R v Scott - [2022] NSWDC 266

District Court

New South Wales

Medium Neutral Citation: R v Scott [2022] NSWDC 266
Hearing dates: 28/6/22-7/7/22, 14/7/22
Date of orders: 14/7/22
Decision date: 14 July 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Verdict of Not Guilty to Count 1.
Verdict of Guilty to Count 2.

Catchwords:
Crime – Judge alone trial – Verdict – Unlawfully cause person to ingest stupefying drug with intent to commit indictable offence of sexual assault – Teacher have homosexual intercourse with pupil under 18 years.

Legislation Cited:
Criminal Procedure Act 1986

Cases Cited:
Prouten v Chapman [2021] NSWCA 207

Category: Principal judgment
Parties: NSW DPP – Crown
Peter Wayne Scott - Accused
Representation: Mr J Mehta for Crown
Mr Z Khan for Accused

File Number(s): 2020/341820
Publication restriction: Crimes Act s.578A - non-publication of the identities of the complainant, the tendency witnesses, and any other witness who was a child at the time of the alleged offences. Names of those witnesses anonymised.

verdict and reasons

General matters

The Accused is charged on an indictment containing two counts which are as follows:-

1. That between 1 December 1984 and 31 December 1984, in Sydney, he did unlawfully cause DH to ingest a stupefying drug, and did so with the intent to enable him to commit the indictable offence of sexual assault upon the said DH.
2. That between 1 December 1984 and 31 December 1984, in Sydney, he did have homosexual intercourse with DH, a male person above the age of 10 years and under the age of 18 years, namely 16 years old, during a time upon which he worked as a schoolteacher at Cromer High School and the said DH was a pupil.

The trial of the Accused proceeded by Judge alone, pursuant to orders made by Judge Yehia SC (as Yehia J then was).
In this judgement I record my verdicts, and reasons for reaching those verdicts.
In reaching my verdicts, I must take into account any warning, direction or comment which by law would be required to be given or made to a jury.

Onus / Standard of proof / Presumption of innocence

The Crown bears the onus of proving the charges beyond reasonable doubt. The Accused is presumed to be innocent unless the Crown satisfies me beyond reasonable doubt of his guilt of one or both of the offences. There is no onus on the Accused to prove anything, or to tender or give evidence.
Beyond reasonable doubt are ordinary words and represent the highest standard of proof known to our law.

Assessing the evidence / Applying common sense

In assessing the evidence, and in determining whether the Crown has satisfied me of the guilt of the Accused, I must approach the task with an open and unbiased mind, act logically, rationally, and not capriciously. Although in carrying out that task, I should apply common sense, my verdict must be based only on the evidence called in the trial.
In assessing the evidence I am entitled and expected to apply my common sense and general experience in life, and have regard not only to what was said in evidence, but also the manner in which the witnesses gave evidence.

Joint trials / Separate consideration

The two charges against the Accused are being tried together as a matter of convenience. However, there are strictly two trials being conducted and I must give separate consideration to whether the Crown has proven its case in respect of either or both charges. I must not compromise, but must attend to the elements of each alleged offence and whether the Crown has satisfied me of them beyond reasonable doubt.

Elements of the alleged offences

The elements of the two counts are set out in MFI 7 and are as follows: –

Count 1 (Unlawfully cause to ingest stupefying drug with intent)

The Crown must prove beyond reasonable doubt all of the following elements:

That the Accused caused the Complainant to ingest a substance.

“Ingest” includes applying or administering to, or causing the substance to be taken by, the Complainant.

That the substance was a stupefying drug.

“Stupefying” has its ordinary English meaning of dulling the senses or faculties to a significant degree, or making a person unable to think, feel or react properly.

In this case the Crown alleges that the Accused provided to the Complainant a cannabis “joint”, which had a stupefying effect on him.

In considering whether the ingestion of that cannabis had a stupefying effect on the Complainant, the Crown relies also on the Complainant’s evidence that he was already feeling some degree of intoxication by having earlier consumed some alcohol.

That the Accused did so with the intent to enable him to commit an indictable offence (sexual assault) upon the Complainant.

An intention to commit sexual assault can be inferred from the circumstances, and from the conduct of the Accused before, during, or after the alleged offence.

That in causing the Complainant to ingest a stupefying drug with the intention of committing an indictable offence (sexual assault) the Accused did so unlawfully.

“Unlawfully” means without lawful excuse.

Count 2 (Male teacher have homosexual intercourse with male pupil aged 10-18)

The Crown must prove beyond reasonable doubt all of the following elements:

That the Accused and the Complainant are male.

This is not in dispute.

That the Accused was a teacher and the Complainant was one of his pupils at the time of the alleged offence.

This is not in dispute.

3. That the Complainant was above the age of 10 but below the age of 18 at the time of the alleged offence.

The Complainant was born on 28 August 1968 and was therefore 16 at the time of the alleged offences.

That the Accused had homosexual intercourse with the Complainant.

Homosexual intercourse includes:

“(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another male person.”

In this case the Crown alleges that the Accused placed the Complainant’s penis into his mouth.

Evidence by remote means

One of the Crown witnesses, Ms Wauchop, gave evidence by audio visual means. I do not treat this evidence in any different manner by reason of it being given in that form, and I approach my assessment of the evidence in the same manner as evidence given in person in court.

Audio-recorded evidence of “tendency” witnesses

The evidence of the Crown’s “tendency” witnesses was placed before the Court by means of edited audio recordings of the evidence given by them in earlier proceedings. I was also provided with typed transcripts of that evidence. However, the actual evidence comprises the words that can be heard being spoken in the recordings, rather than the transcripts of that evidence, and if there is any difference between the two, then it is for me to determine the words that were spoken. I note however, that in this matter there was no suggestion of any errors in the transcripts that are of significance to any of the issues.
While I was able to listen to the audio-recordings of the tendency witnesses, I was not provided with any video-recorded images of the witnesses while giving evidence. I have taken into account this limitation in my capacity to assess the demeanour of these witnesses and its impact, if any, on my ability to assess the credibility of the witnesses. Having said that, I am also conscious of the limitations of a judge, or of any person, in being able to discern anything meaningful in the demeanour of a witness: Prouten v Chapman [2021] NSWCA 207, at [12].
Accordingly, while I have taken into account my own assessment of the demeanour of the tendency witnesses, and indeed all witnesses, I have done so with these words of caution in mind.

Transcript direction

The suggested tendency evidence relied on by the Crown was placed before the Court largely by means of audio recordings of the evidence given by the witnesses in previous proceedings, with the exception of the part of the evidence of GM. In the case of GM, an audio recording was not available for the first two days of his evidence, which was given on 13 and 14 March 2013. In relation to the evidence given on those two days, the evidence was limited to my reading of the transcript, and I therefore did not have the benefit of hearing the evidence given by the witness. I take into account therefore, when considering the truth and accuracy of this witness’s evidence, that my assessment of his evidence on these two days is restricted to reading a transcript of words spoken, without the opportunity of hearing how those words were spoken, or of hearing any of the other nuances available from the spoken word.
In relation to the remaining tendency evidence, where the Court heard audio recordings of the evidence, and also was provided with transcripts, I remind myself that the evidence on which I must act is the words spoken in the audio recordings. If there are differences between those recordings and the transcripts, then it is the sounds heard on the recordings to which I must have regard.
I note also that the evidence of the tendency witnesses was in parts edited by agreement, to remove irrelevant material. I do not speculate about what that material might have been, but act only on the evidence that is before me.

Complaint evidence

The Crown relies in this case on evidence of “complaint” made by the Complainant to OF and DW, on 27 July 2018.
It is for me to decide whether I am satisfied that such complaints were made.
I am entitled to use that evidence in either or both of two ways. Firstly, the evidence of complaint to others is some additional evidence that the alleged offences did occur. In other words, I can use the evidence as going to the truth of what the Complainant said to OF and DW. If I do use the evidence as going to the truth of the allegations, then the weight that I attach to it is a matter for me. In assessing that weight, and whether I can rely on the evidence, I must have regard to whether, and to what extent the evidence of complaint was consistent (or otherwise) with the evidence given by the Complainant in court.
However, and whether or not I treat the evidence of complaint in this manner, I am also entitled to use it for a second purpose, namely that the fact that the Complainant made complaints, at the time and in the manner that he did, may lead me to conclude that the evidence he gave in court is more believable than if he had not raised the allegations as he did. In other words, whether the making of the complaints to OF and DW makes it more likely that the Complainant was giving truthful and accurate evidence in court.
However, I remind myself that just because a person says something on more than one occasion, does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated more than once.

Section 294 – Lack / Delay in complaint

In this case, there was a period of delay between the offences alleged by the Complainant and any complaint to others. In accordance with s.294 of the Criminal Procedure Act 1986, I warn myself that the absence of complaint or delay in complaining does not necessarily indicate that the allegations are false. There may be good reasons why a victim of sexual assault may hesitate or refrain from making a complaint.

Section 293A – Direction concerning “differences” in accounts

Agreement was reached by the parties that I should direct myself pursuant to s.293A of the Criminal Procedure Act 1986 in relation to the evidence of the Complainant, and the tendency witnesses GM, SS and IK.
Accordingly, when assessing the evidence of these witnesses, I must consider whether there are any differences with respect to the versions given by them at different times, and make a determination as to whether or not any such differences in each of the witness’ accounts are important in my assessment of their truthfulness and reliability.
However, in doing so, I have regard to the fact that experience shows that people may not remember all the details of a sexual offence, or may not describe a sexual offence the same way each time, and that trauma, if suffered by a witness, may affect people differently, including in how they recall events. It is relatively common for there to be differences in accounts of a sexual offence, and both truthful and untruthful accounts may contain differences.

Essential Crown witness

Although the allegations by the Complainant may be given support by other parts of the evidence, to which I must have regard, the Complainant is an essential witness in relation to the allegations in the indictment. In those circumstances, while I do not need to be satisfied beyond reasonable doubt of every word uttered by the Complainant, I do need to be satisfied beyond reasonable doubt of the essence of the allegations that he makes concerning the alleged offences. If I am not so satisfied beyond reasonable doubt, then I must find the Accused not guilty.

Markuleski direction / Consequences of not guilty verdict on one count

As the Complainant is an essential witness whose evidence about the allegations must be proved beyond reasonable doubt, I need to consider the effect upon my assessment of his credibility if I conclude that I cannot be satisfied beyond reasonable doubt of his evidence with respect to either one of the counts. In other words, as the Crown case relies essentially upon the evidence of the Complainant for both counts – if I have a reasonable doubt about his evidence concerning one count, then I must consider whether and if so, how, this impacts on my assessment of the evidence in relation to the remaining count. If I cannot believe the Complainant’s evidence beyond reasonable doubt on one count, then it may be difficult for me to accept his evidence concerning the other count.

