R v Ian Wayne O'Toole - [2020] NSWDC 431

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ian Wayne O’Toole [2020] NSWDC 431
Hearing dates: 16 June 2020 – 9 July 2020
Decision date: 17 July 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Multiple verdicts of guilty. For orders see [428]

Catchwords:
Historical child sex offending; tendency evidence

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Government Information Access Act 2009

Cases Cited:
Browne v Dunn (1893) 6 R 67 (HL)
Jackson v R [2020] NSWCCA 5
R v Bauer [2018] HCA 40
R v Markuleski (2001) 52 NSWLR 82
S v The Queen (1989) 168 CLR 266

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
IO (Offender)
Representation:
Counsel:
Ms J Smith (Crown)
Mr R Webb (Accused)
Solicitors:
R Endacott (Crown)
R Storie (Accused)

File Number(s): 17/229023
Publication restriction: Pursuant to s 8 of the Court Suppression and Non‑Publication Orders Act 2010, non-publication of all complainants names, or information tending to reveal their identity, including the place of any alleged offence, until further order.

Judgment on verdict

Ian Wayne O’Toole is charged that:

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did carnally know CW, a girl then under the age of 10 years, namely, of the age of 6 or 7 years, pursuant to s 67 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did maintain an unlawful sexual relationship with KW then a child under the age of 16, namely 8, 9 or 10 years of age, in which the accused engaged in the following two or more unlawful sexual acts: 1. Ian Wayne OToole caused KW's hand to masturbate his penis. 2. Ian Wayne OToole put his penis between the legs of KW and moved it back and forth. 3. Ian Wayne OToole had KW perform fellatio on him. 4. Ian Wayne OToole digitally penetrated the vagina of KW. 5. Ian Wayne OToole rubbed the outside of the vagina of KW, pursuant to s 66EA(1) of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales.did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, LW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CF, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, in BUP in the State of New South Wales, did carnally know CF a girl then under the age of 10 years, namely, of the age of 7 and 8 years, pursuant to s 67 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CF, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900.

Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did procure the commission of an act of indecency with WW also a male person, pursuant to s 81A of the Crimes Act 1900.

Between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did maintain an unlawful sexual relationship with AA then a child under the age of 16, namely 10, 11 or 12 years, in which the accused engaged in the following two or more unlawful sexual acts: 1. Ian Wayne O’Toole touched AA’s buttocks. 2. Ian Wayne O'Toole kissed AA on the mouth. 3. Ian Wayne OToole kissed and sucked AA's breasts. 4. Ian Wayne OToole massaged AA's breasts. 5. Ian Wayne O’Toole masturbated himself near AA. 6. Ian Wayne O'Toole touched the anus of AA. 7. Ian Wayne O’Toole had penile/vaginal intercourse with AA. 8. Ian Wayne O’Toole put his penis inside the mouth of AA. 9. Ian Wayne O'Toole touched the outside of AA's vagina with his penis. 10. Ian Wayne O'Toole digitally penetrated the vagina of AA, pursuant to s 66EA(1) of the Crimes Act 1900.

In the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

In the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely, 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely, 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900.

And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900.

By consent, the trial proceeded to be heard by Judge alone commencing on 16 June 2020. Upon arraignment, the accused pleaded not guilty to each of the counts on the Indictment. This judgment records my verdicts and my reasons for reaching those verdicts.
The elements of each of the offences pursuant to s 76 of the Crimes Act 1900 (Counts 1-3, 5, 7-21, 23, 29-34, and 37) are as follows:

Assault by accused upon complainant,

The complainant being a female then under the age of 16,

Accompanied by an act of indecency before, after or at the time of the assault.

The elements of each of the offences pursuant to s 67 of the Crimes Act 1900 (Counts 4 and 22) are as follows:

Sexual intercourse with a girl,

Under the age of 10.

“Carnal knowledge” shall, in every case under this Act, be deemed complete upon proof of penetration only.

The common law meaning of sexual intercourse was penetration of the male organ into the female genitalia and the degree of penetration required is “very small indeed” and does not require proof that the hymen was ruptured or that emission could or did take place.

The elements of each of the offences pursuant to s 66EA(1) of the Crimes Act 1900 (Counts 6 and 28) are as follows:

That the accused being an adult,

Maintained an unlawful sexual relationship with the complainant

Who was a child.

An adult is a person of or above the age of 18 and a child is a person under the age of 16.

“A relationship” is a way of describing the nature of the connection between two or more people. Here, it is whether there was a relationship between the accused and the complainant, in each case.

In determining whether the relationship was an unlawful sexual relationship, the Court must also be satisfied beyond reasonable doubt that the accused committed two or more unlawful sexual acts with or toward the complainant during the period identified in the Indictment. S 66EA(4) and (5) should be noted.

“Maintained” has its ordinary everyday meaning. That is, carried on, kept up or continued.

The elements of each of the offences pursuant to s 81 of the Crimes Act 1900 (Counts 24, 25 and 26) are as follows:

An act of indecency upon a male person by the accused;

Irrespective of whether such act was consented to by such male person.

The elements of the offence pursuant to s 81A of the Crimes Act 1900 (Count 27) are as follows:

The male accused committed or participated in an act of indecency

With another male person.

The elements of each of the offences pursuant to s 71 of the Crimes Act 1900 (Counts 35 and 36) are as follows:

Sexual intercourse with a girl;

Under the age of sixteen years but above the age of ten years.

The Crown bears the onus of proving each charge beyond reasonable doubt. That involved proving each of the elements listed above, beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of each of the charges beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.
Whether the Crown has established the elements of each of the alternative counts in Counts 7-19, and Counts 29-37, arises only in the event that I am not satisfied that the Crown has established each of the elements of the charges in Counts 6 and 28 respectively.

The evidence

Exhibit A is a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995.
It sets out the date of birth of the accused and that of each of the six complainants, together with a Schedule that shows the age of the accused and each of the six complainants at various dates.

Evidence of CW

CW is the complainant in Counts 1 to 5 on the Indictment. CW gave evidence that she was the youngest of the W family who lived on a dairy farm which bordered the BPS. She commenced going to the school in the third term of 1965 when she turned five, and continued at the school until it closed at the end of 1967 or the first term in 1968. She identified the school and surrounding landmarks by way of Google maps, which became Ex B.
CW gave evidence that her first memory of the accused was when he arrived at her home in summertime, before the school term started. He boarded with her family and drove a white Ford Cortina motor vehicle. She gave evidence that the accused was passionate about radios, that he had walkie talkie radios and was interested in shortwave radio.
A photo of CW at age five or six was tendered as Ex C. She also drew a sketch plan of the school, which became Ex D.
CW gave evidence that the first time something happened between herself and the accused happened during school hours when they went to the boys’ toilets. She gave the following evidence:

“Q. All right. Firstly, how did you come to go to the boys toilet?
A. I - Mr O'Toole asked for somebody to help clean the toilets or clean up in the playground. He selected me, and so I followed him. We didn't have any brooms or mops. I followed him to the men's - to the boys toilets.
Q. How far away roughly were the boys toilets from the classroom building? A. They would have been 80 to 140 metres. That sort of order.
Q. What kind of toilets were the boys toilets?
A. They were single stall toilets, but you walked through - they had a little wall around them so you forced to walk in a U-shape. You went in and around, and into the stall of the toilet. I remember outside the actual toilet stall was what I now know to be a urinal, very much like an old paint tin. The toilets were blue. When we - the toilets were - the building was painted blue. They were long drop toilets with a wooden bench across them.
Q. Doing the best you can, can you just tell us what happened on that day that you went to the boys toilets with Mr O'Toole?
A. I remember being on the toilet seat. I don't know if I was lifted or I climbed up. I can't remember that aspect. Standing on the toilet seat, Ian O'Toole pulled down my shorts and underpants. He took his penis out of the fly of his pants. He touched my vagina with his fingers. Then he rubbed his penis himself, the term I now know to be masturbated and then put his erect penis between my legs, moving in and out until a white liquid went over my thighs and legs.

This is the evidence the Crown relies on to establish Count 1 on the Indictment.

CW then gave the following evidence:

Q. When he put his penis on your legs, what part of his legs was that?
A. Part of my legs?
Q. Yes, part of‑‑
A. It was - it was between the top of my legs.
Q. You said that there was a white fluid came out?
A. Yes.
Q. Did you know what that was at the time?
A. No.
Q. Was anything said by you or Mr O'Toole at that time?
A. Mr O'Toole said, "This white liquid is called spunk." He said, "You should be happy you can make me do this." He told me it was a secret, I was very special, and I should not tell anybody.
Q. Now, is there anything else you can remember about that time in the toilets?
A. I know he was dressed in khaki.”

This is the evidence the Crown relies on in Count 2 on the Indictment.

Exhibit E was two diagrams she prepared of the inside of the school building.
CW gave evidence that the next incident occurred after the accused asked her whether she would like to stay after school to play with the radios. She gave this evidence:

“A. He then said to me, ‘Before we play with the radios I want to play a game in the storeroom.’ I followed him to the storeroom, or - sorry. We were in - my next memory, we were in the storeroom. Mr O'Toole shut the blinds that were in the storeroom. He partially closed the door between the storeroom and the classroom, and I remember the main door to the school building was closed.
Q. All right.
A. He then‑‑
Q. Yes.
A. Sorry.
Q. Go on.
A. He then said to me - no. He then took a blue mat, a blue raffia mat, and laid it on the floor. He said to me to take off my pants, and underpants and shorts, and lie down on my back on the floor.

Q. Did you do that?
A. I did that, yes. I don't‑‑
Q. What's the next thing you can remember?
A. The next thing I can remember is Ian O'Toole kneeling down over me on his knees and hands. He lowered himself onto me, and I remember feeling the touch of bare, warm skin on my lower body. He pushed my legs apart with his knees and he moved up and down on top of me.

The Crown relies on this evidence to establish Count 3 on the Indictment.

CW gave the following evidence:

“A. He then raised his weight slightly from me and moved his penis to the area of my vagina at the - at the top of my legs. He lowered his weight and moved up and down. I felt his penis on and in my vagina. I don’t know how far the penis went in but it went in.
Q. And when you say it went in, where did it go in?
A. To my vagina.
Q. Was anything being said by Mr O’Toole when this was happening?
A. Yes, while this was happening, he kept telling me how good it felt.
Q. And do you remember how you felt at that time?
A. I felt squashed, I felt pinned down. I felt uncomfortable.
Q. And what’s the next thing that you remember happening, Ms W?
A. I - I remember a white liquid over me - a term I would now use as ejaculation and then I remember him saying, “If I did this to one of the other girls, she would probably fall pregnant”. He then said to me, to get up, put my shorts back on - no, let me go back. When he said to me, “If I did this to one of the older girls, she would probably fall pregnant”, I looked over my left shoulder to where the door between the store room and the classroom was partially opened and I can remember seeing where the student JL sat during school hours. She wasn’t there then but I just remember looking in the vicinity of the seat she sat in and I again remember seeing the blue Raffia mat under me.
Q. Now, Ms W, you said that there was white liquid - where was the white liquid?
A. Around my lower body and between what I would describe as the top of my legs around my private genitalia.
Q. What’s the next thing that you can remember happening after‑‑
A. He told‑‑
Q. Yes, go on.
A. Sorry.
Q. Go on.
A. He told me to get up, put my clothes back on and go outside. I went out and waited. I thought he was going to - I remember thinking he was going to give me a lift home but he came out, locked the school room door and said to me, “I have to go in a different direction. You will have to walk home.” I remember thinking, “If I'm so special to him” which is something he again reiterated during while I was on the floor, he told me I was special to him and that was our secret …”

The Crown relies on this evidence to support Count 4 on the Indictment.

