R v WISE - [2009] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WISE
Criminal Trial by Judge Alone
[2009] SADC 81
Reasons for the Verdict of His Honour Judge Clayton
4 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES
Trial by judge alone of objective elements of offences alleged to have been committed by defendant who was mentally unfit to stand trial.
Verdict: Not guilty of each of seven alleged offences. Defendant discharged.
Criminal Law Consolidation Act 1935 s 269M, referred to.
Longman v The Queen (1989) 168 CLR 79, considered.

R v WISE
[2009] SADC 81

On 30 June 2008 I made an order pursuant to s 269M of the Criminal Law Consolidation Act 1935 that the accused was mentally unfit to stand trial. These are my reasons following a trial by judge alone of the objective elements of the alleged offences.
The accused is charged with five counts of indecent assault and two counts of buggery. The first three counts are alleged to have taken place on a single occasion between 31 March 1966 and 17 April 1966 and involve a complainant (N) who at the time was aged under 17 years. Counts four to seven inclusive involve another complainant (B) who was also under the age of 17 years when the offences are alleged to have been committed between 8 August 1965 and 1 December 1965.
There is no cross admissibility between the charges relating to N and those relating to B.
In addition evidence was given of other illegal acts by the accused which have not been charged. I will say more about those uncharged acts later.
I have been reminded by counsel that I must consider the evidence with respect to each count separately.
The information initially alleged that the first three counts were committed between 1 October 1964 and 31 March 1965. On 19 March 2009, against the opposition of defence counsel, I allowed the Information to be amended to allege that counts 1, 2 and 3 were committed between 31 March 1966 and 17 April 1966. Those dates cover the period over which the film The Spy Who Came in from the Cold was shown at the Majestic Theatre in Adelaide. Counts 1, 2 and 3 are alleged to have been committed at the theatre of a Saturday afternoon during a showing of the film.
At the time of the alleged offences N was a student at a primary school in Adelaide. The accused was a teacher at the school from 1964 to 1966 inclusive. He was also a cricket and football coach.
N, who was born on 5 March 1955, was a student at the school from 1963 until December 1966 when he completed grade 6.
B, who was born on 1 December 1953, was a student at the school from 1962 until 1967. In 1964 he was in grade 5 and the accused was his teacher. An event which has enabled B to identify the date of other events is the death of the father of B on 8 August 1965. The first of the counts involving B, count 4, is alleged to have been committed between 1 September 1965 and 30 November 1965. Counts 5, 6 and 7 are alleged to have been committed between 1 October 1965 and 1 December 1965.
N left the school in December 1966 having completed grade 6. B left the school in July 1967.
A period of about three decades passed from the time when the offences are alleged to have been committed and it seems that nothing of relevance happened until about August or September 1997 when the complaints came to the surface. In the meantime the accused had left the brotherhood and in 1976 married, although he continued working as a teacher and a bus driver. He retired at the age of 65 and spent some time touring Australia with his wife. In 2003 he was admitted to a nursing home where he remains. His wife died in 2005.
The Complaint of N – Counts 1 to 3
Each of counts 1, 2 and 3 inclusive relate to events which occurred on a single occasion while the accused was sitting next to N in a picture theatre. Count 1 relates to the allegation that the accused massaged and squeezed the genitals of N prior to the interval. Count 2 relates to the allegation that the accused massaged and squeezed the genitals of N after the interval. Count 3 relates to the allegation that after the interval the accused took the hand of N and placed it on the erect penis of the accused and held it there for some time and squeezed the hand of N.
N did not tell any other person about the events until several decades had passed. His evidence was that he did not understand what was going on, was confused and was scared that he might get into trouble.
He gave evidence of other acts which are not charged. The prosecutor said that the evidence of the uncharged acts was led to explain why N did not then, and did not from long time thereafter, tell anyone what was happening or what had happened. At the time the Crown case was that the charged acts came first in point of time. As I have mentioned the original allegation was that the charged acts had occurred between October 1964 and March 1965. If that was correct the uncharged acts would have occurred after 31 March 1965. However when the date when the movie was shown was established to be between 31 March and 17 April 1966, the Information was amended. In order to have been committed after the alleged offences the uncharged acts would have needed to have been committed between 17 April 1966 and December 1966 when both N and accused finished at the school.