Inferences

I am entitled to draw inferences of fact from other facts that I find proved. However, I must be very careful in drawing inferences, and must not do so unless the inference is reasonable and rational in the circumstances.
Furthermore, and because of the onus of proof on the Crown, and the very high standard of proof, I must be extremely careful before drawing any inference of guilt. Before doing so, I must carefully examine any such inference, and satisfy myself that it is the only rational inference available in the circumstances.

Context evidence

The tendency witnesses relied on by the Crown gave evidence of specific events which are said to have involved sexual offences committed upon them by the Accused.
However, the witnesses GM and SS gave evidence that in addition to the specific incidents about which they gave detailed evidence, the Accused engaged in sexual activity with them on other occasions. This evidence of “other acts” was admitted for a particular purpose, namely so as to place their evidence about specific incidents into what the Crown says is a realistic and intelligible context. The evidence was admitted only to answer questions that might otherwise arise about the particular allegations about which these witnesses gave specific evidence.
I must not use this evidence of “other acts” as going to establish or support a “tendency” on the part of the Accused to commit offences of the type described in detail by these witnesses, or either of the offences with which the Accused is charged. I must not act upon the basis that the Accused is more likely to have committed either of the offences charged, or is more likely to have committed the specific acts described in detail by these witnesses, upon which the Crown relies as evidence of tendency.
Also, I must not substitute the evidence of these “other acts” for the evidence of the specific charges in the indictment. Nor can I substitute the evidence of these “other acts” for the specific acts described in detail by these witnesses, upon which the Crown relies as evidence of tendency.
Furthermore, I must not reason that, just because the Accused may have engaged in inappropriate sexual acts with these witnesses on other occasions, he must have done so on the occasion alleged in the indictment.
Also, I must not reason that, because the Accused may have engaged in inappropriate sexual acts with these witnesses on other occasions, that he must have done so on the specific occasions described in detail by these witnesses, upon which the Crown relies as evidence of tendency.

Tendency evidence

The Crown in this case seeks to rely on an alleged “tendency” in the Accused, which it says provides support for the allegations in the indictment. No objection or submission was made by the Accused as to the admissibility of this alleged tendency evidence, which comprised a volume of audio recordings and transcripts of evidence given in other proceedings heard in 2013 and 2014.
I will return to this evidence later in these reasons, when considering the Crown’s tendency argument, and when giving myself the relevant directions of law relating to this type of evidence.

Right to silence – No interview; No evidence from Accused

The Accused when arrested relied on his right to silence and declined to be interviewed. Similarly, in the trial, the Accused chose not to give evidence.
The right to silence is an important right of all citizens, and the fact that the Accused exercised that right cannot be used against him, or in support of the Crown case in any way at all. Nor can it be used to fill any gaps in the Crown case, and I must not speculate about what the Accused might have said if he had been interviewed by police, or if he had given evidence in the trial.
The exercise of the right to silence in these ways is completely neutral and I must simply disregard it.

Motive to lie

It was suggested to the Complainant on behalf of the Accused that the allegations were a deliberate lie. It was suggested that they might have arisen from the Complainant’s wish to receive some monetary benefit, by pursuing legal action against the school, or the Department of Education. This amounts to a suggested “motive to lie”.
While I have taken into account this suggested motive to lie, the fact that it has been raised does not shift the onus of proof from the Crown. Nor does it mean that the Accused takes on any onus to prove the suggested motive.
Therefore, while it is a matter that I must take into account, if ultimately I am not satisfied that any of the allegations do arise out of a motive to lie, I must put aside the suggested motive and return to the question of whether the Crown has satisfied me beyond reasonable doubt of the elements of either or both charges.

R v Jovanovic – “Why would the Complainant lie” - caution

In considering whether the Crown has proven either of the alleged offences, I must be careful not to reason, even if I am not satisfied that the Complainant had any reason to make up the allegations, that the absence of any such reason supports the Crown case in any way. People lie for all sorts of reasons. Sometimes the reason is apparent, or is discovered, but sometimes this is not the case, and there may be a reason that is unknown.
Therefore I must not ask myself the question “why would the Complainant lie?”, or reason that he must be telling the truth because there is no apparent reason for him to lie. There might be all sorts of reasons for a Complainant to give false or inaccurate evidence, and the absence of any reason, or apparent or possible reason, cannot be used to support his evidence or the Crown case in any way.
I apply the same caution when considering the evidence of the various “tendency” witnesses relied on by the Crown.

Anti-bad character direction

As the allegations involve a person who is now an inmate, it is apparent, and undisputed, that he is a person who has committed an offence or offences in the past, although I am not aware of the details of any of any such offence or offences.

However, I must not use the fact that the Accused is in custody against him in any way, such as, for instance, to conclude that for that reason he is generally a person of bad character, or of no or reduced credibility.

Forensic disadvantage by reason of delay – Evidence Act s.165B

There has been a very significant delay in this case between the time of the allegations, and the Accused being informed about, and being charged with, the alleged offences.
I am satisfied that the delay in this case amounts to a significant forensic disadvantage to the Accused. That disadvantage arises, as Counsel for the Accused submitted, from a number of matters, to which I will refer in detail later.
The disadvantage to the Accused arises not only in relation to his ability to meet the allegations in the indictment, but also his ability to meet the allegations made by the tendency witnesses.
The sheer passage of time is a matter which, as Counsel submitted, to some extent speaks for itself. It potentially impacts upon the capacity for the Accused to have had a better recollection of what occurred at the relevant time. It makes it more difficult for him to, for example, provide evidence of alibi, or to access records such as receipts, diaries, telephone records, employment records, and to identify and call relevant witnesses who might have assisted the Accused in meeting the allegations.

THE EVIDENCE

The Complainant

The Complainant was born on 28 August 1968, and started Year 7 in 1981 at Cromer High School. He said that in 1983, when he was in Year 9 he started taking part in extra-curricular activities which included school musicals, and it was through his participation in these that he met the Accused.
The Complainant said he also became involved in a rock band, in which he was the singer, and that the Accused had some involvement in the band, in that he assisted in teaching the boys how to play the instruments and songs. He said that the band used to practise at school, sometimes at lunch times and other times after school or on weekends.
The Complainant said that the Accused was very encouraging of him, and that the Accused also had a production company, and used to produce videos for bands, including the Australian band “Mental As Anything”. He said the Accused owned a blue van which had the name of his production company – “B Sharp Productions” – on the side.
One of the Complainant’s best friends was OF, who lived with his family not far from the Complainant. In September 1983, OF’s parents moved to the Hunter Valley to run a Bed and Breakfast, and left OF and his sister to stay in the house. The Complainant said that on his understanding, the Accused had been placed in the role of guardian of OF and his sister and lived in the house with them. The Complainant said that after this he tended to spend much more time at OF’s house, and that there was a lot of freedom, which included parties, and the use of alcohol and cannabis.
He said that the Accused would purchase alcohol for them, and also supplied them with cannabis, which they would smoke together. He said he would regularly smoke cannabis with the Accused in his van, and that this was probably a weekly thing.
The Complainant said that he looked up to the Accused “in a big way”, as his own father was a hard man with fixed beliefs and was not encouraging in relation to singing and dancing or acting, and that he could talk to the Accused about things which he could not discuss with his father.
He said that on one occasion when they were driving in the Accused’s van, the Accused asked him if he masturbated, and suggested that that was something he should be doing at his age, and also asked if he was a virgin, which the Complainant said was an uncomfortable discussion. He said that when this discussion occurred they were very close to where the Complainant lived and that the Accused must have been dropping him home.
After OF’s parents moved to the Hunter Valley, the Complainant and OF visited OF’s parents, which the Complainant thought was probably in the school holidays at the end of 1983. The Complainant said that while in the Hunter Valley, and while the Complainant and OF were playing tennis at Cessnock, the Accused turned up at the tennis venue, and the Complainant and OF returned to Sydney with the Accused in his van. The Complainant said that the Accused took them to an apartment where he was then living, which he thought was in the city, around the Kings Cross area. At the apartment, the Complainant drank a lot of alcohol, such that he vomited. He said also that the Accused put on pornographic videos.
The Complainant gave evidence that in 1984, when he was entering year 10, OF moved into the Complainant’s family home, and that before this happened, OF’s parents met with the Complainant’s parents and told them that they trusted OF, and that he if wanted to go out to do things, then he should be allowed to do that. After OF moved in, the Complainant said he was allowed more freedom, such that – as he put it “if OF was going, I was going”.
The Complainant said that after this, he and OF, and sometimes other boys as well, went with the Accused to see various bands. In December 1984, he said there was an occasion where the Accused took him to see a band at a pub somewhere in the city, where he drank some alcohol. Late that evening, or early the next morning, he said the Accused drove them to a car park at a beach somewhere, where the Accused rolled a joint, which they shared. After this, the Complainant said that he felt quite lightheaded and was not feeling well. He said that the Accused suggested he lie down in the back of the van, which he did. The next thing he recalled was that the Accused was in the back of the van with him and was using his hand to rub the Complainant’s upper thigh. The Complainant said that he was quite shocked and was ‘frozen’ as to what was transpiring, but that then the Accused rubbed the Complainant’s genital area through his pants, and then unbuttoned pulled down the jeans he was wearing, after which he started fondling his genitals before putting the Complainant’s penis into his mouth.
He said that at the start of this activity, he had been trying very hard not to get an erection, but eventually he did, but that he later lost the erection, and that during the whole episode, he did not move, and remained “frozen”. He said that when the Accused had “finished”, he, the Complainant, started to move or shuffle, to show the Accused that he was awake. At this stage, the Complainant said, the Accused spoke, saying something like “It’s ok – it’ll get better next time, it’s ok”. The Complainant said that he did not reply to this, and did not look the Accused in the eye, but that after the Accused had said those words, he pulled the Complainant’s pants back up, got out of the van, and drove the Complainant home, while the Complainant remained in the back of the van. The Complainant said that when they were leaving the car park, it was close to sunrise.
The Complainant said that he had had some experience before this night in drinking alcohol and in smoking cannabis, and the effects of these substances, but he had never previously felt unwell to the level that he did on this occasion.
The Complainant did not tell anyone about the incident, and said he was extremely embarrassed and ashamed. After this, although he had to continue having contact with the Accused through school, he avoided being alone with the Accused in a similar situation.
In December 1990, the Complainant became aware that his friend DW was going to Queensland, and so the Complainant contacted DW to see if he wanted to visit the Accused, who was then living in Byron Bay, with his partner Stacey. The Complainant said that it was his idea to visit the Accused and that it was intention to confront him about what had happened 6 years earlier. However, the Complainant said he did not tell DW of this plan, and did not end up confronting the Accused, as he just "couldn’t bring myself to bring it up” and just thought that he would try to bury it and never see the Accused again.
On 27 July 2018, the Complainant attended a charity golf event with some of his old school friends, and afterwards they went for drinks at the Time and Tide Hotel in Dee Why. At that time, the Complainant and his friends had become aware of publicity referring to allegations against the Accused. There was discussion at the table about this topic, during which the Complainant said “I’m one of Peter’s victims”. The Complainant said that OF and DW were present when he made this comment.
The Complainant however did not at this stage report the matter to Police, but started getting counselling. He also became aware of a class action that was being commenced, and made some inquiries of the legal firm involved in that. However the Complainant said he did not proceed in joining the class action, and stopped answering emails and phone calls from the solicitors involved in the matter.
Some time after this, which the Complainant thought was in about 2019, he was contacted by Police, and ultimately made his first statement on 26 February 2020. Also, the Complainant said that in about 2014, his parents asked to see him and that they brought out a newspaper article, which referred to allegations involving abuse of students from Cromer High School, and asked him if anything had ever happened to him. The Complainant however denied this to his parents, saying “No, nothing ever happened to me”, which he explained was because he did not want to “put them through that”.
In cross-examination, the Complainant agreed that when he made his statement in February 2020, Senior Constable Meredith was very patient and allowed him to tell his story, and gave him the opportunity read the statement and ensure it was accurate before signing it. He agreed that the officer probably told him to make contact if he thought of anything else. The Complainant agreed that in September 2021, he did provide a further statement.
The Complainant was cross-examined about the characteristics of the Accused’s blue van, which he thought did not have side windows. He agreed however that the van would often have quite large equipment in the rear.
It was put to the Complainant that his evidence about a conversation in which the Accused asked him about masturbation was simply untrue, however the Complainant maintained that it was true. It was also put to the Complainant that he was ‘making up’ the evidence about being taken by the Accused with OF to the Accused’s apartment where they watched pornographic movies and the Complainant became sick from drinking too much alcohol. However again the Complainant maintained that his evidence was true. It was suggested to the Complainant that the Accused had never lived at OF’s house, but the Complainant denied this suggestion.
In cross-examination the Complainant agreed that he would have seen the Accused at school throughout 1984, and when it was suggested to him that the Accused was on leave between 21 May and 9 September 1984, the Complainant said he did not recall that, and added that the Accused was not one of his teachers.
When cross-examined about the incident referred to in the indictment, the Complainant said he did not think that there were lights in the car park where the van had stopped. It was also pointed out to the Complainant that in his police statement of 26 February 2020, he did not say that this incident occurred immediately after he had seen a band with the Accused, and that in the statement he had said that he could not recall exactly where they had gone that night. The Complainant accepted that this was inconsistent with the evidence he had given in Court. It was suggested to the Complainant that on this night, “all of Mr Scott’s equipment” was in the back of the van, however the Complainant denied this, and also denied the suggestion that the sexual assault had never happened.
The Complainant agreed that after the alleged incident, he continued to be involved in school musicals, even though he knew this would bring him into contact with the Accused. He also agreed that he made no mention to DW of his intention to confront the Accused during the visit to Byron Bay, even though he had opportunities to do so. The Complainant also agreed that in his first statement he made no mention of this trip to Byron Bay in 1990, and that it was only raised in his second statement, of 24 September 2021.
The Complainant was also asked about the conversation with this friends at the Time and Tide Hotel in which he said that he was one of the Accused’s victims, and said that he recalled having said this to OF and DW, and that the third friend, RF was “maybe” not at the table at the relevant time. The Complainant agreed in cross-examination that it was another 19 months after this incident before he gave a statement to police, and that in between those times he had spoken to a lawyer about suing the Department of Education. It was put to him essentially that he had fabricated allegations due to a financial motive, but the Complainant denied this. He was also shown a document and it was suggested to him that in that document, lawyers acting for him had alleged that between about 1984 and 1985, when aged 15 to 17 years, he had been sexually abused by the Accused on various occasions. However, after looking at the document, the Complainant maintained his original evidence, denied that he had ever made the allegations referred to in the unidentified document, and said that he had not proceeded with any legal action. T80