CW gave the following evidence about another incident:

“Q. Now, Ms W, do you recall any other incidents occurring with Mr O’Toole?
A. Yes. I recall another incident in the store room after school hours. This one is different to the other one because I clearly recall a red Raffia mat on the floor. In this case, I remember Ian O’Toole taking his trousers down. I remember lying on the red mat on the floor‑‑
Q. If I could just stop you. Where was the red mat? Which‑‑
A. On‑‑
Q. ‑‑whereabouts was - which room?
A. On the floor, in the storeroom.
Q. Thank you.
A. The blinds were down, the room was darkish. I remember him taking his trousers down and I remember - I was on the floor. I don’t know if I had clothes on but I remember him on top of me and I remember his erect hard penis rubbing against me.”

The Crown relies on this evidence to establish Count 5 on the Indictment.

CW was asked about other incidents as follows:

“Q. Apart from these incidents that you’ve told the Court about today, are there any other incidents that you can recall?
A. I recall one image very clear in my mind of being in the boys’ toilets and Ian O’Toole making me watch him urinate. The image is clearly of urine coming out of his penis.
Q. And apart from these specific incidents that you’ve told us about, are there any other incidents that‑‑
A. I remember other incidents at the school in the store room and in the toilets but I cannot remember enough detail to be clear about those memories to describe. I know they happened, I know in the first instance, it was a blue mat and I know there was a red mat but I'm - I cannot remember other detail clearly.
…
Q. Can you remember another incident occurring with Mr O’Toole?
A. There were two things I remember. The first one was simply at home. I remember standing in what was Ian O’Toole’s bedroom in our house and my sister was there. The door was closed. I do not remember anything happening on that incident but my brother came calling for my sister and I and Ian O’Toole opened the door and let us out. Now the‑‑
Q. Do you remember which brother?
A. I beg your pardon?
Q. Do you remember which brother?
A. My brother, BW.
Q. Thank you.
A. I remember on one morning before school, Ian O’Toole said he wanted me to go to school early with him so we could play a game. I didn’t want to go. I remember him being cranky with me. I started crying and he told me to shut up. I then ran to the kitchen where my father had just come in from - from the dairy for breakfast. My father was talking on the phone. I was crying as I ran into the kitchen. Dad leant down; the phone was on the wall. Dad leant down and he put his arm out to me. I remember him - over - he was holding the receiver in his left hand and he said to whomever he was talking to, ‘Just a minute.’ He then - he was - he'd put his arm around me, I remember that so clearly. He then, over my shoulder said to Ian O'Toole, who had followed me towards the kitchen, ‘Why is she upset? What have you done to her? Why is she crying?’ Ian O'Toole said, ‘I don't know what's wrong with her. I just offered her a lift to school. If she's late for school she will be in trouble.’ My father said he would drop me at school later and he took me to school on the tractor later in the morning. After that incident, Ian O'Toole did not refer to me anymore as CW, he started calling me names.
…
Q. Ms W, can you recall where he called you that name? Whereabouts?
A. I remember - I remember him using it both around the house, around our farm and in the school room, in the actual students' school room and in the playground.
Q. All right. And can you remember him saying anything in your presence to anyone else about that nickname, or those nicknames.
A. Yes. He would call me either "bossrathouse" or "bossrathouse, poke out tongue, blue lizard, clawya, shutup" in the classroom - beg your pardon, in the school ground and he would say to other student - student, ‘That's her name.’ At home, I recall him saying, while my siblings were present, her name is ‘bossrathouse’—“

Exhibits F, G and H were photographs taken from CW’s parents’ collection of the school.
CW gave evidence of complaint as follows:

“Q. Ms W, in the early 1990s did you tell someone about what had happened to you?
A. I told my husband that something had happened, and I told my husband in the first half of 1994.
Q. Can you remember what you said to your husband?
A. I told him I had been molested by a school teacher. I shared no intimate details with him.”

CW gave evidence that on 25 February 2017 she was fitted with a listening device and travelled to the Kurrajong Radio Museum where the accused was a volunteer. The recording of the listening device was played and became Ex J.
CW gave evidence that on 8 April 2017 she made two recorded phone calls to the accused. Those phone calls were played and the disc became Ex K.
CW gave the following evidence:

“Q. When, if ever, did you speak to your sister KW about Mr Ian O'Toole?
A. I spoke to my sister KW in either late December 2014, or early December 2015. That was the first time I had ever spoken to KW about the topic.
Q. Right. Was that conversation in person or on the telephone?
A. In person.
Q. Can you remember what, if anything, you said to your sister KW?
A. I said to KW that I had been sexually abused by a school teacher at BUP. I had - I was going to give a statement to the police, had anything happened to her?
Q. All right. Did you say anything else to your sister KW?
A. No. I beg your pardon. I asked her if it was okay to give her contact details to Detective Senior Constable Welsh.
Q. Can you tell the Court what you recall KW’s response was when you asked her that first question about - when you told her about what happened to you at BPS?
A. She said that something did happen to her, and mum had asked her the same question in about 1997.”

In cross-examination, CW gave evidence that the conversation with her sister KW took place in Scotland in late December 2014, or early January 2015.
She was asked:

“Q. Ma’am, now that that’s clear, can I ask you, are you there talking about the fact that you couldn’t tell your parents about what had happened to you at BUP at the hands of my client because it would have destroyed them, made them horribly unhappy. Agreed?
A. I am referring to the fact that once I realised that what had happened to me, which was when I reached adolesence, I couldn’t tell my parents and it would have devastated them.
Q. So you never told your parents.
A. No, never.
Q. Thank you.
A. Beg your pardon. 1997, my mother asked me had something happened to me at BPS and I said, “Yes.” I gave her Ian Mr O’Toole’s name, full stop, end of the conversation. We didn’t – she said to me, “Don’t tell your father. It will devastate him,” and then we – I never gave my mother any intimate details, I never spoke to my mother about intimate details of the happening.
Q. Ma’am, I appreciate it is of the utmost importance for you that you never told anyone about these things, or discussed any of these things with anyone. Agreed?
A. Agree.
Q. You were careful to avoid discussing any of the details or any of the substance, for example, with your sister, KW.
A. Correct.
Q. Only the fact that the topic was raised, but no substance, no talk about‑‑
A. No, no substance.”

CW was asked when she realised what had been done to her and gave the following evidence:

“A. I knew what was happening to me when it was happening in terms of, this is what he was doing to me.
Q. And you’ve talked about some significance in terms of when you realised in your adolescence, is that correct?
A. That’s correct.
Q. So when did you realise you couldn’t tell your parents about what had happened? Was that at the very beginning?
A. At the very beginning I was six.
Q. So what I’m asking is when did you realise you couldn’t tell your parents about it, when did that come upon you ma’am?
A. I don’t know.”

CW was also asked about the order in which the events occurred as follows:

“Q. Do you remember the order in which they occurred, these events of sexual misconduct?
A. I remember, yes, I do.
Q. Just in relation to the question, did things happen of a sexual nature that you’re just not able to place in some precise time and place?
A. Yes, some things did.
Q. And is that why you said in your evidence some other things happened but you can’t just remember some of the details about them?
A. That is correct, yes.
Q. And was it the case that you were telling his Honour that at one point you were in the outside toilet, as you’ve described it, near the school and you can’t remember whether or not you climbed up onto the sideboard which constituted the outside toilet or whether Mr O’Toole lifted you onto that platform?
A. I said that this morning, yes.
Q. Is it also the case that you can’t quite remember how it is that you got down from the particular platform after something bad had occurred?
A. That is correct.
Q. And were you there speaking about when you look back and you think about it, really you can’t say and with confidence how you got up and you can’t say with confidence how you got down, after all these years?
A. That is correct.
…
Q. Are you saying that some of the misconduct happened but it’s difficult to place exactly when it happened in relation to other matters of misconduct, sexual misconduct?
A. I remember the incident in the toilets was the first the incident you were just referring to.”

CW was cross-examined about evidence she had given that the accused had threatened to sue her father over damage to the engine of the accused’s car caused by petrol being contaminated by a tanning process. She gave this evidence:

“Q. Ma’am, can I raise this with you, that there was no occasion when Mr O’Toole made a fuss about anything to do with petrol or petrol to be used for this car?
A. I don't know how the drum was there, whether he asked dad to order it, or he ordered it himself. 44-gallon drums of fuel were delivered from Mville on the back of a truck.
Q. The truth is, ma’am, this is something which you have spoken about with others relating to Mr O’Toole. That’s what you're saying, because you never saw it?
A. I remember my father telling me and I remember that we were told not to turn lights on unless they were absolutely necessary. I remember making sure lights were turned off, because for some reason we went through a period of hardship.
Q. But you don’t know whether that had anything to do with Mr O’Toole, do you?
A. I remember what my father told me, yes.
Q. Ma’am, when did your father tell you that?
A. It would have been talked about at the time, and probably in – no, I beg your pardon, and in family reminiscences, I can't tell you dates, it would have been discussed when we were talking about BPS.
Q. When you say that Mr O’Toole caused financial hardship, really you are unable to say it has anything to do whatsoever with the matters that you’ve referred to concerning the hide over the fuel drum. Agreed?
A. Okay. Agree.
Q. Ma’am, so you never saw that incident, and that’s it. Agreed?
A. I never saw the incident. Agreed.”

CW was challenged as to the order in which the incidents occurred as follows:

“Q. Okay. And ma'am, in relation to the sexual assault allegations to which you have referred in your evidence, can you say which of those allegations happened after you believe the tanning incident occurred, and which before?
A. No.
Q. Ma'am, all I am saying is does that reflect in your mind the difficulty sometimes of recalling details about the events? Agree?
A. Details of the events are correct in my mind.
Q. I hear what you say. The details of when everything happened in time, in terms of the order in which they happened, that is something, do you agree, which is unclear by reason of the passage of time?
A. I remember the first incident in the toilet was the first incident. I remember that the incident in the storeroom was the second incident, but the other incidents in a time perspective, no, I do not remember their consecutive - their sequential order.
Q. Thank you, ma'am. Now, is it also the case, looking at the second incident that you've described, are you not able to say when you consider that the tanning incident occurred with the drums?
A. I don't know when that was.
Q. By that you are simply saying, in fairness to you, it may have been before the second incident, or it may have been after the second incident?
A. Correct.
Q. In relation to the first incident in time, all you are really saying is it may have been before the first incident in time, or after the first incident in time, but you're not sure?
A. Yes.”

