R v SH
[2024] SADC 35
•5 April 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SH
[2024] SADC 35
Reasons for the Verdicts of her Honour Judge Deuter
5 April 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the complaints' teacher in primary school. The accused was charged with two counts of Maintaining an Unlawful Sexual Relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between January 1979 and December 1981, when the accused engaged in two or more unlawful sexual acts with or towards each of the complainants. The first complainant was 9-11 years old at the time of the alleged offences. The second complainant was 10-11 years of age. The accused was 26-29 years old.
The trial was by judge alone. The Prosecution did not prove beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with either of the complainants. The charges were not proved beyond reasonable doubt.
Verdict: Not guilty on both counts.
Evidence Act 1929 (SA) s 34CB, s 34M, s 34P; Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 50 s 62 and s 63; Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Joint Criminal Rules, 2022 R 39.1, referred to.
R v Mann [2020] SASCFC 69; Pfennig v The Queen (1995) 182 CLR 461; R v C, M [2014] SASCFC 116; Sexton v The Queen [2022] SASCA 73; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; The Queen v Szach (1980) 2 A Crim R 321; R v Maiolo (No 2) [2019] SASCFC 19; R v M,DV [2019] SASCFC 59, considered.
R v SH
[2024] SADC 35
The accused is charged on an Information dated 16 August 2022 with two counts of Maintaining an Unlawful Sexual Relationship with a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The first count on the Information is in the following terms:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
SH between the 1st day of January 1979 and the 31st day of December 1981, at Penola, being in a position of authority in relation to NH, a person under the age of 18 years, maintained an unlawful sexual relationship with NH by engaging in two or more unlawful sexual acts with or towards NH, namely:
(a) Touching her vagina on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The second count on the Information is in the following terms:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Ibid.)
Particulars of Offence
SH between the 1st day of January 1979 and the 31st day of December 1980, at Penola, being in a position of authority in relation to DOC, a person under the age of 18 years, maintained an unlawful sexual relationship with DOC by engaging in two or more unlawful sexual acts with or towards DOC, namely:
(a) Touching her thighs on more than one occasion; and
(b) Touching her vagina on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons Act 2016.
The Prosecution allege that the offending in relation to both charges occurred within a classroom of St Joseph’s Primary School at Penola on various dates between January 1979 and December 1981. Both complainants were students of the accused when he was a teacher at the school.
The Prosecution allege that the offending occurred within the classroom whilst other students were present. Both complainants allege that they were indecently touched by the accused whilst they were sitting on his lap, behind his desk.
On 7 October 2022, the accused pleaded not guilty in this Court to both counts. The accused filed an election for a trial by judge alone on 15 March 2023. The trial proceeded in that way.
I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence
The Prosecution must prove beyond reasonable doubt the following elements of the offence in relation to each count:
1. That the accused was an adult at the time of the alleged offending. The accused was born on 28 August 1952. This element was not in dispute and I find it proved beyond reasonable doubt.
2. That each complainant was a child at the time of the alleged offending. A child is a person who is aged 18 years or under. It was an agreed fact that the first complainant, NH, was born on 29 January 1970 and was a child at the time of the alleged offending. It was also an agreed fact that the second complainant, DOC, was born on 22 August 1968 and was a child at the time of the alleged offending. This element was not in dispute and in relation to each offence, I find it proved beyond reasonable doubt.
3. That for each charged offence the accused knowingly maintained a relationship with the complainant during the period in which the alleged sexual acts occurred. The relationship cannot be constituted by isolated acts but must have a degree of continuity. The relationship must comprise more than the alleged sexual acts alone. In considering whether there is a relationship for the purposes of s 50 of the Criminal Law Consolidation Act 1935 (CLCA), all of the circumstances of the association between the accused and the alleged victim, must be taken into account.[1] Whether there is a relationship is a question of fact.[2] This element was not in issue at trial and I am satisfied beyond reasonable doubt that the accused maintained a relationship with each the complainants during the relevant period, in that he was both of the complainants’ primary school teacher, in a small country school, for at least two years. He lived locally, and was with each complainant, at least daily, for five days per week over the school year.
4. That the accused engaged in an unlawful sexual relationship with the complainants. An unlawful sexual relationship is a relationship in which, during the period that it was being maintained, the accused committed two or more unlawful sexual acts with or towards the respective complainant. The particularised acts in the case of NH are unlawful touching of her vagina on more than one occasion (count 1) and in the case of DOC are unlawful touching of her vagina, and unlawful touching of her thigh, both on more than one occasion (count 2). These acts are not admitted by the accused in relation to both counts.
[1] R v Mann [2020] SASCFC 69 at [12].
[2] Ibid at [21].
The particularised acts of touching the complainants’ vagina on more than one occasion are acts that, if proved, would constitute indecent assault in relation to each of NH and DOC . The elements of the offence of indecent assault are:
(i) That the accused applied force (directly or indirectly).
(ii) The force was applied voluntarily and intentionally.
(iii) The application of the force was unlawful, that is without lawful excuse or justification.
(iv) The force was accompanied by circumstances of indecency. The proven conduct of the accused must be indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
The application of force does not need to be great. Any touching or handling is sufficient. The force need not cause any injury. ‘Indecency’ is conduct which, by any reasonable contemporary standards, can only be described as indecent.
The particularised acts of touching NH on her vagina on more than one occasion (count 1) and touching DOC on her vagina on more than one occasion (count 2) are acts that, if proved, would constitute an indecent assault. The act of touching DOC's thighs on more than one occasion would only constitute an indecent assault if that touching was indecent and had a sexual connotation.[3]
[3] R v C, M [2014] SASCFC 116.
As each complainant was under the age of 17 years at the time of the alleged offending, the issue of consent is irrelevant.
The sole issue in dispute; is whether the Prosecution has proved beyond reasonable doubt that the accused committed the alleged unlawful sexual acts on two or more occasions as alleged by NH and DOC.
Legal Directions
As the trial proceeded by judge alone, it is not necessary to set out all of the standard directions that would be given to a jury. However, I remind myself of the following directions:
·That the accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt by the Prosecution. The burden of proof rests wholly on the Prosecution and the accused is not obliged to prove anything. In relation to each alleged offence, nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the Prosecution to show a suspicion of guilt or to show that the accused is probably guilty. The Prosecution must prove each element of the offence beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or after careful consideration I am unable to decide where the truth lies, then the Prosecution will have fallen short of proving the case in relation to that offence beyond reasonable doubt, and the accused must be found not guilty.
·I must determine whether each of the witnesses that have been called are credible and reliable. I can accept part of a witness’ evidence, and reject part of that evidence, or I can accept or reject it all. If, however, the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the offences charged, then the accused remains presumed innocent and I must return a verdict of not guilty for that charge.
·The accused elected not to give evidence. I remind myself that he has the right to remain silent in answer to the charges. No adverse inference may be drawn from the fact that the accused has exercised his right to insist on proof of each of the legal elements of the charges. The accused does not have to prove his innocence, and his silence does not constitute any form of admission. It may not be used to fill gaps (if any) in the Prosecution case in relation to either charge.
·Evidence was given by NH of initial complaint and elaboration of that complaint. Evidence of complaint must meet the criteria in s 34M of the Evidence Act (1929) (Evidence Act). It can be used to understand how the allegations first came to light in relation to NH and the degree to which she has acted consistently. That is, was NH’s complaint about the offending at the time, what might be expected, and to what extent did NH’s account remain consistent from the time that that she first reported the offending. The evidence of complaint does not demonstrate the truth of what was said. The complaint can be used for assessing the credibility of NH, including any difference in account between NH and the complaint witness.
·I must take into account that there are multiple reasons for when and how a complaint is made. Issues of credibility, consistency of conduct or inconsistencies and the circumstances leading to the complaint must all be considered.
·I must consider each of the counts separately. They concern separate offending, and I must consider only the evidence relative to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding, to prove the other charge. However, such evidence may be relevant to the background, or circumstances, surrounding the events said by the Prosecution to give rise to each of the offences charged.
·The charges do not stand or fall together. The onus remains on the Prosecution to prove the elements of the offence in relation to each complainant. The reliability and credibility of each complainant must be considered separately.
·The defence has not suggested a motive by either complainant to lie. The defence has no onus to do so. The fact that there is no evidence presented of a motive to lie does not strengthen the Prosecution case. It is neutral. Importantly, it is not for the accused to prove a motive for a complainant to lie.
·Each complainant gave evidence with special arrangements in place. I must not draw any adverse inference against the accused because of those arrangements nor allow them to influence the weight I give the evidence of the complainants.
·I am to consider the directions set out in s 34CB of the Evidence Act. In assessing whether there is a forensic disadvantage. I am not to speculate as to what any absent witness may have said in evidence. I should however take into account any absence of evidence when assessing the witnesses called by the Prosecution, and when deciding if each of the charges have been proved beyond reasonable doubt. If I find there is a forensic disadvantage, I must identify the matters that cause a disadvantage to the accused.
·Any evidence of discreditable conduct given by the complainants was not the subject of a notice filed by the Prosecution pursuant to s34P(4) of the Evidence Act (1929). Any evidence was therefore not led for a propensity purpose. Before I can use any of the evidence led by the Prosecution for a discreditable conduct purpose, I must be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.[4] I must be satisfied that the permissible use can be kept sufficiently separate and distinct from the impermissible use.
[4] s 34P(2)(a) of the Evidence Act.
Multiple Charges
The two charged offences are alleged to have occurred in similar circumstances. No basis for cross‑admissibility of the evidence related to each separate count was put before the court by the Prosecution. Defence counsel suggested that the basis of any cross‑admissibility would only have been the similarity of account of the two complainants.
In the circumstances, I must consider the accounts of NH and DOC to determine if I am satisfied that the shared features of those accounts render it highly improbable that the sexual abuse was concocted by each of the complainants separately, and without collusion. I must also determine whether the evidence of the offending against one complainant, was in relation to the other evidence of discreditable conduct. This involves consideration of s 34P of the Evidence Act.[5]
[5] Sexton v The Queen [2022] SASCA 73 (Sexton) at [115].
In relation to this issue the Court of Appeal in Sexton said:
At trial, the Prosecution case relied upon improbability or similarity of account reasoning. Wherever improbability reasoning is invoked, s 34P(2)(a) is engaged and evidence supporting the permissible use may only be admitted if the probative value of that evidence substantially outweighs any prejudicial effect it may have on the defendant.
In R v C, CA, Kourakis CJ explained the interrelationship between the probative value of evidence giving rise to improbability or similarity of account reasoning and the test enunciated in s 34P(2)(a) of the Evidence Act:[6]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the Prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
…
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[6] [2013] SASCFC 137 at [61], [65] (with whom Anderson J agreed).