Complaint and related witnesses

“OF”

OF said he came to know the Accused from his involvement in musicals and through the student band and jam sessions, which he said happened mostly out of school hours and on weekends. He said that the Accused would provide them with alcohol and marijuana during these sessions, and also at “after parties” following school musicals and the 1985 Rock Eisteddfod.
OF confirmed that in September 1983, his parents bought a bed and breakfast in the Hunter Valley. He said that he suggested to the Accused that he move into the family home, and act effectively as a guardian, so that OF and his sister could continue to live there and complete the school year. He said that the Accused ultimately agreed, and lived at the house maybe 60 to 70% of the time between October 1983 through to January 1984, although he also stayed at his own Paddington unit.
OF confirmed that the Accused had taken him at times to the Accused's flat in Paddington in his blue van, most likely to collect a guitar or an amp. He recalled that the Complainant was also there at least once. OF said that he smoked “weed” with the Accused in his van on many occasions, sometimes on the way to school.
OF said there were many parties at his house whilst he lived there with the Accused, and that school friends would drink alcohol and smoke weed. He said the alcohol usually came from older friends, and that the “weed” came from various sources but that the Accused "always had a stash" and was generous with it. He said the Accused kept a stash in a canister or a silver tin in his jacket pocket. OF also gave evidence that he had smoked cannabis with the Accused in other locations including the art staffroom, the music room, and in a Channel 7 editing suite during work experience that he did with the Accused.
He said he also recalled visiting the Accused’s house at Bungan or Bilgola Beach off “The Serpentine” about five or six times, and went to some parties there, and that cannabis was smoked. He also gave evidence of the Accused showing him a big bag of cannabis when the Accused was living in a unit at Narrabeen.
OF described attending with the Complainant, DW and RF, at a charity golf event, and then going to the Time & Tide Hotel afterwards on 27 July 2018. He said there was talk about a newspaper article concerning allegations against the Accused by former Cromer High School students. OF said he noticed that the Complainant had left the table and didn’t come back, and that he found him out in the car park having a cigarette. He said he approached the Complainant and asked if he was okay, and the Complainant said “not really”. OF said he asked if it had something to do with the Accused, and complainant said words to the effect of - "Yeah, I was a victim", and "I feel so ashamed. It's just fucked up my life. I wanted to tell you guys for so long, but I couldn't. I felt so ashamed, like it was my fault". He said they both cried.
In cross examination, OF said that he had not contacted the Complainant about OF’s 2014 police statement because the Complainant had “fallen off the grid” at that time. He also said that after the discussion at the Time and Tide hotel, he had sent to the Complainant a link to some lawyers to pursue a civil claim, but on his understanding the Complainant did not pursue it.

“DW”

DW said he was a school friend and neighbour of the Complainant, and that he was involved in musicals with the Complainant but was not in the band. He recalled the Accused driving a blue van, and that he had himself been driven in the van a few times to Bilgola. He said the Accused moved into OF’s home as a guardian in years 9 or 10, and that during that time, there were parties at OF’s house, and later, the Complainant’s house, when his parents were overseas. He recalled the Accused being at several of the parties and that he had smoked cannabis with the Accused at these parties. He also recalled that OF moved in with the Complainant’s family in year 10.
DW said that he lost contact with the Complainant for some years, but in 1990, he and the Complainant visited the Accused in Byron Bay. DW also gave evidence of attending with the Complainant, OF and RF at charity golf event in July 2018. He said he was sitting at a table at the Time and Tide Hotel with the Complainant and OF and he thought that RF was also at the table. He said there had been a lot of media about the Accused, and that the Complainant told him that he had been sexually assaulted at school. He said “we all broke down” and that the Complainant said he had been getting help “to deal with it”, and that DW told the Complainant - “its not your fault…we all love you,,, (and) “it doesn’t affect our relationship and we’re just glad to have you back”.
In cross examination, DW accepted that his account of the complaint was different in his statement where he said that the Complainant said that he had been sexually assaulted by the Accused and that OF and RF were also present. He said however that after reflecting on the matter, he thought that the first disclosure was just made to he and OF. It was put to DW that his evidence about smoking cannabis with the Accused was not true, but the witness disagreed.

“RF”

RF gave evidence that he was another school friend of the Complainant. He recalled that after OF’s parents moved to the Hunter Valley, the house became a "party house" where his group of friends spent most weekends drinking and taking drugs. His recollection was that the only people living there were OF and his sister. He said however that he saw the Accused a these parties “a few times”, and assumed that he had seen him drinking alcohol, but could not say if the Accused smoked cannabis.
RF said that he also once attended the Accused's Bilgola house with the Complainant and OF, and that there were 10 to 20 people present, with everyone drinking and having a good time.
The witness confirmed that he was with the Complainant and others at the Time & Tide Hotel in July 2018, and that there was some conversation about the Accused when they went back to RF’s place afterwards. In cross-examination RF said that it was OF who had told him that the Complainant had been a victim, and that he did not discuss the matter with the Complainant.

“JO”

JO said she was a close school friend of the Complainant. She said the Accused drove a blue van that had sliding doors and no side windows. She said she recalled during years 9 and 10 that the Accused would pick up or drive home the Complainant with other boys in the van. She also recalled seeing the van parked outside the Complainant’s home in Narrabeen.
She said she also saw the Accused at parties at OF’s house when OF’s parents had moved away, which she thought was in years 10 or 11. She said she saw the Accused drinking alcohol and smoking cannabis at these parties. She said that the Accused had moved into OF’s house “for a few months” but couldn’t say exactly when that was. It was put to her that she had never seen the Accused smoking cannabis at parties, but she maintained that this did happen.

Deidre Wauchop

Ms Wauchop was an arts teacher at Cromer High between 1983 and 1989. She said the Accused was “very sort of hands on with all of the things that we needed to do within the department. He was easy to get along with.” She said the Accused drove a blue HiAce type van, and she saw him with students in the art staffroom but didn’t see anything untoward. She remembered attending the Accused's Bilgola house on two occasions and on one of those occasions there were some students there. She confirmed that the Accused was involved with musicals and the 1985 Rock Eisteddfod and said there would have been an after party. She never saw the Accused using illicit drugs. She described the Complainant as a “fantastic member of our group” and that the Complainant was involved in the musicals between 1984 -1986. She said the Accused and the Complainant had a friendly relationship and recalled that she was invited to have a sauna at the Complainant’s house with the Complainant and the Accused, which she did not attend. She recalled the Accused helping the Complainant to deliver his HSC art work to the school in year 12. In cross-examination she said she never saw any inappropriate behaviour between the Accused and students. She agreed that she had seen students drinking alcohol at parties but never saw them smoking cannabis.

Tendency witnesses

Evidence in the form of audio recordings from prior proceedings was admitted from a number of witnesses, which evidence the Crown relies on as providing support for an alleged tendency in the Accused. The tendency relied on as set out in the Tendency Notice of 28 June 2022, is to have a sexual interest in teenage boys and a tendency to act on that sexual interest between 1984 and 1986 by performing sexual acts on male students of Cromer High School while the Accused was a teacher at that school.