CW was further cross-examined in relation to Count 4 on the Indictment, and gave the following evidence, after being referred to [36] and [37] of a statement she made to police:

“Q. And is it the case that in the course of this incident, which is discussed in those paragraphs, that did Mr O'Toole place his penis, to some degree, in your vagina?
A. Yes.
Q. And it's the case, as I understand your evidence, ma'am, that you don't know how far or to what extent this aspect of penetration occurred.
A. Correct. Yes.
Q. And, ma'am, in paragraph 36, you indicate in relation to this same incident that you don't remember the accused taking off his trousers or his underwear.
A. Yes.
Q. And, ma'am, can I raise this with you: that there was no penetration or penetration to any degree as you have described.
A. That is incorrect.
Q. Okay. And, ma'am, would you think back. And you thought carefully about what you thought into your statement, of course.
A. Yes.
Q. Okay. And the fact is, you have no memory at all of his taking off his trousers or his underwear, do you?
A. Correct.
Q. Okay. And that's because, ma'am, it's raised with you Mr O'Toole was never - in terms of that particular event you're describing, he didn't put his penis in your vagina.
A. I disagree.
Q. Ma'am, you've given some evidence, and is it the case, in terms of the place where this incident which is being discussed now occurred, in your evidence, it's in the storeroom?
A. Yes.
Q. Okay. And that's the storeroom which was, what, off the classroom?
A. Yes.
Q. Now, ma'am, you've described two incidents occurring in the storeroom. Agreed?
A. Correct.
Q. And would it be fair to say that the only real distinguishing feature, or the only distinguishing feature that you're able to refer to between those two events in the storeroom is that one involved a blue mat and one involved a red mat?
A. No.”

In relation to Count 5, CW gave the following evidence:

“Q. Now, ma'am, you said in your statement - can I invite you to have a look at paragraph 40, which is on page 8. Can you see there, ma'am, where it says, "I recall another time"? Do you see that there?
A. Yes.
Q. "Involving a red raffia mat."
A. Yes.
Q. Now, you say that Mr O'Toole was rubbing his body against yours.
A. Yes.
Q. And you say - now, this is another occasion, isn't it?
A. This is a separate occasion to the one referred to in the previous discussion. Yes.
Q. And you say, "I am certain that he had his trousers off on this occasion."
A. Correct.
Q. Okay. But you don't mention or refer in any way to penetration to any degree of any part of your body.
A. In this incident, no.
Q. Okay. And in the other incident that I've referred you to, concerning paragraphs 36 and 37, you have no recollection. You just don't remember the accused ever taking off his trousers or underwear. Agreed?
A. Correct.
Q. And, ma'am, can I suggest this to you. So I'm raising something with you. And when I do that, ma'am, as you've probably been told, you can agree or disagree or say whatever you wish to say. Okay? Understood?
A. Yes.
Q. All right.
A. Yes.
Q. So, ma'am, is the fact, I suggest to you, that you are not able to say or recall any event when Mr O'Toole, the accused, penetrated any part of your body with his penis.
A. I disagree.”

CW agreed that she had no memory of the accused taking off any of his clothes in the storeroom. She gave this evidence:

“Q. When you got into the storeroom, you have no memory of his taking any of his clothes off?
A. I didn’t see it happen. I have no memory of that.
Q. Ma’am, can I raise this with you: you didn’t see it happen because it didn’t happen.
A. I disagree.”

CW gave evidence that she discussed these matters with her mother in 1996, 1997, but not specific details. She gave evidence that initially, she did not say anything to her mother because she did not realise “the enormity of what happened to her”. She denied not telling her mother because she thought it would be very hard on her mother. She agreed that the first time she became aware that other people were raising a complaint was in 1996 or 1997, when her mother told her someone else had been sexually interfered with at the school.
CW was cross-examined about the closure of the school and whether it was 1967 or at the start of 1968. She was unable to say whether the sexual abuse by the accused went on for more than one school year.
CW was also cross-examined about her recollection of what the accused looked like as follows:

“Q. Did you ever describe Mr O’Toole about what he looked like in terms of your – making your police complaint?
A. I said he wore khaki clothing. That he had dark-ish hair.
Q. Ma’am, I think you said in your statement that “I vaguely remember him having dark hair”?
A. Vague, yes.
Q. Because, ma’am, I’m not being a pedant but you really have no memory at all even of what Mr O’Toole looked like? I mean, to be frank.

A. I cannot give an accurate description of Mr O’Toole, no.
Q. In fact, ma’am, as at 16 July 2016 in fairness to you, you are able to say you vaguely remember him having dark hair?
A. Yes.
Q. That’s about all you could say.
A. Yes. Of his personal description.
Q. It might have been dark-ish?
A. Sorry? Beg your pardon?
Q. I think you mentioned in your evidence, ma’am, that whether it was dark or not, it could have been dark-ish as in, you know, brown?
A. Not jet – as in, not jet black, but a dark colour.
Q. So brown hair, it could be brown hair?
A. A dark colour. Any hair that is dark colour.
Q. Any hair that is not blonde or red?
A. Yes.”

CW was cross-examined further about what her mother told her in the mid 1990’s. She became aware that another person had made a complaint and that person was aged seven at the time of the alleged sexual abuse. She first raised that the accused drove a white Cortina when giving her statement to Detective Senior Constable Welsh.
CW was asked about other teachers who stayed at her home and gave evidence that a Gary McCormack had stayed there. She was then asked:

“Q. Ma'am, isn't it the case, and you can disagree, that you did discuss certain things with your mum, for example about which teachers were at the school, what was happening in a general sense at that time concerning who stayed there - matters of that kind?
A. In the conversation I had with my mother, the only name my mother - my mother asked me who it was and I said, "Ian O'Toole". We did not discuss any other teachers.”

CW was also cross-examined about what she told her sister, KW, as follows:

“Q. Have you spoken about this matter with your big sister, KW?
A. About the matter, no. I explained yesterday that in either December 2014 or January 2015, when I was staying with her in Scotland, I asked her had something happened to her at BPS. She said yes. I ask no other questions. I do not want to know what happened to her. But I did ask, could I give her contact details to Detective Senior Constable Welsh at the Mville Police Station.”

At the time she made her police statement on 16 July 2016, CW gave evidence that she was aware that three people were making complaints against the accused, namely, LW, KW and herself.
In her statement, CW identified two matters that she had discussed with her father, including a statement that the accused had driven her brother from BUP to the bus stop for the bus trip to Mville. She conceded that she did not remember what year the accused may have started teaching at the school, and that she was uncertain if the school closed in 1967 or 1968.
CW was cross-examined about the recorded conversation at the Kurrajong Radio Museum with the accused. She agreed that the accused did not confess to her any impropriety during that conversation. She was aware of the complaint by LW prior to that conversation.
CW was also cross-examined about her evidence that the accused gave her nicknames as follows:

“Q. Ma'am, can I raise this with you, and you can agree or disagree? That the accused did not call you the names that you have described.
A. I disagree.
Q. Okay. Ma'am, can I raise with you that you've indicated the accused said to you words to the effect in the storeroom that, "If I'd done something like this to one of the older girls they might fall pregnant." Do you know what I'm referring to?
A. The incident in the storeroom where I think referred to the blue mat, which is my first memory inside the storeroom.
Q. Okay. What's raised with you is the accused didn't say that to you.
A. He did say that to me.
Q. It's raised with you that the accused didn't say those words to you at any time.
A. He did say those words to me.
Q. Ma'am, could I raise this with you: that in terms of the allegations of sexual misconduct as you have described them, these events did not take place?
A. I disagree.”

Following leave being granted to the accused to cross-examine CW on a statement she prepared in 2013 for submission to the Royal Commission into the Institutional Responses to Child Sex Abuse, CW was asked the following in respect of cleaning the school’s toilets:

“Q. Can I just raise this with you; there were no toilet seats over the hole on the long drop arrangement?
A. The toilet seat was a wide toilet seat that went across the toilet stall. There was a wooden seat, and there was room either side of the spot someone would sit.
Q. Right. That just being raised with you, ma'am, and you can agree or disagree, that there was no toilet seat to stand on if one was to stand on it, one would actually fall through into the abyss below?
A. If one was to stand in that position, yes. But I stood to the side of where the hole in the toilet seat - the toilet bench seat was. It’s not a toilet seat like in a modern day toilet.
Q. In fact, ma'am, there was really nothing to clean in there, was there?
A. That is correct, there was nothing to clean.
Q. So there'd be no brushes or anything like that?
A. No.
Q. Ma'am, can I raise this with you; that Mr O'Toole didn’t ask you on any occasion to help him clean the toilets?
A. He asked for a volunteer from the classroom, and selected a person from the classroom to help clean the toilets.”

CW was asked further about the complaints she made to her mother and husband, in which she had given evidence that she did not go into details. She was asked:

“Q. When was the first time you've mentioned the issue of this person being Ian O’Toole?
A. To my mother in that October 96 type era that we have discussed in previous examination, when she asked me - well, told me that another person had been interfered with, and asked me had anything happened to me, and I said yes. She did have a follow up question, which teacher.
Q. Which year was that, ma'am, if I could ask?
A. I have said mid to late 90’s. 1996, 97.
Q. Is that close to the time when you heard about LW having a complaint?
A. In that same discussions with my mother, my mother had told me, and I thought I answered this the other day; my mother had told me that LW had asked that - in the situation where my mother was approached, LW had said, did mum know anybody at BPS or - that had been sexually interfered with, because something had happened to her when she was about seven years of age, she had a daughter who now was seven years of age, and was very distressed at the thought that something could happen to her daughter.
Q. And did you mention Ian O’Toole then for the first time?
A. Well, that was the same conversation--
Q. Same conversation?
A. That same conversation with my mother.
Q. Where was the conversation?
A. That was in the bedroom of the first house that I lived in, in my home block on the south coast, and we have since built a new house. It was in the old house, and it was in my main bedroom. I was going to night shift, and I very clearly remember - sorry; I was going to rest before night shift and I have a very clear memory of my mother coming into the room to ask me.”

Of the first incident in the storeroom (in respect of Count 4), CW was asked:

“Q. And actually, ma’am, you have no actual memory of Mr O’Toole in the circumstances you’ve described penetrating your genitalia to any degree. Do you accept or reject that?
A. I reject that. I do remember.
Q. And, ma’am, when you gave the statement to the Royal Commission, you said, “He must have entered me as I clearly recall him saying that if he did this to one of the older girls, they would become pregnant”. Do you remember saying that?
A. That was in the Royal Commission submission.
Q. That – yes, that’s right.
A. At that stage, I did not understand the definition of sexual penetration. I thought that the penis had to be all the way in the vagina for it to be considered sexual penetration. I said in my evidence I gave you last week that I didn’t know how far he inserted his penis, but he did insert it some way.
Q. What I’m raising with you, ma’am, is just in relation to this very small point. You said, “He must have entered me as I clearly recall him saying that if he did this to one of the older girls, they would become pregnant”, and what I’m raising with you, ma’am, is that you actually have no memory of his – of Mr O’Toole penetrating to any degree, that you have inferred it because of something he said, but there’s no memory of the actual penetration.
A. Incorrect.”

