R v Michael Lunn

[2025] NSWDC 145

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Michael Lunn [2025] NSWDC 145

Hearing dates:

10, 11, 12, 13, 14, 18, 19, 20, 21, 24, 25, 26 and 31 March 2025;
1 April 2025.

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Criminal

Before:

McGuire SC DCJ

Decision:

Multiple verdicts of guilty. For verdicts see [235].

Catchwords:

Crime – Judge alone – historical child sex offending – tendency evidence.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sexual Assault) Amendment Act 1981 (NSW)

Criminal Legislation (Amendment) Act 1992 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 17

Fleming v The Queen (1998) 197 CLR 250

Harkin v R (1989) 38 A Crim R 296

R v Manson (NSWCCA, 17 February 1993, unreported)

R v MJR (2002) 54 NSWLR 368

Category:

Principal judgment

Parties:

Rex (Crown)
Michael Lunn (Accused)

Representation:

Counsel:
Crown: Ms S Gul (Office of the Director of Public Prosecutions (NSW))
Accused: Mr P de Dassel
Solicitors:
Crown: Office of the Director of Public Prosecutions (NSW)
Accused: Richard Cummins Solicitors

File Number(s):

2022/00227027

Publication restriction:

There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainants referred to as JL, DBR, ND, CM, JB, AI, MM and LH or of the tendency witness referred to as JI.

JUDGMENT

Introduction

1. The accused, Michael Lunn (also known as Tony Lunn), is charged with 15 counts of child sex offences alleged to have been committed against eight complainants. The accused, a former teacher, is alleged to have committed the offences against the complainants whilst they were students in his class at the Vaucluse Public School in 1982, 1983 and 1984.

2. On 10 March 2025 I ordered that the matter proceed by way of a judge alone trial pursuant to s 132(2) of the Criminal Procedure Act 1986. That order was made on the application by the accused and with the consent of the Crown.

3. On 10 March 2025 the accused pleaded not guilty the following 15 counts on the indictment.

Count 1:	Between 1 January 1982 and 31 December 1982, at Vaucluse in the State of New South Wales, did assault JL, a male person and commit an act of indecency on him; an offence contrary to s 81 of the Crimes Act.
Count 2:	Between 1 January 1982 and 31 December 1982, at Vaucluse in the State of New South Wales, did assault DBR, a male person and commit an act of indecency on him; an offence contrary to s 81 of the Crimes Act.
Counts 3, 4 & 5:	Three counts that between 1 January 1982 and 31 December 1982, at Vaucluse in the State of New South Wales, did assault ND, a male person and commit an act of indecency on him; offences contrary to s 81 of the Crimes Act.
Counts 6, 8 & 9:	Three counts that between 1 January 1982 and 31 December 1982, at Vaucluse in the State of New South Wales, did have sexual intercourse with CM without her consent, knowing that CM was not consenting and she was then a person under the age of 16 years, namely 6 to 7 years; offences contrary to s 61D(1) of the Crimes Act.
Count 7:	(In the alternative to Count 6) Between 1 January 1982 and 31 December 1982, at Vaucluse in the State of New South Wales, did assault CM and at the time of the assault committed an act of indecency on her; an offence contrary to s 61E(1) of the Crimes Act.
Counts 10 & 12:	(Count 12 being in the alternative to Count 11) Two counts that between 1 January 1983 and 31 December 1983, at Vaucluse in the State of New South Wales, did assault JB, a male person and commit an act of indecency on him; offences contrary to s 81 of the Crimes Act.
Count 11:	Between 1 January 1983 and 31 December 1983, at Vaucluse in the State of New South Wales, did have sexual intercourse with JB without his consent, knowing that JB was not consenting and he was then a person under the age of 16 years, namely 6 years; an offence contrary to s 61D(1) of the Crimes Act.
Count 13:	Between 1 January 1983 and 31 December 1983, at Vaucluse in the State of New South Wales, did assault AI and at the time of the assault committed an act of indecency on her and she was then a person under the age of 16 years, namely 5 to 6 years; an offence contrary to s 61E(1) of the Crimes Act.
Count 14:	Between 1 January 1984 and 31 December 1984, at Vaucluse in the State of New South Wales, did assault MM and at the time of the assault committed an act of indecency on him and he was then a person under the age of 16 years, namely 6 to 7 years; an offence contrary to s 61E(1) of the Crimes Act.
Count 15:	Between 1 January 1984 and 31 December 1984, at Vaucluse in the State of New South Wales, did assault LH and at the time of the assault committed an act of indecency on her and she was then a person under the age of 16 years, namely 5 to 6 years; an offence contrary to s 61E(1) of the Crimes Act.

Directions of law

4. The legal directions which I have given myself are attached to this judgment and marked Annexure A, and also marked MFI 36 in the trial.

The evidence

5. Evidence relating to the accused’s background, the Vaucluse Infants School and the history of previous proceedings was either agreed or uncontroversial and can be referred to in short terms as follows.

6. The accused commenced employment with the Department of Education as a teacher at the Vaucluse Public School in 1979 and continued to work as a teacher at that school until 1985.

7. The Vaucluse Public School included an area of the campus for the infants school, being kindergarten to Year 2, and a separate area for the primary school, being Years 3 to 6.

8. During the years 1982, 1983 and 1984 the accused taught from a classroom in the infants school. That classroom was one of two separated by a common wall contained in a stand-alone timber building on raised pillars. The building was accessed from a single flight of stairs to a verandah, from which two separate doors led into the classrooms.

9. Evidence from a number of witnesses which was broadly in similar terms described the layout of the classroom in which the accused taught as having a blackboard at one or both ends, child sized tables and chairs in the middle of the room and an adult sized desk and chair, behind which the accused sat at times, at the front or side of the room. A number of witnesses confirmed that the furniture inside the classroom was moved into different positions from time to time. Each side of the classroom had windows, one set faced the verandah and the other set faced the play area which separated the infants school and the primary school.

10. Show and tell and story time were regular features in the accused’s classes, during which the children would on occasion sit on the carpeted floor of the classroom facing the student who was presenting or reading at the front of the class. The position the accused would take during show and tell and story time was the subject of some contest in the trial. The evidence from numerous witnesses was that the accused would on occasion sit in his chair behind or to the side of the student body, such that the class was facing away from him and towards the presenter. The accused in his recorded interview stated that during show and tell and story time he would often sit or stand next to the student presenting, particularly for those who needed encouragement or support.

11. Numerous witnesses gave evidence of another feature of the accused’s classes called child of the week. The evidence about that in broad terms was that students would be selected by the accused as child of the week, possibly by virtue of having a birthday that week, and would receive privileges or benefits. One of those privileges was that the selected child would be asked by the accused to sit on his lap at various times during the week.

12. There was uncontested evidence about the school uniforms. The boys’ summer uniform consisted of a blue short sleeve collared shirt and grey shorts and in winter a dark blue jumper and grey trousers. Some of the male witnesses stated that they wore shorts all year round. The girls’ summer uniform consisted of a blue and white checked dress and in winter a blue tunic worn over a skivvy and tights.

13. In 1982 the accused taught a Year 2, class 2L. In 1983 he taught a Year 1, class 1L. In 1984 he taught a Year 1 class.

14. In March 1985 he was arrested on various indecent assault charges and assault and ill-treatment charges arising from complaints made by six students relating to conduct alleged to have occurred when the accused was employed at the Vaucluse Public School as a teacher. None of those six complainants were complainants or witnesses in the trial before me. The Crown did not rely on the conduct alleged by those previous complainants as tendency evidence or in furtherance of the Crown case. Evidence about those previous proceedings was adduced as being relevant to the issue of possible contamination of the evidence of the present complainants.

15. In relation to those previous proceedings it was an agreed fact that:

1. 3 matters were discharged at committal in 1985;

2. the accused was tried in 1986 on three counts of assault with an act of indecency relating to one complainant, which resulted in directed verdicts on each count;

3. the accused was tried in March 1987 on two counts of assault with an act of indecency relating to a second complainant, which resulted in a not guilty verdict on one count and a directed verdict on the other count;

4. the accused was tried in December 1987 on two counts of assault with an act of indecency relating to a third complainant, which resulted in the jury being discharged after they were unable to reach a unanimous verdict on either of the counts; and

5. in March 1988 the Director of Public Prosecutions decided to withdraw the outstanding charges relating to the previous complainants.

Evidence of the complainant JL (relevant to Count 1)

16. JL was in the accused’s 2L class in Year 2 in 1982. JL was born in April 1975 and was 6 and 7 years old in 1982.

17. He described the accused as being a very playful teacher who made everybody laugh. He described the accused engaging in play fighting with his students and described a memory of seeing the accused walking in the distance with lots of children following him. He, somewhat prophetically, described the accused as being like the Pied Piper.

18. JL gave evidence of an incident when he was sitting on the accused’s lap in the classroom. JL describes that he wore grey school shorts throughout the year. He gave evidence that he believes he was sitting on the accused’s lap because he was the child of the week. He said at the time that the other students were sitting in front of and facing away from where he and the accused were seated and were facing towards something at the front of the classroom. He recalled that they may have been watching a television program, but could not be certain. JL gave evidence that when he was in that position, and when everyone else was looking away, the accused’s hand went underneath the elastic on the top of his shorts and fondled his penis and testicles. He was unsure whether the accused’s hand went under his underpants or fondled his genitals through his underpants. He described the contact as a squeezing motion that went on for about three or four minutes.

19. JL gave evidence that when the accused touched him in that manner he froze because he was scared, adding that no one had ever touched him like that before and he did not know what to do.

20. JL gave evidence that he did not tell anybody at the time because he was embarrassed. Later in life was informed by his mother that he had complained to her. He said he had no independent memory of telling his mother.

21. Before speaking to the police in 2021 JL had assumed that the accused had been charged and dealt with previously because he recalled an article about that in the Wentworth Courier. He did not have a clear recollection of reading the Wentworth Courier article but recalled there was general discussion about it.

22. A copy of the front page of the Wentworth Courier dated 27 March 1985 was tendered as Exhibit G, which has a small column about the accused being charged with seven counts of acts of indecency, assault, beating and ill treatment of young children. The article does not contain any details of the conduct alleged beyond describing the accused as a former schoolteacher at Vaucluse Public School and the charges “involved young children”.

23. JL said that when he received a phone call from the police he initially did not want to be involved because it was so long ago and because he thought the accused had already been dealt with. He added that he also found the retelling of the story to be quite embarrassing. He said that he later changed his mind about assisting the police because he wanted the accused to face justice and that he assumed that the police interest in the accused indicated that there may have been more complainants involved than him alone.

24. During cross-examination JL confirmed that in a statement to the police he had stated that his mother had told him that he had made a prior complaint to her about the accused touching him when he was a child but could not remember that conversation.