I do not regard the uncharged acts as being of any assistance in the resolution of this matter.
N is now aged 53. He said that on the day of the offending his school had played a cricket match against Sacred Heart College at Brighton on a Saturday morning. He said he was in grade 5, that it was in 1965 and his teacher was a lady called Ms Stevens. After the cricket had finished the boys packed the bags, changed into casual clothes and walked to Brighton Beach. From there they caught public transport to the city. He could not recall whether that was a bus, train or tram. They went to the Majestic Theatre in King William Street to watch a movie. There were about five boys in addition to the accused. N could not recall the exact time but thought it was early to mid afternoon. The movie was called The Spy Who Came in from the Cold. N said he had no real interest in the movie.
N sat next to the accused, on his right hand side. One of the other boys sat on the other side of N. N said there was jostling to avoid sitting next to the accused, but he had no real knowledge of why that should be the case.
N said that the movie was in two parts: there was an intermission and in the first part of the movie the accused put his arm around his shoulder. The accused got closer and his head touched that of N. Then his hand covered the genitals of N outside his trousers. He said "He used his right hand to couch my penis and testicles as best he could get a hold of them in the shorts that I was in and held them and massaged them outside my shorts". The accused "advanced further to put his hand in by pulling my shorts and getting his hand in my shorts… he massaged my testicles and penis while his hand was in my shorts". He said his memory was that the accused "came up through the leg of the shorts and on the crutch on the right-hand side". For the first time N experienced an erection. He didn't understand what was going on and had a mixed emotion of fear and confusion. The massaging continued for 35 to 40 minutes - most of the first half of the movie. At the interval the accused removed his hand and the boys went outside to the canteen. The accused remained inside.
That is the evidence as to count one. If I accepted that evidence beyond reasonable doubt it would establish all of the objective elements of the offence of indecent assault.
As to count 2, N said that when the movie started again "it was mostly a repeat of the first half, and (the accused) again positioned himself in the same way he did in the first half". The accused was touching his testicles and penis. The hand of the accused was moving, squeezing and moving as best he could although there wasn't a lot of room.
That is the evidence as to count 2. If I accepted that evidence beyond reasonable doubt it would establish the objective elements of the offence of indecent assault.
N said that in the latter part of the movie the accused took the left hand of N and placed it on the lap of the accused over the top of the penis of the accused which was erect. The accused held the hand of N and held it on his penis. They remained in that position for 10 minutes or so until the movie finished.
That is the evidence as to count three. If I accepted that evidence beyond reasonable doubt it would establish the objective elements of the offence of indecent assault.
After the movie had finished N left the theatre and caught a bus home. He said he did not tell anybody about what happened and it was not until he was in his mid-40s before he told anybody.
N said that he did not have a clear understanding of what had happened, he was uncomfortable, scared and confused about the physical reaction, that is, having an erection the first time. He said he was silent and introverted.
When asked whether that was the only time that the accused had touched him on his genitals N said" No, he did so several times after that". N gave evidence of the subsequent occasions which are the uncharged acts to which I have referred. He said that the accused would greet him upon his arrival at the school gate in the morning by giving him a hug, generally from behind. That extended to recess and lunchtimes. N said:
…I assume under the camouflage of his robes would hold my testicles and penis through my shorts, and cuddle me. That was a practice during the morning and again during the school day.[1]
[1] T 25 l1.
He said it was behaviour that he was experiencing regularly and that it was not something he could get away from. The accused would take a firm grip of his body, his testicles and penis through his shorts and hold him without saying anything.
When N was about to move to another school the accused spoke to him and told him not to tell other people what was happening. That was the first time that the accused said anything like that. The accused couched the statement in religious terms by reference to the devil and what might happen if N was to speak about the events.
N gave evidence about incidents in a room at the school where sports gear was stored. He gave evidence of the accused touching him in a sexual way in that room twice. On the first occasion N was in grade 6 and had been sent to the room for misbehaving. The accused came into a room with his strap, told N to take his pants and underpants down and instead of using the strap "proceeded to cover me from behind and very similar to what he did with my clothes on and played with my penis and testicles". The accused cuddled him as he would in the schoolyard and took hold of his penis and testicles. N said that he had a recollection of having fluid on his hand on one of those occasions. He said that only happened on one occasion. On that occasion the accused was touching his penis or testicles for five or six minutes.
