence wherein LH demonstrated the accused’s movements when he touched her. In relation to the incident involving the hole in the back of the chair, Ms Andersen submitted that photographs in exhibits P4 and P5 illustrate what was meant. The detail of the accused wheeling his chair near her was compelling. LH has drawn maps indicating the relevant positions.

22. In relation to the occasion when the accused rested his hand on her vagina, LH said tellingly ‘… he acted like he wasn’t doing anything’ and he whispered that she was special. LH demonstrated the accused’s movements when, on the last occasion when there was any touching, he kept on playing with her bottom going from side to side.

23. Ms Andersen described LH as quite an articulate and well-spoken young girl.

24. Ms Andersen turned to the complaint evidence given by LH’s mother KH. As was the case with LF, there was an initial discussion between them which elicited no complaint. When a complaint was made during the second discussion, it was consistent with LH’s evidence. LH was upset when making her complaint.

25. Ms Andersen then made a number of submissions on the law. In relation to the elements of the offences relating to each complainant there are two offences. For counts two and three, the counts of Aggravated Indecent Assault involving AC, the prosecution must prove beyond reasonable doubt the following:-

    1.There was an assault. A deliberate touching would suffice;

    2.The assault was indecent by reference to current community standards;

    3.AC was aged under 14 at the time.

26. For counts four and five, the counts of Sexual Abuse of a Child involving LF and LH respectively, the prosecution must prove beyond reasonable doubt:-

    1.   The accused was an adult;

    2.   The complainants were aged under 14;

    3.   The accused maintained the relationship of teacher and pupil at the time;

    4.   The accused committed against each complainant two or more unlawful sexual acts, in this case acts amounting to Aggravated Indecent Assaults.

27. Ms Andersen referred in respect of this latter charge the case of Hamra v The Queen.[57] The prosecution is not required to particularise the circumstances of the sexual acts other than the period of the acts and the conduct consisting of the acts. Two or more distinct acts must be identified.

    [57] (2017) 260 CLR 479 at [27]–[28], [2017] HCA 38.

28. Ms Andersen submitted that, in respect of LF, it may be somewhat difficult to determine the number of times she said the accused touched her on the bottom and it may be difficult to fix on the details of particular instances. However, that might be understandable in a child aged six. It is not fatal in proving two or more unlawful sexual acts. LF said that it occurred ‘a few times’ and she nominated the last occasion being either in the last Wednesday of Reception or the first day of year 1.

29. There was similar imprecision in the case of LH, who was speaking of more than two occasions of offending.

30. Ms Andersen submitted that the evidence of the three complainants is cross admissible. In that context the allegations which each makes, are discreditable conduct in respect of the others, and accordingly must meet the requirements of s 34 P of the Evidence Act. I must give myself the warning contemplated by s 34R.

31. Ms Andersen first addressed the way in which the evidence of each complainant might be examined using similarity of account, or improbability reasoning. She listed relevant similarities as follows:

    1.   The three children were aged between 5 and 8;

    2.   They were all girls;

    3.   The alleged acts were all non-penetrative touching or rubbing in the area of the vagina and/or bottom;

    4.   All acts were committed under the guise of teaching.

32. Ms Andersen referred to the cases of Eddy (a pseudonym) v The King [2024] SASCA 115 and R v C, CA [2013] SASCFC 137 to illustrate the appropriate application of improbability reasoning.

33. She submitted that the evidence relating to AC and LH might be particularly relevant if it is suggested that LF was mistaken about what had happened or, if there was touching of her bottom, it lacked a sexual connotation.

34. Ms Andersen submitted that the prosecution has excluded the possibility of collusion between the complainants. She submitted that the offending against AC is the last committed but the first reported. There is no suggestion that AC had spoken to LF and LH before she spoke to the police on 13 July 2023.

35. LF was interviewed eight days after AC, on 21 July 2023. LF’s mother said that she was aware that LF had heard about other allegations but she believed that LF only knew about them after she had been to Adelaide to give her statement to police. LF had of course told her parents about her own experience before that.[58] LH was interviewed on 22 July 2023, the day after LF, but she was interviewed in Whyalla rather than in Adelaide. The evidence would suggest that her allegations are the earliest of the three but she was the last to complain. LH said that she had told two of her school friends before she had told her parents. She told her parents when questioned at some length by her mother.

    [58]   T 133-134.

36. Ms Andersen submitted that when considering the possibility of collusion it is apparent that, while the complainants’ accounts are similar, they are not identical. There are peripheral details unique to each. In the absence of collusion the only explanation for the three accounts is that they are true.

37. Ms Andersen said that the prosecution also relied upon propensity reasoning. She relied again on the authority of Eddy v The King.

38. On the Crown case the accused has been shown to act on a tendency to engage in sexual acts with young girls in his class despite the risk of detection by other students or teachers. The combined weight of the three complainants’ evidence provides strong support for that contention. That propensity, Ms Andersen submitted, has significant probative value in proving the principal fact in issue, namely, whether the alleged acts occurred.

39. Ms Andersen also relied on the authority of Hughes v The Queen[59] and the judgment of Kiefel CJ and Bell, Keane and Edelman JJ. Propensity reasoning can be probative of a sexual connotation in respect of LF where it may be suggested that, if there was touching as alleged, it had no sexual connotation.

    [59] [2017] HCA 20.

40. In determining whether the evidence is strongly probative of the propensity, as is required by s 34P(2)(b) of the Evidence Act, regard may be had to the characteristics of the complainants such as their ages, gender and relationship with the accused, but also the similarities of the alleged acts.[60]

    [60]   See Eddy at [76] and [77].

41. Ms Andersen submitted that each complainant showed a degree of distress when complaining to her parents. Ms Andersen acknowledged that limited regard may be had to distress when it is not temporally connected to the alleged offending.[61]

    [61]   See Fergusson [2024] SACA 63 at [42]–[45].

42. Ms Andersen submitted that the prosecution only relied on distress in the assessment of the reliability and credibility of the complaints rather than the overall reliability or credibility of the witnesses.

43. Ms Andersen concluded by submitting that the prosecution has excluded collusion between the three complainants. All three have similar characteristics and they give similar, but not identical, accounts of the accused touching them. There is corroborative DNA evidence in respect of AC. Each of the complainants has been credible and reliable. Ms Andersen submitted that I should be satisfied beyond reasonable doubt of the accused’s guilt of each charge.

    Mr Walker for the defence

44. Mr Walker asked me to give myself the warning contemplated by s 9(4)(b) of the Evidence Act regarding the unsworn evidence of each of the complainants. I will do so. He drew my attention to the discussion of that topic in R v Lomman.[62]

    [62] [2014] SASCFC 55 at [41]; (2014) 119 SASR 463.

45. It is convenient to give myself that warning now. The court in Lomman cited with approval the observation of Peek J in R v J, AP.[63] His Honour’s observation in that case was in these terms

    … the essential point is that a person who is able to give sworn evidence feels a higher degree of compulsion to give truthful evidence engendered by the solemnity and importance of the occasion of taking an oath or affirmation in Court than does a person who has been found by the Judge not to ‘have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.

    [63] (2012) 113 SASR 529 p 554.