“GM”

One of the tendency witnesses is GM, who gave evidence in March and April 2013, and in February 2014.
GM was born on 18 October 1970, and started at Cromer High School in 1983, where he entered year 7. He said that he got to know the Accused as an art teacher, although he did not teach art to GM. GM said that he met the Accused through friends who played music, as the Accused also used to play music.
GM said that in 1984, the Accused used to take them surfing, and he also saw the Accused on weekends in the drama room when the boys were playing music. Among the boys who went surfing was SS. He said the Accused used to pick them up in his blue Toyota van, which had the name “B Sharp” on the side. GM said that the Accused would film them surfing and gave them marijuana, which they would smoke in his van before going for a surf.
GM identified in his evidence the 1983 and 1984 year books from Cromer High School, which confirm that the Accused was an Art teacher at the school in those years. The 1984 Year Book also confirms that in that year, the General Assistant was L. Taylor, who was referred to in GM’s evidence as “Lenny” the cleaner.
GM said that on one occasion, which he thought was around 1985, he went to a party at the Accused’s house at Bilgola Beach, when the comedian George Smilovici was present, and also a female who he thought may have been the female comedienne Judith Lucy. He said that at the party he drank alcohol which was there, and that he also smoked marijuana which was given to him by the Accused.
GM identified two photographs showing part of a house, which he said was the same house at which the Accused had lived and which he had visited. GM described the house as being of a Spanish or Italian style, and the photos which he identified depict parts of a house which might reasonably be described as having that style, with arched doorways and terracotta roofing.
GM said that it was around the start of 1984, during the first term to around the middle of the year, that the Accused first commenced to engage in sexual activity with him.
He said that during one lunchtime at school, which was several months after a “talent quest” in about June 1984, he and the Accused entered the cleaner’s room on the first floor, to which the Accused had a key. GM said that the Accused rolled a joint of marijuana, which they smoked, which resulted in GM feeling numb, and that the Accused started to masturbate GM’s penis and sucked it while GM was towards the back of the room, leaning against a desk, with his back to the door, with the Accused in front of him on his knees. While this was happening, he said the cleaner “Lenny” entered and mumbled something, then closed the door. Photos of doors and of the inside of a store room were admitted and became an exhibit. The witness said however that he did not know if Lenny was able to see the Accused, who was down on his knees.
GM said that other incidents of sexual contact between he and the Accused occurred in the Accused’s van, including at Jamieson Park in Narrabeen, and several other places, and that this happened every week.
GM said that in 1985, the day after his 15th birthday (i.e. 19 October 1985), he and the Accused went to Jamieson Park in the blue van at night time. He said the van had a mattress with curtains in the back and that the windows were tinted. He said that the Accused rolled a joint, and sprinkled some cocaine in it, and that after they smoked it, he passed out in the back of the van, and woke with his pants around his knees. He said he saw that the Accused had an erect penis and “it was about to enter my backside I think”. He said that he “freaked out” when he woke up, and that the Accused stopped doing whatever he was about to do. He said he pulled his pants up, and that he saw the Accused’s penis, although the light was poor. He said in relation to the Accused’s penis “I think it had a foreskin”. He added however that at that time he did not have experience with the appearance of circumcised and uncircumcised adult penises, although he agreed that his own penis was circumcised.
When cross-examined in March 2013, GM said that the very first sexual activity with the Accused that he could recall was in about mid 1984, when the Accused rubbed his penis through his shorts, after they had smoked a joint in the van. He said that it was day time, after school, but he could not recall where they had gone. He said that he “freaked out” when he was touched by the Accused in this way, but agreed that nonetheless he continued to see the Accused and to get into his van.
GM also agreed in cross-examination that although he did not want sexual contact with the Accused, he did not at that time tell anyone, such as his parents, another teacher, or the police, even though he claimed that he had a witness – Lenny Taylor – who he assumed had seen something of what had happened in the cleaner’s room.
GM confirmed in cross-examination that he was being sexually assaulted by the Accused after school, on at least a weekly basis from June 1984 to September 1984. It was put to GM however that the Accused was not working at the school between 21 May and 9 September 1984, however GM maintained his evidence that he believed the Accused was at the school and that he saw him regularly.
GM said also that there was an occasion when police approached the van and spoke to him, when he said that the Accused was his uncle, and he was given a card by the police officer and told to call if he ever wanted to make a statement. He said this could “very well have been” the occasion of the incident which he had described in the back of the van where he saw the Accused behind him with an erect penis.
The witness agreed, after being shown the Year Book for 1985, that he had been mistaken in his evidence that in 1984, the Accused had played guitar on the song “Rock Lobster”, and agreed that this had occurred in 1985.

“NP”

Another tendency witness relied on by the Crown was NP, who gave evidence in prior proceedings on 8 April 2014, to which I have listened. NP started at Cromer High School in 1985, when he was 11 years old and entered Year 7. He said that in 1985 he was very much still a child and had not yet reached puberty. After starting at the school, NP said he came to know the Accused, who was a really friendly teacher who appeared to be interested in him. He said that in the first half of 1985, there was a school musical where he saw the Accused. He said that the Accused offered him a lift home, but his mother said no.
Some time after this, but still in the first half of Year 7, NP said that he attended his weekly art class with the Accused who was his art teacher. On this occasion, he said that the Accused asked him to stay behind after class to discuss a project that the Accused wanted to undertake. NP said that the Accused told him he would be suitable for the project as he did not have much body hair, and that it involved covering the body with a substance, like clay or similar. He said that the Accused led him into an internal room next to the classroom, which was known as the kiln room where clay projects were dried.
NP said that on this occasion, he was wearing school shorts with an elastic waist, and underwear which could be stretched open. Once inside the room, the Accused, according to NP, was discussing with him his suitability for this project because he had no body hair, and that the Accused opened NP’s pants, and underpants, and looked down at his genitals, for about 2 seconds. NP said that the Accused did not touch his penis and did not say anything while he was doing this, but NP “felt betrayed” and could not understand why his teacher was looking down his pants. The witness was shown some photos of a room at Cromer High School, which he confirmed was the room in which he said this incident occurred, although the contents of the room as shown in the photos were not the same as they were in 1985. The witness said that after this incident, he reduced his contact with the Accused to an absolute minimum.
In cross-examination, it was put to NP that the Accused had never offered to give him a lift home at the school musical, however the witness disagreed and said he knows this to be true. It was also put to him that the Accused had never asked him to stay back after class and had never opened his pants and looked at his genitals, however the witness steadfastly maintained that this had happened, and said that he found it a “little bit disturbing” that the Accused would have done this.

“IK”

An audio recording of evidence given on 8 April 2014 by another tendency witness, IK, was also played in the trial. IK also started in Year 7 at Cromer High School in 1985. He said that although the Accused was not one of his teachers in year 7, he became friends with the Accused, who used to hang around with IK and other boys who surfed, and that the Accused used to take video of them surfing. He said that the Accused had a blue Toyota Hiace type of van, and that he used to travel in the van with the Accused to local beaches, and also to the Accused’s house which was at Bilgola beach. He said that he had been to the Accused’s house at least 2 times, and described it as a Spanish style villa, with courtyards and arched doorways.
IK described one particular occasion, when he went surfing with a number of boys, one of whom was SS, after which they all returned to the Accused’s house at Bilgola beach. At the house, he said that some of the boys went to a shower, which he thought was downstairs, while the Accused directed IK to an upstairs shower. IK said that while he was naked in the shower, the Accused, who was naked and had an erection, entered the shower, and grabbed IK on the penis. IK said that he was quite scared and immediately got out of the shower.
IK was shown two photographs of part of a house, which he identified as being the same house where the Accused had lived at Bilgola beach. Those photos depict architecture which might reasonably be described as having a “Spanish” style, with arched doorways, and terracotta half pipe style roofing. These were the same two photographs that were identified by the witness GM when describing the Spanish or Italian style house which he recalled the Accused living in at Bilgola.
IK was cross-examined to the effect that the Accused had never taken him surfing, had never taken any video images of him surfing, and that IK had never been in the Accused’s van, and never been to his house. However the witness steadfastly disagreed with these propositions. It was also put to him that the Accused had never entered the shower naked and touched IK, but the witness said “Of course he did” and that he had never forgotten this occasion where he attended the Accused’s house.
In re-examination, the witness was asked why he had not spoken about the allegations until more recent times, and said that he was young, and that he thought that in the 1980s, “social standards weren’t as acceptable of homosexuality as they are today” and that he “had a lot of fear, what if someone was to find out” and that “there was a lot of shame…and I was I suppose scared…if my peers were to know that I’d engaged in some homosexual activity – and this is when AIDS was around too…and there was quite a bit of stigma attached to homosexuals at that time…and I’ve come forward now only because I won’t carry anyone else’s dirty secrets with me today and social standards are different today”.

“CC”

Another tendency witness relied on by the Crown was CC, whose evidence, given on 9 April 2014 in prior proceedings, was played to the Court via an audio recording.
CC started Year 7 at Cromer High School in 1986. He completed his HSC in 1991, and when he gave evidence in 2014, was working as a Medical Practitioner. He said that he recalled the Accused being his roll call teacher over a number of years, including 1986, and that the Accused was also at some stage CC’s Art teacher. CC gave evidence that in 1986, he suffered appendicitis, and medical notes were admitted into evidence which confirmed that around early May 1986, the witness was seen by a doctor about his appendix scar which was inflamed.
CC gave evidence that some weeks after his operation he attended Cromer High School on a weekend in order to try out on the drums for a rock band. He said that the Accused was present, and that when it came to his turn to play the drums he could not get up the confidence to do so, and just sat behind the drum kit and was quite humiliated. He said that after this, he was asked by the Accused to accompany him to another room, to assist with some costumes for a school production that was coming up. He said the room was on the same level, but about 50 metres away, and was referred to as the AV room. He said that he looked up to the Accused at this time, as he regarded him as cool, as a role model for a number of reasons, including that he owned a red Fender Stratocaster.
The witness said that the Accused gained access to the AV room with a key which was among many keys that he had. CC identified the AV room in a number of photographs which were shown to him and admitted in evidence in those prior proceedings. Once inside the room, according to CC, the Accused brought out a very small garment, which was almost like underwear, and asked him to take off his pants and try them on, however CC said “no”, and remained standing where he was. After this, he said the Accused asked him at least 4 or 5 other times to try on similar items, but that when CC refused, the Accused placed the items against CC’s waist, as if he was “sizing them on me”. He said he recalled one of the items in particular to have been a dark colour, which had fake green leaves attached to it.
On this occasion, CC said he was wearing track pants with “Speedos” under them. He said that the Accused asked him “Can I have a look at your appendix scar?” and asked whether his pubic area had been shaved, which CC said it had. CC said that although he said “no” to the request to see his appendix scar, the Accused lifted up his shirt, opened his pants and reached into his “Speedos”, then used his fingers to touch from the base of CC’s penis to the end of his penis. After this, he said the Accused said “Looks just like a shorn sheep” and patted him over the penis on the outside of his pants. CC said that these actions were “quite quick” but “very deliberate”.
The witness said he was scared, wanted to cry, and thought that he was going to “wet himself”, but just kept standing there while the Accused got out another costume tried to get CC to try it on. The incident came to an end, according to CC’s evidence, when he said he had to go as his parents would be wondering where he was. The witness said he did not tell his parents, as he was worried that his father would assault the Accused, and also that he was not sure whether the Accused had done anything wrong, or whether he was just misinterpreting the Accused’s actions. He said he was also concerned about the ramifications at school if he had reported the matter, as the Accused was a popular teacher. After this, he said he continued to see the Accused, who was his group teacher, but that he never let himself be alone with the Accused again. The witness identified a number of photographs of a room at Cromer High School which he said was the same room where the incident occurred.
In cross-examination, CC agreed that he told no-one about the incident at the time, and first approached authorities in March 2013. He agreed that part of his medical training involved issues relating to inappropriate sexual contact and mandatory reporting of abuse, and agreed that since 1986 it had crossed his mind that the Accused might have been doing similar things to other boys. It was put to him that the Accused had never been present at any “band tryout”, had never invited him to another room, and had never touched him in the manner he had described. The witness however maintained that all of these things had in fact occurred.