CW agreed that she was aware that police enquiries were being made about the accused before she made her police statement in October 2015. She agreed that she had said in her Royal Commission statement that when she heard the accused’s voice on the Collectors Program, she was fairly sure that it was the accused from her childhood. She was asked:

“Q. Ma'am, when you think back to the 1960’s and some of the other teachers who were at the BPS.
A. Yes.
Q. Do you remember anything distinctive about their voices?
A. No.
Q. Ma'am, would it be fair to say that when you say no, that is because of the passing of more than 50 years. Agreed?
A. In the other teacher, GMc, yes I agree.”

In re-examination, CW was asked what other reasons she had for not telling her parents about the incidents, and she gave the following evidence:

“A. I was very young when the incident happened, and I didn’t understand - or incidents happened; I didn’t understand the enormity. I learned the enormity through school yard whispers, and by then I blamed myself. My mother did not talk to me about anything of a sexual nature. The only thing she talked to me about was when my periods started in the May school holidays of 1973, and she very briefly told me what to do, and when I started to wear a bra in 1972, it was sixth class at high school. They're the only two times she told me anything.
So by the time - or told me anything relative to a sexual nature. By the time I was an adolescent, and understood what happened to me, I didn’t feel I could tell my mother, and I was horrified that, you know, school yard whispers have their inaccuracies, and I thought I had brought this on myself.”

CW gave evidence that Mr M taught her for one term in 1965 when she was aged five years.

Evidence of DA

DA gave evidence that he first met CW in 1988 when they both worked for the CSIRO. In 1993 they formed a relationship, and a couple of months into that relationship CW advised him that she had been molested by a schoolteacher who had been boarding with her parents. She did not tell him the name of the teacher at that time. He gave further evidence that she never went into details about what occurred, and they subsequently married in 1994.
DA gave evidence that on a trip to Bilpin around 2010, that the teacher that molested her ran a radio museum in Kurrajong. She also told him that when he had been living with them, that her father had allowed him to build a radio tower actually on the farm where they lived.
DA was not cross-examined.

Evidence of LW

LW was born on 5 February 1959. She gave evidence that she lived with her parents and brother at BUP and attended the BPS. She was six or seven when the accused came to teach at the school, and gave the following evidence:

“Q. Can you tell us what you can remember about Mr O’Toole when he came to the school to teach?
A. He was young. He had dark hair, wore long trousers. Kids used to call him “Tooleybags” behind his back. Yeah. He’s – had very soft hands.
Q. And you said that he was young.
A. Yes.
Q. And when you say young, what do you mean by that?
A. He probably would’ve been, I don’t know, mid to late 20s, maybe.”

LW had provided a diagram of the school which became Ex M. She gave the following evidence about an incident that occurred:

“Q. Now, LW, is there something that you particularly remember occurring when you were at BPS and Mr Ian O'Toole was the teacher?
A. Yes. He ‑‑
Q. I'd just like you to - you're doing the best you can. If you can tell us what happened on that occasion. And if things were said, if you can remember either what he said and what you said, or words to that effect.
A. Okay. He used to take kids to the toilet and get them to help him ..(fault in recording equipment)..
Q. That's me. Sorry.
A. I was always wanting to go, but was never picked. But that day, he picked me and I was so excited.
Q. Do you remember how old you were, LW?
A. I would have been probably six, maybe seven.
Q. All right. And doing the best you can, just tell us what happened after you were picked.
A. Well, we went and got the buckets and brooms and things and took them over to the boys' toilet. And ‑‑
Q. Who was there? Yourself and who else?
A. Ian O'Toole.
Q. All right.
A. Yes. And we went into the toilets and he had the broom and he went and sat down on the toilet and started poking me in the vagina with the ‑‑
Q. Are you okay?
A. Poking with the broom handle in the vagina.
…
A. Then, yeah, he was poking me with the broom handle in the vagina and I sort of - it was - what the hell's going on?
Q. All right. Can you remember what you were wearing at the time?
A. A little dress and little undies. That's what I always wore, so that's what I was wearing that day.
Q. All right. And what's the next thing that you remember happening?
A. He grabbed me around the waist and pulled me over to sit on his knee. He had his pants undone and his penis was sort of there. He was trying to get me to touch his penis and pull it out of his hands, but I put my hand in a fist and just wouldn't open my hand.
Q. All right. How was he getting you to - what was Mr O'Toole doing to your body at the time he had his penis out of his pants.
A. He was trying to - he had a hold of my hand, trying to push it onto his penis.
Q. And did your hand ever touch his penis?
A. Yes, it did. With my fist.
Q. And did Mr O'Toole say anything to you at this time?
A. He's just saying that if I did it, he'd - if I pulled it out and played with it, he'd pass me in the exams we had coming up.
Q. And ‑‑
A. But I was - I was - yeah. I just was giggling and just didn't know what to do.
Q. All right. And what did you do, if anything, with your hands when this was happening?
A. Like I said, I was putting it in a fist and just wouldn't open it up.
Q. And what's the next thing that you can then remember happening?
A. I just remember his hands. They were just so smooth and just - yeah. Just that vision is in my head for as long as I can remember. He ended up giving up after a while and he got me off his lap and we stood up and we continued to clean the toilets.
Q. All right. When you were sitting on his lap, when he put you on his lap, can you remember or not how you were sitting on his lap?
A. I was sitting on his right - right leg - knee. And my legs were around - between his legs. And - yeah. My hands were sort of both in front of me when he was - yeah - when he was trying to get me to touch - touch him.
Q. All right. And which toilets was this happening in?
A. The boys' toilet.”

The Crown relies on this evidence to establish Count 20 on the Indictment.

LW gave evidence that she had rung the Education Department in roughly 1990 to see whether the accused was still teaching. She subsequently spoke to Mrs DW at her parents’ place at Tuggerawong. She was not sure when that conversation took place but said it was probably in the late 90’s. Mr and Mrs W, and Mr and Mrs Y were both visiting her parents. She gave evidence that she was first contacted by Detective Senior Constable Welsh in 2014, and that she made a statement on 14 July 2017.
In cross-examination, LW gave evidence that she first heard about allegations concerning other people in 2014 when Dectective Senior Constable Welsh got in contact with her.
LW was cross-examined on her conversation with Mrs W. She could not remember what year that occurred, but said it was closer to 1990. She gave the following evidence:

“Q. Was there some discussion about things that perhaps people had heard about Mr O’Toole?
A. Didn’t, no. Because I didn’t, when she said she hadn’t heard anything, I didn’t want to say, say anything, so, yeah. Because I, I don't know.
Q. All right. So‑‑
A. Because like I said, I thought I was the only one, so I didn’t want to make me, I guess it was‑‑
Q. That’s all right. Ma’am, did you tell Mrs W that you’d been assaulted by Mr O’Toole?
A. I can't remember, actually.
Q. It’s all right if you did and it’s all right if you didn’t.
A. No. I can’t remember whether I did or not.
Q. Can I raise with you that you did mention something bad happened to you in relation to Mr O’Toole?
A. Okay.
Q. What do you think? You tell me.
A. I may have done. I’m not sure. I can’t‑‑
Q. All right. Okay.
A. –really remember.
Q. Is it possible that you said to Mrs W, “Well, has anything bad happened to anyone you know?” Or something like that.
A. Yes. I would have said that. Yes.
…
Q. And Doreen and Bonnie, did you say words to the effect to them when you were present, “Look, has anything bad that you know about of a sexual nature happened in relation to Mr O’Toole?”
A. Yes.
Q. That was in the presence of Mrs W Senior.
A. Yes. Yes.
…
Q. Was it in the context of that discussion that you said, “Look, something, you know, bad happened to me”, but you didn’t go into too many details about it and just left it at that.
A. Yes. Yes.
Q. All right. But you did ask, you know, did they know anything like that which had happened or heard about anything like that which had happened relating to Mr O'Toole.
A. Yes.”

In relation to the incident comprised in Count 20, LW was cross-examined as follows:

“Q. Okay. And, ma'am, do you remember anything else about the day on which it happened or is that just the one thing that sticks out in my mind?
A. I was just really happy that - and excited that he actually asked me to go and help him because I thought it was a great thing that I was noticed by the teacher.
Q. Okay. And, ma'am, in terms of the account that you've given, would you agree that there was no - was it the case that he only - in terms of your account, ma'am, that you were only touched on the outside of your pants?
A. Yeah. He was running the hand all up, like, pushing on the vagina with the broom handle, with the knob of it.
Q. All right. And that was on the outside of your underpants.
A. Yes.
Q. Again, if I understand your evidence, ma'am, because of the way in which things occurred, you did not touch his penis.
A. Not with an open hand. I touched it with my fist.”

LW conceded that three years past between when Detective Senior Constable Welsh first contacted her in 2014, and when she made her statement in 2017. She gave the following evidence:

“Q. Also, Ma’am, how many other people did you believe had been, as a result of things you’d heard and so forth, been victims of Mr O’Toole?
A. I didn’t know of anybody up until 2014, when Justin told me that there may have been a couple of others.
Q. Okay. And‑‑
A. But up until then, I’d, I’d certainly had my suspicions about a couple, but I was totally wrong.
Q. Who were the other people that Justin had told you were also now in the investigation?
A. Well, mainly only CW at that stage. There’s‑‑
Q. At that stage, it was CW—
A. ..(fault in audio visual link)..CW.
Q. –and did you think anyone else?
A. And I was, I was really shocked. I, yeah. I didn’t, never even thought of her.
Q. Ma’am, when you think about it, anyone else that you understood was a victim at the time you made your statement?
A. No.”

LW was further cross-examined as follows:

“Q. Ma’am, can I raise this with you, you can agree or disagree, okay? In around '96 or '97, that's 1996 and 1997, did you contact Mrs W, maybe on the telephone?
A. No. Not on the telephone.
Q. Okay.
A. No.
Q. So, you say you spoke to her in person?
A. At my parent's place, yes, at Tuggerawong.
Q. Okay. Okay. And, did you say that something bad had happened to you of a sexual nature when you were about the same age as CW?
A. Well, CW is a year younger than me.
Q. Okay.
A. I didn't tell her, exactly, what happened. I just asked her whether she'd heard of any kids who'd had any issues. 'Cause at that stage, I didn’t even dream on, dream that would be CW and KW, so--
Q. When you asked about people who had, may have had issues, you, in your mind, in the context of that conversation, you were talking about being molested?

A. Yes.
Q. Yes. Okay.
A. No, it was more asking BY about BY, mainly.
Q. All right.
A. 'Cause, like I said, the boys went over more--
Q. Okay.
A. --than the girls, so--
Q. And what I'm raising with you then, it might be hard to remember but that you mentioned to Mrs W senior that you'd been sexually interfered with and that it happened to you about age seven?
A. No. I didn't tell her that. No.
Q. Okay. And, you didn't tell her, you didn't mention that, you did not mention that?
A. No.”