46. I bear in mind that observation when analysing the evidence of the three complainants.

47. Mr Walker submitted that the accounts of the complainants were undoubtedly affected by their ages. There was less detail than would be the case with an adult. There were evident lacks memory, unreliability and in some cases signs of improbability and implausibility.

48. Mr Walker then addressed the complainants individually. In respect of AC he submitted that there were signs of her cognitive immaturity. There was a significant lack of detail in her description of how the accused removed her pants. For example, when asked, at item 235, what happened when the accused pulled her pants down, she replied ‘I don’t remember’. She then digressed by saying ‘I saw bin chickens’.

49. I would add that in the preceding questions on that topic, at items 227 and 223, AC replied she could not remember and did not understand. However, she had already given answers on that topic four times[64] in addition to the initial description of the act at item 58.

    [64]   Items 125, 148, 195 and 217.

50. Mr Walker acknowledged that fatigue has to be allowed for, but fatigue must bear upon the weight which can be given to her evidence.

51. Further, there was an earlier occasion when AC said she could not remember. That appeared at item 92 when she was asked what happened after the accused touched her vagina.

52. Mr Walker gave another example of immature distraction at item 276 where AC digressed to say ‘8004 seconds’. Mr Walker submitted that by that stage of the interview AC had stopped telling the truth. That sort of behaviour would not be accepted from an adult witness. Mr Walker submitted that an improbability arises from AC’s description of being touched and having her pants taken down when she was sitting. She said that she was sitting down when she gave the answers at items 216 and 220, but when asked at items 285 to 278 to demonstrate how she was sitting, she demonstrated that she was positioned with her legs folded under her.

53. Mr Walker submitted that if AC was so positioned it would be impossible for the accused to have removed her pants. I note that on the five occasions when AC mentioned that act she used the word ‘down’ rather than ‘off’ or ‘removed’.[65] Mr Walker submitted that AC’s description of this act is not a peripheral detail. It is part and parcel of the allegation of indecent touching. It’s improbability affects the whole of her account.

    [65]   See items 58, 125, 148, 195 and 217.

54. Mr Walker submitted that there was an example of AC’s evidence being inconsistent with that of her father. He said that he had gone to Melbourne on the day he picked her up from school whereas she said he did not. She was certain about her answer; certain but wrong, Mr Walker submitted.

55. AC’s evidence is contrary to LF’s in one respect. AC said that the accused never sat next to students in the classroom whereas LF said that he did. Mr Walker submitted LF’s evidence is more likely because it makes more sense.

56. In relation to the DNA evidence Mr Walker submitted that there are reasonable hypotheses, other than those proposed by the prosecution, for DNA consistent with that of the accused being on parts of AC’s underpants.

57. There is no evidence how the garment was bagged. The waist band may have been folded so as to touch the crotch. There was no analysis of other items of AC’s clothing. If the accused’s DNA had been unremarkably present on other clothing it might have been transferred to the underpants. The accused’s DNA might have been on furniture which was transferred to AC’s clothing. The accused’s DNA might have been on AC’s clothing on other days. There is no evidence when the clothes were washed before the day in question. There was no saliva detected on AC’s forehead.

58. Mr Walker submitted that while AC’s account of the accused wiping his hand on a tissue is said to be a compelling detail, AC did not mention it to her parents, so the police did not try to locate the tissue.

59. In respect of the complaint evidence, the prosecution did not lead such evidence from any of the complainants. It came only from the parents. Mr Walker did not suggest that that renders the evidence inadmissible, but there is no possible consistency to be found between the complaint evidence of each complainant and that of their parents.

60. In the case of AC, her parents did not mention any complaint about her being touched on the bottom. It is an inconsistency to be borne in mind.

61. Another is that AC’s mother says AC reported being told to keep the touching secret. AC made no such allegation. Of course, the mother’s account cannot be used as evidence of the truth of that matter.

62. In relation to AC’s complaint, it had not been specifically led that AC was saying the touching happened on that day. It is true that AC’s mother began the conversation with AC about her day at school. AC replied about being given the lolly, but she was never asked whether the lolly was given to her that day. It is speculative to infer that that is what she meant. Further, no one speaks of actually seeing the lolly.

63. Mr Walker submitted that there was an inconsistency between AC’s evidence that she regarded the touching as ‘weird’ (item 296) and her father saying that she told him it felt good (T 89). Mr Walker submitted that might indicate that by the time she was being interviewed by the police, AC was saying what she thought the interviewer and her parents might expect her to say.

1. Mr Walker turned to the allegations by LF. He submitted that her evidence was particularly lacking in detail. Her immaturity is evident by her being unable to remember the year of her birth when interviewed by the police officer. Her account is attended by too much uncertainty for reliance beyond reasonable doubt to be placed on it. There are several instances of her prefacing her answers by saying ‘I think …’.

2. There is a particular uncertainty, Mr Walker submitted, about whether LF was saying there was more than one occasion of indecent touching. If reliance were to be placed on her references to something happening ‘a few times’ or ‘last year’ and ‘this year’, then as many as four to six occasions might be counted. A closer look at what she was saying indicates that only one occasion has been identified.

3. While the prosecution is not obliged to particularise each individual act in detail, that does not relieve the court from being satisfied beyond reasonable doubt that there were two or more unlawful sexual acts.

4. Mr Walker submitted that the prosecution has failed to prove beyond reasonable doubt that the accused maintained a relationship with LF. It is not sufficient to prove that he was her teacher.

5. Mr Walker submitted that at the outset of the police interview with LF she said ‘I think he did it, maybe last term’. That was at line 48. I note, however, that she said earlier, without qualification, that the accused had touched her on the bottom (items 40 and 42), and when asked at item 45 whether he had done it more than once, she answered ‘a few times when I went up to tell him some things’.

6. It is true that later answers were prefaced as Mr Walker submits. Examples are items 48, 50, 52, 58, and 96. However, later answers were largely not prefaced in that way.

7. Mr Walker submitted that several answers given by LF suggest that she was saying there was only one occasion of touching. At item 52 she said ‘I think that was all he did’, and at item 56 she said ‘I don’t think anything happened’.

8. In my view that is not necessarily the only reading of LF’s answers.

9. In the answers leading up to line 50, LF had said quite clearly that the accused had touched her on the bottom a few times. She thought the last time was in the preceding term. At item 51 she was asked to think hard about what happened on that last occasion. She replied ‘I think that was all he did’. I do not necessarily take that answer to mean that there was no other occasion that he touched her but, rather, that nothing other than touching on the bottom occurred on that last occasion.

10. Her answer ‘I don’t think anything happened’ at item 56 is in response to a question about what happened when the accused was rubbing her bottom. That answer is in my view to be read as meaning that when the accused was rubbing her bottom he was not doing anything else. To read her answer as Mr Walker suggests would mean that in the middle of talking about the accused rubbing her bottom she had suddenly retracted her allegations. Earlier and later answers contradict that interpretation.

11. Mr Walker submitted that while at times LF appeared to be distinguishing between two events, one in Reception and one in the preceding term, a more careful reading of her answers leads to the conclusion that she has described only one event, and that was in the preceding term.