“SS”

Evidence relating to alleged tendency was also admitted from the witness SS, whose evidence given in March 2014 was played to the Court. SS said he started at Cromer High School in 1984, when he entered Year 7. He said that the Accused was his art teacher, that he found him to be kindly and helpful and used to help us with music and musical instruments. He said that he played guitar and so did the Accused, and that this was something he liked about the Accused.
SS said the Accused had a few different vehicles, including a blue Hiace van, in which he used to go for drives, and that the Accused and he used to have joints together, and that the Accused had a little tin in which he kept marijuana. The witness identified a photograph of a blue Toyota van which he said was pretty well identical to the Accused’s van.
He said that most of the time, the Accused would drive him to Edgecliff Boulevard or to Narrabeen car park overlooking the beach, and that after they had smoked a joint, the Accused would start touching his leg, then rubbing his penis. He said that this activity included the Accused sucking his penis, and that after this, the Accused would make SS do the same thing to him. He said that his happened lots of times. He said he felt “pretty disgusted” at himself, but as the Accused was his teacher, he just “let it happen” and went along with it. SS said that sexual contact also occurred at other locations.

The witness identified photographs which were admitted into evidence, and which he said showed a block of units in which the Accused had lived at Narrabeen.
SS described an occasion which was after a party at Kirk Golding’s house which occurred after a Rock Eisteddfod, where the Accused told him “We’ll go for a drive”, after which they drove to Edgecliff Boulevard, Collaroy, in the Accused’s van. At that location, he said that the Accused produced a joint from his tin, which he smoked, and that then the Accused rubbed him on the leg and on the penis and then sucked his penis until he ejaculated into the Accused’s mouth, and that after this he did the same thing to the penis of the Accused. The witness identified photographs which became exhibits, which he said depicted the location on Edgecliff Boulevarde where this incident happened.
SS described another incident, which he said occurred on a weekend at school when the Accused was doing the photography for some friends of his who were in a band. The witness identified a number of photographs, which became exhibits, and which he said showed some of the band photography that had been produced that day. He said that during a break for lunch, the Accused asked him to come to the Drama room in relation to some “props”. He said that the Accused gained entry to the room with a key that he had, and that once there, they had a joint, and that after this, he sucked the Accused’s penis and the Accused did the same to him. He said that the Drama room was next to the school gymnasium on the ground floor. SS also said that he and some of his friends used to do surfing for school sport and that the Accused would film the boys surfing.
Another specific incident described in SS’s evidence is said to have occurred after he had been taken by the Accused to a men’s clothing store in Paddington. He said that at that location, the owner of the store, Gary Wolf, who was a friend of the Accused, lent him some clothing so that the Accused could take photographs, purportedly for a modelling portfolio. SS said that while at the shop, he and the others took some drugs, and that a number of photographs – some of which were admitted into evidence – were taken of SS by the Accused.
After this, he said that the Accused drove him back to the Northern beaches, but that just past the Spit bridge they stopped – at a location which SS identified in a photograph shown to him. He said it was night time when this occurred and that the Accused did the same thing as before – in sucking SS’s penis and in having SS do the same thing to him. SS said that he left the school in Year 9, when he was 14 years 9 months old, due to “being abused and not really knowing what to do about it”.
He also said that he had been to the Accused’s house at Bilgola many times, which he said was on the Serpentine, and was a “Spanish house”. The witness also identified two photographs which he said showed a courtyard of the house. These two photographs are the same as those identified in the evidence of GM and IK, whose evidence has been referred to earlier. The witness also provided a detailed description of his recollection of the internal layout of that house.
In cross-examination, SS said that he could not recall the first time that sexual contact occurred, but that the incidents he had described were the ones that were significant in his mind. The witness said that in the early 1990s, he saw the Accused in a café in Byron Bay, but that the Accused did not come out through the front door of the café and he thought he may have exited through a window.
The witness also agreed that in his police statement of 2011, he described the penis of the Accused as being uncircumcised, and agreed in evidence that he had seen the Accused’s penis numerous times. It was put to the witness that at no time did the Accused have sexual contact with him or provide him with marijuana, however he maintained that each of the incidents he had described had in fact occurred and that he “didn’t lie”. It was put to him that he had not been to the Accused’s premises at Bilgola on 30 to 40 occasions as he had claimed but the witness disagreed. He said however that he had not been to the Accused’s Narrabeen premises as many times, but that it was numerous, and between 10 to 20. It was also put to the witness that it was not true that he had seen the Accused in a café at Byron Bay after which the Accused disappeared, however the witness maintained his evidence that this did occur. It was also put to him that the Accused had never, other than as part of an end of year school activity, filmed him surfing, however the witness said that such videos were made by the Accused.
In further examination by the Crown on 25 March 2014, the witness said that he had earlier that day been shown a video which showed himself being spoken to by another student from Cromer High School and also identified himself as one of the persons seen surfing in some video footage.

Consideration

Count 1

There are a number of elements of the offence set out in Count 1. Element 1 requires proof beyond reasonable doubt that the Accused “caused” the Complainant to ingest a stupefying drug. The Crown case is that the Accused “caused” the Complainant to ingest a substance, by giving him a “joint” to smoke, which he did in fact smoke. No issue was taken by the Accused with the Crown’s argument that this alleged action by the Accused amounted to “causing” the Complainant to ingest a substance.
However, it was argued by the Accused that on the evidence presented by the Crown, I could not be satisfied beyond reasonable doubt that the cannabis smoked by the Complainant on this occasion amounted to the ingestion of a “stupefying drug”. In support of this argument, it was pointed out that no expert evidence was called as to the effects of cannabis generally, or as to the effects or likely effects of the cannabis “joint” that was said to have been ingested by the Complainant on this particular occasion.
There is no dispute that cannabis is a “drug”. It seems to me that I am entitled to assume, or take judicial notice to the effect that cannabis is a drug with intoxicating qualities. It seems to me that, as a matter of common sense, the ingestion of an intoxicating drug must be capable of having a “stupefying” effect on a person, but that this will depend upon a number of factors. Perhaps the most important of those factors is the quantity of the intoxicating drug that is ingested, and its strength or purity.
In this regard, no evidence was given by the Complainant as to the quantity of cannabis that was ingested, nor was there any precise evidence given as to the purity or strength of that cannabis.
In the absence of expert evidence, the question of whether the ingestion of cannabis by the Complainant amounted to the ingestion of a “stupefying drug”, must depend upon the evidence given by the Complainant as to the effects upon him of the cannabis, and on what inferences can be drawn from that evidence.
The Complainant described the event in the following manner:-

“Peter rolled a joint, we shared the joint. I didn’t feel very well pretty quickly following the smoking of the joint. I felt quite lightheaded and just generally not feeling well. Peter suggested I lie back – lie down in the back of the van, which I did and, you know, not feeling very well at all, so I don’t know how long I was lying in the back of the van. And then, as I said, I’m not sure how long after, but Peter made his way to the back of the van and started rubbing his hand, caressing my upper thigh. I remember feeling quite shocked that he was – I wasn’t feeling well, I was just shocked frozen as to what was transpiring. He then proceeded to rub my genitals through my pants and I was – I just – I was just frozen, just in shock as to what was going on, it was completely unexpected, this wasn’t anything that had happened before. I – Peter then proceeded to unbutton my jeans and pull my jeans down to my knees and started fondling my genitals then, and then proceeded to start – to put my penis in his mouth…”

The Complainant agreed that at this time, he had a “little bit of experience of smoking cannabis and the effects” of it on him. He was then asked if he had felt this way before when he had smoked cannabis and “had drinks”, to which he replied “Not to that level. Quite often if you had drank too much, perhaps you don’t feel well, but not to that level. I just felt really unwell.”
The Complainant was then asked “Were you able to stay upright in the back of the van or not?” And responded – “I laid down in the van, yes I had to lie down”.
The Complainant also said that, when it all started, “I was just shocked at what was going on…I was trying very hard not to be aroused by all this, but eventually I did and I just – the whole time, trying so hard not to ejaculate.”
In response to the question “Were you able to physically move whilst this was happening?” the Complainant said “No, I was just frozen, I didn’t move at all. After he had finished, I tried to – you know, just to show that I wasn’t asleep, I was trying not to react in any way, but then I started to – just to shuffle, to move, just to show him that I was, I guess, awake. He then proceeded to talk… He said the words that ‘it’s okay, it’s okay, it’s – it’ll be better next – it’ll get better next time, it’s okay’. I didn’t answer to that, I still didn’t make out that I was – you know, didn’t look him in the eye, didn’t wake up, didn’t get up, didn’t move except to just move around a little bit…”
The Complainant was asked why he did not say anything to the Accused, to which he replied “I just didn’t, I was just lying there, just trying to believe that this hadn’t happened.”
The Complainant was cross-examined about the incident. It was put to him that “all of the Accused’s equipment was in the back of the van”, but the Complainant denied that this was so. He said that when lying in the back of the van, his legs were facing towards the rear of the van, and that he had a clear recollection of this.
As I have observed, in this case, in the absence of expert evidence, the Crown seeks, in effect, to prove that the Complainant was administered a “stupefying drug” by arguing that the Complainant’s description of the effects upon him of the cannabis amounted to evidence that he was in fact “stupefied”. In relation to this question, the Crown relies on the Complainant’s evidence that prior to smoking the cannabis joint, he had already ingested some alcohol, by reason of which he was already experiencing some degree of intoxication.
It was argued on behalf of the Accused that the question of whether the Complainant ingested a stupefying drug should be limited to consideration only of the effects on him of the cannabis joint, and should ignore any effects that he was already experiencing by having earlier ingested alcohol. However, in my view this would involve an unjustified and unrealistic approach to the evidence, and to the case run by the Crown at trial. The Crown opening address included reference to the Complainant feeling “slightly drunk” just before the Accused rolled the cannabis joint, and the Complainant gave evidence to similar effect in his evidence in chief at T45. In these circumstances, it is appropriate in my view to approach the question of whether the Complainant was “stupefied” after smoking the cannabis, by having regard to the effects of that cannabis, when combined with the intoxicating effects which the Complainant said he was already experiencing from alcohol.
A person will be “stupefied” by a drug, if the ingestion of the drug has the effect that the person’s senses or faculties are dulled to a significant degree, or has the effect that the person is not able to think or feel or react properly.
However, the Complainant’s description of the alleged events suggests that at the relevant time, his faculties, senses, thoughts and feelings were not dulled to any significant degree, but remained intact. He has a clear memory, for example, of the Accused rolling a joint, of them sharing the joint, of his feeling unwell fairly quickly, of getting into the back of the van and lying down with his legs towards the rear, and of the nature and order of being touched by the Accused. He also appears to have a clear memory of what was said to him by the Accused, and of being driven home, and of going to bed as soon as he was home.
Perhaps more importantly, he was able to describe his thoughts and feelings at the time of the alleged sexual assault. This included being fully conscious of what was being done to his body, of being shocked at what was happening, and of his deliberate attempts to avoid being aroused, and of attempting not to ejaculate. His evidence also included that, after the Accused had “finished”, the Complainant was “trying not to react” but started to “shuffle” and move, in a (deliberate) attempt to show the Accused that he was in fact awake. Although the Complainant did say, more than once, that he was “frozen”, this description needs to be taken in the context of the very detailed description of the Complainant’s other feelings and thought processes at the relevant time.
Taken in that context, it seems to me that the Complainant’s description of being “frozen” and not moving or reacting to the alleged sexual touching is more consistent with being due to the shock he described feeling, rather than being due to his being “stupefied” by the drug he had ingested.
Having assessed the Complainant’s evidence carefully, and being satisfied that he did indeed feel “quite unwell”, I am not satisfied beyond reasonable doubt that he was in fact “stupefied” by the cannabis he had ingested.
As I am not satisfied beyond reasonable doubt as to second element of the charge in Count 1, it is unnecessary for me to consider the remaining elements, and I find the Accused not guilty of that Count.