25. JL also confirmed that he had a memory that parents were rostered on from time to time to assist in the classroom to help children learn to read. He also accepted that he could not recall what was occurring at the front of the classroom when he was touched by the accused and accepted that it may have been show and tell in which case the child presenting would have been facing towards where he and the accused were sitting.

26. He rejected the proposition that he had assumed that he must have been assaulted by the accused because his mother had informed him of his complaint.

27. During cross-examination JL confirmed that he and JB were close friends at school and for some years after school. He denied that he told JB about the assault but recalled JB once saying “Mr Lunn, Mr Lunn!” once they had finished school. JL gave evidence that they did not discuss any detail and their contact with one another ceased some years later. Although he accepted that he had spoken to JB recently, he explained that that was about logistics including court dates and adjournments and he denied that he and JB had ever discussed the details of their complaints or their evidence with one another.

28. JL confirmed that he applied for civil compensation against the Department of Education and had received some payment as a result. He denied that he had made any application for or received any money from any application to the Victims Compensation Tribunal.

29. JL denied that he had become mixed up because he had heard rumours about Mr Lunn and the prior proceedings. He also denied that his memories and recollection had become contaminated by publicity and rumours or from discussions he had with friends or family. JL disagreed that he was motivated by seeking retribution because he believed that the accused had got away without convictions in the previous proceedings. He stated instead that his motive was that he wanted the accused to pay for what he did to him and that he wanted the accused to be held to account.

30. In re-examination JL stated that his claim for civil compensation was commenced after he first made his statements to the police.

Evidence of the complainant DBR (relevant to Count 2)

31. DBR was in the accused’s 2L class in Year 2 in 1982. DBR was born in September 1974 and was 7 and 8 years old in 1982.

32. He described the accused as being fun and liked by everyone. He recalled observing the accused walking around the playground with children walking with him, having fun and laughing.

33. DBR said that the children in the accused’s class would often sit on the carpet while a student was standing at the front of the class reading or presenting or watching a television at the front of the class. He said that it was common for one of the students to sit on the accused’s lap while watching a television or a presentation. He said that when that occurred the accused would sit with the child on his lap at the back of the class with the remainder of the students facing away from him and towards the front of the class.

34. DBR recalled that while sitting on the accused’s lap he felt the accused’s hand come up his right leg, go underneath his shorts, under his underpants and fondle his penis and testicles. He described the motion as not overly gripping or tight, but gently kneading and fondling. DBR said that when this occurred he turned and looked at the accused and recalled his facial expression as distant, happy and content.

35. DBR said that when the fondling occurred he felt a little bit ashamed and in shock. He stated that he was not sure if he had done something wrong and did not know what to make of the conduct. He described that for those reasons he did not complain to anyone.

36. He recalled that later during that year he was asked by his mother if the accused had ever touched him or done anything to him and that he responded by telling her that he had not. He said that he made that denial falsely because he felt shame and because he was unsure if he had done something wrong. He said that he knew that if he told his mother what had occurred she would be upset.

37. DBR said that the first time he told anybody about what the accused had done to him was in around 1997 when he told his wife, RH. He gave evidence that he told his wife that he had been touched by a teacher when he was in primary school. He was later motivated to go to the police after his wife had shown him a newspaper article that contained allegations against the accused.

38. DBR said that he had no knowledge of any previous prosecutions against the accused. He also denied that he had spoken to any other students about any legal proceedings relating to the accused.

39. In cross-examination DBR agreed that there were windows in the classroom and that you could look through the windows from the veranda into the classroom but added that the view was sometimes obscured by artwork and other things that were stuck on the windows or hanging from the ceiling.

40. DBR accepted in cross-examination that when a student was standing in front of the class during show and tell or story time that the student presenting or reading would be facing towards where the accused was seated.

41. When asked about the alleged assault he said that he recalled it was the accused’s right hand that went up the right leg of his school shorts. He described the conduct as lasting for at least two minutes after which he froze because he felt shock and shame.

42. DBR had no recollection of parents coming into the classroom to assist students with reading but said that other teachers occasionally came into the accused’s classroom.

43. DBR gave evidence that he had no memory of any rumours concerning the accused’s conduct and that he never had any discussions with any of his school friends or siblings about any accusations of the accused’s conduct.

44. When cross-examined about the accused marking the students’ work, DBR said that his recollection was the students would be called up by the accused one at a time to go to his desk to have their work marked, although he accepted it was possible that more than one student would go up at time and a queue might form next to the accused’s desk.

45. DBR disagreed with propositions that he denied that anything happened when asked by his mother because nothing had happened, that he had reinvented his recollections based on allegations by other children and that his memories had been contaminated by what he had heard the accused was alleged to have done by others. DBR accepted that he had heard rumours about other alleged victims but denied that he had spoken to any other complainants. He strongly disagreed with the proposition that he was motivated to bring the accused to justice over something that he was not sure had happened. He denied that he had sought any form of recognition payment through victims’ compensation and denied commencing or intending to commence any claim for compensation from the Department of Education.

Evidence of the complainant ND (relevant to Counts 3, 4 and 5)

46. ND was in the accused’s 2L class in Year 2 in 1982. ND was born in February 1975 and was 6 and 7 years old in 1982.

47. Relevant to Count 3 he described an occasion when he was sitting on the accused’s lap behind his desk when the accused put his hand up his thigh, under his shorts, under his underpants and fondled the underside of his penis. He described the accused using his thumb or thumb and forefinger in a stroking motion and said that that conduct continued for possibly a minute. He said that as the stroking was occurring the accused said to him “You have very smooth skin”. ND said that he froze at the time. He did not tell anyone at the time because he felt embarrassed and ashamed and because he had no way of processing what had occurred.

48. Relevant to Count 4 he described an incident when he attended a school camp, which he believed may have been at the Lane Cove River National Park. He recalled that the school camp was an overnight camp in 1982. Subsequent enquiries through his mother established that she had a diary entry (Exhibit K) that he attended a camp on 18 August 1982. ND recalled that the accused came into his camp dormitory room, sat on the floor with his back against the wall and called ND from his bunk to come and sit with him. ND recalled getting onto the floor and the accused covering them both with his sleeping bag. As the accused commenced reading or telling a story to the children in the dormitory ND recalled the accused pushing down his pyjama pants with his right hand. ND described that he had first pulled the pyjama pants down about 10 centimetres and ND pulled them up again. He said that the accused pulled down the waistband of his pyjama pants two or three times as he was telling the story and he described that he was passive and froze at first and that he then responded by repeatedly pulling his pyjama pants back up. He described that this conduct made him feel embarrassed and ashamed. ND did not tell anyone the time, explaining that he did not have a category for this conduct and that describing it and complaining about it was too advanced for his moral framework at the time.

49. In cross examination it was put to ND that the conduct he described did not occur and that instead what occurred was that another student in the dormitory had wet his bed and the accused sorted out the wet mattress and then slept on the floor of the dormitory. The complainant denied that that was what occurred.

50. The Crown submitted that the conduct relevant to Count 4 was indecent because of the circumstances including the repeated pulling down of a seven-year-old’s pyjama pants, in circumstances of concealment under a sleeping bag and in circumstances where there was no legitimate reason for the accused to be engaged in that conduct.

51. Relevant to Count 5 ND recalled an occasion in 1982, after it had become known that he would be moving away from the eastern suburbs and leaving the school at the end of the year, when the accused directed or invited him to come with him to the assembly room which was in a separate building at the school. He recalled that the accused had a drill with him and that he was installing some shelves or doing something similar in the room. He said that only the two of them were in the room and that the accused knelt down, turned to ND and kissed him directly on the lips. He said that at the time the accused expressed sadness or disappointment that he was leaving the school. He described the kiss as being uninvited, lasting about one or two seconds, neither very long nor very hurried and that the accused’s breath had a distinctive smell which he now believes may have been the smell of cigarettes. He described freezing and feeling scared as a result of the conduct.

52. The Crown submitted that that conduct was indecent because of the circumstances in particular that it was on the lips, it was uninvited, it was in private between an adult male and a seven year old boy and that there were no legitimate reasons for the kiss to have occurred.

53. ND gave evidence that after the conduct relevant to Count 5 he had a continuing feeling of fear that the accused would attempt to make contact with him even after the family moved from the eastern suburbs.

54. ND gave evidence that he did not stay in contact with any of his school friends after he left the school at the end of 1982. He confirmed that he had no contact with anyone from his class for the last 43 years.

55. In relation to complaint ND gave evidence that:

1. in about 1997 or 1998 he told to the former headmistress of the Infants School Barbara Thomson that the accused had interfered with him;

2. a short time later he complained during an anonymous telephone conversation with a representative of the Department of Education;

3. some during between 1998 and 2000 he told his wife KD that the accused had abused him; and

4. about 12 months later he told his parents that the accused had abused him.

56. In cross examination ND disagreed that he was aware that the accused had been the subject of previous prosecutions. He agreed that he had applied for and received compensation via the National Redress Scheme but disagreed that he had given financially motivated false evidence. He said that his main desire in making complaints to Ms Thomson and the Department of Education was to ensure that the accused was no longer teaching. ND disagreed with propositions that the conduct alleged never took place and that his evidence was contaminated because he had heard gossip about the accused. ND stated that apart from the National Redress Scheme he had not applied for any payment through the victims compensation scheme or through any civil claim.

Evidence of the complainant CM (relevant to Count 6, Count 7 in the alternative, Count 8 and Count 9)

57. CM was in the accused’s 2L class in Year 2 in 1982. She was born in late December 1974 and was 7 years old during the 1982 school year.

58. When she first started in the accused’s class CM found him to be friendly and described him as a nice, young teacher. She described him engaging in fun activities with his students including allowing children to run under a parachute whilst it billowed with air. She recalled that during show and tell the child presenting would stand at the front of the classroom, the other students would face the presenter and the accused would sit on a chair behind the class at the back of the classroom. She recalled sitting on the accused’s lap and recalled seeing other children sitting on his lap or sitting next to him.

59. CM gave context evidence of sitting on the edge of the accused’s knee and him pulling her back into his lap and recalled feeling a bulge from his groin touching the back of her bottom. She said that she tried to move away from his groin but was unable to do so because he was holding her onto his lap.

60. CM also recalled the student of the week system and recalled that there was some privilege or special treatment attached to that which she believed included receiving lollies. She gave evidence that in later years she destroyed her 1982 class photograph because she had been sexually assaulted by the accused.

61. In relation to Count 6 (and Count 7 in the alternative) she recalled that she was asked to bring her workbook up to the accused’s desk to have it marked. She went up to his desk by herself and stood next to him. She said in that position she was standing next to his chair and was behind his desk, the desk separating her and the accused on one side and the remainder of the class on the other side. CM gave evidence that the accused pulled her closer to him and rubbed her back over her dress. She recalled that she was wearing the summer uniform at the time. He then put his hand under her dress, on her bottom on the outside of her underpants and then inside her underpants from behind. She described his hand as then going forwards and rubbing her vaginal lips in a backward and forward motion, which she described as not hard and lasting for possibly 30 seconds. She described that his finger then went in between her vaginal lips and described that she did not like that when it was happening. She described that his finger was between the lips of her vagina then moved upwards towards an area which she now understands was towards her clitoris. CM gave evidence that she did not consent to the conduct.

