Tarasinski v Department of Health and Community Services
[1996] IRCA 210
•20 August 1996
DECISION NO: 378/96
CATCHWORDS
INDUSTRIAL LAW - Termination of employment by suspension - Academic - Sexual relationship with student - Whether valid reason for termination
Industrial Relations Act 1988: ss 170DC, 170DE
Chambers v James Cook University of Queensland, Spender J, (1995) 61 IR 145
No. AI 1331 of 1995
M v Australian National University
MOORE J
SYDNEY
20 AUGUST 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA AUSTRALIAN )
)
CAPITAL TERRITORY DISTRICT REGISTRY )
No. AI 1331 of 1995
BETWEEN: M
Applicant
AND: Australian National University
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 20 August 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA AUSTRALIAN )
)
CAPITAL TERRITORY DISTRICT REGISTRY )
No. AI 1331 of 1995
BETWEEN: M
Applicant
AND: Australian National University
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 20 August 1996
REASONS FOR JUDGMENT
INTRODUCTION
On 16 October 1995 an application was filed by M ("the applicant") under s170EA of the Industrial Relations Act 1988 ("the Act") alleging there had been a termination of his employment by the Australian National University ("the University") in contravention of certain provisions of Division 3 of Part VIA of the Act. The applicant had, in fact, been suspended by the University from his employment for a period of three years. It was accepted by both parties that the suspension was a termination of the applicant's employment for the purposes of Division 3 of Part VIA of the Act. The applicant initially alleged contravention of s170DC and s170DE of the Act.
The University contended it had a valid reason for terminating the employment of the applicant connected with conduct involving serious sexual harassment by him of a PhD student ("the student") attending the University.
At the commencement of the hearing a joint application was made by the applicant and the University that the application be heard in camera: see s373(4) of the Act or, in the alternative, that an order be made under s480 prohibiting the publication of the names of their applicant and the student or material that might reveal their identity. I declined to hear the matter in camera but did make an order under s480 though in doing so I may have unduly favoured the interests of the individuals concerned. As to the circumstances in which an order might be made under s480 in a sexual harassment case: see Chambers v James Cook University of Queensland, (1995) 61 IR 145. However having made an order under s480 it is appropriate that in this judgment I should not name the applicant and the student. To identify one would almost certainly enable the identification of the other. It is unnecessary to identify either. I have also not named others with whom they were closely associated as their identification might point obviously to the identity of the applicant and the student. Unless it has been necessary for the purposes of giving coherent reasons, I have not mentioned matters of detail that might, indirectly identify the applicant and the student.
The proceedings concern the circumstances in which a female Chinese national came to Australia to undertake study for a doctorate at the University. A relationship developed between her and the applicant who was a senior fellow at the University. He played a significant role in her coming to Australia and undertaking her course of study. Their relationship was a sexual one. Central to these proceedings is whether it was a relationship, at least as concerns the student, with any other dimension. Also central to the proceedings was whether its commencement and continuation constituted an abuse of the position the applicant held involving the improper exercise of power and influence by him.
The evidence related to several significant events or periods. There are critical areas where the accounts of the applicant and the student conflict. It is convenient to first set out, in a summary way, the evidence of each.
THE EVIDENCE
A. The Student's account
The following emerges from the evidence of the student. Some uncontentious facts necessary to make the narrative a comparatively cohesive one emerge from the evidence of the applicant. I will later consider the evidence where there is a conflict between the student and the applicant which is material. While the student spoke adequate English, she was not fluent. This account reflects what I understood to be the import of her evidence. To some extent it is a gloss on the evidence in relation to matters which are not material.
A.1 Events leading to the student coming to Australia
Until 1991 the student lived in China with her husband ("the first husband"). They had one child born on 29 January 1989. They have since divorced.
Her first husband initiated the process which led to her coming to Australia. After unsuccessfully applying for a PhD scholarship at a number of universities in America on behalf of the student, he wrote to the mathematics department of several universities in Australia. The student held a Bachelor of Mathematics and a Masters in Mathematics from a University in China ("the Chinese university"). She was also an associate lecturer.