Count 2

As earlier noted, there are four elements which the Crown must prove beyond reasonable doubt in order to make out the offence alleged in Count 2. There is no dispute that both the Accused and the Complainant are male, and I am satisfied that element 1 is made out. There is no dispute that the Accused at the relevant time was a teacher, and that the Complainant was one of his pupils, and so I am also satisfied that element 2 is made out. Similarly, element 3 is not disputed – the Complainant was, at the relevant time, above the age of 10, but under the age of 18 years.
It is the fourth element that is in dispute. Has the Crown satisfied me beyond reasonable doubt that the Accused had “homosexual intercourse” (as that term was then defined) with the Complainant?
The determination of this issue depends essentially on the evidence of the Complainant, and whether, having examined his evidence very carefully, I can accept him as an honest and accurate witness about the essential allegations.
In considering whether I can be satisfied beyond reasonable doubt of the fourth element of Count 2, I am entitled however to take into account all of the evidence, including for example, the complaint evidence, and the alleged tendency evidence.
It was argued on behalf of the Accused however that there are numerous discrepancies in, and problems with, the reliability of the Crown case, and that I could therefore not be satisfied beyond reasonable doubt.
I will deal firstly with the submissions made in relation to the “tendency evidence”.

“Tendency” witnesses

The Crown relies upon this evidence to support an argument that the Accused had a sexual interest in teenage boys who were students at Cromer High School, and a willingness to act on that sexual interest by performing sexual acts upon them.
In order to use the evidence in the way that the Crown suggests, I first need to be satisfied about which (if any) of the acts referred to by any of the tendency witnesses, actually occurred.
If I cannot be satisfied that any of the acts described by any of the tendency witnesses actually occurred, then I must put aside (ignore) the suggested tendency relied on by the Crown, and decide the case based on the remaining evidence.
If however, I am satisfied that one or more of the acts described by one or more of the tendency witnesses did occur, then I must proceed to consider, based on the act/s which I find did occur – whether I am satisfied that the Accused had the tendency which the Crown alleges.
If I decide that I cannot draw the conclusion that the Accused had that tendency, then I must put aside, or ignore, any suggestion that the Accused had the tendency asserted by the Crown.
If however I am satisfied, based on my findings in relation to any of the tendency witnesses, that the Accused did have the tendency asserted by the Crown, then I may use that tendency in considering whether I am satisfied beyond reasonable doubt of the offence alleged in Count 2.
However - even if I do find that the Accused had the tendency alleged by the Crown, that fact alone is not enough to prove the Accused's guilt of Count 2. But it may provide support for other evidence in the Crown case - and that is the only way in which I can use any finding of the alleged tendency.
Of course - before I can find the Accused guilty, I first must be satisfied beyond reasonable doubt that the evidence given by the Complainant is truthful and accurate, and that the specific act alleged in Count 2 occurred.
It is important to note that I cannot find the Accused guilty based only on a finding that he had the tendency alleged by the Crown.
The only way in which evidence of the alleged "tendency" can be used in support of the Crown case is as I have set out above.
In particular, I must not substitute evidence of some other act or some tendency as being sufficient to prove Count 2 of the indictment. As already stated, before I can find the Accused guilty, I must be satisfied beyond reasonable doubt of the particular allegation in that count, and of the elements that apply to that count.
Also, I must not reason that because the Accused committed any acts of misconduct referred to by any of the tendency witnesses, that he is for that reason a person of general bad character and must have committed the offence alleged in Count 2 of the indictment.
Turning then to the evidence given by the various tendency witnesses.
The witness GM gave evidence over 8 days, in March and April 2013, and in February 2014. Audio-recordings and transcripts of 6 of those days were placed before this Court, although only transcript was available for 13 and 14 March 2013.
As is the case with all of the Crown’s “tendency witnesses” I did not have the opportunity to observe the witness’s physical demeanour in giving evidence. Subject to that limitation, and having listened to 6 days of his evidence, and read a further 2 days of transcript, I found GM to be a very matter of fact, measured and straightforward witness.
It was argued however that there were a number of implausible matters and some inconsistencies in the evidence given by this witness.
Firstly, in relation to the alleged incident in the “cleaner’s room” at school in 1984, it was argued that it was implausible that the Accused would have smoked cannabis and performed fellatio on a student on school grounds, in school hours, given the risk of detection. On the other hand, according to the evidence of GM, the room had to be accessed using a key, and the external corridor adjoining the room was not a thoroughfare at lunch times. In those circumstances, a locked room in a relatively deserted area would have provided a reasonably good level of privacy or security, albeit with some risk attached.
It was also argued that the witness’s description of the layout of the cleaner’s room was quite general, and did not identify any specific or unique features of the room. I have considered this submission, however in my opinion, the witness did describe some unique features of the room. In his evidence on 13 March 2013, at T38, he said that the room had “double doors” and “water heaters or boilers” and that there were “desks in there” and “Lenny had some of his tools in there”. Photographs tendered on 13 March 2013, which became Exhibit D in those proceedings, show that the cleaner’s room did in fact have double doors, and contained what appear to be water heaters, and a desk, although the witness said it was not the same desk. The witness gave a similar description of the contents of the room when he gave evidence at T43 on 9 April 2013, and at T203 on 24 February 2014.

Criticism was also made of the use by the witness at times of words such as “I imagine” and “I believe”, however the instances to which I was taken did not, in my view, relate to matters of significance when assessing the overall reliability of the witness’s evidence.
It was further argued that the evidence of SS was also implausible in that he described having seen the Accused in a café in Byron Bay, and concluded that the Accused must have jumped out of a window, given that he, the witness seems not to have seen him exit from the front door. SS’s conclusion that the Accused must have jumped out of a small window, while possible, might perhaps fairly be described as improbable. On the other hand, there is evidence that the Accused was indeed living in the Byron Bay area at this time, and I note that in evidence given by the Complainant and DW it was in 1990 that they visited the Accused in that Byron Bay area. Ultimately however, there does remain the somewhat questionable conclusion expressed by SS about the Accused’s probable exit from the café, which is a matter that I have taken into account in my overall assessment of his evidence.
I take into account also a number of other matters which the witness said he could not recall, such as the first and last times that he was allegedly sexually abused by the Accused. That however needs to be taken into account against the background that SS said similar events happened on many occasions, and that he had drawn on the ones that were significant in his mind. While it might be thought, as was submitted on behalf of the Accused, that the first and last time that a person is abused would be the most memorable, that expectation is not necessarily borne out by the experience of the criminal courts in hearing such allegations.
Another matter which the Accused says tends to undermine the credibility of SS is that in his police statement of October 2011, he said that the Accused’s penis was “erect and uncircumcised”, whereas Exhibit 8 contains an agreed fact that the penis of the Accused was circumcised. However, the significance of this apparent contradiction must be assessed in context. That context includes that the witness was describing his recollections and perceptions as a boy of 13 or 14 years of age. Applying common sense and human experience, as I am required to do, it seems to me that a boy of that age, in the mid 1980s, is unlikely to have had experience in relation to the appearance of an erect adult penis, whether it be circumcised or uncircumcised. There is also the fact that the description given by the witness was in 2011, some decades after the alleged events. Furthermore, regard must be had to the highly variable nature of human anatomy, in the sense, as it seems to me, that not all circumcised penises can be expected to have the same appearance. There is also the fact that no evidence was led as to whether SS’s own penis was circumcised. In conclusion, while I take into account the apparent contradiction involved in SS’s description in 2011 of the Accused’s penis, it is not a matter to which I attach great significance.
I had the opportunity to listen to and reflect on the evidence that SS gave over a period of 3 days in 2014, during which he was cross-examined about a large number of details. Although, as I have said earlier, I exercise caution in attaching too much weight to demeanour, I was assisted by having heard the lengthy evidence given by SS. He was, in my view, a very matter of fact witness, although a witness who demonstrated what I consider to be appropriate and genuine embarrassment at having to describe some events, such as his evidence at T72 on 17 March 2014, when explaining that he ejaculated into the Accused’s mouth. I also considered that his evidence at T59 on 17 March 2014 was very credible when he said that he felt “pretty disgusted at myself” for going along with allowing the Accused, his teacher, to suck his penis. SS’s evidence also is given support by his apparent detailed knowledge of the internal layout of the “Spanish house” at Bilgola, which he said he had visited many times. His evidence about the “drama room incident” on a weekend when the Accused was taking photographs for the 3 piece rock band is given some further support by the photographs of the band’s album cover which credits the Accused as having produced the photography.
Having considered carefully the evidence of SS, and the submissions made on behalf of the Accused, and the various matters to which I have referred, I am satisfied that the three specific incidents of mutual fellatio that he described did in fact occur.