12. Mr Walker developed that argument. I enlarge slightly on the context of the development of that argument. At item 57 the interviewer moved from the last time LF said there was touching, which up to that point appeared to be in the preceding term, to the first time. LF replied in a series of answers that it was in Reception.

13. At item 83 the question turns to the location of the touching. A series of answers at items 83-88 refers to a teacher named Ms W who was apparently LF’s year 1 teacher in a different classroom from the Indonesian classroom. Those answers might, as Mr Walker argues, lead to the conclusion that when LF was there answering questions about what happened in the Indonesian room, she is to be understood as meaning what happened in year 1, rather than Reception (items 89-112). However, the interviewer was not focusing on the time. She was focusing on the location.

14. There was a break in the interview at item 121. The interviewer left the room. When she returned, she revisited the topic of the first time of touching (item 125). LF answered ‘… What did I say happened when we were in Reception?’ (item 126).

15. Mr Walker submitted that that answer is to be read as indicating that LF has forgotten about saying the first touching occurred in Reception. In my view that is not necessarily what LF meant. I think it more likely that she was merely asking for clarification about the question.

16. Having clarified the question, the interviewer then asked a very general question, albeit she was attempting to focus LF’s attention on the first occasion in Reception. The ‘general question’ was ‘so tell me everything that happened with Pak Trent’ (item 129). LF set about giving a long description of the classwork she was doing (items 130-148). Mr Walker observed that at item 150 LF referred to going ‘back to Ms W and we did some more learning’ and he noted that Ms W was LF’s class teacher in year 1 not Reception.

17. The interviewer tried to focus LF’s attention on the last Wednesday in Reception (item 161). This time, instead of asking the general question that she had done at item 129, she asked a specific question. She asked ‘..you said that Pak Trent touched you on the bum on the last Wednesday of Reception, so tell me everything that happened when Pak Trent touched you on the bum, the last day of Reception’. LF replied ‘what have I already said?’. Mr Walker submitted this is another example of LF forgetting what she has said earlier. In my view it is instead likely to be another example of her clarifying the question, in effect, clarifying the question which she thinks, correctly, she has already answered twice.[66] The interviewer is not to be criticised for returning to topics to seek confirmation or elaboration, but it is not surprising that, from a child’s perspective, it looks like unnecessary repetition.

    [66]   See lines 58-64 and 128.

18. That said, Mr Walker submitted that once LF’s attention was carefully drawn to the first occasion in Reception, LF proceeds to describe what had happened, but ends up referring back to Ms W’s class, a reference to year 1 (item 184).

19. The interview moved onto questions about how the touching occurred and where it occurred (item 185). At item 192 LF demonstrated how the touching occurred. She said it happened when she was standing at the accused’s desk (item 194). That occurred either when she asked the accused whether she could go to the toilet or when she was showing him some work (item 196). That answer could be interpreted in two ways; she is uncertain about which it was, or was it both. The next two answers suggest there was more than one occasion of touching. At item 198 LF said ‘he rubbed it and then one time he moved to sitting his hand on it’. At item 200 she said ‘yeah, and then another time … he was sitting his hand on it while I was at his desk’.

20. There is, as Mr Walker submitted, certainly some confusion at one point about whether LF was alleging that any touching happened in the preceding term. At item 201 the interviewer asked LF about the time the accused rubbed her bottom. LF replied that she thought it was in the preceding term in year 1 (item 202). There is a long discursive answer about what happened in that term (items 204-235).

21. There are then two questions, one which I might describe as general, and one specifically directed to touching. In answer to the general question ‘… did anything happen with Pak Trent last term?’ LF replied ‘I don’t think, not that I can remember’ (items 235-36).

22. In answer to the specific question ‘… I want you to think hard, did Pak Trent touch you on the back or bum last term ?’ LF replied ‘I think, well he might have touched me on the bum, because he does that like a few, in a few lessons but, he won’t do it again because now he’s not at the school, he is leaving it’. (items 237-38).

23. When asked whether she was touched one time or more than one time she replied ‘several times’ (see items 246, 248 and 250).

24. At (item 251) the interviewer then pressed LF to tell her about the last time that the accused touched her on the bottom. LF replied that it was on the first day of school or year 1. When asked a general question about ‘what happened on that day?’ LF gives a long series of answers about the events of the day (items 254-276).

25. When asked at item 277 whether anything happened with the accused during class on that day LF replied ‘not that I remember’ and ‘nothing happened on that day, I am pretty sure’ (items 278 and 280).

26. Mr Walker submitted that, while it appears superficially that LF is describing more than one occasion of the accused touching her bottom, whenever she is asked for detail, she comes back to a single allegation. Whenever she is asked about the time in Reception, she comes back to year 1. Mr Walker submitted that LF’s answer at item 250 indicates that at one stage she thought the touching happened in only one lesson, but she came to think it was more. She said at item 250 ‘last time I make that it was the one lesson but now I remember it was more than one’.

27. Mr Walker submitted that the confusion and uncertainty in LF’s interview is of such poor quality that it is not capable of proving beyond reasonable doubt that any touching that occurred happened more than once.[67]

    [67]   T 262.

28. Mr Walker submitted that the attempt in examination-in-chief to clarify how many times the touching occurred is too late. It cannot cure the problem that arises from the interview.[68]

    [68]   See T 119.

29. Mr Walker submitted that the touching of a child’s bottom is not innately indecent. If the touching on the bottom occurred when LF was in line at the accused’s desk and she was nervously showing him her work and or asking to go to the toilet, the touching could have been simply a calming action.[69]

    [69]   T 261.

30. Mr Walker submitted that the test of indecency is objective. It is not determined by LF’s feelings. It is determined by what would be regarded as indecent by current community standards. Mr Walker acknowledged that otherwise decent touching would become indecent if it were proved that it was motivated by sexual desire, but in this case the objective circumstances are consistent with a soothing, comforting touch which was appropriate for a teacher towards a nervous child.

31. Mr Walker submitted that the prosecution has not proved that a relationship existed between the accused and LF. There must be established a relationship over and above the alleged sexual relationship. It cannot be suggested, for example, that the accused had a relationship with every student at the school.

32. In relation to the complaint evidence Mr Walker submitted that there were inconsistencies between LF’s account and that of her parents. LF denied that her mother said she was going to call the police. Her mother said she did. LF denied she was sad about the accused going to gaol. Her mother said she was worried about that. LF did not express any uncertainty on those topics. She gave assertive answers. Both parents say LF demonstrated how the accused positioned her when he touched her. She put herself between her father’s legs. LF never gave evidence of that happening.

33. Mr Walker then addressed the case involving LH. While LH appeared slightly more mature than the other two complainants (she is some 16 months older than LF and 20 months older than AC) her evidence was attended by the same doubts which exist about the others.

34. Mr Walker submitted that there were signs of exaggeration in her evidence and instances where she was making up answers on the spot. She also made errors. Some parts of her account are improbable and raise doubts about her credibility and reliability.

35. Mr Walker submitted that an instance of her unreliability is her inability to remember the first or last occasions when the accused offended against her. Mr Walker may have meant by that submission that LH could not identify the specific acts on the first and last occasions, because she did say that the touching started in March and finished in May 2023.