As to the question of the degree of similarity between the evidence of multiple complainants, Kourakis CJ (with whom Kelly J agreed) in MDM v The Queen (‘MDM’) said:[7]
In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial Judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.
[7] (2020) 136 SASR 360 at [14].
I direct myself that I must closely review the two accounts of alleged sexual offending and consider whether any similarity in those accounts is suggestive of collusion between the complainants or, that the accounts are true as its improbable that independent of each other they would have both fabricated their evidence.
Voir Dire
The accused made an application under rule 39.1 of the Joint Criminal Rules 2022 that an audio visual recording of an interview (ROI) between the accused and police (SAPOL) on 20 October 2021 be excluded.[8]
[8] Exhibit VDP1.
The interview that formed the basis of the ROI occurred when the accused and his wife attended at Christies Beach Police Station on 20 October 2021 at 6:50pm. This was after police had earlier telephoned the accused, and indicated that they wanted to speak to him about a matter. They did not tell him then why they wanted to speak to him. Upon arriving at the police station, he was placed under arrest for charges of Indecent Assault and Persistent Sexual Abuse of a Child. The allegations of DOC were put to him. Those allegations were known to the accused as DOC had previously made a complaint to the Teacher’s Registration Board that had been investigated in 2009. The accused had been notified of the investigation of the complaint and had provided a response. After other witnesses had been spoken to, the complaint did not proceed further. No notification was made to SAPOL at that time.
Submissions
It was submitted by defence counsel that this was the reason the accused agreed to an initial interview with SAPOL, even though he had not been told any detail of any charges. There had also been an incident reported to SAPOL two years previously when DOC had pushed her way into the accused’s home at 3:00am and had made allegations. The accused was therefore not surprised that DOC had again brought the issue to SAPOL. However, he wanted to be advised of the nature and detail of the allegations before deciding about legal representation.
Allegations made by another student, KM, were then put to the accused. Charges were raised in relation to KM, but a nolle prosequi was entered. No allegations of any illegal touching of NH were put to the accused.
Defence argued that after police had informed the accused of the detail of the allegations made by DOC, they should have provided a further opportunity to him to avail himself of legal advice. It was unfair to continue the interview when it involved serious offences and multiple complainants, and all allegations had not been put in detail. At the time the interview proceeded, the matter had moved beyond the preliminary investigative stage.[9]
[9] The Queen v Szach (1980) 2 A Crim R 321 at 342 per King CJ.
It was submitted that in failing to inform the accused of the extent and seriousness of the allegations at the start of the interview, SAPOL had deflected from the serious nature of the interrogation of him. It also meant that the parties were not ad idem as to the basis of the questioning that was undertaken, and the accused could not make an informed assessment as to whether he would exercise any of his arrest rights. The ROI was unfairly obtained.
The Prosecution submitted that a thorough review of the ROI indicates that the accused was asked if he wanted a solicitor on five separate occasions, and that the ROI should be admitted, except as it refers to the complaint of KM. It was submitted that police were forthright with the accused, and he clearly knew how serious the charges were for which he had been arrested. Once he knew of the additional complainants, he could have stopped the interview and obtained legal advice. There was no unfairness to the accused in the manner in which the interview was conducted.
In reply, it was argued that the fact that the accused ultimately learned that there were three complainants was irrelevant. That is, once that the interview had started, it was too late for the accused to cease participating.
Decision
On 22 November 2023, before any evidence was called, I ruled that the ROI was inadmissible. I determined that whilst the accused had been arrested for two types of sexual offending, he had not been advised that this offending involved three complainants when the interview started and questions were put to him regarding the general circumstances of the offences. The interview proceeded from that point into an interrogation of the factual circumstances.
In reaching my conclusion I relied upon the observations of King CJ in The Queen v Szach[10]
If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Fieldhouse[11] and Hart.[12] I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution. (Emphasis Added)
[10] (1980) 2 A Crim R 321 at 341.
[11] (1977) 17 SASR 92.
[12] (1977) 17 SASR 100.
My assessment of the ROI was that the accused was not told the full nature of the crimes under investigation at the commencement of the interview and as police further interrogated him. This did not give him a fair opportunity to consider his need for legal representation. The accused was disadvantaged by the fact that he did not know that there were additional complainants at the start of the interview, nor the exact detail of the offending that was alleged against each. I am of the view that fairness required that police tell the accused the detail of each charge before they proceeded to a full interview.
In making my ruling on the voir dire, I did not make any finding that the police actions were intentional. This was not relevant to the issue before me.
The Evidence
NH (Complainant 1)
NH is the first complainant. On Monday 20 November 2023, she gave sworn evidence in a closed courtroom with a court companion present, and a one‑way screen in place.
NH grew up in Penola, South Australia, and attended St Joseph’s School in Penola as a child from Year 1. She subsequently attended Penola High School after finishing Year 7 at St Joseph’s.[13] She described St Joseph’s as a small Catholic church school. The head mistress at the time was Sister Borger. Most of the teachers at the school were female, and included several nuns. The accused was the only male teacher.[14] He was NH’s teacher from grade 3 until grade 7. After grade 7, the accused left the school and Penola.[15]
[13] T32.
[14] T33.
[15] Ibid.
NH explained that as the school was only small, there were several composite classes. Grade 3 and 4 students were together in one classroom, and grade 5, 6 and 7 students were together in another.[16] When NH was in the composite 3/4 class, the accused was her teacher. He was also her teacher in the year 5/6 and 7 class.
[16] Ibid.
NH described the accused as a wonderful guitar player, with music playing a big part in the classroom.[17] He taught NH the recorder in grades 3 and 4, and she had guitar lessons with him with a group of children in grades 5, 6 and 7.[18]
[17] T34.
[18] Ibid.
NH told the court that there was physical contact between her and the accused in the classroom. She described the physical contact as:
… like he would sit us on his knee and then it got to a point that he would rub my - like he would sit me on his knee and then he would rub my vagina over the top of my underwear and then he eventually went underneath my underwear and was rubbing my vagina with his finger.[19]
[19] T34.23-38.
NH thought that this was occurring whilst she was in grade 5. She thought this was the case because as she grew older, her confidence grew with her peers around her and the impact of puberty.
NH described the layout of the classroom as there being four desks pushed together to make a square. The children would sit on the outside. The accused’s desk was in the far corner next to the windows.[20] She described his desk as a 70/80s styled wooden desk, that had drawers and the chair could be pushed underneath.[21]
[20] T35.
[21] Ibid.
NH told the court that she would go up to the accused’s desk to ask him questions about her work; or when he would be describing a task to the students. They then all surrounded his desk.[22] NH recalled that the accused would sometimes put her on his knee when she would get her work marked, or when she had a question.[23] He would pull her up and place her on his lap, with her legs facing in the same direction as his.[24]
[22] Ibid.
[23] T36.
[24] Ibid.
NH could not remember how many times she sat on the accused’s lap, but she knew it happened more than once.[25] She told the court that she eventually thought ‘I don’t want to sit on his knee anymore’ because he had started touching her whilst she was on his lap.[26] She also said she cried in front of the class after this occurred.[27]
[25] Ibid.
[26] T37.
[27] Ibid.
On the topic of this touching, NH gave evidence that the accused would rub her vagina over her knickers to begin with, and then eventually he went under at her knicker line and rubbed her vagina. She said she could still feel his mouth on her ear as he had leaned in and said ‘do you like that?’ to her.[28] She said that this touching started in year 5, but she could not provide a timeline for how long it continued, nor whether the touching occurred when she was wearing the school’s winter or summer uniform.[29]
[28] Ibid.
[29] Ibid.
NH also gave evidence about an incident where she had challenged the accused and he had physically reprimanded her in class by giving her a ‘whack on her backside’.[30]
[30] T38.
NH told the court that she made disclosures to Ms Kerry Whitword (now Kerry Dent) about the touching.[31] She said that she could not remember the exact words she used but told Ms Dent that her teacher ‘used to touch her’. She does not recall if she went into any further particulars.[32]
[31] T39.
[32] Ibid.
In cross examination, NH was initially taken through the floor plan of St Joseph’s School and identified features and the layout of the school and its classrooms.[33] A plan of St Joseph’s School as marked by NH was tendered by defence.[34] She confirmed that there was a blackboard on the wall in between the 3/4 classroom, and that the accused had his desk at the front of the classroom facing the children throughout years 5, 6 and 7.[35] She also recalled that there were some bookshelves that ran underneath the blackboard.[36] There were assigned seats in the classroom, so that students would sit at the same desk for a period, then the layout of the desks would change to a different layout.[37]
[33] T40-43.
[34] Exhibit D1.
[35] T45.
[36] Ibid.
[37] Ibid.
NH could not remember whether the children had to raise their hand each time they needed to speak with the accused at his desk. She agreed that she could not remember the circumstances as to why she was at his desk.[38] NH confirmed that she had group guitar lessons with the accused, and private individual recorder lessons with him after school.[39]
[38] Ibid.
[39] T51.
NH was shown five photographs depicting the school classroom during a disco. She identified herself and the accused in the photographs. She was unable to positively identify whether the wooden desk depicted in the photographs belonged to the accused. The photographs of a classroom at St Joseph’s were tendered by defence.[40]
[40] Exhibit D2.
NH was asked whether there were any conversations in years 5, 6 or 7 where the topic of the accused touching girls came up.[41] She said that she only ever recalled having a conversation of that nature at a sleepover with her friend Kim Pritchard.[42]
[41] T57-59.
[42] T58.
NH gave evidence that she was friends with the Gibbs children during school. Their mother worked at the school in the office as the school secretary. She was aware that there was a time when the accused was living with them.[43] She recalled that there was a fire at the Gibb’s home and they and the accused moved to live in the convent near the school.
[43] Ibid.
NH confirmed that she knew DOC, who was a year or two above her at school.[44] They occasionally played together, but NH did not expressly say that they were friends.[45] NH said she could not remember exactly which year (approximately 2015), that DOC contacted her via text message after initially attempting to call her.[46] NH eventually had an hour long phone call with DOC who was very upset and uptight. The topic of the allegations made by her and DOC were discussed. NH said that she told DOC that the accused had touched her on the vagina.[47] NH denied that she could have picked up the idea of the accused touching her on the vagina from the various conversations that she had with people over the years, including DOC.[48] NH disagreed with the proposition that her memory could be susceptible to influence from other people telling her things.[49]
[44] T59.
[45] Ibid.
[46] T60-61.
[47] T61.