62. She said that she did not say or do anything at the time but just stood there. She said that after the accused removed his hand he patted her bottom on the outside of her school dress and underwear and believes the accused then said “You can go now”. She described feeling confused and said that she did not tell anyone because the accused was her teacher. CM did not tell her mother because they were not exceptionally close and because she felt unimportant because her mother at that time had other priorities in a new partner and she was pregnant.

63. In relation to Count 8 CM recalled an occasion when she was wearing her winter uniform and the accused called her up to have her workbook marked. She said that she went up to the accused’s desk by herself and was standing next to him. She said that the accused then patted her bottom and then put his hand under her school uniform over her tights. She recalled the accused’s hand rubbing her bottom over her tights and then putting his hand under her tights and her underwear. CM gave evidence that the accused then slid his finger towards her genitals. She described that the elastic from her tights and underwear felt tight against her stomach as he was doing this. She described the accused touching the outside of her genitals with his finger, then separating her vaginal lips and then his finger touching the inside of her lips. She described a backwards and forwards motion and then felt the tip of his finger go inside her vagina. She described not liking the feeling of his finger moving inside her. She said she felt scared and confused. CM said that the accused’s finger was not inside her for very long and that when his hand came out she recalled the slap of the elastic from her tights and the accused then said words to effect of “Good girl” or “Take your book”. She said that she felt frozen, confused and not okay. She did not consent to the accused engaging in this conduct. She did not complain to anyone at the time for the same reasons she expressed in relation to Counts 6 and 7.

64. CM gave evidence that after the Count 8 incident she began wearing an additional pair of underpants on top of her school tights. Relevant to Count 9 she recalled the accused calling her up to his desk to have her workbook marked and her not wanting to go because she knew that the accused was going to touch her again. CM gave evidence that when she got to his desk his hand patted her bottom over her uniform, then went inside her uniform under the outer underpants, then under her tights and under the inner pair of underpants. She said that his finger then went forward and touched her genitals, opened her vaginal lips, rubbed in a backwards and forwards motion and he then inserted a little bit of his finger inside her vagina. She said that it felt physically tight and uncomfortable when part of his finger was inside her and that she did not like the sensation. CM said that the accused then removed his hand and she recalled that after his hand came out the pressure from the elastic against her tummy was released. The accused then patted her on the bottom over her uniform and said words the effect of “Good girl”. CM did not consent to the conduct and did not complain to anyone at the time for the same reasons she expressed in relation to the previous counts.

65. CM also gave context evidence of other occasions she alleges the accused sexually touched her which do not form part of the charged conduct. In dealing with context evidence I take into account the directions in Annexure A in relation to the limited use to which that evidence can be put. In relation to context CM gave evidence that there were many other times in addition to the three incidents the subjects of the counts when the accused sexually assaulted her. She said the touching on those other occasions was not different and that it occurred when she was having her workbook marked and involved him putting his hand inside her uniform, down her underpants and touching and penetrating her genitals.

66. In relation to complaint, CM gave evidence that:

1. in 1987 or 1988 she told her friend CW that when she was in grade 2 at Vaucluse Primary School she had been sexually abused by her teacher who had put his finger inside her; and

2. sometime after January 1995 she told her then boyfriend MV that when she was a small child she was sexually abused by her teacher who would put his finger inside her when she was behind his desk having her book marked.

67. CM also gave evidence that she had telephoned the Vaucluse Public School and asked for information about the accused and that she was told that they had never had a teacher by the name of Mr Lunn and that they could not help her. CM also recalled an incident where she went to the police in Queensland sometime in the last 10 years when she made in an initial complaint about being abused as a child in New South Wales and being told that she should report to a different police station.

68. CM said she told a work colleague in recent years about her allegations against the accused. That work colleague searched the accused’s name on the Internet and showed her an article about him on her computer screen. CM said that when she saw the article she became physically sick and vomited in the sink at her workplace. She said that reading the article prompted her to contact the New South Wales police and make a formal detailed complaint.

69. In cross examination CM confirmed that she knew at some stage that the accused had been charged by police and that later in life, when she was an adult, she learnt that other students had made allegations against the accused and that he had been subject to earlier criminal prosecutions. She gave evidence that although she had been contacted by one of the previous complainants she strongly disagreed that the previous complainant had told her about the allegations or that CM had told the previous complainant about her allegations of the accused’s conduct towards her. She said that the details of the incident she alleges were not the sorts of things that she would discuss with other people.

70. CM accepted that she had said in a statement to the police that the accused used to give her cash and ask her to go to the local shop to buy him cigarettes and that she used some of the change to purchase lollies for herself.

71. CM did not recall anybody by the name of JB. Although CM had been told by the police that she may be able to apply for compensation, she had not and did not plan on doing so. CM disagreed that she had made up false evidence, that she was financially motivated or that she was motivated to seek justice because of allegations made by other students. CM said that she was not giving evidence because of conduct alleged by other people but said “I am here for me”. She also disagreed that her recollection had become contaminated because of discussions she had had with other students.

Evidence of the complainant JB (relevant to Count 10, Count 11 and Count 12 in the alternative to 11)

72. JB was born in October 1977. The accused was his teacher in Year 1 in 1983. JB was 4 years old and turned 5 years old during the 1983 school year.

73. JB left the Vaucluse Primary School at some time during 1983 and went to another school. He said that he did so because of the accused sexually abusing him.

74. JB gave context evidence of numerous occasions when he sat on the accused’s lap as the accused was reading a book. He described that on those occasions the accused put his hand down his pants, inside his underpants, fondled his penis and testicles and stuck his finger inside JB’s rectum. He described the fondling action as soft and gentle. JB said that he did not tell anyone about those occasions at the time because he felt embarrassed and that he still has difficulty talking about it. JB did not consent to that conduct. He said that on each occasion he felt numb and frozen and that the feeling was “not nice”.

75. In relation to Count 11, and Count 12 in the alternative, JB gave evidence that there was one occasion that particularly stuck in his mind. On that occasion he recalled sitting on the accused’s lap when he was reading a story to the class and the accused put his hand inside his pants, inside his underpants and fondled his penis and testicles. He recalled that incident in particular because he remembered that whilst the accused’s hand was down his pants another teacher, who he believed may have been the headmistress, came to the class and stood briefly in the doorway. After the teacher left the accused’s hand came out of his clothing. JB conceded that, although he may have done so he could not clearly remember if on that occasion the accused penetrated his anus with his finger. For that reason the Crown sought a directed verdict in relation to Count 11 and relied on the evidence as supporting Count 12 in the alternative. JB gave evidence that he did not tell anyone what the accused had done to him and explained that at the time he did not understand that that conduct was wrong and thought that it may have happened to everybody.

76. In relation to Count 10 JB gave evidence that that incident occurred after the conduct which is the subject of Count 12. He said that he recalled the accused leading him by the hand to a storage area underneath another school building which he described that as having access from underneath the building and recalls some mesh around part of the outside. He described that the storage area was dark and containing old school furniture including desks and chairs.

77. JB gave evidence that after the accused led him into the storage area he lifted him up and put him on a desk. JB said the accused then unzipped his pants, took his own penis out and put it on JB’s face and mouth. He described the accused’s penis as large and brown and described it as being soft at the time. JB said that the accused’s penis made contact with his lips and mouth and said that his mouth was neither open nor closed. He said he froze and felt blank at the time and did not ask the accused to stop because he did not know that what was occurring was wrong. He described the amount of force the accused’s penis made with his lips and mouth as soft and not forceful, gentle but not consensual. He further described the conduct as “sort of probing” and a “gentle forcing”. He confirmed that the accused’s penis did not go inside his mouth. JB recalled that at that point another student, who he believes may have been an exchange student but was unsure, walked on a path past the outside of the building. He said that boy made eye contact with him as he walked down the path. JB said that there was some furniture between him and where the boy on the path stood which he said was about 5 metres away. JB gave evidence that at that point the accused removed his penis, zipped up his pants and exited the area.

78. JB did not verify the identity of the student but described him as having blonde hair and glasses and thinking that he was a few years older. He became aware that there was an exchange student called MH and he nominated that name to the police as that the person who he believed witnessed him in the storage area. He accepted that he did not know if the person was in fact MH but thought that it may have been him. I note that MH provided an unsigned statement to the police that he did not witness any incident matching the description given by JB.

79. In relation to complaint, JB believes that the first person he told was his mother. He believed he told her soon after the incident relevant to Count 10 and that some time after telling his mother he recalls being taken out of the school and then attending a different school. He also gave evidence that he recalled being asked questions by a person wearing a suit in a room which he described as having dark timber panels which he believed was either a police station or a court room. It was agreed between the parties that JB was not a complainant or a witness in any of the previous prosecutions.

72. JB also gave evidence that he told a psychologist at a drug rehabilitation centre when he was 28 years old about the accused sexually assaulting him. In relation to complaint, in addition to telling his mother and the psychologist JB gave evidence that:

1. when his sister TJ, who is ten years his junior, was a teenager he may have told her that something had happened; and

2. at some time after October 2005 he complained to his then partner EB that he had been sexually abused by the accused at the Vaucluse Primary School.

81. In cross-examination JB disagreed that he had made up the allegations in order to give him some advantage in family law proceedings. In relation to the incident in the storage area JB said that although there was no attempt to hide what was going on there was furniture and other things in the storage area so that they were in a position which was semi-hidden. JB conceded that he initially told the police that he was reporting the matters to them because he wanted to receive money as a victim of crime. He said that he was out of work at the time of the COVID pandemic in 2021 and that somebody told him that he might be entitled to receive some money because he was a victim of crime. JB gave evidence that he was shocked when he first made enquiries about victims of crime compensation because he had assumed the police knew about his allegations and because he had assumed that the accused had been sent to jail as a result of previous proceedings. He stated that his motivation for giving evidence was to try to right a wrong and to “put a monster behind bars”. JB disagreed with the assertion that his memories had been contaminated by his knowledge of prior prosecutions and that he was intending to use the accused as an excuse for failures in his life. JB vehemently denied the proposition that he changed schools, not because of the accused, but because he wanted to attend a Catholic school. JB also denied telling any of his classmates or school friends any of the details that he alleges in relation to the sexual assaults. He vehemently denied that he had lied during his evidence.