N also gave evidence of events in the changing room at the football grounds. There were two separate areas. Presumably the separate changing areas were for the home and away sides. N gave evidence that on a couple of occasions he seemed to be isolated with the accused on the opposite side from where the rest of his team mates were and that the accused used a towel to dry him, it seemed to take forever and the accused dried him completely including his testicles, penis and tail. On another occasion the accused showered with him. Again the accused dried his body completely including the genital area.
N started playing school competition football in 1965 and played again in 1966. In 1966, when he was in grade 6, the accused was the coach of his team.
The accused showed N a lot of favouritism. He gave him the lead role in a school play, even though he could not sing and it was necessary to have a mimer standing behind N. N was made captain of lightning football teams even though he was playing above his age group and was the youngest of the players in the team. He must have been good at sport.
When N left the school he was on good terms with the accused. In fact he stole a pair of his father's cufflinks to give to the accused as a goodbye present. A year or so later N saw the accused, with a group of boys, at a football match at the Adelaide Oval and the accused ignored him, turning his back and walking away.
The next contact which N had with the accused was in November 1997 when N telephoned. He had obtained the number from the telephone book. Immediately after the conversation N made notes which became an exhibit. N accused him of sexually assaulting himself and other boys. The accused replied" No way, no way. What are you boys up to?" N replied that they were not boys anymore but men. The accused asked what he wanted and N said that he wanted to meet him. The accused asked what for and N said he wanted an apology for himself and family and everyone else the accused had affected. N said the conversation lasted about five minutes until the wife of the accused took the phone from him and said the accused was too ill and would have to go. After half an hour N rang back, the wife answered the phone and N was rude to her, which he now regrets. N said "Do you realise your husband is a paedophile?"
During the conversation the accused acknowledged that he knew whom N was and said that he had followed his career and it was good to hear from him. N said the accused said "It might have happened with other boys but not you". When N was asked in evidence about the statement "intercourse might have happened" he expanded "intercourse may have happened with other boys, but not you". The word "intercourse" was used. The note made by N reads "there might have been other boys, not you. I didn't have intercourse with you".
The other complainant, B is older than N. The brother of B was in the same year as N.
After the cross-examination of N had commenced the proceedings were adjourned. Enquiries during the break revealed the actual dates on which the film The Spy Who Came in from the Cold had been shown at the Majestic Theatre in Adelaide. The film was first shown on 31 March 1966 and was shown on three Saturdays namely 2, 9 and 16 April 1966. The discovery of those dates led to the amendment of the dates alleged in the Information.
School magazines which contain the sporting calendar establish that the school that N attended had not played cricket against Sacred Heart College during the dates alleged in the Information. The reports in the magazines refer to N performing well in cricket matches.
In cross-examination N was quite clear that the film was on a Saturday after a competitive game of cricket. N clearly remembered walking from the school in Brighton towards the beach, but he did not recall how they got back to the city from Brighton. The objective facts do not support the allegation that N’s school played cricket against Sacred Heart College at any relevant time.
Initially N asserted that the cricket match was while he was in grade 5. However the first showing of the film was not until 1966 when he was in grade 6.
N said that what happened at the film was the first time that the accused had behaved inappropriately to him. The alleged inappropriate behaviour which constitutes the uncharged acts fell into three categories, first contact in and around the schoolyard in the morning and during the lunch and recess breaks when the accused would envelop and hug N and fondle his genitals. Secondly, there was inappropriate behaviour in the sports room and thirdly there were two occasions of inappropriate behaviour at the change rooms.
N said in evidence that the inappropriate behaviour at the change room was over two football seasons; 1965 when he was in grade 5 and 1966 which was his last year at the school. If that was the case the uncharged acts had preceded the charged events in April 1966, which is inconsistent with other evidence.
N also told the police "I think that something would have occurred in the change rooms every time I trained". To put that in context, N told the police that after he had described the showering and being dried by the accused. He said it was during the 1965 football season. If that was the case it must have been before the showing of the film when the three charged acts are alleged to have occurred.
The complainant said that he was sure that the charged acts occurred in a picture theatre, on the east side of King William Street where a film about spies called The Spy Who Came in from the Cold or something similar was being shown. He was sure that they had come from cricket from Sacred Heart College and that the accused and other boys had walked towards Brighton beach that morning. He said he was confident that he had been playing in grade 5 interschool cricket. N was in grade 5 in 1965, the year before the showing of the film.