LW denied telling Mrs W that she had contacted the Department of Education and that she was seven years old when the incident occurred. She was asked as follows:

“Q. Ma'am, those two things about your being seven and contacting the department of education, did you tell anyone else that?
A. My mother.
Q. You told mum, yes. And what did you tell, did your mum, was anyone else there when you told mum?
A. No.
Q. Okay. All right. Now, ma'am, I'm just going to raise a matter and you can agree or disagree. Okay? Or say anything else you want to say. And is this the man in relation to the allegation of sexual misconduct that you have told his Honour about that, that didn't happen as you've described and that you weren't sexually interfered or assaulted as you've described?
…
WITNESS: I totally disagree with that.”

There was no re-examination.

Evidence of EH

EH gave evidence that she attended BPS. In her last year there, before she moved to Scone with her family, there was a teacher who was in his twenties who lived with Mr and Mrs W, next door to the school. She was 10 years of age when there was an incident at school. She gave the following evidence:

“A: I went to the toilet at the – in – at the school and I think I was sitting on the toilet and the teacher come in and then I was sitting on the toilet and he said, ‘show us your poppy show’. He said, ‘if you show me yours, I’ll show you mine.’”

When asked what happened next, EH said:

“A: I didn’t think it was a good thing. I don’t know why he told me that, so I run out of the toilet.”

In cross-examination, EH said she could not remember whether the incident occurred in 1965, 1966 or 1967. She thought it occurred in the mid 60’s. She could recall two teachers at the school, but all she could recall of the teacher involved in the incident was that he was a younger male.
EH gave evidence that when she made her police statement on 19 January 2018, the investigating officer told her that he was investigating a teacher from the school who had sexually interfered with or molested a few children at the school, and he indicated that he believed these things were going on when she was there as a child at the school. She made her statement after being apprised of this misconduct. She could not recall the name of the teacher and just referred to the fact that it was a young male.

Evidence of BY

BY gave evidence that, in the 1960’s, she lived at BUP with her husband and three children. She and her husband were friendly with Mr and Mrs W who were their neighbours. After they left BUP in 1973, they remained in regular contact with Mr and Mrs W.
BY gave evidence that there was an occasion when she and her husband visited their daughter on the Central Coast, when Mr and Mrs WI and Mr and Mrs W visited. On that occasion, one of the women mentioned the BPS. She gave the following evidence:

“Q: Can you remember what was said?
A: Well they said that the girls had been sexually abused, had BY ever said anything about it. Well he hadn’t.”
Q: And who was there when that was said, apart from yourself?
A: Well it was only us three women in there.
Q: Who are the other two women apart from you?
A: LW and Mrs WI.
Q: And did anyone else speak to you that day?
A: Yes, LW.
Q: And doing the best you can, can you remember what LW said to you?
A: Well, she admitted she’d been sexually abused, but other than – she didn’t go into detail and that with me, no.”

In cross-examination, Mrs Y was asked:

“Q: Did you observe LW asking anyone whether they knew anything about this sexual misconduct going on?
A: Yes, they wanted to know whether BY's son knew anyway, so, yeah, he was only in year 1 or 2, you know, and he never mentioned anything.”

Evidence of CF

CF was born on 19 December 1959 and attended the BPS from kindergarten in 1967. She gave evidence that the accused was the teacher there and she described him as follows:

“A. He had dark hair, brown eyes, dark complexion, he had a funny tooth when he smiled. He was..(not transcribable)..built, young. He used to have a smirky grin on his face at times. He wore long pants a lot, but I do remember him wearing sort of board shorts, shorts for swimming lessons, and I noticed he had very dark hairy legs.
Q. Apart from his appearance, is there anything else you can tell us about Mr O'Toole, what you knew about him when he was teaching at the school?
A. He approached students nicely. I remember I had trouble saying words, and he used to make fun of that in front of the classroom, I remember that distinctively.
Q. Did you know where he lived when he was teaching at the school?
A. He lived with my Uncle D and Aunty D and my cousins, CW, KW, BW and WW.
Q. Do you remember or not, how Mr O'Toole got to school when he was teaching at the BPS?
A. Yes I do. He drove a car.
Q. Do you remember what type of car it was?
A. It was a white Cortina.
…
Q. Do you remember anything else about Ian O’Toole when he was teaching at the school, any interests he had or anything like that?
A. I knew he used to like music, but he also had something at school like a radio that he used to speak into. Sometimes he had that. I do remember us children making like walkie talkies out of cans and string. But that’s what I can remember.”

CF gave the following evidence concerning the first time something happened between her and the accused:

“A. I was inside the classroom. It was a lunch break. There was a projector in the room which shows pictures on the back wall. He got the boys - I can't remember the boys’ names, that he got them to pull the blinds down, and there was a picture of a house on the wall. He proceeded to close the door and walked over to his desk.
Q. When you say he, who are you talking about?
A. Ian O’Toole.
Q. When you say he closed the door; which door did he close?
A. The one and only door to the classroom.
Q. After he closed the door, who was in the room?
A. Ian O’Toole and myself.
Q. Okay. So after he closed the door, can you tell us what happened?
A. He proceeded to walk over to his desk and he asked me to come over and stand beside him. And I saw the picture of this house on the wall. And he was showing me houses, I think it was my parents were moving to the city because they had their farm up for sale, and plus they were selling the house that they had at Warragamba, and I didn’t understand a lot about houses in the city being a child raised on a farm. It’s hard to comprehend that so many houses in the city. So he--
Q. Can you remember anything about the picture that was on the wall?
A. Yes; it was a red brick home with a white picket fence, and there was a box on the fence, and at that time I didn’t know what it was, and I asked him what it was, what was that thing on the white picket fence. He proceeded to tell me it was a mailbox and that all houses have those type of mailboxes. As we have on the farm, you have a big box out on the side of the road. So for me seeing that small mailbox on the white picket fence on a red brick was overwhelming for me, knowing that I was - my family were going to move to a city area.
Q. Where were you in relation to Ian O’Toole when he was explaining to you about the mailboxes?
A. Standing beside him. As he was talking to me about it, he was touching my arm, he was touching my shoulder, and he put his arms around my waist, he pulled me in towards him. He was telling me about the houses, and distinctively I felt very, very uncomfortable.
Q. What's the next thing that you remember happening?
A. He got me to sit on his lap.
…
Q. How did you feel when he got you to do that?
A. I felt very uncomfortable. I was trying to distract what was going on because I did not understand what was happening.
Q. And can you tell us what was happening at that time?
A. He – I remember he got on me on the lap and he made me straddle him like with a leg either side.
Q. Either side of what?
A. Of his – at that stage, I can remember I was still looking at the pictures on – in the back of the school floor. I felt very, very – he put his hand down between my legs to go in the area and he was rubbing that area and then he pulled my underwear to one side and after that, I felt pain. I didn’t know what it was.”

This was the evidence the Crown relied on to establish Count 21 on the Indictment.
CF then gave the following evidence:

“Q. CF, you said that you felt a pain -you felt pain. Where did you feel the pain?
A. In my vagina.
Q. Can you describe the type of pain?
A. It was a sharp burning pain. I remember it very well.
…
Q. You said that Mr O’Toole pulled your underpants aside.
…
Q. What part of his body – do you know what part of his body he used to do that, CF?
A. His penis.
Q. And when was the first time that you saw – did you see his penis?
A. No.
Q. How do you know that it was his penis?
A. Because there was all this wet stuff between my legs.
Q. And apart from the stuff being wet between your legs, did you notice anything else about the wet stuff?
A. It smelt. It was the smell as well as..(not transcribable)..
Q. Did you know what it was—
A. No.
Q. –when this happened?
A. No, I did not know what it was.”

This was the evidence relied on by the Crown to establish Count 22 on the Indictment.
In respect of the evidence she gave that the accused was rubbing an area between her legs (Count 21), CF was asked:

“Q. CF, you gave evidence yesterday that “He put his hand down between my legs to go in the area, and he was rubbing that area.” What do you mean when you say “that area”? What are you referring to?
A. I said yesterday, the vagina.”

CF was then asked about the “wet stuff” between her legs:

“Q. What’s the next thing that you remember happening at that point, after you realised that there was wet stuff between your legs?
A. I got off. I was so scared. I approached the door out of the classroom and the - I can remember. I ran to the toilet.
Q. Was anything said by you or Mr O’Toole before you left the room?
A. He basically told me, “Don’t tell anyone. This is our secret. You’re my favourite. If you tell anyone, I will find you and kill you.”

CF then gave evidence that she had left the classroom and went to the toilet, where she took off her panties and threw them in the toilet. She was then asked:

“Q. Do you remember anything else happening with Mr O'Toole, CF?
A. Yes. There was another time when I needed to go to the toilet. And he used to take the little ones to the toilet, just in case there were snakes around.
Q. When you say "he", who do you mean?
A. Ian O'Toole.
Q. Was this time - can you say whether it was before or after the other time you've told us about?
A. This was after.
Q. Where were you when you needed to go to the toilet?
A. I was in the classroom.
…
Q. Did you leave the classroom?
A. Yes, I did.
Q. Did you leave by yourself, or not?
A. I walked out the door by myself, and down the steps. And he followed, because he had to get another student to keep an eye on the other kids in the classroom while he took me up to the toilet.
Q. Which toilet did you go to?
A. Girls' toilet.
Q. Can you tell us what the girls' toilet looked like.
A. There was - there - sort of a tin type shed. There was a entrance into the toilet. We walked in. There was a - the toilet seat with the - a hassle of, like, a wooden bench thing there. It was like a - you know those old pit toilets. Because there was no flushable toilets, of course, in that area. Yep.
Q. Doing the best you can, can you tell us what happened when you got inside the toilet.
A. When I - yeah. As I walked into the toilet, he turned around. And as I went to take my panties off to use the toilet, Ian O'Toole was standing there in front of me.
Q. What's the next thing that you remember happening?
A. I remember him unzipping his - front of his pants. And there was this - this thing sticking out of his pants, and it was erect, and I leant forward and my head - I don’t know whether it accidentally hit him or I deliberately hit the end of his penis, and I wet myself and he took off.”

This was the evidence relied on by the Crown to establish Count 23 on the Indictment. She was then asked:

“Q. Apart from your head bumping his penis when you were in the toilet, can you remember if anything else happened when you were in the toilet?
A. He tried to grab my hand to touch it, and I think that’s why I - I accidentally - or I don’t know whether it was deliberate, like, all I can remember, I did what I did.
Q. When you say, “He tried to get me to touch it,” can you explain to the Court what he did or said to try and get you to touch it?
A. I can’t. I can’t. Sorry, Crown, I can’t.”