[48] Ibid.
[49] T62.
NH was quite upset after the conversation with DOC and worried about her well‑being. NH decided in 2015 that she did not want to deal with ‘this’, and blocked DOC’s number on her phone.[50]
[50] T68.
NH said on several occasions that she had not forgotten what had happened to her.[51]
[51] T61-62.
Kerry Dent
Ms Kerry Ann Dent (Ms Dent) was born on 1 November 1969 and grew up in Penola, South Australia.[52] She attended the Penola Primary School. Her best friend growing up was NH.[53] She confirmed that between 1986 and 1990 she was still in contact with NH.[54]
[52] T70.
[53] Ibid.
[54] T73.
Ms Dent gave evidence of an occasion where the topic of the accused came up during a conversation she had with NH in the car.[55] Ms Dent said she could not recall exactly when this conversation took place beyond that she was driving[56] During this conversation, NH was sitting in the passenger seat, and told Ms Dent that the accused had put his hands down her pants. NH also told her that this had happened on a few occasions in the classroom.[57] NH was upset whilst telling her this.
[55] T74.
[56] Ibid.
[57] Ibid.
In cross examination, Ms Dent confirmed that she remembers NH using the words ‘put his hands down her pants’, but that she could not remember NH’s demeanour when telling her that.[58] Ms Dent said that there were several conversations about the accused over a period of years, including that students sat on his knee, but she could not remember what was specifically said during those conversations.[59] She did not remember any other conversations in which NH had said she had been touched by the accused.[60]
[58] T75.
[59] T75-76.
[60] T78.
Danielle Tranter
Ms Danielle Lea Tranter (Ms Tranter) was born on 7 August 1968.[61] She moved to Kalangadoo when she was approximately 8‑9 years old and subsequently attended St Joseph’s at Penola. She was in about year 5 at St Joseph’s when the accused joined the teaching staff. She was in year 6 when he became her teacher.[62] During this time, the principals of the school were Sister Angela and Sister Borger.[63]
[61] T79.
[62] Ibid.
[63] T80.
Ms Tranter told the court that her friends at the time included Michelle Gibbs, NH, DOC, and Kym Mulligan.[64] Ms Tranter described the accused as a very likeable, good teacher, who was into music. He played guitar and sang in the classroom, and was much less strict than the nuns.[65] She described the layout of the classroom as the accused’s desk being at the front and the student desks being lined up in rows in a way that allowed for people to walk between them.[66] Ms Tranter recalled the accused had favourite students in his class. These included NH and DOC. She described these students as the popular, happy‑go‑lucky girls. They got on well with the accused, and they would sit on his knee at his desk.[67] Ms Tranter said she did not recall ever sitting on the accused’s lap, and also said that the boys in the class would not sit on his lap.
[64] Ibid.
[65] T80-81.
[66] T81.
[67] Ibid.
Ms Tranter described the summer uniform as being a brown chequered dress, and the winter uniform as a long grey skirt and a grey jumper. She said that the accused would wear slacks, and a tie, and he always had shiny shoes.[68] Ms Tranter told the court that the accused was well liked by people in the school community.[69]
[68] T82.
[69] Ibid.
Ms Tranter recalled that there was a period where the accused was living in a house on the school grounds but cannot remember the reason why.[70] She recalled visiting the house in the company of others.[71]
[70] Ibid.
[71] Ibid.
In cross examination, Ms Tranter confirmed the layout of the year 5/6/7 classroom, agreeing there was a door to outside, one to the 3/4 classroom, one to the secretary’s office and one to the library. The library door was a concertina one and often left open. There were windows that allowed students to see outside and through into the other classroom.[72] In relation to the position of the accused’s desk, she confirmed that it was always positioned at the front of the classroom, in front of a small platform. Her memory was that the student desks were in rows facing the accused’s desk.[73] Ms Tranter marked a plan of the classroom with the position of the desks.[74] She was also shown a booklet of photographs of St Joseph’s Jubilee in which the accused, NH, DOC, and Ms Tranter were pictured.[75]
[72] T83-85; T88.
[73] T87.
[74] Exhibit D4.
[75] Exhibit D5; T89.
Ms Tranter confirmed that some of the girls, including NH and DOC quite often sat on the accused’s knee.[76] She never sat on his knee. The girls sat on the accused’s knee at his desk, or when he was in front of the class. She did not know if they were getting their work marked.[77] Ms Tranter described the girls sitting on the accused’s lap with both legs across one leg.[78]
[76] T94.
[77] T94-95.
[78] T98-99.
Ms Tranter agreed that DOC had contacted her in 2021 regarding her allegations of the accused sexually assaulting her. DOC had put to Ms Tranter that she had also been touched by the accused and needed to report it.[79] Ms Tranter described this as ‘Yes, that’s what she said, yes’.[80] A statement was given to police. Ms Tranter did not give evidence of any indecent touching of her by the accused.
[79] T99.
[80] Ibid.
Catherine Marie Mansell
Ms Catherine Marie Mansell (‘Ms Mansell’) was born 4 July 1966 in Penola.[81] She has two younger siblings, Roger and Michelle, and they all attended St Joseph’s.[82] Her mother, Ms Josephine Gibbs, was the school’s secretary.[83] To the best of her knowledge, she thought that the accused would have been her teacher when she was in year 7.[84]
[81] T101.
[82] Ibid.
[83] Ibid.
[84] T104.
Ms Mansell told the court that the accused lived with her family on their farm, but when it burnt down on 16 February 1979, they all moved into the building known as the ‘old convent’ next to St Joseph’s school.[85] They had a three‑bedroom house on the farm property. Ms Mansell’s parents shared a room, and she shared a room with her sister. The accused shared a room with her younger brother.[86]
[85] T102.
[86] Ibid.
In relation to the classroom set up, Ms Mansell said there was allocated seating. She also confirmed that that summer school uniform was a cotton tunic with roman sandals.[87] Ms Mansell was not able to recall the precise layout of the classrooms, nor what the accused’s desk looked like.[88] She said that it was usually situated at the front of the room, below the blackboard.[89]
[87] Ibid.
[88] T107.
[89] Ibid.
Ms Mansell said that Kym Mulligan, NH, Danielle Tranter, and Fiona Ralton were all favourite students in the accused’s class.[90] Ms Mansell thought that these students were favourites because they would often be chosen to take lunch money to the office or run messages to the nuns.[91]
[90] Ibid.
[91] T103.
Ms Mansell could not recall a time when her younger siblings’ friends from St Joseph’s would visit whilst they were living in the convent.[92] She said she never had friends over at the convent, and she did not recall an occasion where other students were seen at the convent for any reason.[93]
[92] T105.
[93] T109.
Ms Mansell also gave evidence about the state of her mother’s health, which had deteriorated in recent years.[94] Her mother has atrial fibrillation, diabetes, and on-going problems with her memory. Ms Mansell said that her mother’s atrial fibrillation can be triggered by any form of stress, and that is why Ms Mansell deemed her to be unfit to give evidence during these proceedings.[95]
[94] T109.
[95] T112.
Fiona Gale Ralton
Ms Fiona Gale Ralton (‘Ms Ralton’) was born on 18 March 1969, and attended St Joseph’s.[96] Ms Ralton said the accused was her teacher for 2‑3 years during her primary school education.[97] Ms Ralton also had one-on-one guitar lessons with the accused in the church, during years 5, 6, and 7.[98]
[96] T114.
[97] T115.
[98] Ibid.
Ms Ralton said she liked the accused a lot.[99] She gave evidence that the accused was affectionate with students, including herself. When asked to elaborate, Ms Ralton said that ‘it seemed warm like you were comfortable with him being like an uncle role’.[100] She said that he would often give students a reassuring touch on the shoulder or back.[101]
[99] Ibid.
[100] T116.
[101] Ibid.
Ms Ralton gave evidence that she would sometimes sit on the accused’s knee during class.[102] She recalled other students, including NH, DOC, and Karen Shelton sitting on his knee.[103] Ms Ralton said there was nothing unusual about students sitting on the accused’s lap, and that at the time, she did not think anything of it. Ms Ralton said that when a student was being silly or too loud, the accused would place them on his knee, and nothing untoward would happen. It was a way of soothing or calming down the students or reassuring them if they had done a good job.[104]
[102] Ibid.
[103] T117.
[104] Ibid.
Ms Ralton could not recall the accused putting any of the boys on his knee.[105] She could recall the girls sitting on his knee better because she was friends with them, and she paid more attention to them, which in turn remained in her memory.[106] The accused had favourites in his classroom, and Ms Ralton thought that she was one of them. She also said that she thought that the accused’s favourites were the popular girls. They were the ones that would sit on his lap.[107]
[105] Ibid.
[106] T118.
[107] Ibid.
In cross examination, Ms Ralton gave evidence that she was in the same class as NH from year 1 through to year 7 at St Joseph’s,[108] and that she spent three years in the 5/6/7 classroom.[109] She gave similar evidence in relation to the layout of the classroom as had already been given, namely that the desks were either in rows or in groups, there was a blackboard and the accused’s desk was situated below it. His desk was a wooden one.[110]
[108] T118.
[109] T119.
[110] T119-120.
Ms Ralton confirmed that she sat on the accused’s lap.[111] She also gave evidence that the favourite/popular female students would be the ones to sit on his lap.[112] She explained that the circumstances where students would be at the accused’s desk included having a question, or when the accused was giving instructions.[113] Ms Ralton did not notice anything unusual about students sitting on the accused’s lap.[114]
[111] T120.
[112] Ibid.
[113] T121.
[114] Ibid.
DOC (complainant 2)
DOC is the second complainant. She gave sworn evidence in Court over four days.[115] DOC gave evidence in a closed court, with a court companion present, and a one‑way screen in place.
[115] T127.
DOC grew up in Penola and attended St Joseph’s primary school.[116] She told the court that there were approximately 80 students at the school at one time, and the classes were composite. There would have been approximately 30-35 students in her 5/6/7 class, when the accused was her teacher.[117] He was the only male teacher at St Joesph’s, and he was less strict than the nuns.[118]’ She said that there were approximately ten people in her year level.[119]
[116] Ibid.
[117] Ibid.
[118] T128.
[119] Ibid.
DOC lived adjacent to the Gibbs’ family farm.[120] She was aware that the accused had moved into the old convent that formed part of the church/school grounds.[121]
[120] Ibid.
[121] Ibid.