36. Mr Walker submitted that there is an indication that LH was ‘repeating lines that her parents have fed her unwittingly’.[70] That submission arises in this way. After LH said that the accused touched her on the vagina more than one time, beginning ‘probably in March’, she was asked to tell everything about what had happened from the beginning. LH said that the accused touching her on the vagina scared her and made her uncomfortable. The reason for that was that it was not her parents who were touching her.[71]

    [70]   T 267.

    [71]   MFI P2, page 3.

37. In cross-examination LH agreed that her mother had at some stage told her that it was only appropriate for her parents to touch her there. It was inappropriate for other people to do so.[72] In cross examination LH’s mother KH confirmed that at some stage she did have that conversation with LH. She also agreed that after LH told her what the accused had done to her, she said that what he had done was wrong.[73]

    [72]   T 174.

    [73]   T 181.

38. The first strand to this submission is that there is a risk that LH has conflated what her mother said, to saying that the accused had touched her on the vagina. She has been fed her account.

39. The second strand appears to be that the parents, perhaps more particularly KH, has told LH what to say to the police.

40. In cross examination Mr Walker confirmed with LH that she had told her mother that the accused had touched her on the vagina. Mr Walker then asked ‘…did mum say to you that you had to go and tell that story to the police ?’ LH replied ‘definitely not’.[74]

    [74]   T 174.

41. In cross examination of KH the topic of that conversation was canvassed as follows:

    Q… Did you say to her that what Pak Trent did was very wrong?

    AAbsolutely, yes

    Qand that you needed to tell Ms H (the principal) about that?

    AYes, and the police

    Qand the police? And did you say as well that you needed her to tell them what she just told you?

    AYes

42. Thus, the two strands of the submission are that LH has been instructed to tell the same story to the police, but she denied receiving that instruction and did so forcefully. That gives rise to doubt about her credibility and reliability. I do not accept that submission. I think it is implausible that LH had told the police officer what her parents told her, and I do not accept that her credibility is damaged when she denies being told by her mother to tell the same story to the police. I think it likely that she appreciated the pejorative meaning of story and rejected it. Her doing so forcefully confirms my impression.

43. Mr Walker submitted that LH’s account of the offending is improbably brazen.

44. He submitted that LH’s account is that the accused put his hand down her skirt touching her vagina for ten to fifteen minutes. This was in front of the whole class. The accused is said to have been doing that with one hand while checking another students work with the other. While LH did make it clear that she was the only student at the accused’s desk, the allegation is undoubtedly of brazen conduct. I agree that the alleged duration of the act is unlikely. That said, children are notoriously unreliable about times.

45. Mr Walker pointed to an inconsistency in the number of alleged acts. While LH said that there were four occasions, three in March and one in May, she described at page 14 another act where the accused touched her through the back of the student’s chair. She gave a quite detailed account of the occasion in the chair. She named the student who was sitting next to her.[75] Mr Walker described that assertion as the hallmark of invention. That account is of a fifth incident. That is inconsistent with LH’s earlier account and inconsistent with what she told her parents.

    [75]   Page 19.

46. Mr Walker described LH’s account of the accused touching her in front of the rest of the class as too fanciful to even be probable, let alone proved beyond reasonable doubt.

47. Mr Walker submitted that LH has exaggerated seeing the accused going to the adult toilets every time she went to the student toilet. She reiterated that claim in court.

48. A further example of exaggeration, Mr Walker submitted, occurred on page 25 of her interview. She was asked whether the accused touched her anywhere apart from her vagina. She first replied ‘no’ but then said ‘I think he did touch my bum…sometimes he went from the back and then he went into my knickers and touched my bum and kept playing with it’.

49. In fact, that was not the first time in the interview when LH said that the accused went round the back of her pants. She said that at pages 15 and 17, but the interviewer then focused questions on the touching of the vagina. Nevertheless, there is the inconsistency between the first and second parts of her answers on page 25.

50. Mr Walker submitted that LH’s account of receiving the letters or notes from the accused is an example of her inventing as she goes along. At pages 26 and 27 there are inconsistencies about whether the accused gave her a letter or sticky note. There was inconsistency about when she threw the note away. At page 30 she said there were possibly five letters. LH said that while the accused touched her in class, he did not do so when she went alone to this room in answer to a letter.

51. Mr Walker submitted that a further example of invention occurred when, at page 37, LH was asked why she had told her parents about touching on the vagina but not touching on the bottom. She replied ‘because it…then it would be a bit too urgent, and I didn’t want that’.

52. Mr Walker submitted that is very unlikely to be true. It is more likely that she is making it up as she goes along. Likewise, her explanation of not telling the teachers. She replied, ‘because not many teachers actually do much about it’ (page 32).

53. Mr Walker then addressed a number of other topics.

54. There was nothing incriminating found in the accused’s house or electronic devices. While the complainant’s accounts are superficially similar, they are not sufficiently so.

55. The onus is on the prosecution to exclude contamination. On that topic, LF said in her interview that she knew that other people had complained. Her mother’s evidence about LF only finding out after the interview was inadmissible.

56. Mr Walker submitted that even if the prosecution had proved the allegations of AC and /or LH, that would not prove the ingredient of indecency with regard to LF.

57. Mr Walker submitted that, while it had not been put to the complainants that they had a motive to lie, it is not for the accused to prove a motive. That submission is plainly correct.

    Consideration

    Collusion and contamination

58. I consider first the question of collusion and contamination. If the prosecution has failed to exclude both there can be no cross admissibility. Any similarity of account between the complainants is effectively explained by one or other mechanism. As observed by Vanstone J in R v M, BJ,[76] and Kourakis CJ in R v C, CA[77] a fact finder might rationally begin by considering these questions. If the prosecution cannot exclude them, then not only is cross admissibility irrelevant, the near inevitable result would be a finding of not guilty.

    [76] (2011) 110 SASR 1; [2011] SASCFC 50 at [65].

    [77] [2013] SASCFC 137 at [100].

59. I say something about the difference as I understand it between collusion and contamination. I take collusion to mean the situation where two or more people collude together to make up a false story. Where that is not excluded then the almost inevitable result would be a finding of not guilty.

60. Other scenarios might lead to the same result. If witness A were to tell witness B a false story, whereupon B unilaterally decides to tell their own false story without discussion without A, that might be regarded as a form of collusion.

1. Where A tells B a story about the accused, true or false, and B imagines, or comes to believe wrongly that they have been abused in a similar way, this might amount to contamination.

2. Whatever mechanism is applied, the effect is that any similarity of account is the product of discussion or information whereby the witness fashions their own account relying upon the account of another. Whichever scenario cannot be disproved by the prosecution negates cross admissibility.[78]

   [78]   Sexton v The Queen [2022] SASCA 73 at [190].

3. In my view there are scenarios which do not amount to collusion or contamination. It would not be collusion or contamination if, as a result of discussion between witnesses, they feel confident enough to report abuse they genuinely suffered, or where the account of one prompts the second to truthfully report abuse. There is a danger of circularity in this, but the point is that it is not necessarily collusion or contamination when a complainant hears of other allegations.