The student first met the applicant when he visited China in 1990 after the applications made on her behalf had been sent. She recalls the applicant saying to her at the time that there was a possibility she could obtain a PhD scholarship at the University. She was also aware before she came to Australia that the applicant had made arrangements for her to be a PhD student in his department at the University. Before the student came to Australia, the applicant indicated he would lend her the money for her first year's tuition fees and, in due course, paid the student's fees of $11,000 for the first year's tuition. The arrangement was that the student was to repay the loan at an interest rate of 10%. The student was not clear as to when she was to commence repaying the loan as the details had been arranged between her first husband and the applicant.
A.2 The student's first one and a half months in Australia
When the student arrived in Australia in November 1991 she was met by the applicant at Canberra Airport. She had never been to a western country before coming to Australia. Her English was only adequate, she did not know anyone here apart from the applicant and she did not have employment arranged. The student brought $1,500 with her from China. This was all the money she then had available to her. Before she came to Australia or when she arrived, the student was informed by the applicant that he had a room in his house where she could lodge as the occupant was moving out. This she did. He told her that she did not need to worry about paying rent until she found employment. She first occupied the applicant's bedroom which had a single bed. He slept in the lounge room.
Three other Chinese students shared the house with the applicant when the student first moved in. One, as it emerged from the applicant's evidence, was then his girlfriend ("the girlfriend"). The girlfriend occupied the master bedroom which had the only double bed in the house. Another female Chinese student ("the female student") lived in the second largest bedroom. A male Chinese student ("the male student") lived there.
On the student's first day in Australia the applicant took her to the University. He introduced her to a number of people, mostly academic staff, in his department. She also met another Chinese student ("the second husband") not long after she arrived in Australia. She subsequently married him after divorcing her first husband. Between November and December 1991 she met the professor who was the head of the department ("the departmental head") and another professor who was to become the chair of the supervisory panel for her PhD ("the panel chair"). In November and December 1991 the student engaged in academic work with the applicant.
A.3 The bushwalk
During the Christmas break in 1991 the occupants of the house, other than the applicant, went away for the holidays. The student did not know anyone in Australia and greatly missed her son. She spent time in her room crying while looking at photographs of him.
The applicant suggested that they go on a bushwalk. Initially the student refused. She had never been on a bushwalk as she was from the city in China. The applicant had been teaching her to drive. He suggested that there were a lot of corners on which she could practice her driving skills on the way to the bushwalk. He proposed that he would take his youngest son who was seven at the time and his neighbour's son who was eight or nine, along with them. The student agreed to go.
The student did not know exactly where they went bushwalking. However she recalls that it took place at a mountain. She drove half way to the mountain. She could not recall whether they were late when they arrived at the car park prior to commencing the bushwalk. During the bushwalk the student wore a t-shirt, shorts and sports shoes. The applicant led the bushwalking expedition. The party had a relatively easy time finding their way up the mountain except for the last part when they had to walk up a very steep hill. When the party turned around to head back to the car, the applicant informed the student that as he had bush walked in that area several times before, he was going to show the party an easier way back down the mountain to the car. She did not recall that the reason why they went back down the mountain a different way to that which they had climbed up was because one of the boys was too scared to go back down the steep incline. The applicant could not find the way back to the car before it got dark. The applicant informed the party that they would have to spend the night in the bush.
During the bushwalk the student had become extremely frightened as she had seen some lizards, she was afraid of snakes in the bush and at some stage she was bitten by a leech on the leg. Although it was summer the student was very cold during the night because she did not take any warm clothing with her. The applicant had taken a bag with him on the walk. He had a raincoat or jacket with him which he did not offer the student to wear that night because he had lent it to one of the children.