Conclusions in relation to the “tendency” evidence

As I have earlier set out, I accept that the incidents described by NP, IK, CC and SS did in fact occur.
The incident with NP occurred in 1985, when NP was a pre-pubescent boy of about 11 years, and involved the Accused, who was NP’s art teacher, pulling open NP’s pants and looking at his genitals. While this was done on the pretence that the Accused was checking NP’s suitability for a “project” that required a student with little body hair, I do not accept this explanation. Rather, this event is indicative of an inappropriate act of intentional voyeurism. I consider that this conclusion arises not only from the incident described by NP standing alone, but gains further support, and in my view, very strong support, from my conclusions with respect to other tendency witnesses, especially IK and CC.
The incident which occurred with CC in 1986, when CC was 12 years old, is somewhat similar to that involving NP. The Accused took CC to an isolated location, and then tried to have CC remove his pants and try on some clothing. However, this, and the subsequent request to see CC’s appendix scar was, I am satisfied, simply a device designed by the Accused to enable him to see the young boy in a naked or semi-naked state, and, when this did not work, the Accused simply “helped himself” by pulling open CC’s pants and looking at and then touching his penis. I have no doubt that this was a sexually driven act on the part of the Accused.
The incident involving the Accused entering the shower with an erection and touching IK on the penis was, I am also satisfied, sexually motivated, and only stopped where it did because IK had the fortitude and good sense to immediately get out of the shower.
The three specific incidents described by SS which involved mutual fellatio which was initiated by the Accused in the context of providing SS with drugs, were clearly also sexually driven acts, which I am satisfied did occur.
Having had regard to my findings that the events described by NP, CC, IK and SS did occur, and were sexually motivated, I am satisfied that those events establish a tendency in the Accused around that time to have a sexual interest in teenage boys, and a tendency to act upon that sexual interest.
The specific events alleged in the evidence of the witness GM, and whether I can be satisfied that all or any of them occurred, is a matter to which I have given long consideration. As I have set out earlier, there were some aspects to GM’s evidence which involved inconsistencies of some significance. These included the timing of the “cleaner’s room incident” relative to the Accused’s leave in 1984, and his evidence about Police speaking to him while with the Accused at Jamieson Park, but the police taking no action. It also included his reasonably clear evidence that the penis of the Accused was not circumcised, and the fact that GM’s own penis was circumcised, making it less likely that his description was the result of a mistake or inexperience. Ultimately however, and for the reasons I set out in my conclusions about the credibility of GM, I am satisfied that the two events – namely the cleaner’s room incident, and the incident at Jamieson Park just after his 15th birthday, did occur. In my view, the evidence about those incidents gains considerable support from the abundant evidence from various witnesses, that the Accused would regularly socialise in and out of school with male students, would drive them around in his van, and would supply them with cannabis on a regular basis. The evidence of GM is also supported by my findings in relation to the specific allegations of NP, CC, IK and SS.
My acceptance of the two events described by GM provides further support for my finding that the Accused had the tendency to which I have referred above. However, I record the fact that, even if the evidence of GM is ignored, I remain satisfied that the Accused had the tendency I have described.

The Complainant

I have earlier set out in summary the evidence of the Complainant. The Crown argued that I would accept the essence of his evidence, and relied on what it suggested was his clear recollection, the evidence of complaint to his friends in 2018, evidence of the Accused socialising and driving around with students and smoking cannabis, and also the tendency evidence.
However the Accused raised a variety of issues which he suggested raised real doubts about the truthfulness and reliability of the Complainant’s evidence. It was submitted that at times the evidence of the Complainant was “vague and evasive”, and was further argued that there were a number of specific aspects which would cause me concern, and to which I will turn shortly.
The Complainant gave evidence in Court on 1 July 2022 and I had the opportunity of seeing that evidence and making an assessment of the witness. I am conscious of the need for care in attaching weight to a witness’s “demeanour” however with that word of caution, I was nonetheless assisted in having the benefit of seeing the Complainant give evidence. While it was argued by the Accused that his evidence was at times “vague and evasive”, that was not my impression. In my view, the Complainant was a witness who gave detailed evidence of his recollections concerning many matters that he said occurred around the relevant time. This included the names of his group of friends, his extreme shyness in engaging in activities such as singing and acting, and being involved in a band, and the encouragement he said the Accused gave him in relation to these activities. He recounted for example his recollections of the van driven by the Accused, the name of the Accused’s production company which was painted on the side, the Accused’s involvement in producing videos for bands, including Mental As Anything – matters which were consistent with the evidence given by a number of other witnesses.
In my assessment, the Complainant’s evidence was consistent with his having held a great deal of respect and affection for the Accused, at least until the occasion of the alleged sexual assault, and probably even after that, although with much more caution. He was not a witness who sought to discredit or demean the Accused generally, either as a teacher or as a young man, as he then was. To the contrary, he described the Accused’s involvement with him in somewhat glowing terms, including that he “looked up to Peter, in a big way”, that it was “fantastic” to have had his encouragement, and that he “definitely saw Peter as a role model”. This is hardly surprising, given the evidence of the Complainant and a number of other witnesses, that the Accused played guitar, produced music videos for well known bands, provided alcohol and marijuana to young students, and was generally “one of the crowd”.
The effect of the Complainant’s evidence, which I thought he gave in a very matter of fact and clear fashion, was that he continued to hold the Accused in very high regard until the “completely unexpected” event which is the subject of Count 2 of the indictment.
While it was argued that the Complainant’s evidence of the alleged incident was vague and lacking in detail, I do not accept this description. In my view, the Complainant provided significant detail in his recollection of what occurred, and described, in a manner that was powerful and compelling his “shock” and feelings of being “frozen” as to what was happening. As he said, this was “completely unexpected, this wasn’t anything that had happened before”. I also found convincing and compelling the Complainant’s explanation of how, while “frozen” he was “trying very hard not to be aroused”, and that the whole time he was “trying so hard not to ejaculate”. The Complainant added that after the Accused had “finished”, the Complainant started to shuffle around and move, to indicate that he was not asleep, an action which in my view is entirely understandable in a young boy with no real sexual experience, who was, as he said, shocked and, on my assessment of his evidence, wishing to pretend that the entire incident was not happening. I also found his evidence highly credible when he referred to the Accused having said “it’ll get better next time” and that those words were awful to hear, because he had “listened to those words for the following 38 years”. It is true, as the Accused argued, that the Complainant could not recall if the incident was on a weekday or a weekend, or the exact location, was uncertain as to exactly where they had been beforehand, and could not recall how he got into the back of the van. The Complainant’s uncertainty in regard to matters of this kind is certainly relevant, and is a matter which I bear firmly in mind in determining whether I can be satisfied of the essence of the Complainant’s evidence beyond reasonable doubt.
However, it was argued that there were a number of other specific aspects of the Complainant’s evidence which would cause me concern about his truthfulness and reliability.
For instance it was submitted that the Complainant’s evidence of seeing the Accused while OF and the Complainant were playing tennis at Cessnock was implausible, and it is not credible that the Accused would have just “randomly” turned up on this occasion. It was pointed out that the Complainant had no recollection of this being pre-arranged, and did not recall whether OF had invited him. It was also pointed out that OF made no mention of this tennis match, and was not asked about it. Nor did OF make any mention of an occasion, described by the Complainant, where the Accused drove them back to his apartment in an inner city area, perhaps near Kings Cross, where the Complainant drank alcohol to excess and watched pornographic videos. However, I note that OF did confirm that the Accused lived at one stage at Paddington, which is reasonably consistent with the Complainant’s recollection of the apartment’s location, and said that he had been to the Paddington home with the Complainant at least once. Whether OF would have corroborated the Complainant about the Cessnock tennis match, or the later events at Paddington if he had been asked, is not a matter about which I can speculate. However, and although the evidence of OF does not support the Complainant’s evidence about the specific events, nor does his evidence directly contradict the Complainant, on what is, after all, a somewhat peripheral matter. While there is no evidence as to how it was arranged that the Accused would come to Cessnock, it does not however strike me as inherently implausible that this might have occurred, given the evidence from the Complainant and OF, which I accept, that the Accused was around this time acting in a type of guardianship role with OF and his sister, while the parents were living in the Hunter Valley near Cessnock. Nor does it strike me as inherently unbelievable that OF might not have spontaneously recalled or volunteered any recollection about returning to the Paddington home and other events that the Complainant said went on there.
It was also argued that the Complainant gave evidence inconsistent with his police statement in which he said that after this incident, he was sick for three days and missed some school, whereas it was suggested that in his evidence in Court he said that it occurred during school holidays. While the Complainant said in cross-examination that he might have got that bit wrong, I note that what the Complainant actually said in his evidence at T41.24 was that the visit to OF’s parents in the Hunter Valley was “probably” in school holidays. To the extent that there is any contradiction in this evidence, it seems to me to fairly minimal, although a matter I have nonetheless taken into account in my overall assessment of the Complainant.
The Accused also referred to evidence from the Complainant that OF moved in to the Complainant’s house in early 2014, and that after this the Complainant was given more freedom. It was argued that neither OF nor any other witness gave evidence about OF moving into the Complainant’s house. OF was not asked about this topic, and his evidence does not amount to a contradiction of the evidence of the Complainant, on what was, in my view, a peripheral issue. More significant in my view, is that OF’s evidence was consistent with that of the Complainant to the effect that they were “best friends”, and that OF and his group of friends were regularly having parties, which involved alcohol and sometimes cannabis, and that the Accused was frequently with them, either at the parties, of by reason of them riding around in the back of his van. This is consistent with the Complainant’s evidence of having been given a lot more freedom around this age. I note also that OF gave evidence that his parents’ house had been sold around January 1984, which is consistent with the timing suggested by the Complainant as to when OF moved in with he and his family. Furthermore, evidence was in fact given by DW at T127.25, that OF did move into the Complainant’s house in 1984. As I have said, this is a peripheral issue, but one that does not in my view impact to any significant degree on the evidence of the Complainant or any other witness.
Another submission concerning the Complainant was that his evidence at T68 that he would have seen the Accused on a weekly basis at school throughout 1984 is contradicted by the agreed fact Exhibit 9 that the Accused was on leave between 21 May and 9 September 1984. When this was put to the Complainant, he said that he did not recall this absence, but added that the Accused was “not a teacher of mine”. I have taken into account this contradiction, although I note that it does not contradict the Complainant’s evidence as to the approximate date on which the alleged offence occurred. I note however the evidence of the Complainant and others, which clearly establishes in my view that the Accused would regularly socialise with the Complainant and his group of friends, and would attend band rehearsals, which were often on weekends. There is also the fact that the Complainant’s exposure to the Accused was over a period of some years. It seems to me therefore, that while the Accused may have been on leave from school for part of 1984, and having reduced contact with the Complainant in that school context, it is likely that for at least some of that period, the Complainant and his friends remained in some degree of contact, of a social nature with the Accused. And, while there was some evidence from the tendency witness GM, about a postcard being sent in 1984 by the Accused from Italy, there is no evidence to support the conclusion that the Accused was outside Australia for the entire period of his leave. Indeed, I note that it was effectively conceded on behalf of the Accused in cross-examination of GM at T100 on 14 March 2013, that the Accused had in fact returned while on leave, to attend the mid year “talent quest” at which he was, according to the 1984 Year Book, one of the judges.
Submissions were also made about the Byron Bay trip in which the Complainant and DW visited the Accused in 1990, at the Complainant’s suggestion. The Complainant said in his evidence, and apparently in his second police statement, that part of the reason for this visit was to confront the Accused about the sexual abuse 6 years earlier, although he said that never could bring himself to do so. The Complainant made no mention of this visit in his first police statement, and it was not until he was approached by police in 2021 for a second statement that he mentioned the matter. The Complainant agreed that he made no mention also of this plan to DW, and also agreed that he had stayed on at the Accused’s home after DW left. There is also Exhibit B and Exhibit 6 in this trial, which shows the Complainant, and DW, in a smiling group photograph with the Accused while on the visit to Byron Bay. All of this, it was argued, was not consistent with truthful and reliable evidence. It did not make sense, it was argued, that the Complainant would have acted as he did in Byron Bay if he had, as he said, been trying to “keep his distance” from the Accused after the alleged sexual incident.