Evidence of the complainant AI (relevant to Count 13)

82. AI was in the accused’s class in Year 1 in 1983. She was born in March 1977 and was 5 and 6 years old in 1983.

83. AI had a cousin, LH, who was the year below her at school and another cousin, JI, who was in the same year as her school. There were further cousins who had previously attended the Vaucluse Primary School.

84. At first AI got along well with the accused describing that he was nice and normal. She said that things changed after the incident relevant to Count 13 and that after that incident he became mean to her.

85. Relevant to Count 13 AI recalled an incident where she went up to the accused’s desk with her workbook. She recalled the accused put his hand around her hip and tried to put her on his lap and she pulled away. She described that the accused then put his hand under her school dress on her bottom. She described that she was wearing her summer uniform at the time and remembered feeling his hand on her bottom partly on her underpants and partly off her underpants touching her bottom. She described the contact as neither hard nor soft and said that at the time, as a child, she rationalised the contact as a smack. AI said that she reacted by pulling away and walking away from the accused.

86. The Crown submitted that the conduct was indecent because of the circumstances including that the accused’s hand went underneath her school dress partly touching her buttocks and partly touching the outside of her underwear and in circumstances where there was no legitimate reason for him to do so. The Crown relied on evidence that corporal punishment in the form of male teachers smacking the bottoms of female students was not an accepted practice at the school at the time.

87. AI gave evidence that after that incident she recalled the accused’s attitude to her changed. She recalled a time when he hit her hands with a ruler because he had wrongly accused her of writing her name instead of her initials on some school work.

88. AI also said that she had a vivid memory, which she described as almost like a photograph, of her cousin JI sitting on the accused’s lap.

89. AI gave evidence that she did not tell anyone about the accused touching her bottom because she thought that she would get into trouble. She also said that she had never discussed the details of her allegation with her cousin JI or her cousin LH. She described that they lived geographically distant from one another and were not in regular contact.

90. In cross examination AI agreed that she described the touching of her bottom by the accused as a “smack” and then clarified that although she described it that way it did not smack like a smack, later explaining that what she meant was that not sound or sting like a smack. She explained that she did not have any other way of explaining it. She now considers the sensation of the touching as more insidious than a smack. She disagreed that the touching was in the context of corporal punishment, stating that if that had been his intention there would have been no reason for him to put his hand underneath her dress.

91. AI disagreed with propositions that she had voluntarily jumped onto the accused’s knee, and that whilst doing so her dress ballooned out and that his hand then accidentally touched her underwear. She also disagreed that the conduct she alleged had never occurred or that she was giving false evidence to support allegations made by her cousins and by school friends.

Evidence of the complainant MM (relevant to Count 14)

92. MM was in the accused’s class in Year 1 in 1984. He was born in December 1977 and was 6 years old for the majority of the 1984 school year.

93. MM, who was 47 at the time he gave evidence, gave frank evidence that he had been diagnosed with schizophrenia when he was 19 years of age. He said that the time he gave his statements to the police in 2022, 2023 and 2025 he was being medicated for his schizophrenia and that the medication was managing his condition effectively. He said that at the time of making his statements he was not suffering from any symptoms.

94. In relation to Count 14 MM gave evidence of an occasion when he was on the school grounds, which he accepted could either have been inside or outside the classroom, when the accused put his hands down the front of his pants and played with his penis and testicles. MM said that he could not recall if he was wearing the winter or summer uniform but he was wearing school shorts or pants and that he wore underpants with his uniform every day. He said that the accused moved his hand around in his genital area for less than 20 seconds. He described that he just stood there and submitted because he did not know that it was wrong. He said that the accused did not ask for his permission before touching him in that way.

95. MM gave context evidence that the accused fondled his penis, moving his hand around inside his pants and under his uniform on other occasions during 1984. Although he could not recall precisely how many times that conduct had occurred, MM stated that it was three or more times. I take into account the directions in Annexure A in relation to the limited use to which that evidence can be put.

96. MM said that he could not recall telling anyone at the time but that his mother later told him that he had seen an article in the Wentworth Courier and he then said to her “That’s what Mr Lunn did to me”.

97. There were other occasions about which MM gave evidence of his dealings with the accused including an occasion in the rumpus room when the accused played music by Lionel Richie and he crawled under a bedsheet the accused had put on the ground. MM gave evidence that the music he recalled hearing was Dancing on the Ceiling and that every time he hears that song since it reminds him of the accused.

98. It was not until he was about 18 or 19 years old that MM started to appreciate that what the accused had done to him was wrong.

99. In relation to complaint MM gave evidence that when he was about 30 years of age he spoke to a psychiatrist about what had occurred and then gave a brief explanation to his mother about what had happened.

100. MM said that he wanted to make a report to the police because he understood that that would help him with his civil claim. He made the report to the police first. He later made a claim for compensation and received payment from the Department of Education’s insurers. He said that the reason he was giving evidence was because he did not believe that the accused should get away with doing what he had done to him.

101. In cross examination MM said he also made a claim for victims compensation but that he repaid that amount when he received his civil payment. He said that there had been occasions after his diagnosis where he had been scheduled as an involuntary patient but that since then he was compliant with his medication and suffered from no auditory or visual hallucinations. He did not believe that his condition impaired his judgment.

102. When it was put to him that Lionel Richie’s single Dancing on the Ceiling was not released until 1986 (as supported by the Wikipedia page Exhibit 11), MM said that he believed that the accused had said something about how he had obtained it before its release date.

103. He agreed in cross examination that he had told the police in one of his statements that the accused had anally penetrated him with his finger in the school grounds but that he later decided he could not be sure that it was the accused because he did not directly see the act. MM denied the assertion put to him that he was making up his evidence because he had found out that the accused had got into trouble previously for alleged child sexual abuse. MM responded by saying that he was giving evidence because the of what the accused did to him and that he was motivated because the accused it to him, not because the accused may have done things to others. He also denied that his evidence had become contaminated by discussing details of his allegations with any other former students and he disagreed that he had made up his evidence in order to support his claim for compensation.

Evidence of the complainant LH (relevant to Count 15)

104. LH was born in April 1978. She was in the accused’s class in Year 1 in 1984 and was 5 and 6 years old at the time.

105. LH had a number of cousins who also attended the Vaucluse Primary School.

106. Relevant to Count 15 LH recalls an occasion when she was called up to the accused’s desk to have her workbook marked. She described that book as having an orange cover. She recalled standing next to the accused’s chair and him indicating for her to stand closer. She gave evidence that he then put his arm around her and moved her between his legs. She said that the accused then ran his right hand up her thigh and inside her uniform. She described his hand touching her abdomen, chest, nipples and underwear in what she described as a repeated stroking motion. She recalled that she was wearing the summer uniform at the time. She recalled the accused’s hand lingered around the elastic of her underpants and that he put two fingers down inside the elastic waistband of underwear at her front near her pelvis. LH recalled feeling terrified and confused when this conduct occurred.

107. LH recalled a specific occasion when this conduct occurred because she said at the time the accused looked at her workbook and asked her if the word she had written started with the letter S or the numeral 5 which she said vividly recalled because she thought it was ridiculous to suggest a word could start with a numeral.

108. LH gave context evidence that similar contact happened on multiple other occasions but that she specifically recalled the occasion relevant to Count 15 because of the accused’s questioning about the letter S or the numeral 5. I take into account the directions in Annexure A in relation to the limited use to which that context evidence can be put.

109. LH said that she recalled her workbook becoming full and that she then panicked because she did not want to approach the accused to ask for a new book. As a result she snuck her workbook into her schoolbag, took it home and attempted to rub out the pencil markings in it at the kitchen table. She said that she soon realised that the rubbing out was not working and started crying. She recalled her mother then asked her why she was upset. LH gave complaint evidence that:

1. in 1984 she told her mother at the kitchen table that she did not want to go to school anymore because she did not like what her teacher did and said that he put his hands up her uniform and rubbed his hands on her;

2. when she was 8 or 9 years old and living overseas she told her father that her teacher made her sit on his knee and she did not want to; and

3. in about 2016 she told her partner L about the physical acts by the accused on her.

110. LH denied that she and her cousins had discussed any of the details of their allegations. She recalled that in mid to late 2016 she received some contact from her cousin AI who mentioned the accused’s name and said that she had given LH’s name to detectives who were looking into allegations against him.

111. In cross examination LH denied that she had made up her evidence about her complaint to her mother, denied that she had discussed any of the details of the allegations with her cousins or any other past students and denied that she had applied for or intended to apply for any compensation. She added that she did not know that compensation payments were even possible.

Evidence of the tendency witness JI

112. JI’s evidence was adduced by the Crown as relevant only to the issue of tendency. I take into account the directions in Annexure A in relation to the limited use to which that tendency evidence can be put.

113. JI was born in March 1977. She was in the accused’s class in Year 1 in 1983 and was 5 and 6 years old at the time.

114. JI had a number of cousins who attended the Vaucluse Public School including LH and AI. She and AI were both in the accused’s Year 1 class in 1983.

115. JI gave evidence of numerous incidents when she would on the accused’s lap at the back of the class whilst a child was presenting show and tell or reading at the front of the class and said that the remainder of the students would face towards the student presenting. She recalled that on those occasions she would be seated on the accused’s lap and recalled feeling the accused’s hand going inside her school uniform, inside her dress, rubbing her thighs, touching her underwear and then going inside her underwear and touching her on her vulva. She recalled that this happened on numerous occasions and recalled feeling the hot air from his breath on her ear and being able to hear him breathing. She described feeling very sad, very alone, scared and feeling as though she had done something wrong.

116. JI said that conduct in similar terms happened on multiple occasions, which she later described as being more than three times. She was unable to isolate any particular incident by date or by any other distinguishing feature.

117. She gave evidence that she did not tell her parents despite having a close relationship with them because she did not want to upset them. She added that she felt that it was an unsafe thing to talk about and felt that talking about it was dirty.

118. She gave evidence that her mother queried her directly in about 1984 asking if the accused had done anything to her. She said that she did not want to have a conversation about it at the time and wanted the conversation to be over so she told her mother that nothing had happened.

119. In relation to complaint JI gave evidence that:

1. in about 1989 or 1990 when she was in secondary school she told her mother, and later that same day both of her parents, that the accused had put his hand up her dress, inside her underwear and touched her;

2. when she was 18 or 19 years old she told her friend NR that when she was a child a teacher molested her by sitting her on his lap and putting his hands in her underpants; and

3. at some time in or after 2005 she told her husband A that when she was a child a teacher molested her by sitting her on his lap and putting his hands in her underpants.

120. JI also gave evidence of observing her cousin AI sitting on the accused’s lap on occasions. She also recalled seeing the accused punish AI for writing her initials her work although she recalled that punishment was in the form of a smack to the buttocks.

121. In cross examination JI stated that she did not confide in her cousin AI or tell her friends. She said that she was unaware of allegations made by previous complainants. She said that she first became aware of the article in the Wentworth Courier when a recent report about it appeared in the Sydney Morning Herald at the commencement of this trial. JI said that she had no knowledge of the accused being previously charged but was generally aware that he had been forced to leave the school.