DOC gave evidence that the alleged offending occurred when she was in years 6 and 7.[122] She said that whilst the accused was sitting at his desk, which was approximately 2m by 1m in diameter, she would be on his knee, with her legs across his.[123] DOC said that whilst she was sitting on his knee, the accused put his hand up her dress/tunic on several occasions.[124] Her evidence was that she thought this touching occurred once or twice when the accused’s desk was situated at the front of the classroom. She remembered the touching more distinctly when it occurred when his desk was toward the back of the classroom.[125]
[122] T130.
[123] Ibid.
[124] T131.
[125] T132.
DOC told the court that one of the first times that this touching occurred, was when the accused placed his hand on her upper thigh between her legs. She said that she thought his hand was there for 5 minutes or so. At the time, the grade 7 class was gathered around the accused’s desk as he was giving instructions about a task.[126] Nobody seemed to be aware of what was occurring, and DOC did not say anything as she did not want to draw attention to herself.[127]
[126] Ibid.
[127] Ibid.
DOC then gave evidence about the general layout of the school and the classrooms.[128] She marked the locations of the accused’s desk on a plan of the school.[129] When the desk was in the location she labelled ‘C’, the accused would put his hand up DOC’s dress between her legs. He would then move it closer to her genitals.[130] DOC described feeling a tingling sensation when the accused did this. She said she did not then understand this as she was only nine or ten years old. She said she felt this tingling sensation more than twice when the desk was at location ‘C’.[131] DOC said that she remembers having the summer tunic on whilst this was occurring.[132] There were always other students around, regardless of where the desk was located.[133] DOC described the way the accused would touch her was on her thighs, and then he would move his right hand around closer to her genitals.[134] DOC said that she remembered this because his fingernails were longer on that hand, as he was a right-handed guitar player.[135]
[128] T132-135.
[129] T134.
[130] T135.
[131] T136.
[132] Ibid.
[133] Ibid.
[134] T137.
[135] T150.
DOC said that there were several reasons why students went up to the teacher’s desk, including when a task was being explained, to have their work marked, or if they had questions.[136] Usually the student closest to the accused would end up on his knee. DOC would feel jealous when she saw other girls on the accused’s knee because she had a crush on him. She enjoyed sitting on his knee because it made her feel special for being chosen for something, and to be the centre of attention.[137]
[136] T148.
[137] Ibid.
DOC said that whilst the accused touched her on her thigh, he did not say anything, and neither did she. She felt shocked, and as though she could not get away.[138] She did not complain to anyone immediately after it happened.[139] This was because she didn’t understand what had been happening, and she did not have the words to be able to articulate it.[140] She also worried about being singled out or being called the teacher’s pet by the other students.
[138] Ibid.
[139] Ibid.
[140] Ibid.
DOC said she was 11 years old when she got her first period.[141] This correlated with the time the accused began touching her. She was conscious that she had developed earlier than her fellow female students.[142]
[141] T151.
[142] Ibid.
DOC then gave evidence that when the accused touched her between her legs, it was ‘right up near her genitals’.[143] In relation to the tingling sensation she felt at the time, as an adult, DOC now understands what she was feeling was sexual arousal.[144] She therefore knew she was being touched on the genitals, because of this tingling feeling.[145] She described this as follows:[146]
Q.A moment ago you gave evidence of, with the benefit of insight, where you had been touched and you said on the genitals, can you be more specific about that or not.
A. Your Honour may I address you because I'm finding it hard to -
HER HONOUR
Q. You have to answer the questions for everyone to hear.
A.Yes, what I'm describing as a child, I didn't, even my anatomy, even what was happening and yes, of course I can explain things specifically now. So, anatomically, speaking as an adult, it would have been my clitoris, that sort of response.
[143] Ibid.
[144] T152.
[145] Ibid.
[146] T153.2-13.
In her evidence, DOC described an incident which occurred in the old convent.[147] She was unsupervised because her parents and siblings were not home, and she went to the old convent when the accused was living there, to give him some homework. She went on her own, and the accused was the only other person at the convent.[148] DOC said that she knocked on the door, and that the accused invited her in to sit on his knee at the table in the kitchen.[149] She said that she was then startled by Mrs Gibbs who came in through the back door.[150]
[147] Ibid.
[148] T137-138.
[149] T138.
[150] Ibid.
In relation to this incident, DOC said that she did not leave after Mrs Gibbs startled her. Rather, the accused beckoned her into the lounge room where he was sitting on the couch.[151] DOC said that she freaked out, and felt that something was very wrong, so she left.[152]
[151] T152.
[152] Ibid.
DOC said that her sister, Marie, was the first person she spoke to about the sexual abuse.[153] This conversation took place when she was in her late twenties, and she said words to the effect of ‘[H] touched me up’.[154]
[153] Ibid.
[154] Ibid.
In cross examination, DOC first gave affirmative evidence in relation to her schooling, what years she attended St Joseph’s and what years the accused was her teacher. She confirmed that he was a fun, musical teacher.[155] She also confirmed specifics about the layout of the classroom.[156] DOC could not specifically say which location on Exhibit P6 of ‘A’, ‘B’ or ‘C’ was when she was in year 5,6 or 7.[157] She said that the configuration of the classroom changed frequently.[158]
[155] T156-157.
[156] T157-159.
[157] T159-160.
[158] T160.
DOC confirmed that due to there being composite classes, each year level had their own set work to do.[159] In terms of the classroom configuration, when the accused’s desk was at the front, the students desks, which seated two students, would be arranged in rows facing the accused’s desk.[160] She said there was room between the desks to be able to manoeuvre around.[161] There would be approximately 10 students gathered around the accused’s desk when there was a question, or when he was giving instructions.[162]
[159] Ibid.
[160] T162.
[161] Ibid.
[162] T163.
DOC said that she would put her hand up if she needed or wanted to speak to the accused at his desk. When asked whether she suspected that he would put his hand under her skirt if she went up to his desk, she said no, because she was ten years old.[163] When asked whether despite him touching her on several occasions, she would continue to put her hand up to go see him at his desk, DOC became defensive and did not answer the question.[164] She said she could remember that she was sitting on the accused’s lap on each occasion that the touching occurred.[165]
[163] T167.
[164] Ibid.
[165] T166.
DOC was asked about inconsistencies in the description she gave of the school uniform at St Joseph’s to Constable Gooch (Gooch).[166] In court, she said that the winter uniform was a tunic with tights and/or socks, but in her signed statement of 8 March 2022, she had said that the uniform was a tunic and tights or corduroy pants.[167] DOC did not have a satisfactory explanation for this. She could not say whether she was touched by the accused whilst wearing the winter unform, despite telling a police officer, Grimes, as recorded in her police statement of 25 August 2016, that she thought ‘It happened in the warmer months wearing a summer uniform’.[168]
[166] T169-170
[167] T169-170.
[168] T172-T174.
DOC often became defensive in cross‑examination when challenged on inconsistencies between her police statements and her evidence. The below was one of those times:[169]
[169] T169.7-T172.14; T172.30-T173.9; T173.27-T174.7.
Q.You were also asked some questions yesterday about the school uniform at St Joseph's Primary.
A. Yes.
Q. You said that the summer uniform was light cotton checkered dress.
A. Yes, it was grey checkered.
Q. And the winter uniform was a tunic.
A.Yes, and I think at some stage we were allowed to wear slacks during the winter or pants.
Q. Did you wear slacks in the winter.
A. On occasion.
Q. If you wore a winter uniform, that is the tunic, would you also wear that with tights.
A. Not all tights and/or socks.
Q. Did you wear tights or socks.
A. I can't recall exactly. It might have been a combination of both.
Q.You have given a number of statements to various people over the years in relation to this investigation or this matter, would you agree with that.
A. In Millicent, and yes, here in Adelaide, yes.
Q. One of the times you spoke to a police officer named Zoe Gooch on the phone.
A. Yes.
Q.That was on 8 March 2022. Forgive me. You spoke to her on 14 October 2021 and you signed a statement on 8 March 2022. Does that assist your memory about the occasion of giving a -
A. Sorry, I didn't hear.
Q.Does that draw your attention to you talking, the occasion that you spoke to Zoe Gooch on the phone.
A. Can I recall that, is that the question?
Q.Yes. I am just drawing your attention to an occasion when you provided a statement to police officer Gooch over the phone.
A. I spoke with her several times.
Q.Did you say to Zoe Gooch that the winter uniform was tunic and tights or corduroy pants in year 6 and 7.
A.I possibly could have but at different times depending on the weather and whether it was strictly on this day you have to wear your winter uniform but if it was hot that is what I was suggesting.
Q.What I am asking you: does that statement remind you that you were a girl that wore tights rather than socks with your tunic.
A.I can't remember specifically because I think in the latter years my mother made most of our clothes and I wore the slacks because it was warmer.
Q.Do you agree that you made that statement to Zoe Gooch about wearing a uniform being tunic and tights. Do you agree you said that.
A. Sorry, I didn't hear that last bit.
Q.Do you agree that you told Zoe Gooch, the police officer, that the uniform in winter was tunic and tights.
A.I possibly may have. Like I said, I had several conversations with her. So, I'm not sure what you are referring to.
Q.Did you sign a piece of paper, you signed a statement. Would you like to see the statement on that topic or you do you agree that's something that you said.
A. If it is when I spoke to her and I had signed it then that's what I recall at the time.
Q.You were asked questions, again by Dr Salu yesterday, this is at p.136 of the transcript, and you were asked 'Can you assist her Honour with whether it was summer uniform or winter uniform and that is when [Mr H] touched you' and you answered 'Both uniforms were the dresses that we had. Summer dress during the summer months and above the knee tunic until we got to the older classes. So mostly I remember my summer uniform, the thinner of the two'.
A. Is that a question?
Q.That was reminding you of what you said yesterday, alright. You also said yesterday, this is at 135, 'He put his hand up my dress or tunic. I am just reminding you of your evidence yesterday. So my question is do you mean to say that the touching happened while you wore both uniforms, summer and winter.
A. Am I saying that the touching happened in both?
Q. Yes.
A.I can't specifically remember when I was wearing that uniform when it happened but we wore both and probably the earlier time we had to wear tunics because it wasn't until later that we could wear pants.
Q.My question again was: are you saying that the touching happened while wearing either a summer uniform or a winter uniform. That was my question.
A. Whether it was one or both do you mean?
Q.Did the touching happen wearing a summer uniform. I think you have said yes to that before.
A. Sorry, I thought you had finished.
Q.You said yes to wearing a summer uniform. I am just clarifying you were also saying you were touched while wearing the winter tunic.
A.Yes, but that would have been earlier on at some stage because that was when I would have been younger, but I can't recall specifically.
Q.If you can't recall specifically, are you saying that you're unsure about whether or not that happened.