CF gave evidence that she did not tell her parents what happened “because I live with what O’Toole told me when I was six years old”. As an adult she told a friend, JFW, what happened and also told her husband, DB, when they were engaged that she was sexually abused when she was six years old by a school teacher, but never gave him names.
In cross-examination, CF was asked about the statement she made to police on 15 July 2017. She agreed that on the occasion when she was sitting on the accused’s lap, he was trying to kiss her.
CF was further cross-examined about the incident where she was sitting on the accused’s lap in the classroom watching pictures projected on the back wall of the classroom. She agreed that she was facing away from the accused. She was asked:

“Q. Can I ask how this came about in the circumstance of your facing away from him with your back to him. How did he go about the kissing on the mouth, or attempting to kiss you on the mouth?
A. He put his hand around my chin , tipping my head around. And then I was sort of like - as I was - he brought my head around, I sort of moved my body - the lower part of my body moved as well.
…
Q. Can I just ask you, ma'am - was that the first time you talked about turning around, or towards Mr O'Toole, in terms of his trying to kiss you on the mouth as you've described?
A. In my statement, I think that's what I put there - on my statement.
Q. You indicated in your statement, ma'am, that he was trying to kiss you on the mouth. But did you say whether you were facing towards him, or - that's to say, facing the projector screen - or whether you were facing towards him in terms of face‑to‑face, as it were?
A. I was looking at the picture - to screen, and he put his hand on my chin to turn my head towards him. That was before that happened - the previous part happened. I can only remember what happened. I cannot remember every single god damn detail. Only what I can remember.”

CF was asked whether she remembered which boys pulled down the blinds in the classroom and named two students. She was asked:

“Q. Did you indicate in your statement that you couldn’t remember who those boys might be that pulled the blinds down, or some other time in giving an account?
A. Can’t remember, I - like I said, there was only - I can’t remember. They were young boys, and there was only a certain amount of young boys in that school.
Q. I don’t think you’ve ever previously suggested that Master H might have been someone who pulled the blinds down.
A. No. But I am saying it now because I’m remembering bits and pieces.”

CF gave evidence that the incidents occurred in 1966 because in 1967 the school closed. She gave evidence that the accused left in 1966 and they had another teacher towards the end of the year. Her last memory of the accused was in the schoolyard when they were practising for inter-school sports. She was asked:

“Q. Ma’am, in paragraph 12 of your police statement, which is dated 15 July 2017, you spoke about the event which related to the slide projector, and you said that, “It was one day in 1966 or 1967, when I was either seven or eight years old.” Do you remember saying that in your police statement, Mrs B?
A. Roughly, yes.
Q. And you’re there indicating, do you agree, that this event as you’ve described it could have happened in 1966 or 1967?
A. I don't know. I was six year old.
Q. And is it the case that you’re able to confine or limit the time to 1966 because, put simply, you remember being six years old?
A. Could you repeat that question again, please?
Q. CF, are you able to refine or limit the time to when the projector event happened because you remember that you were six years old, and that adds up to 1966 in your mind?
A. I was six year old turning seven that year, but I remember what happened.
Q. Okay. And all am asking, ma’am, is--
A. I remember - yeah. Your Honour, I’m sorry. I remember what happened, as I stated to you before.
…
Q. And what I’m raising with you now, Mrs B, in terms of your memory what has what you’ve spoken about in terms of the slide projector event, that would you accept that that might be in 66 or 67 because of the difficulty you have in remembering seasons and surrounding events?
A. It would have been in 1966 because we had school holidays at the end of 1966, 67. The school was closed in those months, in that December or January. But I know those incidents happened in 1966.
…
Q. Ma'am, what is it which enables you to say that one of those events came first in time - that's relating to the projector - and one of the events you've described in the toilets was after that? What is it that enables you to say which one came first and which one came second?
A. I was there. I know what happened. I know what happened in the classroom. And the second event happened afterwards. I have not got a time frame of that, sir.
Q. Are you able to say how long after the first event the second event happened?
…
Q. Is there any way you can put some time between the two events?
A. It could have been weeks after. It could have been days after. I can't remember, sir.
Q. Okay. Ma'am‑‑
A. All I know it happened.”

CF was further cross-examined about the incident with the projector as follows:

“Q. You said in your statement, "Ian O'Toole reached around my leg, and put his hand between my legs, and pulled my undies to one side with his hand." You remember saying that?
A. Yes. I remember that. I remember - I was there when it happened. I remember that.
Q. You said, "I then felt a very sharp pain in my vagina area."
A. Yes.
…
Q. Ma'am, when you said in your statement, "He put his hand between my legs, and pulled my undies to one side with his hand," and you said, "I then felt a sharp pain," is it possible that the cause of that sharp pain was his hand, or his fingers?
A. No. Because - why would I be wet, soaking in semen? And it smelt.
Q. Ma'am, you didn't see his penis at that time. Is that fair?
A. I did not see his penis at that time. I wasn't looking at things like that. I wanted to see the pictures on the wall.”

CF was asked why she did not report the incident to her parents. She gave the following evidence:

A. How could I go home and tell my mum and dad about what happened, when I was threatened. He was the peer of the community in those times, a priest, a doctor were the peers of the community, as yourself. And then in those times if a child spoke up about something like that, what would the repercussions of that - and the threats that we were given. Your Honour, can I please have a break?”

CF was asked about her statement in which she said the accused unzipped his pants in both incidents. She did not see him do that when she was sitting on his lap, but saw him pull the zipper down in the toilets. It was put to her that the accused did not have zippers in relation to his trousers, but had buttons on the fly. She disagreed.
Finally, CF was asked:

“Q. Ma’am, can I raise this with you, that Mr O’Toole did not engage in sexual misconduct with you in the ways that you have described? I suppose--

Assessment of witnesses generally

My function as the tribunal of fact involves deciding what evidence I accept as proof and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of whether I accept evidence as established by a particular witnesses’ account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in the witness’ recall of events, or a witness’ inability to accurately describe what it is he or she saw or heard.
In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, equally, it is open to me to accept part of the evidence and reject other parts of that witness’ evidence. In making that assessment, I am not obliged to confine myself looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

Findings of fact

Exhibit A was a Statement of Agreed Facts pursuant to s 191of the Evidence Act 1995. It included the following:

That the accused’s dated of birth is 15 November 1945.

That WW’s date of birth is 29 August 1953.

That CW’s date of birth is 21 September 1960.

That KW’s date of birth is 2 September 1957.

That CF’s date of birth is 19 December 1959.

That LW’s date of birth is 5 February 1959.

That AA’s date of birth is 29 October 1957.

I am satisfied on the basis of documents produced by the Department of Education that the accused was appointed and commenced at BPS on 24 May 1966 and was the single teacher at that school until his transfer to Mount Parry School on 30 January 1968. I further find that BPS closed in April 1968 when pupils were transferred to Medlow Public School (see Ex X). I find that the accused commenced his appointment at PHPS on 28 January 1969, where according to the leave records, he remained as a teacher until 1977.
Whilst the accused taught at BPS, I find that he boarded with the W family, whose farm was located adjacent to the school. It was a remote farming area located some 45-50 kilometres from Mville, New South Wales. I find that whilst he was boarding with the W family, the accused drove a white Cortina motor vehicle, and had an interest in radios.
I also find as a fact that the accused boarded with the family of AA when he was employed as a teacher at PHPS from January 1969. I am unable to make any finding on the evidence before me when he commenced boarding and when he ceased boarding with the family of AA.

Assessment of witnesses in the Crown case

My assessment of the witnesses who gave evidence at trial must acknowledge that they were giving evidence about events that occurred more than 50 years ago, with the attendant impact on memory and powers of recollection that must necessarily flow from the effluxion of such a long period of time.
CW was a precise historian who made appropriate concessions in cross‑examination. I reject the contention of the accused that she was a witness advocate. Rather, she gave her evidence in a straightforward fashion and was not prone to embellishment. An example of the accuracy of her recollection was her evidence, that was challenged, that the BUP students moved to Medlow Public School after the start of the school year. This was supported by Ex X which seemed to have been overlooked by counsel.
CF was a more labile witness who gave evidence somewhat emotionally, but was steadfast in her allegations against the accused in respect of Counts 21 to 23. Her recollection that GH closed the blind in the classroom, when he was not a student at the school, was not of sufficient importance to undermine her evidence or its probative value.
My assessment of KW was that she was a reserved person who was somewhat stoical in the face of a searching cross-examination. She acknowledged a construction of recollection as to contextual matters, but was also steadfast in her adherence to the evidence she gave as to the allegations of sexual misconduct by the accused. I reject the accused’s submission that she too was a witness advocate. Rather, she was not prone to exaggeration at all, and made appropriate concessions. Her concession relating to construction of evidence of context, based on her presumptions or inference, did not undermine the cogency of her evidence relating to sexual misconduct or diminish its probative value.
WW impressed as a somewhat reticent complainant who gave his evidence in a matter of fact way. His evidence that he had no recollection of the conversations that took place during the alleged incidents of sexual misconduct had the ring of truth, as did his evidence that he would have been given instructions by the accused as to what to do when engaged in that misconduct.
LW was also a straightforward witness who gave a careful account of what she alleged occurred between herself and the accused. Her evidence of “hosing out” the toilets, in the apparent absence of pressurised water was of no great moment and did not diminish the probative value of her evidence.
The fact of AA’s acquired brain injury in 2013 had a substantial impact on her presentation as a witness. She was clearly fixated on the accused, and on her allegations of sexual misconduct against him. Whilst she had a recall of events that she alleged occurred, she could not recall the order in which they occurred, or the exact timeframe. I have therefore taken particular care in assessing her evidence in relation to Count 28 and also the alternative counts, being Counts 29 to 37.
Each of the witnesses EH and NS gave their evidence in a straightforward manner. Each did their best to give accurate evidence, particularly in cross‑examination, to assist the court.
Both DA and DB, the husbands of CW and CF respectively, gave evidence in the nature of complaint evidence as outlined above in a straightforward manner. Neither were cross-examined or challenged in their evidence. Similarly, JFW also gave evidence to the best of his recollection as to the complaints made to him by CF, notwithstanding the effluxion of time.
BY also gave very straightforward evidence about the occasion when she was present at the home of LW’s parents at Tuggerwong, when LW told her that she had been sexually abused at BPS.
I have also had regard to the recorded conversation between CW and the accused on 25 February 2017 (Ex J). On that occasion, CW asked the accused whether he remembered two specific incidents. The first she identified as taking place in the toilets. She said:

“On one occasion I had my pants down, you had your penis out, you were um, you ejaculated over me, course I can remember, over me, not us, because I remember you saying to me, ‘that’s called spunk CW, and you should be proud that I can do that to you.’ Do you remember that?”

The accused said:

“No, not at all.”

The second incident was brought up by CW as follows:

“CW: You took me into the store room of that school, and laid me down on the floor, and you were on top of me, and I remember, you know, you, I had my, the bottom parts and my shorts off, and, and undies off, and you were on top of me, I think you’d taken your pants off, no you had taken your pants off … and you were on top of me, and I remember you saying to me ‘if I did this to someone like JL, she’d fall pregnant.’ How can you not remember?
Accused: No, not at all.”

When asked how he could not remember and feel sorry for it, the accused responded:

“No. Well, I don’t, but I’d certainly feel sorry if I did. Yeah.”

In a subsequent recorded telephone conversation on 8 April 2017 (Ex K), the accused said he could not remember using nicknames towards CW or her sister KW. When CW told the accused, in relation to the sexual abuse that took place in the toilets and store room, that she needed to be able to work through, he said:

“Right. Yeah. Well, I don’t recall, but yeah, if I did something like that, that’s dreadful and I’m, I’m very sorry if, if that actually happened.”