122. JI denied that she was giving false evidence in order to support a claim for compensation, adding that she had not made any decision about whether or not she wanted to seek compensation. She denied discussing the details of her allegations with anyone else and disagreed with the suggestion that she was giving evidence in order to support her cousin, AI.

Evidence of complaint witnesses

123. In relation to the complaint by JL, his mother RB gave evidence that at some time after the original accusations about the accused had surfaced in 1985 JL told her that when he was child of the week he sat on the accused’s knee and the accused “did that to me there”.

124. RB said that she distinctly recalled a conversation with JL during which she asked why he had not told her previously and he answered “I was only a little boy and I thought I’d get in trouble”.

125. In relation to the complaint by DBR, his wife RH gave evidence that in about 1998 DBR first told her that a teacher at Vaucluse Primary School had put him on his lap and then put his hands down his pants and that they had multiple subsequent conversations on the topic.

126. In relation to the complaint by ND, his wife KD gave evidence that in about 1998 ND told her that his teacher had touched him whilst sitting on his lap, that this had occurred a number of times and that ND was very emotional and struggled when he told her.

127. In relation to complaints by CM, her friend CW and her former boyfriend MV both gave evidence. CW gave evidence that in 1988 CM told her that her teacher at Vaucluse Primary School would get her to come up to his desk, sit her on his lap and touch her under her dress, that this occurred on a lot of occasions and that CM was crying, shaking and distressed when she told her.

128. MV gave evidence that in about February 1995 CM told him that she had been abused by her primary school teacher when she was 7 years old and that he had felt in and around her vagina on numerous occasions and had called her up to his desk where he would digitally penetrate her.

129. In relation to the complaints by JB, his sister TJ and his former partner EB both gave evidence. TJ gave evidence that:

1. when she was about 14 years old JB told her that he had had a bad experience at Vaucluse Primary School and that a teacher had touched him. She gave evidence that JB could not look at her, was pacing and was upset when he was telling her;

2. when she was pregnant with twins in 2005 JB told her that he had been touched by a teacher and that when he told her he got the shivers; and

3. when JB visited her in 2006, after her twins had been born, he spoke to her again about the topic.

130. EB gave evidence that at some time after 2005 JB told her that he had been raped by the accused when he was a student at the Vaucluse Primary School.

131. In relation to the complaint by MM, his mother gave evidence that at some time shortly after an article appeared in the Wentworth Courier in 1985 her son MM told her “That’s what Mr Lunn did to me”. She did not report it to the Police, describing that as one of her biggest regrets.

130. MM’s mother also confirmed his diagnosis of schizophrenia and gave evidence of her observations that his condition was effectively treated by medication and that whilst medicated he did not show signs of delusions or hallucinations. She gave evidence that in 2019 when he was unmedicated he was in a happy place and fine but a little delusional. She described those periods of delusion as very short. She never saw any signs of persecutory delusions. However, she remember him once talking about a butterfly, which she said was not there, and she recalled him talking about things around her house which needed fixing and taking it upon himself to fix them. She confirmed however that the things he fixed were in fact in need of repair. She described him as very intelligent, completing a science degree at the University of Technology Sydney and obtaining employment. She saw no signs of any delusions whist he was medicated including at the times he gave his statements to the Police and when he gave evidence at this trial.

131. In relation to the complaint by LH, the Crown tendered a statement by her father BH (Exhibit GG) in which he stated that:

1. in April or May 1984 his daughter LH was very upset and said that she did not want to go back to school; and

2. at some time in 1986 or 1987 he asked LH if the accused had ever hurt her and she told him that he used to make her sit on his knee and held her there which she did not like.

134. In relation to the complaint by JI, her mother DI gave evidence that at some time between 1988 and 1991 her daughter JI told her that the accused had put her on his lap and put his hands down her pants and that when JI was telling her she appeared upset and anxious.

The accused’s record of interview

135. The accused did not give or call any evidence in the trial. Instead the defence relied upon the cross-examination of the Crown witnesses and on the account given by the accused during his recorded interview with the police.

136. During the recorded interview with the police on 2 August 2022 the accused gave the following account:

1. He admitted that he was a “hands on” teacher and that at times he touched the children on the backs and put his arm around them;

2. He said that there might have been times when he stuck his hand in a child’s pants in order to tuck in their shirt;

3. He recognised the name JB as the name of a former student and he recognised the surname I of children who attended the school, but did not recognise the names of the other complainants;

4. He agreed that he would have had a system to reward students for good performance or behaviour;

5. During story time he would sit on a chair and read to the class while the students sat on the floor;

6. Parents often attended his classroom to take reading groups and as a result he was often not alone with the children;

7. He could not recall having any of the children sit on his lap during class, although he believed he would not have done so because it would have shown favouritism;

8. He had a system in place in his classroom of child of the week. Although he could not remember the details, he believed it may have related to the student’s birthday. He could not recall the privileges associated with being the child of the week;

9. He had show and tell every day in his classroom during which a student would present to the class and he would either sit on a chair anywhere on the outside of the students or lean against cupboards. He was not always next to the student presenting. For shy students he would position himself close to the student and would pat or stroke them on the back for reassurance;

10. When patting or stroking a child’s back he would try to get their backbone. When touching a child’s back he might accidently misjudge and go down a bit further, but it was not a sexual thing;

11. He never intentionally touched a child’s buttocks;

12. Students would come up to his desk in the classroom to have their work marked. Sometimes they would line up and sometimes he would call them up for marking;

13. He denied ever having students sit between his legs;

14. He does not recall JB ever sitting on his lap;

15. He denied digitally penetrating JB’s anus;

16. He agreed that there was a storage area underneath a school building which contained unused furniture, but denied ever taking a student there;

17. He denied exposing his penis to JB and he denied rubbing his penis around JB’s face or lips;

18. He does not remember having JL sit on his lap as child of the week;

19. He denied putting his hand inside JL’s shorts and he denied fondling JL’s penis and testicles;

20. He denied putting his hand inside MM’s shorts and he denied masturbating MM’s penis or fondling his testicles;

21. He stated that there was very little chance to be alone with a child on the school grounds;

22. He does not recall JI ever sitting on his lap;

23. He denied touching JI’s genitals;

24. He denied smacking AI’s buttocks underneath her school dress;

25. He denied touching LH’s abdomen, chest or nipples underneath her school dress;

26. He accepted that it would be wrong to touch a child’s genitals if it was done intentionally;

27. He accepted that it would be wrong to touch a child’s thigh underneath their school uniform if it was done intentionally;

28. He would not touch a child sexually;

29. He did not think that there was anything he had done to any of his students which could have been misinterpreted as sexual touching; and

30. He is not sexually attracted to children.

The Crown case

137. The Crown case is that the evidence establishes beyond reasonable doubt each of the elements of each of the counts, with the exception of Counts 11 and 7. The Crown submitted that Count 11 was not supported by the evidence and sought a directed verdict. In relation to Count 7, which is in the alternative to Count 6, the Crown submitted that the evidence had established the elements of the primary count and that as a consequence the court did not need to consider Count 7.

138. The Crown submitted that the court would be satisfied that the accused had an opportunity to commit the offences, both physically and because of his position of trust. The Crown submitted that the complainants were credible and reliable witnesses and that their evidence was supported by evidence of complaints they made to others. Accepting that the defence bears no onus of proving a motive, the Crown also submitted that the motives put to the complainants for allegedly fabricating their accounts should be disregarded.

139. In relation to tendency the Crown submitted that the court would accept the evidence of the witness JI in establishing the tendency in combination with the evidence relevant to each of the counts.

140. The Crown submitted that the court would not accept the accused’s account given in his record of interview, would disregard his denials and would put them to one side.

141. In relation to the physical opportunity the accused had to commit the offences, the Crown submitted that he had easy access to the complainants who were all young students in his classes in the relevant years. The Crown relied on the evidence contained in the statement of the Headmistress of the Infants School, Barbara Thomson (Exhibit JJ), in which she stated that the accused taught by himself, was solely responsible for his class and that no other teachers attended his classes to supervise him. In relation to the conduct alleged by ND and JB that the accused took them to other parts of the school and committed offences in or under other buildings, the Crown submitted that absent any direct supervision the accused was able to have free access to other parts of the school and to dormitories during school camps without raising any suspicion. The Crown also relied on the physical layout of the school and submitted that the classroom’s location allowed the accused to conduct himself with minimal interruption. It was submitted that observation through the windows or through the open door of the classroom was not such that it provided any significant opportunity for observation by any passers-by. The Crown also pointed to the absence of any evidence that the offending was committed in the presence of any other adults and submitted that the potential risk of detection was only by other students who were also very young and under the accused’s authority. The Crown submitted that each of the complainants, with the exception of AI who described some minimal form of resistance, gave evidence that they froze and that in such circumstances the risk of detection by others was minimal. The Crown also relied on the evidence from the complainants that the alleged conduct occurred either behind the accused’s desk or when he was seated at the rear of the class whilst the students’ attention was drawn away from him and towards a presenter at the front. Additionally the Crown relied on the evidence relevant to Counts 5 and 10 that the alleged conduct occurred in then secluded parts of the school or in relation to Count 4 in a dormitory and under a sleeping bag.

142. On the issue of whether parents attended the accused’s classroom to assist with reading, the Crown submitted that the evidence does not rise higher than speculation or possibility. Although the evidence did establish that parents attended the school from time to time there was no evidence that any of them recalled attending the accused’s classes during the relevant years. Additionally, the evidence did not establish that parent-assisted reading occurred for any substantial periods.

143. The Crown also submitted that the evidence established that the accused disregarded previous warnings about his behaviour with students. It relied on the statement from Barbara Thomson which included reference to her observations that she had seen the accused with students sitting on his lap whilst he was teaching and told him to stop that conduct because it was inappropriate. Ms Thomson recalled that she went into the accused’s classroom on a few occasions after giving that warning and saw that he continued to have students sit on his lap. The Crown also relied on Ms Thomson’s statement that the Vaucluse Public School did not have a practice of permitting teachers to corporally punish students.

144. The Crown relied on the statement from the school principal Beryl Rutter of her conversation with the accused in mid-November 1984. I note that only Counts 14 and 15 relate to alleged conduct by the accused during the 1984 school year and as a consequence this evidence has limited relevance. The Crown relied on Ms Rutter’s statement that she had told the accused in mid-November 1984 of rumours that he had been touching the children in an inappropriate manner and told him that he should never place a child on his lap or be alone with a child.