Importantly N said he was sure that the events in the cinema was the start of nearly 2 years of abuse.
The evidence establishes that the Head of the River was held on Saturday 16 April 1966 and there would have been no cricket on that day. Saturday 9 April 1966 was the Saturday of the Easter weekend and again there would have been no cricket. Accordingly the only Saturday when N could have seen the film at the Majestic Theatre after a cricket match was Saturday 2 April 1966. The school magazine reveals that N did play cricket on the morning of Saturday 2 April 1966, but not against Sacred Heart College. The calendar for the first term 1966 records matches against other schools, but none against Sacred Heart College. The magazine records that N was a member of the grade 6 combined cricket team which played St Ignatius College on 2 April 1966. N was the batting star retiring at 32.
That evidence establishes that N could not have played cricket at Sacred Heart College on any Saturday when the film was shown. When that was put to N in cross-examination he said:
It's the memory I have of the events of that day and the events of the afternoon were very clear in my mind and the events of the morning were as I told the court. It's how I remember them.[2]
[2] T 73 l4.
His memory and that very definite evidence must be inaccurate.
The actual date of the offending is not an essential element of the offence. What is important is that the occasion should be identified. N was adamant that the first time that he was abused by the accused was in the picture theatre at the start of 1965, his second to last year at the school. He said that, inappropriate contact by the accused occurred during the last two football seasons namely 1965 and 1966. If the incident in the picture theatre did come first, and that was in 1966, the uncharged acts could not have extended over the two years 1965 and 1966.
I do not regard errors in the evidence of N as to peripheral matters as by themselves providing a reason not to accept his evidence. Given that he was giving evidence of events which occurred over 40 years ago the potential for inaccuracies in the evidence is great. However the onus of proof on the prosecution should not be diminished by reason of the delay of N in making a complaint.
What I must determine is whether the differences between the evidence of N and the objective facts are sufficient to cast doubt upon his evidence as to the three events in a picture theatre upon which counts 1, 2 and 3 depend.
N is an intelligent person. It was obvious that having to give evidence was a great embarrassment to him.
The parties are agreed that given the passage of time I must warn myself that it would be dangerous to convict upon the evidence of N unless, having given careful consideration to the evidence, I am satisfied of its truth and accuracy beyond reasonable doubt.

In the late 1990s N approached the school and after negotiations arrived at a settlement, executed deed of release and was paid a significant sum of money. The deed was subject to a confidentiality provision. The matter only came to light again, about a decade later when the police contacted N.
N was certain that the events in the picture theatre had occurred in 1965, after a cricket match at Brighton. While the actual date of the offence is not an essential element the place and circumstances in which the offending is alleged to have occurred are relevant to the question of whether there was an opportunity for the offences to have been committed.
If the accused and N had not been to the school at Brighton to play cricket how did they come to be at the picture theatre and how did the opportunity for the offending arise?
There was no cricket on 9 and 16 April 1966. On 2 April 1966 N's team played against St Ignatius College. Having regard to the totality of the evidence it is unlikely that N could have been mistaken as to the venue of the cricket match on 2 April 1966. His evidence was quite specific about the match being at Brighton and the accused and the boys walking to the beach.
The delay of at least three or four decades from the date of the alleged offending until the present time has prejudiced the accused. I am required to scrutinise the evidence of N carefully. Notwithstanding my finding that N presented as an intelligent and honest witness I find that the impossibility of N having played in a cricket match at Sacred Heart College on the dates alleged gives rise to doubt as to the reliability of the evidence of N as a whole and in particular as to the three particular acts which are alleged to give rise to the offences.
It would not be sufficient for me to find that the accused might have committed the offence or even that the accused probably committed the offences. For the reasons which are expressed I do have a doubt and the Crown has not proved the objective elements of counts 1, 2 and 3 beyond reasonable doubt. Defence counsel submitted that if I find that I cannot be satisfied beyond reasonable doubt that does not mean that the offences did not happen. That submission describes the situation that I find myself in.