During the evening when the children were asleep the student was approached by the applicant while she sat on a rock crying. She was upset because she had arranged to telephone her first husband and her son at his office in China that evening as they had no telephone at their home. She was also upset because she was frightened of wandering animals in the bush. The applicant at this stage seated himself behind the student with his legs on either side of her body. She recalled, during her evidence in chief, that the following took place:
"(the applicant) came to me and he sat down beside me and he said things like - something like, "Poor lady, you need somebody like me to protect you," and then he sit behind me and put his arms around me and his legs around me as well.
.....
And how did he put his arms around you at that stage?---I was like that and he put his arm across me and he said he would keep me warm because he also knew I was going to ring my ex husband and son in China.
What did he do with his hands if anything?---At the beginning he just talk things like-he told me that - he said he had very long dreams about after he saw my picture in my certification of master degree and he say from the picture that I was a very sweet and soft lady or whatever and he said to me that - he said, at that time he decided that no matter how difficult it was he would get me to Australia anyway.
Did he say anything about whether he liked you or not?---Yes, because he said from my picture I am the soft or sweet lady, whatever, and he said he liked me very much, that's why he wanted - he decided to get me to Australia.
And when he was saying this, did he do anything with his hands?---At the beginning he didn't. After we talked for a while, yes, he did something because I was really worried depressed and scared. I just feel I'm really vulnerable and then he offered some sort of things like the protection and, of course, (the applicant) knew that I was - I miss my son very much and also I was very worried about money. So then after we talked for a while and he used his hands because his hands are crossed to me and he used his hands to feel my breasts.
And when he was feeling your breast, did you say anything to him?---I said, "Please, don't." I asked him to stop it.
And did he stop?---Yes, he did."
The student recalled feeling very uncomfortable after the applicant touched her breasts:
"...I feel very, very uncomfortable, because I got a little bit of feeling that this man is not somebody like my previous supervisor in China, and before I came to Australia, I thought the reason (the applicant) bring me here is he thinks that I am - he thought I was a good student, and I had a good - very strong academic background, rather than these sort of things. So I got the feeling that he is not somebody like my supervisor in China."
The student could not recall whether she had applied for employment before or after the bushwalk. During that night the applicant spoke of how he could bring her first husband and her son to Australia:
"(Counsel for the University) Well, what did he say about your son? Can you remember?---He said he could get my son to Australia.
As you understood it, how was that going to come about? What were the steps that had to be taken?---In fact, it was my ex-husband who wanted to come to western country and the reason he convinced me to come here he was - after I came to Australia he got opportunity to come to Australia as well as the dependent of me, should say as dependent of a PhD student. But before my son could come to Australia my husband had to be in Australia as well. So my husband should come to Australia first or if I have enough money I could have brought them to here at the same time.
Now, did (the applicant) say that he could do anything about bringing your husband here?---Yes, he convinced me. He said he could get my husband here. He said he has - he told me that he has brought several Chinese from China to Australia and he also said he had friends in the immigration or something.
His Honour: May I just understand. You are describing now the conversation that went on this evening you were lost in the bush. Is that what you are talking about now?---Yes. That's what (the applicant) told me about this sort of things.
(Counsel for the University): Was this before or after he touched you on the breasts or during or can you remember or what?---I couldn't remember exactly. I think after he stopped and then he talk about these sort of things. It's after he stopped.
Was there any discussion after he had touched your breasts about your scholarship with the - on that topic or not?---At that time he told me that he could get me a scholarship. He said he could get me a scholarship and he also - because he also talk with me about the money and he mentioned to me that I don't - he said, "You don't need to worry about money and he mentioned to me that I don't - he said, "You don't need to worry about money." And he said, "I'm wealthy enough." And he said, "You don't need to worry about that $11,000." He said something like, "You could return the money as late as you want to and maybe even after you got your PhD and found a job."
The applicant also mentioned to the student that evening that he could get her first husband a position in the Engineering department at the University.