4. I appreciate that there is a tension between similarities and dissimilarities of accounts. Unless there is sufficient similarity the criterion for cross admissibility is missing. In other words, there comes a point when dissimilarities of account negate cross admissibility. On the other hand, near exact similarity of account may suggest collusion or contamination.

5. I am satisfied that AC knew nothing of other students claiming to be abused by the accused before she complained to her parents on what may well be the same day she says she herself was abused. AC was certainly the first of the three complainants to be interviewed by police. That interview occurred on the 13^th July 2023.

6. LF was the second to be interviewed. That was eight days later. LF’s mother is a teacher at the school. LF’s parents spoke to their daughters after staff had been notified that some allegations had been made against the accused. LF’s parents spoke to the girls in somewhat general terms about privacy and told them that they could talk to them about anything they wanted to talk about. Neither girl raised anything.

7. A few days later there was discussion because a police officer had told LF’s mother, KF, that LF’s name had come up in an interview with another student. This time, LF was asked specifically about her Indonesian class. She said that she had been touched on the bottom and she made other disclosures.

8. In her interview LF said that she knew touching by the accused had happened to a few other girls (items 114 and 116). However LF was asked no questions in court about hearing reports of abuse by anyone else.

9. Her mother was cross examined about LF’s awareness of the allegations. KF said that LF was aware of allegations that the accused had touched three named girls, one of whom was AC. KF said that LF talked about one girl ‘after Adelaide’ because they had seen that girl at the Women’s and Children’s Hospital. They had also seen another girls’ parents in Adelaide at the same time. KF said that LF had mentioned AC three or four months after the interview.

10. In his address Mr Walker submitted that KF’s evidence on this topic was inadmissible. He submitted that KF’s opinion that LF only found out about the other complainants after she had been to Adelaide was irrelevant or inadmissible. However, if LF was not questioned about what she knew about other complaints it is hard to see how collusion or contamination can be explored without resort to hearsay evidence from others such as her parents. In Sexton the Court held that otherwise inadmissible evidence may be led if it is probative in excluding collusion or contamination.[79]

    [79] Ibid at [195].

11. KF’s evidence on that topic was not merely opinion. It included conversations she had had with LF tending to show that LF had only had conversations with her parents about the other girls after the police interview. This evidence by KF was elicited in cross examination.[80]

    [80]   T 133- 134.

12. The only direct evidence of LF’s knowledge of other complaints is her answers at items 114 and 116 of her interview.

13. Before turning to consider the position of LH, I make some observations about collusion and contamination. In this case, no evidence was led from any of the complainants on the topic. None of them was asked if she had spoken to the other complainants or to other students who said they might have been touched sexually.

14. LH told two friends what had happened to her but said nothing about hearing about abuse from others. I have already canvassed the situation with LF. She said she did know “it happened to a few other girls”[81] but nothing more was said on the topic. Nothing at all was elicited from AC on the topic.

    [81]   Item 116.

15. While there was no cross examination of the complainants on the topic, Mr Walker submitted, correctly, that it is incumbent on the prosecution exclude collusion or contamination. I do not understand there to be a requirement that the prosecution actually lead evidence from the complainants on that topic, but the prosecution nevertheless bears the burden of disproving it.

16. In this regard, I refer to the case of Sexton v The Queen where, at [193] the court said:

    “irrespective of whether or not a suggestion of collusion or contamination is put by defence counsel to a complainant, the jury is still required to find that the evidence of the complainants has a high degree of similarity that excludes independent concoction and that the evidence of each of the complainants is in fact independent of one another. Unless they do so, the jury could not evoke improbability reasoning in their deliberations”.

17. While that passage does not refer to the position with regard to propensity reasoning I think the observation would be equally applicable in that situation.

18. In this case the defence has submitted that the prosecution has failed to exclude collusion or contamination.

19. In my view the dissimilarities between the three complainants accounts and the nuances in each tell against collusion or concoction.

20. The dissimilarities are these; while each says the accused touched her on the bottom, each account is different. AC says she that was touched on both the bottom and the vagina. The accused pulled her pants down. She was sitting down or kneeling in a chair. It was at lunch time when she was on her own. It happened only once.

21. LF said that the accused only touched her on the bottom. It was over her clothes. It happened during class. It happened when she went to the accused’s desk. It happened more than once. He rubbed her bottom, but on one occasion he just placed his hand on her bottom.

22. LH said the accused touched her bottom and her vagina. It happened at his desk and also through the back of her chair. The accused put his hand down her skort. He did it about four times. Once he put his hands down the front and moved it around to the back. Once he kept “playing” with her bottom.

23. The nuances are these; AC said that when she was in the classroom at lunch time colouring her camera, the accused came in and joined her. He stopped touching her when he heard a noise outside. He wiped his hand on a tissue. He kissed her and gave her a lolly.

24. LF said the accused would pinch or touch her back. He would also touch her head.

25. LH said that when the accused was touching her, he called her “special” and “a very good person to work with”. He would call her “sweet pea”. He sent her notes asking her to meet him at lunch time.

26. The similarities are that each complainant was a young female student in the Indonesian class. The accused would touch their bottoms.

27. I am satisfied that none of the girls has colluded with each other or anyone else to tell a false story. I am satisfied that none has given an account which has been contaminated by the account of anyone else. In the case of each complainant, I exclude the possibility of collusion and contamination.

    Unsworn Evidence

28. I bear in mind that each complainant gave brief unsworn evidence in court. Although I made no express enquiry about whether each had a sufficient understanding of the sanction of an oath or affirmation, I assumed, by reason of their ages, that they would not have that understanding. Having made that assumption, I warn myself, pursuant to s 9(4)(b) of the Evidence Act of the need for caution in accepting their unsworn evidence.

    Discreditable Conduct – Sections 34P and 34R of the Evidence Act

29. For reasons which I will develop, I found that the evidence of each complainant was cross admissible with the others. The charges could be heard together. The evidence of each complainant about the accused touching them is to be treated as discreditable conduct with respect to the evidence of the other two. Accordingly, the evidence must comply with the provisions of s 34P of the Evidence Act and I must give myself the warnings set out in s 34R.

30. With those two sections in mind, I identify an impermissible use of such evidence. It is permissible to reason that the accused is more likely to have committed an offence because he has engaged in discreditable conduct (s 34P(1)). Discreditable conduct may only be admitted for a permissible use if I am satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant (ss (2)(a)). I will come to the probative value shortly, but I identify the possible prejudicial effects. Those effects were described by the court in Eddy.[82]

    [82]   Ibid.

31. The Court said:

    The prejudicial effect of evidence is the risk that the jury will use the evidence improperly, either by engaging in an impermissible mode of reasoning, attributing disproportionate weight to the evidence, or by becoming distracted from the real issues by reason of an emotional response to the evidence.[83]

    [83] [2024] SASCA 115 at [67].

32. For reasons I will identify, I am satisfied that the probative value of the evidence does outweigh any prejudicial effect it may have on the defendant. I also find that the permissible and impermissible uses can be kept sufficiently separate and distinct (ss (3)).

33. I turn to the assessment of the probative value of the evidence. It is to be assessed taking the evidence at its highest and having regard to other evidence in the case.[84].

    [84]   Eddy Ibid at [69].