There is a further matter which I should mention. Evidence was given by Detective Sergeant Moody that she had interviewed the accused on 10 August 2004. She put to the accused "Did you have anal intercourse with (N)?” In his evidence N had not alleged that the accused had anal intercourse with him. The defence case is that N must have told Detective Sergeant Moody about an allegation of anal intercourse and N has now resiled from the allegation. If that was the case it would be inconsistent with his present complaint, throw serious doubt upon the reliability of N and provide a compelling reason to disbelieve his evidence.
I find that when Detective Sergeant Moody put to the accused that N had made an allegation of buggery that was a consequence of Detective Sergeant Moody making an unjustified and incorrect assumption. She may have confused the statement of the other complainant B. When she spoke with the accused she had only briefly spoken with N on 2 July 2004 and 5 August 2004. She had detailed notes but no formal statement. In her evidence she said that N never made an allegation to her during their conversations about anal intercourse by the accused. I do not regard the allegation made by Detective Sergeant Moody to the accused as a reason to disbelieve N.
Detective Sergeant Moody said "In all honesty I asked that question to (the accused) on the suspicion that the offending against him of (N) was far serious than what he actually alleged". N should not be criticised because of a sloppy interrogation by a police officer.
If the alleged uncharged acts occurred after the charged acts then the uncharged acts must have been committed after April 1966. They could not have occurred over the space of two years as alleged. The evidence that the uncharged acts occurred over the space of two years must be incorrect. I do not accept that the uncharged acts have been established beyond reasonable doubt or that evidence of them was admissible for the reasons stated by the prosecutor in his opening.
I disregard the alleged uncharged acts for the purpose of reaching my conclusion as to counts 1, 2 and 3.
There is a further piece of evidence that casts doubt upon the evidence of N. N gave evidence that up until he spoke with B in the 1990s he had believed that B had told him in the 1960s that the accused had ejaculated onto the hand of B. N held that belief for about 30 years. Until he spoke with B in about 1998 or 1999 N had believed that B had told him that he, B, had sticky hands and so for a period of 30 or so years up until 1988 or 1999 he had no memory of having sticky hands himself in the sports room. When he spoke to the police in 2004 he told them that he believed that he, not B, was the one with sticky hands. That evidence was based upon what B had told him. The memory of N as to that fact must therefore have been faulty.
In 1998 N provided a three-page statement to Ms Pirone at Centacare. He told her that the theatre incident occurred when he was eight years old. If the incident occurred in April 1966 N would have been 11 years old, not eight.
The evidence of N was that the theatre incident occurred at the start of his second last year at the school, which was 1965. N also told police in various statements that the theatre incident occurred at the beginning of 1965 when he was in grade 5, that the abuse occurred every time he trained and that he suffered nearly 2 years of abuse. The film was not first shown until 1966 and so that evidence, must be incorrect.
One can allow for mistakes in identifying precise dates, but it is important that the evidence as to the facts constituting the alleged offences should be consistent. The evidence of N was that the accused was able to touch the skin of his genitalia by putting his hand up the leg of the shorts of N. He told the cross-examiner that the accused never undid his shorts. However Ms Pirone recorded that N told her that the accused undid his shorts. N said he could not recall saying that to Ms Pirone although he did say "I don't recall the statement I made to Ms Pirone in that context but I described to her the incident and if I used those words and she has recorded them then they are obviously accurate". There is no reason to find that Ms Pirone did not correctly record what she had been told by N. It is not the sort of detail that she would have invented. What was recorded by Ms Pirone, that is that the accused undid his shorts, is inconsistent with the evidence of N.
The discrepancy between the statement to Ms Pirone that the accused undid the shorts of N and the evidence that the accused touched the skin of his genitalia by putting his hand up the leg of the shorts is not one as to a merely peripheral matter but goes to the actual commission of the offence. That is particularly significant because the statement to Ms Pirone was the first time that N had recounted his story to a person in authority.
N also omitted to tell Ms Pirone about the facts giving rise to count 3 that is the last of the incidents in the picture theatre.
The only facts which corroborate the evidence of N are that he was a cricketer and the accused was a cricket coach.
There is no other corroboration of the evidence of N. Of course corroboration is not necessary but the absence of it is a matter which I take into account. The first complaint was made by N about 30 years after the alleged offences and the accused is now required to answer charges relating to events over 40 years ago.
To the extent that the memory of N may have faded because of the passage of time that should not be allowed to prejudice the accused by lowering of the standard of proof.