A.No, I'm sure I know what happened, but I can't specifically say exactly what I was wearing on any one of those occasions.
Q.I'm sorry if I'm repeating myself, but I want to make this understood clearly. You don't have any specific recollection but you say that there was touching in your younger years wearing the tunic, the winter uniform.
A. I would have been wearing winter, that's what I'm saying.
…
Q.So please bear with me because yesterday you gave some evidence, and I just want to make it understood that you were still sticking with that evidence today, all right. And that is that 'He, [Mr H], put his hand up my dress or tunic'. Okay.
A. If I said 'dress' I had, because it was concealed, the dress so.
Q.The dress implies summer uniform, am I right? Let's clarify, when you say 'He put his hand up my dress', you were saying he put his hand up my summer dress.
A. It could have been either, whether you break them down specifically. Sorry I'm not -
Q.I'm not trying to trick you. So let's understand that - well, you tell me when you said 'dress', did you mean your summer uniform dress as -
A. Yesterday you mean or today?
Q. Yesterday, the answer was 'He put his hand up my dress or tunic'.
…
Q.Then the question becomes; is there a reason why you said yesterday that the touching happened up your dress or tunic and today you say you don't remember.
A.I said I don't remember, specifically, which I was wearing at any one time. Does that clarify your Honour?
Q.Yes. I asked you previously about talking to Police Officer Gooch in 2021, but you have also spoken to a police officer called Grimes, a female police officer at Millicent.
A. Millicent, yes.
Q. Do you recall speaking to her on 25 August 2016.
A. I think it was actually the 23rd.
Q.Perhaps you signed the statement on 25 August and spoke to her a couple of days before.
A. Maybe, yes.
Q.And did you tell Officer Grimes that 'I think it happened in warmer months wearing a summer uniform'; do you agree you said that.
A. As in the dress, summer dress?
DOC was then taken through the photos in Exhibit D2.[170] These were the photos of the class disco. DOC had provided those photographs to Brevet Sergeant Attard (Attard) on 20 October 2022.[171] At that time DOC told Attard: ‘In some of the photos you can see [H’s] desk is in the background’.[172] In cross‑examination, DOC confirmed that she had previously identified the accused’s desk in the photos.[173] She agreed that in that statement, she also said ‘the desk was pushed to the wall and not in its normal position for the photos’.[174] However, she was not initially prepared to agree with defence counsel that it was the accused’s desk:[175]
[170] T175-177.
[171] T177.
[172] T177.
[173] T178.
[174] T179.
[175] T176.36-T177.22.
Q.And do we see on the front page, in either of those three photographs, in the background, Mr Hansen's desk.
A. In the second one I can see it. Maybe in the first one. Possibly in the third one.
Q. Are you saying yes, it is or no, it isn't or you don't know.
A.I said it's possibly. I mean, I can see a desk in the middle one. I can see something wooden one in the first, but I couldn't say whether it was a desk or not.
Q.You agree with the features of this desk are, in some ways, the same as [Mr H’s], it's a wooden desk.
A. I can't see all of it, but it looks like a wooden desk.
Q. It used to have drawers.
A. Yes.
Q. On the right-hand side.
A.It had drawers on it, whether there was a different desk during the time there, but what I remembered is the wooden desk with drawers.
Q. Are you now, in your evidence, trying to say that you are not sure if this is the desk.
A.Well, I'm looking at a photo that's not very clear and there's people in front of it. It possibly is, I'm not saying it wasn't. I don't think I've referred to it. Just to point, when I was asked to point out myself in the photos.
DOC eventually conceded that when she was speaking to Attard on 20 October 2022, she would have provided an explanation as to the content of the photographs, and that she did tell her that it was the accused’s desk.[176] This was typical of how DOC gave her evidence. She remained suspicious of all questions put by defence counsel, and reluctant to agree with any propositions. This was even when she had previously agreed the fact or made an identification. DOC was clearly stressed by the court process, but her approach was unhelpful in determining her evidence.
[176] T178.1-66.
DOC said that she could not answer the question regarding whether she was one of the accused’s favourite students.[177] She did not recall if there were other girls who would get jealous when someone sat on the accused’s lap.[178] She said that she never spoke about the offending at the time it occurred for fear of being ostracized.
[177] T181.
[178] T182.
DOC was then asked some questions in relation to the incident where she attended the old convent by herself.[179] She agreed that it was unusual for her to be asked by a teacher to come to the convent.[180] She said that other than this occasion, she never attended there.[181] When asked about the specific reason why she attended the convent, DOC gave a vague account that it would have been something to do with homework. She then said that it was not an arranged meeting, and it would have been spontaneous. It was her own idea to go to the convent, for example, if she had been having trouble with her homework.[182]
[179] T183-184.
[180] Ibid.
[181] T184.
[182] Ibid.
DOC could not say whether this visit occurred before, during, or after the accused had been touching her in the classroom.[183] Again, DOC refused to answer the question being asked and was vague in her response:[184]
[183] T185.
[184] T183.27-T185.5.
Q. So, on this particular day you say you went to his house and you went alone.
A. Yes.
Q.It was very unusual for a student to go into the convent, wasn't it. Would you agree that.
A. Would I what?
Q. It was unusual for any student to go into the convent, would you agree with that.
A.I'm not sure what you are asking. I mean, I don't know. I know I went on that occasion. I'm not sure what you are asking.
Q.It was an unusual thing for you to be asked by a teacher to come to the convent, would you agree with that.
A. Yeah, I suppose.
Q. Had it happened before.
A. No.
Q. Did it happen after.
A. No.
Q.Are you aware of any other child going into the convent after school for homework or any other school work related activity.
A.I am not aware of anybody else, other than the Gibbs children or whether they had friends there, I can't answer that.
Q. It was an unusual thing to go there in other words.
A. Did I think that at the time? Sorry I don't understand.
Q. At the time, yes. At the time did you think that was an unusual thing to do.
A.Probably but I mean it would have only been a specific reason I had gone there or whether, you know, at the time, I mean we are talking about the '70s.
Q. Am I right that there is some uncertainty from you about the reason you were there.
A.I can't remember specifically. It would have had to do with my school work. If I had gone - like I said, I did my chores and homework. If I had been stuck on something or I had gone there.
Q. When did it arrange for you to go to the convent after school on that day.
A. I don't think it was specifically arranged.
Q. Do you think that it was your idea to go.
A.Well, it would have been spontaneous that I was having trouble with my homework and that would be the only reason I would be there.
Q.My question was: does that mean that it was not something that was prearranged but it was your idea to go.
A. To ask about my homework, is that what you mean.
Q. Was it your idea to go to the convent on that afternoon.
A. Yes, there was no prearrangement.
Q.Did that visit to the convent happen before or after [Mr H], you say, was touching you under your dress.
A.I don't recall the time line of when that happened specifically, only that it, in my recall, it happened only on that one occasion.
DOC also confirmed that she knew there was a period of time when the accused lived with the Gibbs family at the old convent.[185] She knew that this occurred because the Gibbs family home burnt down, and they needed a place to live whilst their house was rebuilt.[186]
[185] T186.
[186] Ibid.
On the topic of her disclosing the offending to her sister, DOC said that she recalled that the conversation took place prior to her getting married. She could not remember where the conversation took place. She also said she could not recall whether she had actually told her fiancée Darren first.[187] Neither DOC’s sister or Darren were called to give evidence.
[187] T188.
DOC confirmed that she first reported the allegations to her parish priest, who encouraged her to make a report to the Victorian Towards Healing Association.[188] She agreed that on 7 May 2009, there was an interview between herself, her counsellor Miss Wilson, and a member of the Association, Ms Kathleen Moran (Ms Moran).[189] During this interview, she signed a contact report.[190] The purpose of this interview was to generate a complaint for investigation. DOC wanted the accused’s conduct to be investigated.
[188] T189.
[189] Ibid.
[190] T190.
DOC agreed that at the time of this interview, she did not mention to Ms Moran that she had been touched on the genitals or on the clitoris by the accused.[191] At the time, all she said was that the accused would put his hand on her thigh for five to ten minutes.[192] She said that she did not elaborate further because the questions she was being asked were limiting, and she was not ready to go to the police yet.[193] DOC also said that she did not provide Ms Moran with much information because the setting was semi‑formal, and intimate and she did not know her at all.[194] DOC could not recall saying to Ms Moran that she wanted to provide more information, but she was not feeling comfortable enough to do so.[195]
[191] T197.
[192] Ibid.
[193] T198.
[194] T252.
[195] Ibid.
Again, when responding to cross‑examination on this report to Ms Moran, DOC was defensive and refused to answer:[196]
[196] T198.1-T199.12.
Q.Do you agree what you said to Ms Moran was that he would leave his hand on your thigh from five to 10 minutes.
A. I may well have, it wasn't a legal document.
Q.Are you suggesting that you weren't telling the truth because this wasn't a legal document.
A. No, that's why I wanted to elaborate.
Q. No. You said 'Well it wasn't a legal document', what did you mean by that.
A.Meaning that the detail I gave then was very limited as opposed to making this a legal matter. The reason I went to, because I trusted Father John, the reason I went through Towards Healing process, because I needed to say something, I wasn't ready to go to the police.
Q.The question I asked you was; did you say to Ms Moran 'He would leave his hand on my thigh from five to 10 minutes'; do you agree that you said that.
A. I may well have, but I cannot remember specifically what is written in that document.
Q.I'm inviting you to have a look at that document so you can confirm for her Honour that that is what you said to Ms Moran.
A. Fine.
Q. Would you like to have a look at the document.
A. Yeah. I wouldn't like to, but I'm not quite sure what the question is.
Q.Going to p.2, first of all do you recognise the front of that as being the Towards Healing Contact Report.
A. Yes.
Q. Going to p.2.
A. Yes.
Q. There is bold lettering, subject heading, Allegations.
A. Yes.
Q.If you go down three lines, you'll see where you wrote 'He put his hand on my thigh'. Do you agree now that's what you said.
A. Yes, now I know what I was saying, yes.
Q.Five lines down 'He would leave his hand on my thigh from five to 10 minutes'; do you agree that you said that.
A. Yes.
Q. Right after that, do you agree you said 'But I do not recall if he moved it around'.
A. In this document?
Q. Do you agree where you said that.
A. Sorry, I can't see it.
Q. Right after the 'five to 10 minutes'; 'but I do not recall if he moved it around'.
A. Yes.
Q. Do you agree that's what you said to Ms Moran.
A. Yes.
When DOC first went to police, she spoke with police officer McDonald (McDonald) stationed at Millicent. DOC told McDonald that the accused had touched her on the thigh.[197] When challenged about this and her later reports to police, DOC continuously told the court that she could not remember specifically what she said to police on different occasions.