34. I do not regard the evidence of any one complainant as being essential to the process of leading to a finding of guilt (s 34R(2)).

    Discreditable Conduct – Probability Reasoning

35. I am satisfied that the evidence of touching given by each complainant is probative in proof of issues in the trial. It is probative in the case of each complainant because the evidence of the others renders it less likely that each has lied or been mistaken or unreliable about her account.

36. While it is true that there are differences between the accounts of each witness, there are significant common features. The three complainants share characteristics in common. They are all girls aged between five and eight. They were all in the accused’s Indonesian class.

37. There are common features of the alleged behaviour. Each says that she was touched by the accused on the bottom in the classroom. While there were dissimilarities which I have already identified, the touching of the bottom of young students in circumstances where there was a real risk of detection is unusual. LF and LH say that it happened in class time. Two of them were given a form of reward. AC says she was kissed and given a lolly. LH was told that she was special, and she was called sweet pea. She was given a Texta shaped as a lolly. While LF did not say she was rewarded in any way, she did say that the accused would also touch her on her back or head.

    Discreditable Conduct – Propensity Reasoning

38. I am satisfied that the evidence of the complainants is of strong probative value in proof of the facts in issue (ss (2)(b)).

39. Propensity reasoning may only be used where it is of strong probative value.

40. An inclination of a teacher to sexually touch young female students in the classroom is unusual as a matter of human experience. In the case of Eddy,[85] the Court emphasised that, notwithstanding the unusual nature of the impugned conduct, the Court has to closely analyse the evidence of all complainants to see if the conduct is ‘quite strongly probative’. One feature of the evidence in this case is that all three complainants say that the touching occurred in the classroom, although AC said that it occurred when she was alone at lunchtime or some other break. Even in her case she said that the accused desisted when there was a noise from students just outside the classroom.

    [85] Ibid [72]-[73].

41. The Court in Eddy[86] cited remarks of the plurality judges in Hughes v The Queen[87] to the effect that in that case the ‘level of disinhibited disregard of the risk of discovery … is even more unusual as a matter of ordinary human experience’.

    [86] Ibid at [74].

    [87] (2017) 263 CLR 338 at [41].

42. The fact in issue in this case in respect of all three complainants is whether the alleged touching occurred at all. In respect of LF, there is the additional fact in issue, namely, whether, if the accused did touch her bottom, he did it for a sexual purpose. That feature would be uncontroversial in the cases of AC and LH who both alleged that the accused also touched them on the vagina.

43. Assessing the strong probative value at its highest and having regard to the other evidence in the case, I find that the evidence of all three complainants is of strong probative value in proof of the accused touching the girls in the way they described. I also find that the evidence of AC and LH is of strong probative value in proof of the accused touching LF on her bottom for a sexual purpose.

44. My findings about the permissible uses of discreditable conduct are only processes of reasoning which are aids to proof of the facts in issue. I do not equate this reasoning with proof of the facts in issue.

    Complaint evidence

45. Each of the complainants made a complaint to her parent or parents, but the evidence came only from the parents. Strictly then, there can be no suggestion of consistency between the complainants and their parents as to the complaints.

46. In the case of AC I think it is likely that she made her complaint on the day of the alleged offending. In the car after being picked up from school, while her father was in a hardware store, AC told her mother that the accused touched her on the vagina. I find credible the evidence of her mother about how the complaint came about. She asked AC about her day at school. AC said that the accused had given her some lollies. He was sitting next to her doing some colouring in and he touched her on the vagina (‘fanny’). She added that the accused had given her a lolly because she was good girl and she had to keep it secret.

47. I accept that the complaint was made, and I think very likely made on the day of the allegation. I treat the complaint to the mother in the car as the initial complaint.

48. AC elaborated on that initial complaint after her father returned to the car. She said the accused’s touching ‘felt good’. She said the accused pulled down her pants and knickers. Despite some criticisms of the father’s evidence on peripheral matters I accept his evidence of the elaborated complaint.

49. The complaint evidence must be assessed bearing in mind the provisions of s 34M of the Evidence Act. The evidence explains how the allegation first came to light (ss 4(a)(i)).

50. It is capable of demonstrating a degree of consistency of conduct on AC’s part (ss 4(a)(ii)). In her case I find that she complained promptly about what she said happened.

51. Consistency of account requires further consideration. There were some inconsistencies between AC’s interview and evidence on the one hand, and her parents’ account of her complaint on the other. AC made no mention to her parents of being touched on the bottom. She said nothing about the accused wiping his hand on a tissue. She made no mention in her interview or evidence of being told to keep anything secret. She said in her interview that the touching felt a bit weird, but she told her father it felt good.

52. In my view these inconsistencies do not significantly diminish the weight to be given to the complaint evidence. They are relatively minor, even the omission of the touching on the bottom. That might have been thought by AC to be less significant than the touching on the vagina.

53. It is particularly important to bear in mind in the case of AC that the contents of her complaint cannot be used as evidence of their truth (ss 4(b)). Her complaint that she was told to keep secret what happened cannot be evidence of it having happened.

54. I must bear in mind that there may be many varied reasons why AC has made a complaint to her parents soon after the alleged event (ss 4(c)). In my view, her parents were the people most appropriate to tell and it might be expected she would complain promptly if an occasion to do so presented itself.

55. I find that AC’s complaint to her parents demonstrates a significant degree of consistency on her part, such that it enhances her credibility.

56. I bear in mind the same provisions of s 34M with respect to the other complainants.

57. In respect of LF, she made no complaint to her parents when, in response to her mother becoming aware of allegations being made against the accused, they spoke to her and her sister about personal privacy, and being free to tell them anything that they wanted to talk about. Only in a conversation a few days later which was focused on her Indonesian class did LF say that the accused ‘played with her hair, touched her head, pulled her between his legs and rubbed her bottom over her clothes’. LF’s father gave a similar account about LF’s complaint as his wife did, but he added that LF said that the touching on her bottom happened more than once. I accept the evidence of the parents.

58. Mr Walker pointed to inconsistencies between LF’s evidence and her parents’ account of the complaint. LF denied her mother said she was going to call the police. Her mother said she did. LF denied she was sad about the accused going to gaol. Her mother said she was worried about that. LF never mentioned what she demonstrated to her parents putting herself between her father’s legs.

59. The complaint evidence demonstrates how the allegation first came to light. It demonstrates a degree of consistency on LF’s part. She complained to her parents about being touched on the bottom. In my view, the inconsistencies which have been pointed out are largely about peripheral matters, although, on a more central topic, she did not give evidence of the demonstration she gave her parents. However, that is not so much a difference about the touching, but is, rather, evidence of a mechanism by which the touching occurred. That may not have been so prominent in LF’s mind when answering the police officer’s questions. Of course the report about the mechanism cannot be used as the truth of the matter.

60. I find that there is a degree of consistency on LF’s part which enhances her credibility. Her complaint may have slightly less weight than that of AC, being not so prompt and not elicited in the first conversation with her parents.

61. Nevertheless, LF’s parents were the particular people to whom it might be expected she would complain and the particular time is explained by the more focussed question in the later conversation.

62. Like LF, LH made no complaint to her mother when, in response to hearing about allegations about her teacher, her mother spoke to her about inappropriate touching, and she told LF that she could tell her if anyone did that.