This is a case to which the principles described in Longman v The Queen (1989) 168 CLR 79 apply. This is a case where it would be dangerous to convict upon the uncorroborated evidence of N alone. I am required to scrutinise his evidence carefully, but can act on his evidence if I am satisfied as to its accuracy and truthfulness.
Some of the discrepancies in the evidence of N by themselves are relatively insignificant. However when they are accumulated they do become significant. The discrepancies include statements of N that he was about eight years of age at the time, that he was in year five, that the abuse occurred at the start of 1965, that he was "dead certain" of that, that the three charged acts preceded the uncharged events, that the abuse continued over a period of two years, that it continued during the last two football seasons, that the offending occurred after a match at Sacred Heart College and following the match the boys walked to Brighton Beach, the inconsistency between the testimony of N to the court and what he told Ms Pirone about the accused undoing his shorts, that Ms Pirone did not record the circumstances giving rise to count three. There is also the understanding N had as to ejaculant on a hand until he spoke with B. When N spoke with the police he did not refer to an occasion when he had sticky hands.
It was only after the correct dates of the showing of the film The Spy Came in from the Cold at the Majestic Theatre that the Crown amended the Information. The effect of the change of dates was to destroy the matrix upon which N's evidence was based.
In a statement to the police on 27 October 2004 N said that other than himself he saw the accused hug and greet four other boys, whom he named, at the gate most mornings but in his evidence he said he had no knowledge of that and he agreed that what is in his statement to the police in October 2004 is diametrically opposite to what he said in evidence.
The accused did not give evidence and I draw no adverse inference from the exercise of that right. Additionally, the accused had been excused from attending at the court on the basis of medical evidence.
The cumulative effect of the discrepancies which I have mentioned gives rise to a doubt. I find that the prosecution has not proved the objective elements of counts 1, 2and 3 beyond reasonable doubt.
The Complaint of B – Counts 4 to 7
Count 4 is alleged to have occurred on one occasion between 8 August 1965 and 1 December 1965. The other counts involving B are alleged to have occurred on another occasion between 8 August 1965 and 1 December 1965. The date of those offences has been fixed by reference to the death of the father of B on 8 August 1965. Count 4 alleges an act of buggery at Adelaide, that is at the school and count 7 alleges an act of buggery at Colonel Light Gardens at the home of B. Counts 5 and 6 allege indecent assaults at Colonel Light Gardens on the same occasion as count 7.
B was a student at the school from grade 3 in 1962 until July 1967 when he was in grade 8. The accused was his home teacher in grade 5. B played football and cricket and as I have mentioned the accused was a coach, however another person coached the teams in which B played.
The father of B died suddenly on a weekend. At that time the accused was his home teacher. Within a matter of weeks of the father's death the accused visited the home of B to speak with his mother. Shortly after the death of his father the mother of B went overseas, probably just prior to the September school holidays. B and his siblings were looked after by a friend of the family.
The evidence of B was that at a time after the September holidays while his mother was still away, B spent time one Saturday watching a senior team play cricket. On the following Monday, at the school, the accused said he wanted to speak with B about an incident which had happened on the Saturday. The accused sent B to a room where the students did their banking and after closing the door accused B of stealing. He said he was going to give B the strap. B had not previously been given the strap himself but he had seen it administered to others in the classroom. The accused told him to take his shorts and underpants off and lean forward against a desk. He did that and the accused assumed a position directly behind him but to the left hand side. He said the accused strapped him half a dozen times across the bottom. It was absolute agony and excruciating. The evidence of B continued:
I was leaning on the desk; I think I sort of, may have lowered myself a little bit because it was just so painful, and he hadn't said anything as far as "stand up", do anything else or anything, and then the next thing I knew he was - he had put his left arm across my back by my shoulder, his right arm on to my right arm and pinned me to the desk and raped me.[3]
[3] T 191 l13.
B said that the accused put his penis inside his anus. B felt pain. He said the accused was moving backwards and forwards for a couple of minutes and then withdrew. B was not aware of any secretion around his anus although there was some bleeding which he noticed when he went to the toilet afterwards.
B said that after the accused had moved away from him he "put his right hand up to my chin and lifted my face and kissed me on the mouth and he said something like "this is something that was between us"; something along those sort of lines". The accused gave no explanation of what he had done, B dressed, left the bank room and returned to class. Before kissing B on the lips the accused had said something like "this is what friends do". B found it strange because he had not even kissed a girl at that stage.