145. The Crown submitted that the accused had an opportunity to commit the offences arising from his position of trust and authority over the students and because of his initial good reputation with the parents. The Crown submitted that each complainant reported initially having good dealings with the accused and described him variously as fun, cool and popular. The evidence of the accused playing fun games with the students and getting involved in physical activities with them was also relied on by the Crown. The Crown pointed to the evidence of a number of the witnesses who said that it was considered desirable to be the child of the week and that students wanted to sit on his lap. The Crown also pointed to evidence from a number of parents who said that they initially held the accused in high regard.

146. In relation to the complainants the Crown submitted that each of them was credible and reliable. The Crown’s written submissions in that regard are set out in MFI 30 and need not be repeated.

147. The Crown submissions in relation to the complaint evidence is also set out in MFI 30 and in an annexure to that document and need not be repeated.

148. On the topic of motive, the Crown noted that the defence bears no onus of proof but submitted that the court would not be satisfied that any of the complainants had fabricated their evidence. On the suggested financial motive that the complainants had fabricated their evidence in order to receive compensation, the Crown pointed to the evidence of ND, JL, JB and MM that they have received some compensation. MM gave evidence that his compensation claim had been resolved and that he had decided to continue to assist the police and to give evidence in the trial because he was motivated to seek justice. The Crown submitted that JB, who accepted that he was initially motivated to receive compensation, gave evidence that his motivation for giving evidence was not financial but rather was “to put a monster behind bars”. The Crown submitted that JL made his statements to the police prior to any claim for compensation and that his compensation claim had been resolved. JL gave evidence that he was not motivated by money but by a sense of justice and because he had assumed from the police interest that the case involved other complainants and was “bigger than him”. In relation to ND the Crown pointed to the evidence that ND used his compensation payment to buy laptop computers for his children and that his evidence was that he was not motivated financially.

149. The Crown pointed to the legislative right for people to claim compensation and submitted that the mere fact that compensation was sought or paid does not establish that a complainant gave false evidence or was motivated to give false evidence by virtue of receiving compensation.

150. The Crown also pointed to the evidence that established that a number of the complainants either had no intention of claiming such compensation or did not know of any ability to make such a claim.

151. On the issue possible contamination or the related issue of complainants fabricating evidence as a result of some collective desire for vengeance, the Crown submitted that the evidence did not establish either of those issues. The Crown pointed to the evidence that each complainant gave that none of them had discussed their allegations in any detail with any of the other complainants. It was submitted that although there may have been rumours concerning the accused at various times, and that although there was a short article about the previous proceedings in the Wentworth Courier, the evidence did not establish that any of the rumours or publications contained sufficient detail to enable any of the complainants to give detailed evidence of the sexual assaults they allege. The Crown also pointed to the evidence of JL, and his younger brother, that they had ceased being friendly with JB and ceased contact with him some years ago and that JL had only recently spoken with him about attending court and court dates. The evidence did not establish that either of them had exchanged details of the alleged conduct. The Crown pointed to the evidence of DBR that he did not remain in contact with any of the other complainants and only knew about general rumours in the community concerning the accused. In relation to ND the Crown submitted that the evidence from him established that he lost contact with his former school friends after moving to a different part of Sydney at the end of Year 2. In relation to CM the Crown submitted that although she gave evidence of contact she had with a former complainant in the previous proceedings, the evidence established that they did not discuss any details with one another. The Crown submitted in relation to JB that his evidence, and the evidence of other complainants who knew him at school, established that he did not speak to any of them about the details of his allegations. The Crown also pointed to the evidence in relation to the cousins AI, LH and JI, that they did not remain close with one another and that none of them had discussed any of the details of their allegations. In relation to MM the Crown submitted that the evidence established that he moved to a different part of Sydney at the end of 1985 and that he did not remain in contact with his former classmates.

152. The Crown submitted that on that basis the court would not be satisfied that any collusion or contamination had occurred or that any of the complainants gave false evidence in order to assist one another or as a result of some desire for collective vengeance.

153. On the topic of tendency the Crown submitted that the evidence of JI established that the accused had the tendency alleged. The Crown relied on the evidence of JI and the evidence of the complainants as cross-admissible to establish the tendency. The Crown submitted that the tendency evidence established an ongoing pattern of behaviour and to have a particular state of mind.

154. In relation to the context evidence the Crown submitted that it assisted in making the charged conduct more understandable and by explaining that the conduct did not come out of the blue. The Crown also relied on context evidence to establish the accused may have been emboldened to commit the offences in circumstances where no complaint or report was made after he engaged in the context evidence touching.

155. On the topic of the accused’s account in his record of interview the Crown submitted that the court should take into account that as at the date of the interview the police were only then aware of some of the complainants and were not aware of the other complainants who provided statements after the interview. The Crown submitted that the court would reject the accused’s account and put it to one side.

156. In addition the Crown submitted that the court would be satisfied that the accused lied in his interview and that the court would take those lies into account on an assessment of the accused’s credit. The apparent lies relied on by the Crown included that the accused initially told the police that he could not remember much at all, apart from a couple of hours, of his teaching at the school. The Crown submitted that that was a lie because it was later contradicted by his subsequent answers. The Crown also relied on the accused telling the police that he would have been teaching with another teacher. The Crown relied on that as a lie on the basis that it was contradicted by the evidence of Barbara Thomson that he taught in his classroom alone and was unsupervised. The Crown also submitted that his assertion that he could not remember even walking into the classroom was a lie because it was later contradicted by him giving detailed explanations of working on different subjects with his students. The Crown also submitted that the accused lied when he initially asserted that there were parents in his class all the time and that he was hardly ever by himself. It was submitted that that answer was later contradicted in the subsequent answers when he said that parents would only have been in the classroom for part of any given day and that he was alone in the classroom with students “quite a lot” and was also contradicted by other evidence in the trial. The Crown also relied, as an asserted lie, on the accused answering that he could not have had students sitting on his lap because to do so would have shown favouritism. The Crown submitted that that was a deliberately false lie given to negate any opportunity to offend and was in direct opposition to the uncontroversial evidence of Barbara Thomson and Beryl Rutter and the evidence of other witnesses. The accused later told the police that he did not have any memory of JL sitting on his lap but told them that he was not going to deny that it occurred but said that it did not sound like a “teachery thing to do”. He also subsequently told the police that he did not “usually” put children on his lap. In relation to JI the accused said that he could not say if it was true or not that he ever invited her onto his lap. The Crown also relied on the accused telling the police that he faced the student body during show and tell and submitted that that was a deliberately false denial in order to minimise his opportunity to offend.

186. JB was an emotional, agitated and frank witness. He gave evidence against his own interests concerning his drug dependency and criminal past and concerning his attitude to the accused and his lawyers. His demeanour in the witness box, which the defence submitted was erratic and volatile, in my opinion added to his credibility. Although he was highly emotional, his emotional reactions were appropriate and became measured and the subject of apologies to the court. His emotions were triggered by suggestions put to him by the defence that he was lying, that he was financially motivated and that he was lying to assist others. He also gave an appropriately emotional response when it was suggested to him that he changed schools, not because of the accused’s conduct, but because of a desire to attend a religious school. His credibility was enhanced by him giving an honest account of his inability to be entirely sure about whether anal digital penetration occurred relevant to Count 11. He candidly gave evidence that he was unsure about penetration on that occasion. That concession, which will lead to a directed verdict in relation to Count 11, assists in establishing that JB was an honest witness who did not embellish and made appropriate concessions when he was not sure. The fact that JB has had drug dependency issues during his life does not convince me that his evidence was unreliable. The evidence did not establish that any dependency issues affected his memory at the time of making statements to the police or affected him at the time of giving evidence. Despite being obviously agitated and emotional during parts of his evidence I accept that he gave detailed and honest answers. JB impressed me by conceding when he could not remember details and by giving detailed evidence in relation to matters which he was likely to remember. In relation to his evidence of previously being asked questions by a man in a suit either in a courtroom or a police house I take into account that any questioning of him shortly after the alleged incident would have been unsurprisingly confusing to a young boy who was then unfamiliar with police and court environments and processes. His evidence was that he was asked questions by a single person who is not wearing legal regalia and that there was no judge or magistrate present. The fact that he was asked questions in a timber room which may have looked like a court room does not establish that he was attempting to give false evidence to establish being previously involved in court proceedings involving the accused. In any event evidence from the officer in charge established that during the relevant period the Paddington Police Station, which is housed in the heritage listed Paddington Courthouse and Police Station, had an old timber panelled courtroom which police officers used for office space and a similarly timber panelled room which was used as an interview room. I am satisfied that the evidence does not establish that he was giving intentionally false evidence. Further, JB was candid about his desire to receive victims compensation. However that evidence does not satisfy me that he was giving intentionally false financially motivated evidence. He gave compelling evidence that his motive in giving evidence was to right a wrong because of what the accused had done to him. The evidence also did not establish that JB had sufficiently detailed conversations with any other student or other complainant in order for his memories to become contaminated. I accept JB as an honest and reliable witness who gave truthful evidence.

187. My assessment of AI was that she was a reliable, accurate and honest witness. She gave her evidence in a measured and reserved fashion and made appropriate concessions. She impressed me as assertive, intelligent and credible. Her evidence was direct, no-nonsense and believable. I assess her as a witness of truth.

188. In relation to MM, notwithstanding his schizophrenia diagnosis, he impressed me as a measured, intelligent and honest witness. He gave his evidence in a straightforward manner and made appropriate concessions. Chiefly amongst his concessions was the concession that he could not give evidence that the accused had digitally penetrated his anus in the school grounds and that he wished to resile from that assertion made in his statement. In doing so MM impressed me as being accurate, reliable and honest and not intent on making false or exaggerated allegations. I accept that he was mistaken about the accused playing “Dancing on the Ceiling” during the contextual occasion in 1984. However, that mistaken detail does not directly impact on his evidence concerning the offending conduct nor is it of such significance that it impacts generally on his accuracy or reliability. The evidence given by MM was that the accused played a Lionel Richie song which he said was Dancing on the Ceiling. Whether it was that Lionel Richie song, or some other song, is of such tangential relevance that it has no bearing on my assessment of him as a witness. In relation to the evidence of his symptoms of schizophrenia I accept the evidence both from him and his mother that at the times of preparing and signing his statements and at the time of giving evidence he was compliant with his medication and that the medication was effective. There is nothing to establish that at any relevant time he was suffering from any symptoms which would cause him to hallucinate or suffer from thought disorder. An occasion recalled by his mother where MM believed he could see a butterfly which was not there, which was at a time when he was not medicated, is of no significance to my assessment of him as a witness. Further I am not satisfied that MM’s evidence established that he had any ulterior motive. Rather I accept his evidence that he was motivated to give evidence because he did not think the accused should get away with what he had done to him.

189. I find that LH was a reliable, accurate and honest witness. Although she appeared somewhat anxious when she was giving her evidence I found her to be a good historian who was able to recall significant details that she would be expected to remember. She did not display any exaggeration or overemphasis. She was forthright in relation to the difficult relationship she had with her mother. I find her evidence was honest and highly credible. I accept her to be a witness of truth.