63. Later, in the conversation focussed on the accused leaving the school, LH told her mother that the accused had touched her four times, putting his hand down her pants, and touching her vagina. She said that the accused had told her that she was special.

64. There was no objection by the defence to my treating LH’s complaint to her mother as the initial complaint. That is notwithstanding that LH said that first person she ever spoke to was her school friend FT. In respect to that conversation LH said she had simply told her friend that the accused had touched her on the vagina. She said she told the most to her parents.[88]

    [88]   T 173.

1. The greater elaboration to her mother would therefore qualify that conversation as part of the initial complaint.

2. There were some inconsistencies between LH’s interview and her complaint. She did not tell her mother that the accused had on one occasion moved his hand from her front to her back. She did not tell her mother about the notes the accused had sent her.

3. In my view those inconsistencies do not materially detract from the overall consistency of the account. The touching on her bottom was said to have happened only once, and was at the same time as the touching on the vagina. The absence of mention of any notes that the accused sent is an absence of a distinctive topic, but it is peripheral.

4. Like LF, LH’s mother was a particular person to whom it might be expected she would complain and the particular time is explained by the more focussed questioning in the later conversation.

   Relationship

5. Mr Walker submitted in respect to LF that the prosecution failed to prove that the accused had a relationship with her separate from the alleged sexual relationship. Certainly, for a charge of sexual abuse of a child, such a relationship must be proved. It is one of the elements of the offence.

6. Mr Walker’s submission was made only in respect to LF but it must be taken to apply to all three complainants. The accused’s non-sexual relationship with each is said to be his relationship with each of them as their teacher in the Indonesian class. Mr Walker submitted that it would be untenable to regard the accused as having the requisite non-sexual relationship with all the students in his school. There may be some force in that argument but in this case the complainants were all members of his specific Indonesian class. He was not, it would appear, their teacher for other subjects.

7. I note that in Sexton (Ibid), the accused was the singing or music teacher of the complainants, although he taught each of them singly, and in each case there developed what was described as ‘relationships with the hallmarks of … love affairs’.[89]

   [89] At [129].

8. In that case the question of whether a non-sexual relationship existed between the accused and the complainant was not an issue on the appeal, and, it would appear, not at the trial. The case is therefore not authority for the sufficiency of the teacher/pupil relationship but in my view it would be sufficient. A teacher assumes a professional responsibility for the students in his or her class, perhaps a greater responsibility than between a teacher and the other students in the school. The Indonesian class was held twice a week, and it appears to have extended beyond one term.

9. I find that the prosecution has proved in respect of each complainant that there existed between them and the accused the non-sexual relationship of teacher and pupil.

   Credibility and Reliability of Complainants

   AC – Counts 2 and 3

10. I find AC to be a credible and generally reliable witness. I find that she told her mother what the accused had done to her after school on the day it happened. I think the context of the conversation strongly suggests she was talking about that same day. She was aged six years and three months at the time. It is true that in the police interview she appeared shy and was at times difficult to hear. Nevertheless she gave a credible and nuanced account being touched by the accused on her bottom and vagina.

11. Despite Counts 2 and 3 alleging touching, respectively on the vagina and bottom, AC made it clear that the touching was in reverse order. Significantly she began her description at Item 58 with the accused touching her vagina first, but mid-sentence, she corrected herself and said he touched her first on the bottom. She repeated that order twice when speaking of both touches (Items 94 and 136) although, at Item 88, when being invited to start her account again, she spoke only of the touch on the vagina.

12. I find that the order is significant because touching first on the bottom might suggest a testing of AC’s reaction, and when none was forthcoming, the touching moved to the vagina.

13. There were, in my view, telling nuances about AC’s account. She was doing some colouring in when the accused joined her. It was lunch time. The incident stopped when noises could be heard outside. In court she said the accused told the students to go away. He wiped his hand on a tissue. He kissed her on the forehead and gave her a lolly, a lolly which instigated the disclosure to her mother later that day.

14. It is reasonable, as Mr Walker submitted, that the logistics of the touching while AC was sitting on her chair, or perhaps, more accurately, sitting on a chair with her legs folded under her, are not altogether easy to imagine. That is particularly so when AC said that the accused pulled her pants and knickers down. However, as I have already noted, AC did not say that he pulled them off. They were only pulled down. I do not conclude that the logistics are impossible, or even implausible. If AC was confabulating it is an unusual scenario to describe.

15. It is true, as Mr Walker submitted, that as the interview with the police officer went on, AC became distracted and lapsed into being unable to remember, but as I have already noted, this was towards the end of a fairly long interview. She is criticised for discursive answers, but occasionally this was when she was asked what I have already described as ‘general’ questions. She answered by giving an account of the day’s activities.

16. It is not, in my view, reasonable to judge the reliability of AC’s answers by comparison with what might be expected of an adult. Her immaturity must be accepted, although not to the point of overlooking uncertainties or confusions which might suggest confabulation. The prosecution must prove her credibility and reliability beyond reasonable doubt.

17. I have already found that AC’s credibility is enhanced by her prompt and consistent complaint to her parents. I do not repeat the reasons I have already given for that finding.

18. I find that the evidence of Ms Harkin that there were on AC’s underpants traces of DNA consistent with that of the accused, lends AC’s evidence some support. Notwithstanding the possible, innocent explanations for those results, I find that the DNA evidence is a piece of circumstantial evidence tending to support AC’s account.

    LF – Count 3

19. I found LF to be a credible and generally reliable witness.

20. LF is the youngest of the complainants. She was five years 11 months old at the time of her police interview. She said that the accused engaged her in what might be regarded as grooming behaviour. He would walk past her in class and pinch or touch her back. He would touch her head.

21. She distinguished between two acts the accused engaged in which involved her bottom. First he rubbed her bottom (MFI-P1B Items 42, 100 and 198). While an incidental touching on the bottom of a student might not necessarily be regarded as indecent, rubbing is less ambiguous. LF said that the accused rubbed her bottom more than once. She said that explicitly at lines 246 and 248. She said ‘more than … one time and more than one lesson now’. She said it implicitly at line 96. She said ‘he only did it when I told him I was going to the toilet or something’. At Item 198 she said ‘he rubbed it and then one time he moved to sitting his hand on it’.

22. It is true, as Mr Walker submitted, that LF had difficulty being precise about when the touching occurred. However, I do not accept the submission that, when analysed, LF is to be understood as describing only one occasion. I find that a close analysis of her interview indicates that she was saying that the rubbing of her bottom, as opposed to simply touching it, happened more than once, but she had difficulty identifying when the touching occurred. She had precisely the difficulty that the creation of this offence is designed to allow for.

23. That said, caution would suggest that no more than three acts should be relied upon, two of rubbing her bottom and one of placing a hand on it.

24. Significantly, LF did not want the accused to get into trouble. She said that to her parents.

25. I find that LF’s evidence of the accused’s grooming behaviour, her use of the word ‘rubbing’ her bottom and the nuanced distinction she made between rubbing more than once and touching on only one occasion are, in combination, strongly probative of a sexual purpose on the part of the accused. I will discuss separately the effect of the evidence of the other complainants on my conclusion about LF’s evidence in that regard.