B did not tell anyone about what had happened. His mother was still way.
B said that after that occasion the accused reacted to him in a way that was violent and brutal. B was criticised endlessly for his schoolwork, performance, and ability to play sport and if he did anything in the yard he was "belted" by the accused that is "strapped, punched in the stomach, slapped on a fairly regular basis".
B said that he admired the accused who was extremely popular at the school but he was confused.
After the return of the mother of B the accused visited the family's home one day after sport. The accused told B that he was going home with B on the bus. It was about eight weeks after the incident in the bank room. When the accused arrived the mother, a sister and brother of B were at home. After about 45 minutes his mother left the house to attend a function. The siblings also left. The accused started talking with B about sport and asked to see the room which B shared with his brother where there were posters and sporting memorabilia. They sat on a bed looking at a book.
B said that the accused started asking questions about the book and then started rubbing the left knee of B with his right hand. After a period of time the accused put his right arm around B. B said "then with his left hand he put it inside my shorts and underpants and started touching me. He started kissing me at the same time". He was touching B on the genitals, on the skin, inside his underpants. The accused kissed B on the mouth.
B said that the accused took his left hand out of his shorts undid his pants and then took the left hand of B and put it on the penis and testicles of the accused. B took his hand away. The accused grabbed his hand and put it back. B said he was frozen and just sat there and the accused became agitated because B was not doing anything. He did not know what he was meant to be doing. He said "he just grabbed me firmer, pulled me, pulled me closer towards him so like somebody would that was angry and then just sort of forced my hand back onto his penis and testicles". B continued:
He basically just pulled his pants down, his right arm dropped, he grabbed me, tore my shorts and underwear off, dropped his pants, rolled me over on to the bed, pushed me down on the bed, and raped me… he put his penis inside of my anus.[4]
[4] T 202 l6.
B said he experienced excruciating pain. He was pinned down onto the bed and the accused was moving in and out of him. There was no conversation. B said "he just finished, stopped, and got dressed and left". He became aware of a secretion, a thick liquid at or near his anus. He felt revolting and showered.
He did not say anything to his mother or siblings when they returned.
On the following Monday he went to school. The accused was his class teacher.
If I accepted the evidence of B beyond reasonable doubt it would establish the objective elements of the charges.
In cross-examination B acknowledged that he had made allegations of sexual abuse at the hands of another teacher. One pre-dated and one post-dated the incidents involving the accused.
In 1998 B received a form of payment with a denial of liability from the school in respect of the alleged abuse by the two teachers.
In the last few months of 1997 the brother of B spoke to him about his experience at the school. In January 1998 B contacted Independent Counselling services claiming to have been abused at the school and requested counselling. He saw two councillors and then Dr Cook. One of the counsellors prepared a statement which B was required to sign and Dr Cook prepared a report setting out the history which he had obtained. Later B saw Mr Jenkins a psychologist.
In cross-examination B confirmed his evidence as to count 4, that is, that there was first a strapping, then the act of buggery and then cuddling and kissing and the comment that what occurred was just to be kept between them.
B acknowledged that the account set out in the report of Dr Cook is different from what B had said in evidence. What Dr Cook reported as to the first occurrence was that:
As indicated above, about two months after his father's death, (B’s) mother went overseas on a cruise for two months, leaving the children in the care of a woman. During that time (the accused) visited the family home. He reported that, on one occasion (the accused) sent him to his room in response to a very minor misdemeanour. (B) stated that he had difficulty understanding why he was being sent to his room. He reported that (the accused) subsequently came to his room and spanked him six times on the bare buttocks. He then proceeded to cuddle (B) and told him that they were good friends. He then kissed him on the mouth and proceeded to anally penetrate him.[5]
[5] T 219 l17.
B accepted in cross-examination that what he had told Dr Cook was a different account from the one that he had given in evidence. B said that what Dr Cook had recorded "was just inaccurate recording. I've never varied my story from day one ever. There may be variances in his account; that's his account, not mine".
The first time B told the story was to Dr Cook in January 1998.
B claimed that Dr Cook had got it wrong in relation to a number of matters.