190. In relation to the tendency witness JI, I found her to be intelligent and eloquent who gave compelling, credible and reliable evidence. The fact that she was unable to delineate the alleged assaults, either by reference to time or any other distinguishing feature, added to her credibility and reliability. It is clear to me that she was not attempting to embellish or exaggerate and that she made appropriate concessions. I accept her as a witness of truth.

191. I find that each of the witnesses who gave evidence in the nature of complaint evidence as outlined above and did so in an honest and straightforward manner. I find that each of them gave honest evidence to the best of their recollection of the complaints made to them.

Determination and findings of fact

196. I have carefully considered the account given by the accused in his recorded interview. I take into account the directions I have given myself contained in Annexure A concerning the accused’s account. That account, which I have already summarised, was effectively denials of any sexual conduct with concessions that he may have accidentally touched children but not in an intentionally sexual way. I found his account to be unsatisfactory and unconvincing in that he initially denied having children sit on his lap because to do so would show favouritism, but later conceded that he may have done so. I also found his account to be unsatisfactory and unconvincing in that he stated that there may have been occasions when he tucked children’s clothing in and in the process may have accidentally touched them underneath the clothing. I generally find his account to be unbelievable.

197. I am not satisfied that the accused lied in the ways contended for by the Crown. That is so because each of the asserted lies were later the subject of further statements by the accused where he qualified what he had previously said, or related to matters about which the accused may reasonably be expected not to have had a clear memory some 40 years after the events.

198. Having rejected the accused’s account I therefore must put it to one side. It remains that I must still examine the evidence in the Crown case to determine whether or not I am satisfied that the Crown has established the accused’s guilt beyond reasonable doubt of any of the counts.

199. Turning to the tendency evidence, having separately considered the evidence of the tendency witness JI I am satisfied on the basis of her evidence that the Crown has established that the accused had the tendencies alleged. In reaching that conclusion I also take into account the evidence of each of the complainants for the counts on the indictment as further establishing the tendencies alleged. In reaching that conclusion I have taken care in drawing inferences and have considered alternative explanations for the tendency evidence. I am satisfied that the drawing of the inference from the direct evidence that the accused had the relevant tendencies is the only rational inference available in the circumstances. Having found that the accused did have the tendencies alleged, I will take that into account in considering whether it was more likely that he committed to specific offences with which he is charged. I take into account that I need to consider in relation to each count on the indictment whether the accused had that particular state of mind or acted in that particular way on each specific occasion.

200. I have also considered the context evidence and I take that evidence into account in relation to other uncharged occasions when the accused is alleged to have sexually touched CM, JM, ND, JB and LH. I accept that that evidence has a very limited purpose. The context evidence in relation to each of those complainants makes each of their individual allegations more understandable, explains that the allegations did not come out of the blue and assists in explaining that in the absence of complaints the accused may have felt emboldened to commit the offences as charged. I do not reason that because the accused may have done something wrong to one of the context complainants on some other occasion that he must have done the acts alleged in the indictment.

201. In relation to the evidence of complaint and the issue of delays in complaint I find as follows.

202. I am satisfied on the evidence that each of the complaints was made. I take into account the directions in Annexure A in relation to the use to which that evidence can be put.

203. I am satisfied that the complaint evidence defined in Annexure A as “limited use complaint evidence” assists in supporting the truthfulness of the evidence given by those complainants.

204. I am satisfied that the complaint evidence defined in Annexure A as “dual use complaint evidence” is additional evidence that the complainant was sexually assaulted in the way they described and assists in supporting the truthfulness of the evidence given by those complainants in court.

205. I accept the Crown’s submission that on the basis JB’s evidence, and the concession he made about his uncertainty that digital anal penetration occurred on the occasion in question, the elements of the offence for Count 11 have not been established. Accordingly I direct myself to enter a verdict of not guilty in relation to that count.

206. In relation to Count 1 I find the following facts:

1. in 1982 JL was six or seven years old and was in the accused’s 2L class in Year 2;

2. during an occasion when JL was sitting on the accused’s lap, the accused put his hand underneath JL’s shorts and fondled his penis and testicles;

3. that conduct continued for about three or four minutes; and

4. as a result of that conduct JL froze and was scared and did not know what to do.

207. I am satisfied that each of the elements of Count 1 namely that the accused assaulted the complainant, the assault was indecent and the complainant was a male person have each been proved beyond reasonable doubt. I have no doubt that the assault as described by JL was deliberate and unlawful in that the accused deliberately placed his hands inside JL’s pants and underpants. In the circumstances the assault was indecent because of its clear sexual connotation in that the accused touched the genital area of a young male student. The evidence established beyond reasonable doubt that the complainant was a male person.

208. In relation to Count 2 I find the following facts:

1. in 1982 DBR was 7 and 8 years old and was in the accused’s 2L class in Year 2;

2. on an occasion in 1982 when DBR was sitting on the accused’s lap the accused’s hand went underneath his school uniform, under his underpants and fondled his penis and testicles; and

3. the conduct caused the DBR to feel ashamed and in shock.

209. I am satisfied that each of the elements of Count 2 have been established beyond reasonable doubt. The evidence established beyond reasonable doubt that the accused assaulted the complainant by a deliberate and unlawful act of touching. The evidence also established beyond reasonable doubt that the assault was indecent in circumstances where the accused touched a young boy’s genitals under his clothing and had a clear sexual connotation. I am also satisfied the evidence established that the complainant DBR was a male person.

210. In relation to Count 3 I find the following facts:

1. ND was 5 and 7 years old in 1982 and was in the accused’s 2L class in Year 2;

2. there was an occasion in 1982 when ND was sitting on the accused’s lap and the accused put his hand under his shorts, under his underpants and fondled the underside of his penis using his thumb or thumb and forefinger in a stroking motion;

3. that conduct continued for up to one minute;

4. as the accused was fondling ND he said words the effect of “You have a very smooth skin”; and

5. that conduct caused ND to freeze, feel embarrassed and ashamed.

211. I am satisfied that the evidence has established beyond reasonable doubt each of the elements for Count 3. I am satisfied the evidence proved beyond reasonable doubt that the accused assaulted ND by a deliberate and unlawful act of touching. I am satisfied beyond reasonable doubt that the assault was indecent in that it had a clear sexual connotation because of the skin on skin touching of an adult male hand on the genitals of a young boy. I am also satisfied the evidence established the complainant was a male person.

212. In relation to Count 4 I find the following facts:

1. ND was in the accused’s 2L class in Year 2 in 1982 and was 6 or 7 years old at the time;

2. in 1982 ND attended an overnight school camp;

3. the accused came into ND’s dormitory room at that camp, sat on the floor and asked ND to sit with him on the floor;

4. the accused covered or partly covered ND and himself with his sleeping bag;

5. whilst the accused was reading or telling a story to the children in the dormitory he pulled down ND’s pyjama pants a number of times;

6. ND pulled up his pyjama pants each time the accused had pulled them down;

7. the first time the accused pulled ND’s pants down he pulled them down by about 10 cm; and

8. ND reacted to this conduct by freezing, feeling embarrassed and ashamed.

213. I am satisfied that the evidence has established beyond reasonable doubt that the accused assaulted the complainant by the deliberate and unlawful touching of him by pulling down his pyjama pants. I am also satisfied beyond reasonable doubt that in all of the circumstances, including that ND was wearing pyjamas and no underpants, the circumstances of partial concealment of ND under the sleeping bag, the assault was indecent. I am so satisfied beyond reasonable doubt, because of the area of ND’s body which was being touched and because it was his genital area which was to be revealed if the pulling down of the pyjama pants had continued, that the assault had a sexual connotation because it would have exposed his genitals underneath the sleeping bag. I am also satisfied beyond reasonable doubt of the third element that the complainant was a male person.

214. In relation to Count 5 I find the following facts:

1. ND was 6 and 7 years old in 1982 and was in the accused’s 2L class in Year 2;

2. the accused had become aware that ND would leave the eastern suburbs and the Vaucluse Public School at the end of that year;

3. the accused directed or invited ND to come with him to the assembly room in a separate building at the school on the pretext of assisting him with some manual work;

4. when the accused and ND got to the assembly room nobody else was present;

5. in that room the accused knelt down, turned to ND and kissed him directly on the lips;

6. the kiss lasted for one or two seconds, was uninvited and neither very long nor very hurried; and

7. the conduct caused ND to freeze and feel scared.

215. I am satisfied that each of the elements of Count 5 have been established beyond reasonable doubt. I am satisfied beyond reasonable doubt the kissing of ND by the accused was a deliberate and unlawful touching. I am also satisfied beyond reasonable doubt that in all the circumstances, particularly the circumstances that the accused was aware that ND was soon to leave the school, and the circumstances that the kissing was directly to the lips of a young boy and lasted one or two seconds, that the conduct had an overtly sexual connotation and that the assault by kissing was indecent. As before I am satisfied beyond reasonable doubt that the complainant was a male person.

216. In relation to Count 6 I find the following facts:

1. CM was in the accused’s 2L class in Year 2 in 1982 and was 7 years old during that school year;

2. during 1982 the accused called CM up to his desk to have her work marked;

3. when she was standing behind his desk and next to the accused, the accused pulled her close to him, rubbed her back over her dress, put his hand on her dress, placed his hand on her bottom on the outside of underpants and then put his hand inside her underpants from behind;

4. the accused then moved his hand forward and used his finger to rub her vaginal lips backwards and forwards for approximately 30 seconds;

5. the accused then inserted part of his finger between her vaginal lips;

6. the accused then moved his finger up towards the region of her clitoris;

7. CM did not consent to that conduct; and

8. as a result of that conduct CM froze and felt confused.

217. I am satisfied that that evidence has established each of the elements of Count 6 beyond reasonable doubt. By inserting his finger inside CM’s vaginal lips the accused had sexual intercourse with her by penetrating her genitalia. I am satisfied beyond reasonable doubt that CM did not consent to that conduct and the accused knew that she did not consent to that conduct. The evidence established that CM did not consent and I take into account that her failure to offer any physical or verbal resistance does not, by reason of that fact alone, amount to consent. Further I am satisfied beyond reasonable doubt that the evidence establishes the accused actually knew that CM did not consent because of her youth and because the accused made no attempt to obtain her consent. In any event I note that reckless indifference to whether the complainant was consenting is deemed knowledge of lack of consent.

218. Because I am satisfied that the elements Count 6 have been established I need not consider the alternative count which is Count 7.