While it is true that the Complainant made no mention of the Byron trip in his first statement, this is not a matter which in my view is of great significance, given that, as the Complainant said, he “couldn’t bring myself to bring it up and just thought, well, we’ll just bury this, and not think about it again”. It would be different, if the Complainant had in fact confronted the Accused, and some admission, or denial had been made. Nor is it of great significance that the Complainant made no mention of his plan to DW, and never in fact confronted the Accused. In my view, the Complainant gave compelling evidence relevant to this when he said (at T49) “I was extremely embarrassed at what had happened. I don’t know why but ashamed of what had happened. The thought of what happened, I couldn’t have shared that with anybody.”
It was further argued that it was implausible that the Complainant would have voluntarily approached, or continued to have contact with the Accused if he had indeed been assaulted. However the Complainant again in my view, gave convincing evidence when he said “I had to continue doing everything normally, as we had done beforehand. The musicals, he was heavily involved in my life, all my friends had involvement with him. I did not want to put myself in that situation again where I would be alone with him in that sort of a situation again. So I avoid that at all costs, but I had to keep up the front with everybody that Peter was a part of our life...”
Counsel for the Accused also pointed, understandably, to the very considerable delay in any complaint being made in this matter. That is obviously a matter of some significance, both as to my assessment of the Complainant’s evidence, and also as to the impact, or potential impact of that delay upon the Accused and his ability to meet the allegations. I have earlier set out extracts from the evidence of the Complainant, who explained his embarrassment, and sense of shame, and of the need to “continue doing everything normally” notwithstanding the alleged assault. That evidence is also consistent with what the Complainant said about deciding to “bury this” when he was unable to confront the Accused in 1990. It also seems to me that the Complainant’s evidence of denying to his parents that anything had happened to him, and his reasons for doing so, are entirely consistent with the embarrassment and shame that at that time he said he held, and still holds to some degree about the incident. In my view, this evidence is entirely consistent with the policy underlying s.294 of the Criminal Procedure Act, to which I have earlier made reference, that delay in complaining does not necessarily indicate that an allegation is false, and that there may be good reasons why a victim of a sexual assault may hesitate in making a complaint.
Nonetheless, and as earlier set out, I am satisfied that the delay in this case does involve a significant forensic disadvantage to the Accused. That delay has had a number of impacts. It means for example, that there is no specific date, but only a specific month in which the offence is said to have taken place, making it difficult for the Accused to give an account of his movements on that day, either by memory, or by reference to other witnesses or records. The delay makes it more difficult also, for example, to test the evidence of the Complainant and other witnesses and means that it is difficult, or perhaps impossible, for the Accused to access potential sources of evidence which might have contradicted that evidence. In assessing the evidence, and in determining whether I can be satisfied beyond reasonable doubt of the alleged offence, I have given careful consideration to these disadvantages, and indeed to all of the difficulties pointed out on behalf of the Accused in closing submissions.
I have also taken into account in assessing the evidence, and whether it satisfies me beyond reasonable doubt of the Accused’s guilt, that evidence was not obtained from some potentially material witnesses, such as the parents of the Complainant and OF. The OIC, Detective Meredith, explained that this did not occur because both of these men did not wish to get their elderly parents involved. However, I accept that these witnesses could have thrown light on some of the topics about which evidence was given in the trial. Those topics include - whether the Accused became the effective guardian and moved into OF’s house, and whether OF later moved into the Complainant’s house, and the suggestion that the Complainant returned home and was sick after a drinking session where he had been with the Accused. I do not accept Counsel for the Accused’s submission that these were “vital witnesses”, however and while I do not speculate about what they might have said if called, I do accept that their absence means that some topics, including those I have mentioned, could not be tested to the degree that might otherwise have been the case. I have taken into account the absence of these witnesses in determining whether I can be satisfied beyond reasonable doubt of the Complainant’s evidence and of the Accused’s guilt.
It was submitted by the Accused that the Complainant’s allegations were driven, at least initially, by a financial motivation. In this regard, the Complainant agreed that he had made contact with a legal firm concerning a class action against the Department of Education, and had told those lawyers certain things about being sexually assaulted by the Accused. The Complainant however denied any financial motivation, and said that he did not carry on with involvement in any proceedings, and stopped communicating with the lawyers, and it was this which led to the lawyers providing some information to police. In cross-examination, the Complainant was also shown a document (MFI 5) which was not tendered into evidence, and it was put to him that the contents of that document suggested that he had given a version to civil lawyers which was inconsistent with his evidence in this trial. The Complainant however denied this, and said that he had never given instructions to the effect of that set out in MFI 5. In closing submissions, Counsel for the Accused appropriately conceded that the defence must accept that his evidence is that he denies ever making those representations. This issue was taken up also in cross-examination of the OIC Detective Meredith, who was shown MFI 5, and agreed that he did not seek to clarify with the Complainant any possible inconsistences between the contents of that document and the Complainant’s police statement. Ultimately however, no evidence was placed before the Court to establish what instructions, if any, the Complainant had given to lawyers, or whether those instructions were correctly set out in MFI 5.
While the Crown case relies on the evidence of complaint made on 27 July 2018 while at the Time and Tide Hotel, it was submitted by the Accused that the evidence about this event was very general, lacking in detail, and that there were significant differences in the versions given by various witnesses. The essence of the complaint, according to the Complainant was that, in the context of a topical discussion about allegations concerning the Accused, he said words to the effect of “I’m one of Peter’s victims”. This evidence is largely consistent with that given by OF, who recalled that the Complainant said “I was a victim”. The recollection of DW however was that the Complainant said something to the effect that he was “sexually assaulted at school”. The recollection however of RF was that he was not party to any conversation while still at the hotel, but in cross examination said that in a discussion afterwards, back in his house, OF had told him that the Complainant had told OF that he “had been a victim”.
While the words used by the Complainant on this occasion did not involve any detail, that is not a matter which in my view robs the complaint evidence of its probative value. As I have earlier recorded, the Complaint gave what I consider to have been compelling evidence that he was embarrassed, and ashamed, and that (for a long time at least) could not have shared the allegation with anyone. In these circumstances, and indeed in most circumstances of this kind, it would be completely unrealistic to expect a Complainant to disclose in intricate detail the manner in which he was sexually interfered with. And, while there were some differences among the recollections of the witnesses as to who was first told, and who was present at the table when the matter was discussed, these differences do not in my view impact to any significant degree of the credibility of the various accounts given by the complainant witnesses. Indeed the fact that there are some relatively minor differences is consistent with the fact that this was an emotional event, as was demonstrated particularly in the evidence of OF, who said he broke down crying at the hotel, and who also broke down crying when giving his evidence on this topic in Court. The fact that it was an emotional event was also described by DW, who was also visibly affected to some degree when recounting this evidence in Court.
In conclusion, I am satisfied that on 27 July 2018, the Complainant did make a disclosure to his friends OF and DW, to the effect that he had been a victim of the Accused. I treat this as some evidence of the allegation additional to that given in the witness box by the Complainant. More particularly however, I regard this evidence of complaint, and the manner in which it occurred, as providing support for the truth of the Complainant’s evidence in Court, in that it makes his evidence more believable than if his disclosure to his friends had not occurred in the manner that it did.

CONCLUSION

Having considered all of the evidence, the submissions made by the parties, and the matters to which I have referred concerning the evidence of the Complainant, I am satisfied beyond reasonable doubt of the essence of his evidence. Namely, that on a date in December 1984, the Accused took him to a location where some cannabis was consumed, and that, while the Complainant was laying in the back of the Accused’s van, the Accused touched him on the genitals, before placing the Complainant’s penis into his mouth.
My conclusion about the Complainant’s evidence, and my satisfaction of its essence beyond reasonable doubt, is supported by the tendency to which I have referred, and which I am satisfied has been made out on the evidence of NP, CC, IK, SS, and GM.
However, and having considered the evidence of the Complainant very carefully, I record the fact that I remain satisfied beyond reasonable doubt of the essence of that evidence, in the absence of the tendency which I have found to have existed.
In reaching my verdict on Count 2, I have taken into account the fact that I have found the Accused not guilty of Count 1. However, that verdict was based not on any concern about the veracity of the Complainant with respect to the allegation of sexual assault. Rather, it was based on my not being able to be satisfied beyond reasonable doubt that the cannabis smoked by the Complainant amounted to the ingestion of a stupefying drug. My verdict in relation to Count 1 does not cause me to have a reasonable doubt about whether I can accept the Complainant in relation to the essential allegations making up Count 2.
I am satisfied that each of the elements of Count 2 are proved beyond reasonable doubt and I find the Accused guilty of that Count. He is convicted of that offence.

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Decision last updated: 14 July 2022

Medium Neutral Citation:	R v Scott [2022] NSWDC 266
Hearing dates:	28/6/22-7/7/22, 14/7/22
Date of orders:	14/7/22
Decision date:	14 July 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Verdict of Not Guilty to Count 1. Verdict of Guilty to Count 2.
Catchwords:	Crime – Judge alone trial – Verdict – Unlawfully cause person to ingest stupefying drug with intent to commit indictable offence of sexual assault – Teacher have homosexual intercourse with pupil under 18 years.
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	Prouten v Chapman [2021] NSWCA 207
Category:	Principal judgment
Parties:	NSW DPP – Crown Peter Wayne Scott - Accused
Representation:	Mr J Mehta for Crown Mr Z Khan for Accused
File Number(s):	2020/341820
Publication restriction:	Crimes Act s.578A - non-publication of the identities of the complainant, the tendency witnesses, and any other witness who was a child at the time of the alleged offences. Names of those witnesses anonymised.