26. I do not regard the inconsistencies between LF’s evidence and her complaint to her parents as damaging her credit. However, I deal with several particular topics arising from the complaint evidence.

27. The most obvious is LF’s demonstration to her parents of how she said the accused went about touching her. He would put her between his legs with her facing outwards. If she had given evidence to that effect it might have been seen as a compelling detail, but she did not give that evidence. Her parents’ evidence on that topic cannot be used for the truth of the assertion. However, it could, as Mr Walker submitted, be regarded as an inconsistency, detracting from her credit and suggestive of recent invention.

28. As I have already alluded to, I do not draw that conclusion. I think it more likely that LF had omitted the mechanism of the accused touching her because she was focused on the touching itself.

29. LF’s mother’s evidence of LF telling her that in April or May of 2023 that the accused had been pinching her back and rubbing her pant line cannot be used as complaint evidence. In my view, it can only be used to rebut any suggestion of recent invention when she made her complaint in July.

30. Other suggested inconsistencies are, in my view, minor and do not detract from LF’s credit.

    LH – Count 5

31. I found LH to be a credible and generally reliable witness. She is the eldest of the complainants. She was aged seven at the time of her police interview. She was the last to be interviewed. I have already found that her evidence was not infected by collusion or contamination.

32. LH said that the accused touched her on the vagina more than once. She said it happened about four times, three times in March 2023 and one time in May. Like LF, she said the touching occurred at the accused’s desk during class. She described how the accused put his hand down her skort and touch her vagina. He did not touch inside her vagina. He complimented her. He said she was ‘special’ and ‘a very good person to work with’. He called her ‘sweet pea’. She drew diagrams of their respective positions. She said there was one occasion when the accused touched her differently. He first put his hand down the front of her skort, but then moved it around to the back. He kept ‘playing with’ her bottom. He moved a wheelie chair next to hers and he put his hand through an oval hole in the back of her chair.

33. The allegations are of very brazen conduct and there are logistical difficulties in the evidence about the chair, but those features are nuances which would be unlikely to be deliberately untruthful or the product of mistake.

34. The distinction between two sorts of touching and the various endearments said to be used by the accused are nuances telling against confabulation. So too is LH’s account of the accused sending her notes. LH said that at those meetings the accused told her not to tell her parents about what he was doing. LH said she liked that the accused kept helping her which made her very good at Indonesian.

35. When LH’s mother engaged LH in conversation about the accused, saying he was leaving the school, LH said that she was sad about that because the accused had told her she was special.

36. While it is true, as Mr Walker submitted, that LH was unable to particularise the first and last alleged acts, she did say that the first was in March and the last in May. With one exception, she said that the acts were the same. The accused would put his hand down the front of her skort, but on one occasion he moved his hand around to the back. I have already found against the criticism of LH’s evidence that she has repeated to the police an account that she was unwittingly fed to her by her mother.

37. I agree with Mr Walker’s submission that reliance cannot be placed on LH’s evidence that the accused touched her for 10 to 15 minutes. However, in my view, that unreliability is common to child witnesses and does not, of itself, tell against their credit. I make that finding in respect of LH.

38. I find that other criticisms made of LH’s evidence relate to peripheral matters and are evidence of her childish immaturity rather than confabulation or unreliability.

    Cross admissibility

39. I have already found that the evidence of each complainant is cross admissible with the evidence of the others, permitting both improbability and propensity reasoning. I now apply that reasoning.

40. I find that the combined effect of the three complainants makes it improbable that any one of them has lied or been mistaken about the touching by the accused that they speak of. All three of the accused’s female students in his Indonesian class, aged between five and seven, say that he touched them on the bottom in a way and in circumstances that bespeak a sexual intent. Two of them say that he also touched them on the vagina.

41. Both the similarities and dissimilarities of their accounts give rise to improbability of falsehood.

42. I exclude collusion and contamination between them, or them and others. I am satisfied that there was none.

43. So far, the combined effect of their otherwise credible and generally reliable evidence is that I am satisfied beyond reasonable doubt that the accused touched them in the way that they said, although I will turn shortly to make specific findings in respect of each and apply those findings to the elements of the charges.

44. Further, I find that the combined evidence of the three complainants leads to the conclusion that the accused had a propensity to sexually touch the young female students in his class. The nature of the touching of AC and LH is plainly sexual. He touched each of them on the vagina.

45. I found that the evidence of LF, taken alone, demonstrates a sexual purpose. The type of touching (rubbing), the repetition of the touching, the two different types of touching (rubbing and placing) together with the non-sexual touching (grooming) are the bases for that conclusion.

46. However, that conclusion is reinforced by the unambiguously sexual touching of AC and LH. Their evidence demonstrates that the accused had a propensity to sexually touch his young female students and he acted on that tendency.

47. In respect of any single complainant the evidence of the others is strongly probative of that tendency and the tendency to act on it.

48. In this case there are three complainants in the unusual setting of a primary school class. The alleged behaviour was particularly brazen and there was a high risk of detection. That consideration by itself is an unusual and a relevant consideration. In my view each complainant gave a credible and generally reliable account.

    Findings

49. In respect of the AC I am satisfied beyond reasonable doubt that the accused indecently assaulted her by touching her on the vagina (Count 1) and on the bottom (Count 2). The deliberate touching makes out the element of assault. The touching occurred on a single occasion.

50. I find that the assaults were both indecent by current community standards. I find that the accused had a sexual purpose in respect of each assault. In my view the sexual touching of a five year old student by a teacher is indecent by community standards.

51. AC was under 14 years of age. She was aged five to six. I am satisfied beyond reasonable doubt of the accused’s guilt of Counts 2 and 3.

52. In respect of LF I am satisfied beyond reasonable doubt that the accused committed the offence of Sexual Abuse of a Child. He was an adult and she was under 14 years of age. She was aged five. During and beyond the offending the accused maintained the relationship of class teacher/student. I find that the accused committed two or more unlawful acts upon LF, those acts consisting of Aggravated Indecent Assault. I find that he touched LF on the bottom for a sexual purpose by rubbing her bottom on more than one occasion, but probably not more than two, and on one further occasion he rested his hand on her bottom, also for a sexual purpose.

53. I am satisfied beyond reasonable doubt of the accused’s guilt of Count 4.

54. In respect of LH, I am satisfied beyond reasonable doubt that the accused committed the offence of Sexual Abuse of a Child. He was an adult and she was under 14 years of age. She was seven. During and beyond the offending the accused maintained the relationship of class teacher / student. I find that the accused committed two or more unlawful sexual acts upon LH, those acts consisting of Aggravated Indecent Assault.

55. I find that the accused touched LH on the vagina four times, and on one of those four times he also touched her on the bottom. I find that on each of the four times the accused touched LH he did so for a sexual purpose.

56. I am satisfied beyond reasonable doubt of the accused’s guilt of Count 5.

    Verdicts

    Count 1 – Aggravated Indecent Assault - Guilty.

    Count 2 – Aggravated Indecent Assault - Guilty.

    Count 3 – Sexual Abuse of a Child - Guilty.

    Count 4 – Sexual Abuse of a Child - Guilty.