219. In relation to Count 8 I find the following facts:

1. in 1982 CM was in the accused’s 2L class in Year 2 and was 7 years old during that school year;

2. in 1982 when CM was wearing the winter uniform including tights the accused called her up to his desk to have her work marked;

1. the accused then patted her on the bottom, placed his hand under her school uniform over her tights, rubbed his hand over her tights and then put his hand under her tights and under her underwear;

2. the accused then moved his hand forward and slid his finger towards her genitals and separated her vaginal lips;

3. the tip of the accused’s finger then penetrated her vagina and the tip of his finger moved in a backwards and forwards motion;

4. the accused removed his hand he said words to the effect of “Good girl” or “Take your book”; and

5. the accused’s conduct caused CM to feel scared, confused and unable to understand what was happening.

220. I am satisfied beyond reasonable doubt that the Crown has proved each of the elements of Count 8. I am satisfied that the evidence established beyond reasonable doubt that the accused had sexual intercourse with CM in that he penetrated her genitalia with the tip of his finger. I am also satisfied beyond reasonable doubt that CM did not consent to that conduct and that the accused knew that she did not consent. In finding beyond reasonable doubt that the accused knew that she did not consent I take into account her very young age at the time and that she gave no indication to the accused that she consented to the conduct. I accept that failing to offer physical or verbal resistance at the time does not, by reason of that fact alone, amount to consent. In relation to the accused’s knowledge I am satisfied beyond reasonable doubt that the accused had actual knowledge of a lack of consent because of her youth and because he made no attempt to obtain her consent. In any event I take into account that he was recklessly indifferent to her lack of consent because the evidence did not establish that he made any attempt to obtain her consent before the conduct alleged.

221. In relation to Count 9 I find the following facts:

1. CM was 7 years old during the 1982 school year and was in the accused’s 2L class in Year 2 in that year;

2. as a result of the incident relevant to Count 8 CM commenced wearing an additional pair of underpants over the top of her school tights as part of her winter uniform;

3. there was an occasion in 1982 when the accused called her up to his desk to have her work marked;

4. when CM was behind his desk he patted her bottom with his hand over her uniform, then placed his hand inside her uniform, under the outer pair of underpants, under her tights and then under the inner pair of underpants;

5. the accused then moved his finger forward and touched CM’s genitals, opened her vaginal lips and rubbed that area in a backwards and forwards motion;

6. the accused then inserted part of his finger inside her vagina;

7. that conduct caused CM to feel uncomfortable;

8. the accused removed his hand he said words to her to the effect of “Good girl”; and

9. CM did not consent to the conduct.

222. I am satisfied that the evidence has proved beyond reasonable doubt each of the elements in relation to Count 9. I am satisfied beyond reasonable doubt that the accused had sexual intercourse with CM by penetrating her genitalia with his finger. I am also satisfied beyond reasonable doubt that the evidence established that CM did not consent to that conduct and I am satisfied beyond reasonable doubt that the accused knew that CM did not consent. I am satisfied of his lack of knowledge on the basis of her very young age and the evidence that CM gave no indication of any consent and the accused made no attempt to obtain her consent. I take into account that failing to offer physical or verbal resistance does not, by reason of those facts alone, amount to consent. I also take into account that the accused’s knowledge of consent is established by his reckless indifference by not making any inquiries about that topic.

223. In relation to Count 10 I make the following findings of fact:

1. JB was 4 and 5 years old during 1983 and was in the accused’s Year 1 class during that year;

2. the accused led JB to a storage area underneath a school building which contained stored furniture including desks and chairs and was dark;

3. in that storage area the accused lifted JB onto a desk;

4. the accused then exposed his penis and put it against JB’s face and mouth;

5. the accused’s penis made contact with JB’s face touching his lips and mouth but did not penetrate JB’s mouth;

6. the contact made by the penis against JB’s face was gentle but probing;

7. the view of the conduct that occurred in that storage area was obscured from anyone standing outside because of the furniture and because the storage area was dark;

8. the conduct ceased because a person was on a nearby pathway about 5 m away; and

9. the conduct caused JB to freeze.

224. I do not find that the evidence established that the person on the pathway was able to see the conduct in question because of the view being obscured either in whole or in part by the furniture and being difficult to observe because of the darkness of the storage area. However I am satisfied that the complainant JB became aware that there was a person nearby although he was unable to sufficiently identify who that person was.

225. I am satisfied that the evidence has established beyond reasonable doubt each of the elements of Count 10. Those elements were that the accused assaulted the complainant JB. I am satisfied beyond reasonable doubt that he did so by deliberate and unlawful touching which occurred by him placing his penis on JB’s face and mouth. I am satisfied that the evidence established beyond reasonable doubt that that the assault was indecent. In so being satisfied I take into account all of the surrounding circumstances and in particular that the touching of an adult’s genitals against the face and mouth of a small boy has an obvious sexual connotation by virtue of the body parts involved. I am also satisfied that the evidence established that JB was a male person.

226. In relation to Count 11, I accept that a directed verdict of acquittal must be given in relation to Count 11 because JB gave evidence that he could not be certain that an act of penetration occurred.

227. In relation to Count 12, which was in the alternative to Count 11, I find the following facts:

1. JB was 4 and 5 years old during the 1983 school year during which he was in the accused’s Year 1 class;

2. there was an occasion during that year when JB was sitting on the accused’s lap;

3. during that occasion the accused put his hand inside JB’s pants, under his underpants and fondled his penis and testicles;

4. during that incident another teacher came and stood in the doorway of the classroom;

5. after the other teacher left the accused then removed his hand from JB’s genitals and clothing; and

6. the conduct caused JB to feel confused in that he did not understand that the conduct was wrong and thought that it may have happened to everybody.

228. I am satisfied that the evidence established each of the elements of Count 12 beyond reasonable doubt. I am satisfied that that evidence established beyond reasonable doubt that the accused assaulted JB by the deliberate and unlawful touching of his genitals inside his school uniform and underpants. I am also satisfied beyond reasonable doubt that the assault was indecent, taking into account all of the circumstances, and in particular the obvious sexual connotation of the skin on skin contact between an adult male’s hand and the genital area of a young boy. In addition a further sexual connotation is available because of the description of the contact by JB as fondling. In relation to the final element the evidence has established beyond reasonable doubt that JB was a male person.

229. Turning now to Count 13 I find the following facts:

1. AI was 5 and 6 years old in 1983 and was in the accused’s Year 1 class during that year;

2. during 1983 the accused called AI up to his desk to have her work marked;

3. when AI was standing behind his desk and next to the accused he attempted to pull her onto his lap and she pulled away;

4. the accused then put his hand underneath her school dress and touched her on the bottom, partly through her underpants and partly touching the skin of her bottom near her underpants;

5. the touching was neither hard nor soft;

6. AI reacted by pulling away and walking away from the accused; and

7. the conduct caused AI to feel as though she would get into trouble if she complained to anyone.

230. I am satisfied that the evidence has established beyond reasonable doubt each of the elements of Count 13. The accused assaulted AI by the deliberate and unlawful act of touching her on the bottom. In considering the second element of Count 13 that is, whether or not the assault was accompanied by an act of indecency, I take into account all of the surrounding circumstances. I am satisfied beyond reasonable doubt that those circumstances, including that the contact was underneath AI’s school dress, on her bottom, partly on and partly off the area of her bottom covered by her underpants and was neither hard nor soft that the evidence established that the contact and the assault had an obvious sexual connotation. That is so because of the areas of the body touched and because of the other surrounding circumstances. If the accused had been engaging in some legitimate form of corporal punishment there was no need for his hand to go underneath her school dress or to touch her skin, her bottom or her underpants. I am satisfied beyond reasonable doubt that the circumstances establish unequivocally that the conduct had an obvious sexual connotation and was therefore indecent. In relation to the third element of Count 13 I am satisfied that the complainant AI was a person under the age of 16 years at the time.

231. In relation to Count 14 I find the following facts:

1. in 1984 MM was 6 years of age for the majority of that school year and was in the accused’s Year 1 class;

2. during 1984 there was an occasion when the accused put his hand down the front of MM’s pants;

3. with his hand inside MM’s pants and underpants he then used his hand to play with MM’s penis and testicles;

4. the contact between the accused and MM’s genitals continued for less than 20 seconds; and

5. MM did not know at the time that the accused’s conduct was wrong and froze.

232. I am satisfied that the evidence has proved each of the elements of Count 14 beyond reasonable doubt. I am also satisfied beyond reasonable doubt that the accused assaulted MM by the deliberate and unlawful act of touching MM’s genitals. I am also satisfied beyond reasonable doubt that the assault on MM was accompanied by an act of indecency on MM. In so finding I take into account all of the surrounding circumstances and I am satisfied beyond reasonable doubt that conduct involving the direct skin on skin contact between an adult male’s hand and the genitals of a very young boy had a clear and unequivocal sexual connotation. In relation to element three of Count 14 am satisfied that the evidence established beyond reasonable doubt that MM was under the age of 16 years at the time.

233. In relation to Count 15 I find the following facts:

1. in 1984 LH was 5 and 6 years old and was in the accused’s Year 1 class;

2. during 1984 the accused called LH up to his desk in order to have her work marked;

3. the accused then asked LH if a word in her book started with the letter S or the numeral 5;

4. the accused then ran his hand up LH’s thigh, touched her abdomen and chest, including her nipples, touched her underwear, his hand lingered around the elastic of her underpants and he placed two fingers of his hand inside front elastic waistband in the area of her pelvis;

5. the accused’s touching near her underwear was in a repeated stroking motion; and

6. the conduct caused LH to feel terrified and confused.

234. I am satisfied that the evidence has proved each of the elements of Count 15 beyond reasonable doubt. I am satisfied that the evidence has established beyond reasonable doubt that the accused assaulted LH, by deliberately and unlawfully touching her under her uniform and by touching her abdomen, chest, nipples, pelvic area and underwear. I am satisfied beyond reasonable doubt that the assault was accompanied by an act of indecency, taking into account the areas of LH’s body touched including her pelvic area, her chest area and her nipples, taking into account that the conduct occurred underneath LH’s school uniform and taking into account all of the surrounding circumstances. I am satisfied beyond reasonable doubt that the touching had a clearly and unequivocally sexual connotation. The evidence also established beyond reasonable doubt that LH was a person under the age of 16 years at the time.

Verdicts

235. Accordingly, having regard to the whole of the evidence and taking into account the various directions of law which I am required to take into account and taking into account the extensive submissions by the Crown and the defence, I find the following verdicts:

Count 1:   Guilty

Count 2:   Guilty

Count 3:   Guilty

Count 4:   Guilty

Count 5:   Guilty

Count 6:   Guilty

Count 8:   Guilty

Count 9:   Guilty

Count 10:   Guilty

Count 11:   Not guilty

Count 12:   Guilty

Count 13:   Guilty

Count 14:   Guilty

Count 15:   Guilty.

236. The accused is convicted of each of the counts in relation to which a guilty verdict has been entered.

Annexure A 

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Amendments

29 April 2025 - Annexure A hyperlink inserted after [236].

Decision last updated: 29 April 2025