Later, CW said:

“And you’re sorry for what you did to me, though? You’rs sorry for, for anything you did to me?
Accused: Well if, yeah, if that’s so yeah. My word I am. Because, yeah, that’s just not on.”

CW asked the accused:

“If you can’t remember, does that mean you may have done it?
Accused: I, I don’t know. I, I really don’t know. No, but I certainly can’t remember it.
CW: Are you sorry for sexually abusing me? Are you sorry for that?
Accused: Yeah, if, if I did, I’m extremely sorry, yeah. And, and I should not have done it.”

The following conversation also took place:

“CW: I know what you did to me and I know how my sister reacted.
Accused: Yeah.
CW: And that means you’ve sexually abused both of us and you can’t remember, and you still call my father, um, a wonderfully hard-working and honest man, which I know he was. I don’t need anyone to tell me that.
Accused: Yeah, he, he absolutely was. Yeah. Oh. Yeah, well, I’m just so sorry if that happened.
CW: Well it did happen.
Accused: Yeah.
Accused: Well, as I said, I’m very sorry if it, it happened. Yeah.”

Later, the accused said:

“Yes, if that’s what happened, I’m incredibly sorry. Incredibly sorry. Yeah.”

The accused was interviewed by the Officer in Charge on 27 July 2017 and his ERISP interview became Ex R. The Officer in Charge informed the accused that he was investigating historical child sex offences that occurred in around 1966 and 1967 at BPS. When informed of those allegations, the accused told police that no sexual intercourse had taken place. When asked whether any conduct involved touching occurred, he was asked:

Q50: Do you remember what you replied in relation to that?
A: I just said, there was no sexual intercourse.
Q52: Do you remember saying, when I, when I asked you that question, are you saying there was only touching. Do you remember saying ‘yes, it was only touching’.
A: No.
Q53: Don’t remember saying that?
A: No.”

The accused was reminded that he had a right of silence and that he did not have to say anything to the police. He acknowledged that. He agreed that in 1966 when he came out of National Service, he commenced at BPS in the second term of a four term year. He told police that he stayed with W family, and stayed in a bedroom on the verandah of their house. He told police that he wanted to hear a general outline of the allegations. When police put allegations of sexual misconduct towards CW to him, the accused said he had no comment. When asked whether he was saying that things happened in a different way, he said:

“Um, well, some of the things in there, are uh, ah, just didn’t happen.”
Q: Do you wish to say what didn’t happen?
A: No.”

The accused told police that when he spoke to CW on 25 February at the radio museum, he could not recall any of these things happening. He was then asked:

“Q: If someone accuses you of something, doing something that serious, why, why wouldn’t you deny it, if, if it didn’t happen? You understand these are very serious offences?
A: Yeah. Uh, well, I just, just don’t recall it.”

The accused went on to tell police that he had not seen CW for 50 years and he thought the easiest thing was to just let her go and say all of those things because he did not know what he was dealing with.
When the Officer in Charge told the accused what the nature of the allegations KW was making against him, he described them as “pure fiction”. He told police that he had never been to the shop at Taylors Arm and the allegation as to what occurred in the classroom was “fiction”.
When the allegations of KW as to what occurred in his bedroom at the home were put to him, the accused said, “I don’t recall that at all.” Similarly, in relation to the allegation as to what occurred when swimming in the river, he said he had “no recall”.
When the Officer in Charge put the allegation made by LW of sexual misconduct that took place in the toilet when she was about seven, the accused did not respond.
When the allegations of CF were put to the accused, of sexual misconduct in the classroom, in relation to Count 22 on the Indictment, the accused responded:

“I must have been very good at creative, wri, teaching creative writing, because, it’s just, there’s good creative writing in there.”

When the Officer in Charge put the allegation made by CF that he threatened that if she told anyone he would make her repeat a year at school, and was there anything he wished to say in relation to it, the accused answered, “No, no comment really, but that’s just a fabrication.”
The Officer in Charge further asked:

“Are you saying that there was no touching or masturbation, or anything like that as well?
Accused: Mmm, just no comment.”

When asked by police:

“What’s your definition of can’t recall? Is it meaning, it’s not in memory, it may have happened but it’s not in your memory?
A: Memory, yeah.
Q: Okay, um, so there’s some things that the detective said that, um, may have been true but not to that detail?
A: Mm, yes.”

I am satisfied that the accused has experienced significant forensic disadvantage in being confronted with allegations of criminal offending more than 50 years after the events were said to have occurred. I have taken into account that disadvantage as outlined in the directions above, which include the following considerations:

The delay has meant that the accused has lost the opportunity of making enquiries and exploring the alleged circumstances close to the time of the alleged offences, which may have uncovered additional evidence, throwing doubt on the allegations made against him;

Had the trial taken place closer to 1970, the complainants might have had better recall of the incidents of sexual misconduct and the context in which they took place;

The effluxion of 50 years or more meant that some witnesses had no recall of some of the context in which the alleged incidents took place;

The records from the Department of Education were incomplete, including the personnel file of the accused, and the admission records relating to PHPS;

A number of potential witnesses had died, including Mr and Mrs W and JL.

Determination

Having regard to the whole of the evidence outlined above, and being mindful of the directions of law that I have given myself, and the effluxion of more than 50 years between the alleged incidents of sexual misconduct and the trial of the accused, I am satisfied that each of the elements of the offences in Counts 1, 2, 3 and 5, being offences pursuant to s 76 of the Crimes Act 1900, have been established beyond reasonable doubt and that on each occasion between 23 May 1966 and 31 December 1967, the accused assaulted CW and at the time of that assault, committed an act of indecency. I am satisfied that she told her husband DA in 1994 that she had been molested by a school teacher, but did not go into details as to what occurred. It is not uncommon for a victim of sexual misconduct to not report or complain of that sexual conduct for lengthy periods of time, until such time that they disclose it, often to a loved one or partner. In the case of CW, I accept the evidence of complaint, which was corroborated by the evidence given by her husband, as supporting her reliability of her evidence as to the allegations of sexual misconduct.
I am further satisfied that the elements of the offence of Count 4, the offence of carnal knowledge pursuant to s 67 of the Crimes Act 1900 have been established beyond reasonable doubt and that penile-vaginal penetration took place at that time.
Having considered the evidence in relation to each of the allegations brought by CW, and having found each offence proved beyond reasonable doubt, I find that the accused has the following tendencies:

To have a sexual interest in young, school age children who are between six and 13 years old, and

To act on this sexual interest between May 1966 and January 1971 by engaging in sexual acts and indecent acts with young school age children who he knew as pupils or as children of families in whose homes he boarded and in circumstances where he used his authority and standing as a teacher or boarder to create opportunities or exploit his circumstances to engage in such acts with those children. Having found those acts proved beyond reasonable doubt, I find that I may use the fact that the accused had those tendencies in respect of each of the other complainants.

Before turning to the other allegations and counts on the Indictment, I wish to make it clear that I find that the accused made no admissions to CW, either in her recorded conversation on 25 February 2017, or in the recorded telephone conversation on 8 April 2017 of sexual misconduct. Nor did the accused make any admission to the allegations brought by CW in his ERISP interview where he specifically denied sexual intercourse taking place, and said on a number of occasions that he did not recall the events or incidents alleged. Further, to the extent that it could be inferred that he accepted unlawful touching of CW, that was recanted during his ERISP interview. Further, he denied other allegations as they were described to him by the investigating police. I therefore proceed to consider the balance of counts on the Indictment, having put the responses of the accused to one side, and considering the totality of the evidence in the Crown case.
In considering the evidence in relation to Count 6 on the Indictment, I must have regard to the whole of the evidence regarding sexual misconduct directed to KW. Notwithstanding that she had spoken to her mother in 2000 and become aware that another student was making an allegation of sexual misconduct against the accused, I find that KW did not discuss the subject of sexual misconduct by the accused with CW until the occasion when CW visited her in Scotland between December 2014 and January 2015. I further find on that occasion CW told KW no details of the sexual misconduct she was alleging against the accused, nor did KW disclose to CW any detail of what had occurred to her. Notwithstanding that it took another two years until July 2016 for CW to make her statement, for reasons of her own ill health, and KW did not make her statement until January 2018. I find that there was no collusion in that process, namely, the making of their statements and the bringing of their evidence before the court, even to the extent of “working together” as advocated by the accused.
Notwithstanding their allegations had common links as found in my judgment on tendency evidence, the individual allegations brought by each complainant were exactly that, namely, individual and idiosyncratic as to their own circumstances. Nor do I find that any other complainant colluded with any complainant in the manner advocated for by the accused. The mere fact that a complainant knew that one or more other complainants were assisting police by making statements, reflects the reality of police investigation into such matters, and does not colour the evidence that otherwise honest witnesses gave to diminish its probative value, if accepted.
I find beyond reasonable doubt that the accused did maintain an unlawful sexual relationship with KW who was then under the age of 16 years, in which the accused engaged in two or more unlawful sexual acts. Those acts included masturbating the accused (Counts 7 and 9), the accused putting his penis between her legs and moving it back and forth in the area of her vagina (Count 8), having KW perform fellatio on him (Count 10), placing his hand on her vagina whilst swimming (Count 16). I am satisfied that each of those counts have been proved beyond reasonable doubt.