[197] T200.
In relation to the first report, DOC reluctantly conceded that McDonald told her that the actions she had described amounted to inappropriate behaviour, but did not constitute a crime.[198] Whilst not recalling the specific words used, DOC understood that the police would not be taking the matter any further. She said that when she spoke to McDonald, she was still not feeling comfortable enough to disclose the full extent of what had happened to her.[199]
[198] T201.
[199] T253.
In all of her police statements that she was taken to by counsel, DOC said that she was touched on the top of her clothing/underwear. This included over her vagina. However, in her later teleconference with police and the Prosecution in 2023, she had said that she was touched on the skin of her upper thigh and on the vagina.[200]
[200] T256.
DOC finally conceded that the first time she divulged to police that she had been touched on the genitals was on 14 October 2021, when she spoke to Gooch by phone.[201] In relation to her statement of 25 July 2022, DOC was asked if she recalled saying that she remembered ‘… [H] touching me at the very top of my thigh and this touch on my skin caused a tingling sensation in my vagina area’.[202] She agreed that she had.
[201] T262.
[202] T264.27-29.
DOC denied exaggerating her later statements made to Gooch.[203] Her explanation for the differences in her police statements was as follows:
… you were saying yesterday about there were differences and descriptions of what I’ve said when and whatever, and I tried to explain that, because of the abuse and the trauma I’ve suffered, that is very difficult to do. Over this time I’ve had a lot of therapy which has helped me articulate what I’ve got to say. I know what I felt, I know what effect it had on me. So whether you go back through every single statement, of course I can’t remember verbatim everything I said. So I’m not denying. If you’re reading verbatim from a statement that I signed, then I have said it. I have no qualm with that, but there is no sequential or whatever way you’re trying to put it. Different people at different times, whether I was having a good day or whether I was having a bad day, there are so many variables.[204]
[203] T266.
[204] T266.34-T267.11.
DOC agreed that she never told Grimes that the offending occurred when she was wearing her winter uniform, she only told her about the summer uniform.[205] She agreed that the first time she mentioned wearing a winter uniform during the offending was during the trial.[206]
[205] T268.
[206] Ibid.
DOC agreed that in 2016, she attended the police station at Millicent because a lot had happened in the interim and nothing had happened after she first reported the alleged offending.[207] This later report to police was after she had made contact with NH in 2015.[208] DOC agreed that on this second occasion, she still did not mention anything to Grimes about being touched on the genitals by the accused.[209]
[207] T202.
[208] Ibid.
[209] T204, 206.
DOC had a tele‑conference with the Prosecution on 25 July 2022, for the purpose of reviewing her evidence.[210] On this occasion, she told police that she had been touched by the accused right up near her genitals.[211] She agreed that the first time she had ever told police that the accused had touched her on the genitals was in her statement of 8 March 2022.[212] DOC reiterated that although she did not remember everything, she said on which occasion, if it was in her statement, it was what she believed to be true at that time.[213]
[210] T208.
[211] Ibid.
[212] T209.
[213] T210.
Regarding DOC experiencing a tingling sensation, she was asked if that was a case of her memory improving and she now remembered more facts in relation to the offending.[214] DOC replied:[215]
It's not necessarily that I remembered more over time, in a sequential order your Honour, it's my state of mind and how traumatised I am at the time, just like I have been having trouble here today when I'm upset about something I said about an hour ago. And as these statements, the professionals I have spoken to, I'm having more trust and having to open up and be more specific. So if, as I said today, it is very difficult to do so. I can't be absolutely specific about who I said what, at what time, but I can only say that it's not necessarily that I've remembered more over the time, it's that I've been able to articulate it in more specific terms where I couldn't prior.
[214] T216.
[215] T216.4-17.
DOC said that she has always known that she was touched on the clitoris, but she did not know how to articulate that. When asked whether perhaps she did not have a memory of being touched on the clitoris and instead, she was now, as an adult, associating this feeling of sexual arousal with being touched, DOC disagreed. She knew what she felt, but she did not have the words to be able to describe it.[216]
[216] Ibid.
In her statement to Attard of 20 October 2022, DOC agreed that she had said that she experienced flashbacks and nightmares in relation to what had happened to her as a child and that her accounts ‘in 2009, 2011, 2016 to 2021, is a natural progression for someone who has suffered immense trauma’.[217] She said that she found it difficult to talk to people, particularly strangers, about the abuse and that is why she did not include everything in her statements.[218] Despite having her counsellor present during the Towards Healing interview, DOC said she was never comfortable giving statements.[219] DOC agreed however that she told the Prosecution during the teleconference that her memory depended on the day; how she was feeling on any given day, and the subject matter.[220] She said she also may have said more on some days when she had clear memories, and on other days, not so much.[221]
[217] T220.17-19.
[218] T222.
[219] Ibid.
[220] T223.
[221] Ibid.
DOC admitted that she has been a heavy drinker at times in her life.[222] She said that her current drinking habits vary and are inconsistent.[223] In relation to the statement she made about being a heavy drinker in the Towards Healing interview, DOC said that she would have been referencing a time when she was much younger; in her teens.[224] She agreed that she was intoxicated when she had contact with NH in 2015, and when she attempted to speak with the accused at his home in 2019.[225] DOC denied that the issues she has with her memories were related to alcohol and claimed they were the result of on‑going trauma.[226] DOC is now taking several medications, including anti‑psychotics. She has been taking these for approximately 10 years.[227]
[222] T224.
[223] Ibid.
[224] T225.
[225] Ibid.
[226] Ibid.
[227] T226.
On the topic of her telephone conversation with NH, DOC agreed that they both disclosed that they had been abused by the accused.[228] Nothing specific was discussed except that they had both been ‘abused’. No detail of that abuse was discussed by either NH or DOC.[229]
[228] T227.
[229] T227 – T228..
DOC denied that she was encouraging other girls who were in the class with the accused to come forward and make statements.[230] She agreed that she sent a message to NH which said ‘Hey [N], I’m sorry for being in your face, but the situation, I need to discuss with you is critical and there are other kids at stake!’[231] DOC said that she was attempting to inform NH about the situation, and she wanted her to make an informed decision.[232] She denied speaking to Ms Tranter, and encouraging her to go to the police to report sexual assault allegations.[233]
[230] T228.
[231] T234.
[232] T235.
[233] T236.
DOC was informed by the Teachers Registration Board by way of letter in August 2012, that the complaint she had made about the accused was not going to result in cancellation of his registration, or any other action.[234] This was due to the allegation not being corroborated by the witness DOC had named.[235]
[234] Ibid.
[235] T139 and Exhibit D7.
DOC agreed that she was again informed on 3 May 2017, that the police complaint would need corroboration before proceeding further. The investigation required corroboration for there to be sufficient evidence to prove the allegations in court.[236]
[236] T243.
DOC confirmed that the first person she talked to about the offending was her sister, when she was in her early twenties, although she thought she may have already told her fiancé.[237]
[237] T246.
On the topic of the accused moving his hand around on her thigh, DOC agreed that she did not tell Ms Moran about any hand movement during the Towards Healing interview.[238] In 2011, when she first spoke to McDonald, DOC agreed that she said she could not recall whether she was touched over the top of, or beneath her skirt.[239] She also agreed that the first time she said anything about being touched under the dress was when she spoke to Grimes on 25 August 2016.[240] She said that it was not an issue of not remembering, but rather choosing not to divulge information because she was feeling uncomfortable.[241] DOC disagreed with the proposition that she had made up the allegation about the accused touching her vagina because she knew it was a crime, and that her allegation that she was touched on the thigh was not being taken seriously.[242]
[238] T269
[239] T270.
[240] T273.
[241] T274.
[242] Ibid.
In assessing the sufficiency of the evidence, I have considered the issue of forensic disadvantage. This is an important issue given the period of time, in excess of 40 years, since the alleged offending was said to have occurred. I take account of what Doyle CJ said in R v Cassebohm in relation to how the issue of forensic disadvantage can be considered:[382]
… I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.
[382] (2011) 109 SASR 465 at [30].
The prosecution of the accused commenced with the police interview on 20 October 2021. The formal Information was filed on 16 August 2022. This was between 40 and 42 years after the charged acts were alleged to have taken place. Although there had been earlier reports by DOC, that did not proceed, the accused was not aware that other complainants had come forward to police, until October 2021.
I find that the accused has suffered a forensic disadvantage in responding to the Prosecution case, given the significant delay between the alleged offending and the laying of the Information. This forensic disadvantage included diminution in the accused’s ability to cross‑examine the complainants in a way to cast doubt upon their credibility and reliability. Witnesses who may have challenged the complainants’ version of events were either unable or unwilling to give evidence. These included the accused’s work colleagues at St Joseph’s.
In the context of the offending being alleged to have taken place in a certain classroom at St Joseph’s, full with students, I accept that there was a disadvantage to the accused in not having access to school records. This included class schedules, subject records, student records, etc. It was also submitted that the location was not available for a view. In any event, it would be expected that the classrooms, and the furniture therein, would have changed over the intervening 40 years.
A particular disadvantage for the accused was the inability to call Ms Gibbs to give evidence regarding the incident at the convent when DOC says she was pulled onto the accused’s knee. Not only could she not give evidence, she could not give a statement which may have assisted in cross‑examination of DOC.
I have also taken into account the possibility that there has been a distortion of recollection and therefore some reconstruction of events by the complainants and other witnesses. A clear example of that is DOC’s evidence regarding the alleged ‘tingling’ feeling she felt when being touched by the accused, which she now says was him touching her clitoris. She did not say she remembered being touched on her vagina at the time. She gave evidence of only being aware of a tingling feeling, that she later equated to, being touched on the genitals.
The accused is also at a forensic disadvantage by both complainants being unable, due to the passage of time, to provide any particularity regarding the date, time of year, or what lesson they were in when the alleged offending took place. This impacted the ability of defence to refute the alleged offending, and to cross‑examine the complainants.
I find this to be the case even though the offence of Maintaining an Unlawful Sexual Relationship with a Child does not require each alleged sexual act to be proved beyond reasonable doubt, as if each stood alone as a substantive offence. The complainants were not required to recall every detail of the alleged unlawful sexual acts for the Prosecution to make out the charge.
Assessment of the two charges:
1. Count 1 of the Information and the evidence of NH.
The evidence of the complainants was presented in very different ways. NH was quietly spoken and had limited recall of her schooling at St Joseph’s, and of the alleged offending.
In this regard NH could not recall:
·What year the offending started, but thought it might have been year 5;[383]
[383] T34.28-35; T37.28-31; T38.4-24.