Dr Cook recorded:
After the death of (B’s) father, (the accused) came to (B’s) house on a number of occasions under the guise of providing care and support. However, on at least two occasions he anally penetrated (B).[6]
[6] T 223 l8.
That statement infers that there were at least two occasions of penetration at the family home.
B said he had no recollection of telling Dr Cook that there were at least two occasions of an act of buggery.
B was shown Dr Cook's report by his solicitors in the middle of October 1998. He did not identify any factual errors in the report.
In cross-examination B said that the first alleged abuse was the bank room incident and that Dr Cook had got it wrong.
In 1998 B saw Ms Moloney. Ms Moloney recorded the incident in the bank room in the following way:
(The accused) sent him to the bank room which was downstairs next to the canteen. There (the accused) hugged him and told him to take his pants down and lie across the desk whereupon he strapped (B) severely, some six times. Then he made (B) stand up and said "Now that the punishment is over, let's make friends, and friends kiss one another". (B) doesn't remember what the punishment was for. (B) says that (the accused) then started kissing him on the lips, fondling him and then he penetrated him.[7]
[7] T 243 l12.

B could not recall what he told Ms Moloney but agreed that what she had recorded was different from his evidence. B signed the statement prepared by Ms Moloney on 21 January 1998 when he sent it back with a correction as to the date of the first incident.
The report of Dr Cook and the report of Ms Moloney state the act of buggery was the last event in the incident. That differs from the evidence of B to the court.
In a statement which he gave to the police in June 2004 B said "after (the accused) stopped and moved away from me, I stood up straight away and I pulled my Y-fronts and school pants up straight away". B agreed that was different from his evidence to the court.
B agreed in cross-examination that in four separate statements there were differences and in fact Dr Cook had the first offence occurring at a completely different location, namely his house. The only explanation which B could give was the passage of time.
In the statement to Ms Moloney which B signed, there is the statement "(accused) stayed until (B's) mum came back and (B) just sat in front of the television howling". B does not agree that that is what he told Ms Moloney, he could not recall. Although it was written in the statement he did not believe that to be the situation. He could not explain why he had signed a statement to that effect if it was not the case. However later he said "that may have been my recollection at the time".[8] If that is so it differs from his current recollection!
[8] T 254 l19.
The statement taken by Ms Moloney identifies the second occasion of an alleged act of buggery as an occasion when the accused went to the home to dinner. B agreed that that was not the most accurate way of describing his evidence but could not explain why that statement appears after he had read and corrected the statement before signing it.
There is no corroboration of the evidence of B. While there is no need for corroboration its absence is a matter which I take into account in assessing the weight of the evidence.
The accused is prejudiced by the delay which has occurred. The principles set out in Longman apply and I must scrutinise the evidence of B carefully.
I accept the submissions of counsel for the accused that the cross-examination has demonstrated B to be an unreliable witness. His recollection of two of the key events has altered and there are inconsistencies in the accounts given by B since early 1998 until the trial. In the statement obtained by Ms Moloney, B corrected the date of the alleged offence but nothing else. In that statement there are differences from the evidence of B.
It is unlikely that the solicitors for B would have forwarded the report from Dr Cook dated 14 October 1998 to the school if it did not correctly record the instructions of B. There are a number of inconsistencies between the evidence of B and Dr Cook's report. The most significant is that in Dr Cook’s report the first occasion of alleged offending occurred at the family home when the mother of B was overseas and the accused sent B to his room. Dr Cook recorded a quite specific incident. What he recorded is irreconcilable with the allegation that the first incident occurred in the bank room in the way described by B in his evidence. The discrepancy goes to the actual commission of the offence.
B agreed that what he told police in June 2004 about getting dressed immediately after the act of buggery in the bank room is different from his current recollection. He could not explain the difference.
I accept the submission that the cross-examination has established that the memory of B is faulty.
I draw no adverse inference from the fact that the accused exercised his right not to give evidence. I note that when he spoke to N and then to the police on 10 August 2004 the accused denied the allegations.
I am required to scrutinise the evidence of B carefully. For the reasons which I have expressed I am not able to accept his evidence as to the alleged offences beyond reasonable doubt. That does not mean that the alleged offences did not occur; it simply means that I have some doubt about the evidence of B.
I find that the objective elements of counts 4, 5, 6 and 7 have not been established beyond reasonable doubt.