I am satisfied that the unlawful sexual relationship the accused had with KW was maintained over a substantial period of time whilst he boarded with the W family and taught at the BPS. There is therefore no need for me to consider separately the alternative counts in Counts 7 to 19.
Having found Count 6 established beyond reasonable doubt, it supports the tendency set out in [3] and [7] of the Crown’s Tendency Evidence Notice, and I therefore take that into account in considering the counts against the other complainants.
With respect to Count 20, I accept the evidence given by LW in respect of the incident that occurred in the boys’ toilets. I am satisfied that the elements of the offence of assault and commit act of indecency, pursuant to s 76 of the Crimes Act 1900 are established beyond reasonable doubt.
In respect of Count 21, I accept the evidence of CF and I am satisfied that the elements of the offence of assault female and commit act of indecency, pursuant to s 76 of the Crimes Act 1900, are established beyond reasonable doubt. I am satisfied that on that occasion that the accused placed his hand up CF’s dress, inside her underwear, and rubbed her on the vagina.
In respect of Count 22, notwithstanding the evidence of CF that she felt a sharp pain in her vagina as she sat on the accused’s lap, looking at photos projected on the wall, when the accused had unzipped his pants and pulled her underwear to one side, and notwithstanding that following the incident she smelled a strong smell and her underwear was wet, I find that there is a reasonable doubt in respect of whether the elements of an offence pursuant to s 67 of the Crimes Act 1900 of carnal knowledge was made out. I am satisfied, however, that an alternative statutory count is available pursuant to s 76 of the Crimes Act 1900, and the elements of that offence would be made out based on the inference to be derived from the evidence that the accused ejaculated into her underwear in the vicinity of her vagina. I therefore find that Count 22 is not made out, but the alternative statutory count pursuant to s 76 of the Crimes Act 1900 is established beyond reasonable doubt on the evidence.
In respect of Count 23, I accept CF’s evidence in relation to that the incident that took place in the girls’ toilet, when the accused took her hand to move it onto his penis and came into contact with her head. The offence of assault and commit an act of indecency is made out pursuant to s 76 of the Crimes Act 1900, and I am satisfied that each of the elements of that offence is proved beyond reasonable doubt.
In respects of Counts 24 to 27, I accept that WW was a witness of truth. He gave his evidence with a flat affect and in a straightforward fashion. The fact that he could not recall the actual conversations that occurred in respect of each offence did not diminish the probative value of his evidence. As outlined above, I find that he did not collude with CW or KW in providing his statement to the investigating police. No inference could be drawn rationally that he did so, on the basis only that that statement was provided two weeks after he was told that both sisters were providing statements. His evidence was reliable, and his credit was not impugned in cross-examination where he made appropriate concessions. I am satisfied that in respect of Counts 24, 25 and 26, the elements of the offence in each count, pursuant to s 81 of the Crimes Act 1900, have been established beyond reasonable doubt. In respect of Count 27, I am satisfied that the elements of the offence pursuant to s 81A of the Crimes Act 1900 have been established beyond reasonable doubt.
I now turn to the allegations brought against the accused by AA, and the offences in Counts 28 to 37 of the Indictment. AA suffered an acquired brain injury in 2013. She had made a complaint to the Royal Commission into Institutional Response to Child Sexual Abuse, which led to a police investigation in Sydney. Her first statement was taken by Detective Senior Constable Bartlett on 28 March 2018. In it, she alleged that the accused moved into her family home and lived there in 1968 and 1969 when she was in fifth and sixth grade at PHPS. She told police that she could not remember the exact months within that two year period when she was sexually and indecently assaulted, but that the accused stopped sexually and indecently assaulting her once she got her period, which was when she started high school in 1970. She had told police of two incidents that occurred whilst she was at school, one in the playground and one in a classroom (Counts 29 and 30 on the Indictment). She told police further that there were continuous sexual assaults in his bedroom at home throughout 1968 and 1969. She also told police of three incidents that occurred during that period of time in his bedroom, which involved digital penetration of her vagina and ejaculation onto her abdomen.
AA was cross-examined about the content of her statement in which she said that the accused “never penetrated my vagina with his penis, even though he would try many times through my underpants.” In cross‑examination, AA conceded that one week after her first statement, on 6 April 2018, she made a further statement to the police. In that statement she said:

“Since making this statement to Detective Bartlett I’ve had continual flashbacks of what the accused did to me as a child.”

AA was extensively cross-examined about that statement, the fact of her evidence being based on flashbacks and her concession that her evidence was based primarily on her dreams of what the accused did to her.
AA in her evidence was prone to overstatement. The Crown conceded that she was clearly fixated on what she alleged the accused did to her and the effect of the sexual misconduct on her. This led to her generally embellishing her evidence and on numerous occasions giving evidence that was unresponsive to what she was being asked.
I have to take into account that the evidence established that the accused commenced teaching at PHPS in January 1969. I also take into account that the complainant AA was unable to place the incidents of sexual misconduct in a chronological or temporal order, other than stating that the incidents at school came first, and the last incidents, of which she gave no evidence, occurred in the accused’s bedroom at her home. Further, there was a mixing and transposing of incidents and the context in which they occurred by comparison to the Crown opening of its case at trial, thereby giving rise to some doubt about her evidence.
The introduction of s 66EA of the Crimes Act 1900 in 1999, was a tool to assist the prosecution in cases of abuse where many largely indistinguishable incidents of abuse made it difficult for victims to recall specific occasions with sufficient particularity for individual charges. The introduction of the new s 66EA, the offence of maintain unlawful sexual relationship with a child under 16, now requires the establishment of two or more unlawful sexual acts with a child, but does not require the prosecution to specify the particulars of the unlawful sexual acts with the same degree of detail as would be required if they were charged as separate offences. However, the way in which the evidence was adduced here means that there is latent ambiguity in the identification of the incidents of sexual misconduct, as referred to by the majority in the High Court in S v The Queen, supra. Further, little or no evidence was adduced as to the matters particularised in Count 28 above as 2, 3, 4, 5, 8, 9 and 10 on the Indictment.
Notwithstanding AA’s evidence that she did what the accused asked her to do in the episodes of misconduct because he was a teacher at her school, and therefore a “Sir”, and someone to be obeyed, and that she thought she loved him in the absence of a male figure in her life following her father’s tragic death in 1967, I am not satisfied that in the period specified in Count 28, namely, between 1 January 1968 and 29 October 1970, the accused maintained an unlawful sexual relationship with her. There is a reasonable possibility, having regard to the totality of the evidence, that he did not do so, which has not been negatived by the Crown, and I therefore find that there is a reasonable doubt in respect of Count 28 and the offence pursuant to s 66EA(1) of the Crimes Act 1900. There will be a verdict of not guilty on that count.
In respect of Counts 29 to 33, being alleged offences pursuant to s 76 of the Crimes Act 1900, having regard to the whole of the evidence, I am not satisfied beyond reasonable doubt that any of those offences are established. In respect of Counts 29 and 30, the incidents in the playground and classroom at school, there is a reasonable possibility that neither occurred in the way or at the time recounted by AA. In respect of Counts 31, 32 and 33, given that AA gave conflicting evidence as to the circumstances in each allegation, and transposed two of the alleged offences, I am again not satisfied beyond reasonable doubt, given a reasonable possibility that the offending did not occur in the way AA described each of those offences. There will therefore be verdicts of not guilty in respect of Counts 29 to 33.
I am mindful of the Markuleski direction that I have given myself, namely, that I am entitled to bring in verdicts of guilty on some counts, and not guilty on some other counts if there is a logical reason for that outcome. However, if I find the accused not guilty on any count, particularly if I had doubts about the honesty or reliability of a complainant’s evidence, I have to consider how that conclusion affects my consideration of the remaining counts. I have therefore given close consideration to the evidence given by AA in respect of Counts 34, 35 and 36.
I find that Counts 34, 35 and 36 fall into a different category. AA gave consistent evidence as to the events that occurred in the garage on a Saturday at her home. I am satisfied that the elements of the offence in Count 34, the offence pursuant to s 76 of the Crimes Act 1900 are made out and that the accused did assault AA, and at the time of the assault committed an act of indecency on her when he bent her over the bench and pushed one hand around her anus.
I am further satisfied beyond reasonable doubt of the offence in Count 35, the offence of carnal knowledge pursuant to s 71 of the Crimes Act 1900, has been made out and each of the elements of the offence have been proved beyond reasonable doubt on this occasion when the accused penetrated AA’s vagina with his penis.
I am also satisfied that the elements of the offence in Count 36 of carnal knowledge, pursuant to s 71 of the Crimes Act 1900, were established beyond reasonable doubt in that I accept that the evidence of AA that she was then made to lie on the floor of the garage and penile-vaginal penetration took place.
I wish to make it clear that in finding the offences in Counts 34, 35 and 36 established, those three offences arose out of one course of sexual misconduct which took place consecutively on the same day. My findings in relation to those three counts on the Indictment do not affect my earlier finding in relation to Count 28, that the Crown failed to establish that the accused maintained an unlawful sexual relationship with AA during the period specified.
Finally, I am not satisfied that the offence in Count 37 is established, and the Crown conceded that there was no evidence offered by AA in relation to that offence.
I therefore find, having regard to the whole of the evidence, and taking into account the various directions of law which I am required to do, the following verdicts:

Count 1 – Offence of assault a female CW, a female then under the age of 16, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 2 – Offence of assault a female CW, a female then under the age of 16, and at the time of the assault, commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 3 – Offence of assault a female CW, a female then under the age of 16,and at the time of the assault, commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 4 – Offence of carnally know CW, a girl then under the age of 10 years, namely, the age of 6 or 7 years, an offence pursuant to s 67 of the Crimes Act 1900 – Guilty

Count 5 – Offence of assault a female CW, a female then under the age of 16, and at the time of the assault committed an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 6 – Offence of maintain unlawful sexual relationship with KW, then a child under the age of 16 years, namely, 8, 9 or 10 years of age, pursuant to s 66EA(1) of the Crimes Act 1900 – Guilty

Count 20 – Offence of assault a female LW, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 21 – Offence of assault a female CF, a female then under the age of 16 years, and at the time of the assault committed an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 22 – Offence of carnally know CF, a girl then under the age of 10 years, namely, the age of 7 or 8 years, pursuant to s 67 of the Crimes Act 1900 – Not Guilty, but Guilty of the alternative statutory count of assault a female CF, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900.

Count 23 – Offence of assault a female CF, a female then under the age of 16 years, and at the time of assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 24 – Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 – Guilty

Count 25 – Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 – Guilty

Count 26 – Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 – Guilty

Count 27 – Offence of procure the commission of an act of indecency with WW, a male person, pursuant to s 81A of the Crimes Act 1900 – Guilty

Count 28 – Maintain unlawful sexual relationship with AA, a child then under the age of 16 years, pursuant to s 66EA(1) of the Crimes Act 1900 – Not Guilty

Count 29 – Assault a female AA, then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Count 30 – Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Count 31 – Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Count 32 – Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Count 33 – Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Count 34 – Offence of assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Guilty

Count 35 – Offence of carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900 – Guilty

Count 36 – Offence of carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900 – Guilty

Count 37 – Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 – Not Guilty

Orders

I make the following orders:

Ian Wayne O’Toole, you are convicted of the offences in Counts 1, 2, 3, 4, 5, 6, 20, 21, the alternative statutory count to Count 22, pursuant to s 76 of the Crimes Act 1900, Counts 23, 24, 25, 26, 27, 34, 35 and 36 on the Indictment.

Amendments

13 August 2020 - Suppression on accused name lifted

Paragraphs 20, 52, 54, 55, 62, 63, 70, 75, 77, 79 84 and 107 names have been anonymised.

13 August 2020 - Suppression order on accused's name lifted

Paragraphs 57, 108, 123, 134, 158, 163, 210, 212, 221 names anonymised.

17 August 2020 - Paragraphs 32, 42, 44, 92, 106 and 367 - names of places anonymised.

17 August 2020 - Paragraphs 50, 71, 362 - names anonymised

Decision last updated: 17 August 2020

Medium Neutral Citation:	R v Ian Wayne O’Toole [2020] NSWDC 431
Hearing dates:	16 June 2020 – 9 July 2020
Decision date:	17 July 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Multiple verdicts of guilty. For orders see [428]
Catchwords:	Historical child sex offending; tendency evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Government Information Access Act 2009
Cases Cited:	Browne v Dunn (1893) 6 R 67 (HL) Jackson v R [2020] NSWCCA 5 R v Bauer [2018] HCA 40 R v Markuleski (2001) 52 NSWLR 82 S v The Queen (1989) 168 CLR 266
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) IO (Offender)
Representation:	Counsel: Ms J Smith (Crown) Mr R Webb (Accused) Solicitors: R Endacott (Crown) R Storie (Accused)
File Number(s):	17/229023
Publication restriction:	Pursuant to s 8 of the Court Suppression and Non‑Publication Orders Act 2010, non-publication of all complainants names, or information tending to reveal their identity, including the place of any alleged offence, until further order.