·How often she was touched by the accused over her underpants;[384]
[384] T36.22-25.
·Why she would have been at the accused’s desk at any time;[385]
[385] T51.24-34; T52.26; T53.13.
·Whether other students were behind her waiting to see the accused when she went up to his desk;[386]
·What sort of chair the accused was sitting in or what type of desk he had;[387]
·What year DOC was in and whether she remembered her at St Joseph’s or from High School;[388]
·What happened after the accused touched her vagina, including whether he touched her again;[389]
·How long the touching went on for (i.e. how many times);[390]
·Whether she told Kerry Dent full details of what the accused had done to her when he touched her;[391]
·Whether she saw boys sit on the accused’s lap;[392]
·Whether the touching was over or under her dress;[393]
·Whether anyone spoke to her about her crying on the accused’s lap;[394]
·Whether a desk she had earlier described was the one in a photo of the classroom;[395]
[386] T52.3-14; T53.14-25.
[387] T55.22-25; T55.37-T56.30
[388] T59.11-28.
[389] T37.23-27.
[390] T37.28.31.
[391] T39.23-31.
[392] T39.38 – T40.1.
[393] T37.3-7.
[394] T53.22-29.
[395] 55.25-30.
I found NH’s evidence to be vague. She was quite timid in giving evidence, and despite both the Prosecutor and defence counsel being quite restrained in their questioning, she did not provide detail of matters regarding her schooling at St Joseph’s.
This extended to the actual offending. It was not clear what NH was alleging had occurred. She seemed to suggest there was touching of her vagina over her underwear, before the accused breached the ‘knicker line’ and touched her vagina. What was meant by ‘knicker line’ was not further explored. This does not fit with the evidence of Ms Dent that she was told several times by NH that the accused had put his hand ‘down her pants’.
In relation to this, there is no report of any other student witnessing or being aware of what was happening to NH. I find it quite improbable that the accused could have had NH on his lap, whilst manoeuvring her summer dress or winter tunic to push her pants down to get his hand in a position to touch her vagina without detection by any other student in the classroom. This is in circumstances where other students were coming up to the accused’s desk. I agree with defence counsel that this is brazen offending in the context of the description of how it was said to have occurred.
NH gave evidence that she wore either a summer dress to school, or a winter tunic with tights or winter pants. She did not give evidence as to what uniform she was wearing when touched by the accused. However, there was no evidence from NH that the accused had pulled down her tights or undone her school pants to touch her. Again, in this regard, the evidence surrounding the touching was vague with limited detail provided.
In relation to the complaint evidence, NH herself did not ever describe the accused’s actions as putting his hands down her pants. She believed she had only said to Ms Dent that her teacher had touched her. She did not recall telling Ms Dent what she meant by the accused touching her.[396] I agree with defence counsel that this is an example of the vagueness of NH’s account of the offending.
[396] T39.18-31.
NH had an earlier conversation with a friend, Kim Pritchard, at a sleepover regarding the accused touching girls. NH spoke to Ms Mulligan (now Ms Mulligan) because it had been playing on her mind.[397] The conversation occurred while NH was still at St Joseph’s. Defence counsel submitted that the conversation between NH and Ms Mulligan could be regarded as the first complaint, and that in those circumstances Ms Dent’s evidence could be no more than an elaboration. However, in the absence of Ms Mulligan giving evidence, it was not clear what was said by NH to Ms Mulligan.
[397] T57.34 – T58.13.
I have reviewed the evidence and NH was never asked what the topic of conversation with Ms Mulligan was, beyond the general topic of the accused touching girls. There is no evidence that NH told Ms Mulligan that she had been touched by the accused, or any detail in that regard. There is no evidentiary basis for the conversation with Ms Mulligan to be regarded as a first complaint. The evidence regarding Ms Mulligan is completely neutral in the absence of her being called to give evidence.
I have considered s 34M of the Evidence Act regarding the complaint evidence of Ms Dent, and how it can be used. The complaint was vague, and on NH’s evidence did not extend beyond an allegation that her teacher had touched her. Ms Dent said the complaint went further to NH saying that the accused put his hands down her pants. There is no other such evidence that this was what occurred. It was not evidence given by NH. The evidence of Ms Dent does not support the version of events of NH and casts some doubt on her version of events as outlined above.
Other aspects of NH’s evidence that cause me concern include that after crying in front of the class whilst sitting on the accused’s lap, she has no memory as to whether any classmate spoke to her. Additionally, NH’s complete lack of memory regarding the actual touching beyond some general touching of her vagina. There was no evidence of how it was that no other student became aware of what was happening. All of Ms Dent, Ms Tranter, Ms Mansell and Ms Ralton did not see anything involving the accused that suggested he was touching other students.
Ms Tranter gave evidence of female students sitting on the accused’s lap. She was able to see how their legs were positioned relative to the accused’s legs. I find this evidence to be of significance as it supports the defence case that students in the classroom were close enough to see what was happening with students on the accused’s lap. The evidence was supported by Ms Ralton who also saw where the girls’ legs were positioned on the accused’s lap.
None of the witnesses saw anything untoward. In addition, with the other students being so close, the alleged offending would have not just been improbable, but also brazen. I adopt the defence submissions in relation to those issues.
There has been no suggestion by defence counsel that NH has necessarily lied to the Court about what she believed happened when she was sitting upon the accused’s lap. However, on the basis of the evidence I have set out, she was vague on multiple aspects of the alleged offending.
NH could not recall, or became confused regarding many contextual details surrounding the alleged offending. Whilst her evidence was presented in an apparently genuine and honest manner, I accept the submissions of defence counsel that the high threshold of proof beyond reasonable doubt has not been reached in relation to her evidence.
The Prosecution has failed to discharge its burden of proof for multiple reasons. NH’s evidence did not reach the case opened on, that the accused had touched her in the area of her clitoris. The only evidence was of one incident involving rubbing of her vagina under the ‘knicker line’. There was no affirmative evidence of whether such touching occurred again.
In relation to the vagueness of NH’s evidence, she was unable to answer many questions put by defence counsel regarding the general context of the offending and even how it occurred. I have already set out those instances. The Court’s analysis of NH’s evidence is hindered by the lack of contextual details regarding any alleged offending.
I have also taken into account that there is no evidence that supports NH’s allegations, and the implausible and brazen circumstances of the alleged offending. The brazen acts are difficult to accept without sufficient evidence of contextual circumstances explaining how the behaviour could have been possible in front of a classroom of other students.
I find that, when all these circumstances are taken into account and the evidence as a whole is considered, that the charged offence involving NH (Count 1 on the Information) has not been proved beyond reasonable doubt. No alternative charge has been proved beyond reasonable doubt.
2. Count 2 of the Information and the evidence of DOC
DOC gave evidence in a very different manner to NH. She was emotional, suspicious and argumentative. In cross‑examination, she was persistently combative and obtuse. DOC was unwilling to make any concessions, including in relation to matters that were not in dispute. I accept that she found the process of giving evidence stressful and emotional. She required frequent breaks to compose herself. In this regard, I have already set out some of the multiple times that DOC was defensive when responding to cross‑examination.
There was no complaint evidence led by the Prosecution in relation to the alleged offending involving DOC. The evidence from DOC regarding a first complaint was vague and unclear. There is no available complaint evidence that can be relied on.
DOC’s evidence was that she was touched by the accused whilst on his lap in the Year 5/6/7 classroom. On one occasion, it was whilst the whole year level of 10 students were gathered around the accused’s desk, and the other students at their desk.[398] On other occasions students came up to the desk.
[398] T132.
The same issues of such offending being brazen to the extreme; and the implausibility of no student seeing what was happening was raised by defence, as were raised in relation to NH’s evidence. Defence counsel submitted that:[399]
… it would not have been known to the accused that the complainants would not respond to being touched. There was no wriggling or jumping or movement or expression of surprise. But it’s not only relevant that there was no evidence of that, but it’s relevant that an offender in the position of the accused could not be confident that there would be no such response that would have given away the offending.
I adopt that submission, and the concern raised as to the veracity of DOC’s account of what occurred in the classroom, while other students were present at the accused’s desk.
[399] T351.28-35.
DOC’s evidence was that she had a crush on the accused when he was her teacher and that she was jealous when other students were sitting on his knee. She felt special when she was called up to the accused’s desk and sat on his knee.[400] In relation to the offending, during her evidence she described it in the following terms. All offending occurred when she was on the accused’s lap:
[400] T149; T150.26-31.
(1) The accused put his hand on her upper leg, between her legs, on her thigh, and he would then move his hand;[401]
[401] T131.36-T132.1.
(2) The accused’s hand was on her thigh for up to five minutes, and he kept teaching the other students whilst doing it.[402] No student appeared to be aware it was happening;[403]
[402] T132.3-6.
[403] T132.10-13.
(3) This happened one to two times at the front of the class and more often at the back of the classroom.[404] When at the back of the room, the accused would have his hand between DOC’s legs and move it closer to her genitals;[405]
[404] T132.14-19.
[405] T135.32-37.
(4) DOC’s body would respond to this touching by eliciting a tingling feeling that she did not understand at the time;[406]
(5) This touching and tingling response happened on more than two occasions and mostly when DOC was wearing her summer uniform;[407]
(6) The accused’s touching of DOC included him moving his hands between her thighs and then up to her genitals.[408] She did not feel she could get away whilst this was happening;[409]
(7) The description of touching between her legs was explained by DOC to mean up near her genitals;[410]
(8) As an adult, DOC now understands that the tingling was in fact sexual arousal, and this has informed her in hindsight that the accused was touching her on her genitals.[411] She described this as follows:[412]
… what I’m describing as a child, I didn’t, even my anatomy, even what was happening and yes, of course I can explain things specifically now. So anatomically, speaking as an adult, it would have been my clitoris, that sort of response.
(9) That the accused touched her genitals on top of her underwear.[413]
This was the extent of DOC’s evidence regarding the alleged offending. The only evidence of touching on the genitals comes from a reconstruction of events from an adult’s perspective. DOC did not give evidence of the accused removing, or pulling down her underwear to breach the labia majora so he could touch her clitoris. No evidence was given as to what was meant by ‘touching her genitals’. DOC confirmed that this touching was over her underwear.[414] This included the touching of her clitoris being over her clothing.[415]
[406] T136.2-9.
[407] T136.10-27.
[408] T137.1-8.
[409] T150.10-13.
[410] T151.17-24.
[411] T152.3-11.
[412] T153.9-13.
[413] T213.3-9.
[414] T213.3-9.
[415] T260.36.38.
Defence counsel attempted to have DOC confirm her statements regarding when and how the accused touched her genitals. DOC did not want to look at her police statements. She reached a point of saying that if she had made a statement and it was in a police statement, then it was true, and she must have made it.[416] DOC adopted a statement made on 25 July 2022 that the accused had touched her at the ‘very top of my thigh and this touch on my skin caused a tingling sensation in my vagina area’.[417]
[416] T262.32 – T263.11.
[417] T264.22-32; T266.3-9; T267.12-30.
DOC became particularly obtuse and suspicious of the questions relating to certain inconsistencies in her evidence. A clear example was the evidence set out above at T169.7‑T174.7 regarding which uniform DOC was wearing when touched by the accused.
The clearest example was, however, when defence counsel attempted to clarify DOC’s evidence regarding statements she had given to police and Towards Healing and the ‘evolution’ of her version of events regarding the offending.[418] This covered a period from June 2009 until October 2022. DOC would not answer direct questions and was suspicious of the purpose behind them.
[418] T195.38-T255.36.
At the first interview with Towards Healing, DOC was 40 years old. She did not say anything about being touched on the genitals nor of being touched on the clitoris. Her complaint was that the accused touched her thigh and that he left his hand there for five to 10 minutes, but she did not recall if he moved it around.
DOC next reported the offending to McDonald at Mt Gambier Police Station on 16 August 2011. She was told her version of events would not lead to police taking any action. When it was put to DOC that she had said nothing about touching on the genitals, her response was:[419]
I would have said, like I said, a very minimal because that was the first time that I had officially gone to the police and was told that what I had said that did not constitute any action.
[419] T200.35-38.
When it was put to DOC that McDonald had said that what had described was not a crime, she deflected the question and would not answer it.[420] This included DOC denying that she went to police to provide as much detail as possible.
[420] T201.1-T202.18.
In 2016, DOC attended Millicent Police Station and spoke to Grimes. DOC initially denied that she had contacted NH in that time, before quickly conceding that was correct.[421] Her intention in 2016 was to give a full statement to police.[422] DOC agreed, after much obfuscation, including reading her police statement of 25 August 2016, that she did not tell Grimes that the accused had touched her on the genitals.[423]
[421] T203.1-7.
[422] T203.20-22.
[423] T203.34-T206.10.
By torturous cross‑examination, and again after much obfuscation, DOC said she could not recall if the first time she said anything to police about being touched on the genitals was to Gooch on 8 March 2022. She concluded that if it was in her statement, she must have said it.[424]
[424] T209.28-T210.11.
On 25 July 2022, DOC had a teleconference with police and the Prosecution. She did not recall if she had said that she had been touched by the accused right up near her genitals, and not that she had been touched on or in her genitals.[425] DOC would not answer the questions directly regarding the 2022 statement, falling back into saying that she could not recall what she had said.[426]
[425] T208; T213.10-24.
[426] T208.14-24.
Later in relation to the same statement she told the court that she could not recall if she had said in 2022 that the accused at times had his hand on the skin of her upper leg and vagina area.[427] She later said she had never said she was touched under her underwear.[428]
[427] T213.16-24.
[428] T214.25 – T215.9.
DOC’s evidence was evasive and defensive. It was not compelling. She appeared to answer straight forward questions with unwarranted suspicion. Similar responses were given when DOC was asked about when she first told police that the accused had touched her on the genitals, on 8 March 2022.[429] DOC wanted to understand the purpose of the question before answering it.
[429] T209.28 - T210.25.
In relation to the tingling feeling between her legs when touched by the accused, DOC denied that this was a recent invention but an adult understanding of what this tingling meant. DOC had always known she was touched on the clitoris but not how to impart that knowledge.[430] DOC said she knew what she felt. However, she does not say anywhere in her evidence that the accused separated her labia with his fingers, under her underwear.
[430] T216.23 - T217.2.
DOC agreed that she had told police of more of her abuse as she gave more statements over time, but did not agree that she had told them that this was a ‘natural progression’. This was despite using the word ‘progression’ in her evidence. Again, she became particularly argumentative even when her own words were read back to her, before she finally conceded that she had said that her accounts in 2009, 2011, and 2016 to 2021 were a natural progression for someone who had suffered immense trauma.[431]
[431] T219.21 – T222.1.
DOC’s evidence was she never liked giving statements about the alleged offending, and held back information in her Towards Healing interview;[432] and that her memory of events was not always clear.[433] She found memory to be a ‘very fluid thing’.[434]
[432] T222.15-36.
[433] T223.11 – T224.15.
[434] T226.37.
DOC agreed that part of the reason she went to Towards Healing was so that her report could be taken to the Teachers Registration Board.[435] Defence counsel tried to have DOC agree that she was aware in 2012 by letter of 23 August that the Board would not pursue allegations made against the accused.[436] Again, DOC refused to answer clear and precise questions.[437]
[435] T236.32 – T237.3.
[436] Exhibit D7.
[437] T238.20 – T240.14.
She was similarly obtuse in responding to cross‑examination regarding police telling DOC that further corroboration was required of the accused’s offending before any action could be taken.[438] I am satisfied that DOC was aware, after talking to police in 2012 and 2016, that further corroboration of indecent touching was required for the accused to be prosecuted.
[438] T240.9 – T243.34.
Conclusion
In order to find the accused guilty on count 2, I must accept that DOC’s evidence of having been indecently touched by the accused on at least two occasions satisfies the high standard of proof required. DOC’s reliability and credibility are essential in determining whether the Prosecution has proved the charge beyond reasonable doubt.
In relation to DOC, there is no particularity as to when the offending occurred. However, the offence of Maintaining an Unlawful Sexual Relationship with a Child was legislated to address the difficulty that victims had previously experienced in recalling precise details of separate events of sexual abuse that occurred when they were a young child. DOC’s the evidence reveals a number of inconsistencies, and some real vagueness as to what occurred in relation to the alleged offending. Having closely reviewed the evidence, there is a lack of any evidence upon which it can be found to the required standard that the accused indecently assaulted DOC.
DOC confirmed several times that the accused only ever touched her vagina over her underwear. Even the touching of what she believes in hindsight was her clitoris, was said to have been over her underwear. Despite this she insisted and confirmed that she felt a tingling due to stimulation of her clitoris.
I do not find this evidence compelling or realistic. I am of the view that it is an unreliable reconstruction of events. Having considered DOC’s evidence in detail, I find that she has reconstructed her evidence that she was touched on the clitoris on the basis of some undefined sensation of tingling. I find that the evidence does not, and cannot, lead to a finding that DOC has an actual memory of being touched on the clitoris or vagina by the accused. In the circumstances, I cannot find that the accused indecently assaulted DOC whilst she was seated on his lap. I am simply not persuaded of such by the review of DOC’s evidence as I have set out in these reasons.
I have already commented on the brazenness of the offending as described by DOC, and the improbability of it occurring. I have reviewed the drawings as marked by witnesses of the year 5/6/7 classroom. There were approximately 35 students in a classroom that had several doors in and out, and multiple windows. Students were sitting at desks where they could see the accused’s desk. They would come up to his desk to ask questions or have their work marked. Despite this, no other student appears to have seen DOC being touched by the accused. In this regard, if DOC had experienced a tingling feeling, it is hard to find that she would have sat still, without moving around on the accused’s lap. As with NH, none of the other four former students who gave evidence witnessed anything out of the ordinary whilst DOC was sitting on the accused’s knee. This was despite them being close enough to see the positioning of DOC’s legs across the accused’s whilst she was sitting on his knee.
The photos in Exhibit D2 of a disco in the classroom show the accused’s desk. It was not a large desk. I find that it was improbable that the accused could have been touching DOC whilst on his lap, in the manner she described without another student seeing what was happening.
It is difficult to assess DOC’s evidence given her defensive and evasive responses to even the most straight forward questions. However, in all of her earlier statements made to police and Towards Healing, she never made complaint of the accused touching her under her underwear. It was not until DOC spoke to Gooch on 14 October 2021 that she mentioned touching of her vagina. This was 12 years after she had first made any complaint. It was not until March 2022 that the statement appeared that DOC had been touched on her clitoris. However, DOC had no memory of that occurring and reconstructed such touching as she had experienced a tingling feeling when touched by the accused on her genitals over her underwear.
I find on close examination of the evidence that DOC did not give clear evidence of the accused touching her clitoris. That evidence is clear reconstruction based on an alleged ‘sensation’ when touched by the accused. A sensation that was a recent invention and not explained until 2021. This was after DOC’s previous failed attempts to have action taken against the accused.
The inconsistencies between what DOC told to Towards Healing and police on earlier occasions, and the evidence she gave in court was not adequately explained and severely undermined her reliability about what happened to her in the classroom. This alone has caused me to have a reasonable doubt.
There were other inconsistencies in DOC’s evidence regarding essential issues including how long the accused moved his hand around on her thigh or if he moved it at all;[439] and whether she was touched over or under her uniform, saying she couldn’t remember at first, and then that she did remember but didn’t want to divulge the fact.[440]
[439] T198 – T200.
[440] T201.33-36; T272.24 – T274.22.
I find DOC’s ultimate answer that she always knew she had been touched under her dress but she had reasons why she didn’t divulge it, unsatisfactory and self‑serving. It was the tone of her evidence on a number of topics.
Having heard DOC’s evidence over several days, and considering all of the inconsistencies, I conclude that I did not find it compelling or reliable. I find myself unable to exclude as a reasonable possibility that DOC may have conflated in her memory the manner in which the accused had held her on his lap to reconstruct a scenario where she was touched indecently.
In deciding whether any unlawful acts have been proved, there is no evidence that exists to support DOC’s evidence. The evidence of NH, based upon my findings does not support DOC’s evidence. That alleged discreditable conduct has not been proved. I have also taken into account the submissions made by defence counsel of the improbability and inherent risks taken by the accused that are associated with DOC’s allegations, when considering the plausibility that the accused would have behaved as DOC has alleged.
Whilst I do not find that DOC has necessarily deliberately lied about being indecently touched by the accused, and perhaps there is some truth in what she says about memories, there are some important matters that seriously affect the reliability of her evidence. The inconsistencies, admitted memory difficulties and thus reconstruction of evidence, and vagueness of account when viewed as a whole leaves me with a reasonable doubt whether any unlawful sexual acts as described by DOC have been proved; and would result in a verdict that is unsafe.
I find that the charged offence involving DOC (Count 2 on the Information) has not been proved beyond reasonable doubt. No alternative charge has been proved beyond reasonable doubt.
Verdict
I find the accused not guilty of both count 1 and count 2.
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