It was suggested during cross-examination that during the discussion that evening the applicant stated "I quite like you" to the student. Her evidence was:
"... He said he liked me. I asked him why and he said something like after he saw my photo from my certification from my master degree and bachelor degree and then he said he had a long dream about me and he said things like - he said - and then he said he decided no matter how difficult it was he would get me to Australia."
After the conversation finished the student moved over on the ground next to the children as they were cold. They placed their heads on her lap. She did not sleep that night. The next morning the party found their way back to the car in approximately 40 to 50 minutes. During cross-examination the student said that at some time after the bush walk she came to believe it was in fact a trap so that the applicant, knowing she was in a vulnerable position, could take advantage of her. She believed he made the event appear as if it was accidental.
A.4 The night after the bushwalk at the applicant's house
Prior to the bushwalk the applicant had arranged for the student and himself to visit his brother's house in Sydney on 28 December 1991. The applicant asked the student to prepare and cook food to take with them. The student could not recall whether the day she cooked the food was the day she came back from the bushwalk. She did say, however that after she came back from the bush walk she cooked and slept for a very short period. Then, after she called her first husband at his office in China, she went to bed again at approximately 11.00pm. She said she always wore a "nightie and undies" to bed. She shut the door to her bedroom and switched off the light. She remembered feeling extremely sore and overtired from the bushwalk. She could not sleep. Approximately 30 minutes after going to bed the following occurred:
"(the applicant) ... knocked on my door and said something like, "Are you sleeping," and I said things like - I said, "No I am too tired to fall asleep.
(Counsel for the University) Did he come into the room or stay outside after he said this or what?---He said- and then he entered the room and said something---
He entered the room, yes?---Yes, he entered the room and said, "Can I come to keep you company," and he said, "I promise I won't do anything. I just keep you company and talk you to sleep."
Do you recall what he was wearing at that particular time?---He had a tee shirt and shorts on.
When he came into your room did he stand or sit or do something or what?---At the beginning he said he will massage my shoulder or my back.
What position were you in when he did that?--I slept on my tummy. Stomach.
How did he come to massage you. Was that his suggestion or your suggestion or can you remember how that came about?---He said things like - he said, "Poor lady, that's a very unusual experience for you," and he said, "Let me massage you and get you relaxed or something like that."
How did you feel when he was doing this to you?---I just feel very uneasy. It's not natural."
The applicant massaged the student for approximately ten to fifteen minutes. During the massage they spoke about the student's financial situation and her prospect of obtaining a scholarship. The applicant told the student not to worry herself about the money she owed him for the tuition and stated that she could repay him whenever she wanted. He also told her that he could get her a scholarship.
The student said that after the massage the applicant made a sexual advance:
"... After the massage and I turned around, (the applicant) said things like, "Can I lie down beside you," and he said, "I promise I wouldn't do anything." So we lied down - he lied down beside me under the same sheet with me.
Under the same sheet?--Yes, under the same sheet with me and at that stage he talked about the scholarships and also jobs. He said he has got friends in University of Canberra and he said he could get me job there and also he said he got friends in the engineering department of ANU. He said, after he got my husband to Australia he can introduce him to his friend in the engineering department because my husband has got master degree and he was also a lecturer in China so (the applicant) thought his chance was quite good to get a position in the engineering department of the ANU. So, at this stage, he was talking about how to - how to get me a job and also how to get my husband here and how to get him a job. So he said he don't need to worry about money too much, and afterwards, (the applicant) tried to cuddle me because we lie down in the same bed. That's a ---
Is this a single bed, or a double bed?---Yes, that's a single bed, so he was quite close to me, and then get me face to him. He is facing me and - he was facing me, and also tried to get me to face him, and then he pushed his body against me, and I felt really very, very - I really feel very uncomfortable about that, and I also brought lots of shame on me. I was just feeling that way, and I said things like---
Was there any part of his body that you felt when he did this?---Because I could - I don't know what's the Australian word for that, but I could feel his penis was very hard - what's the word, I don't know.
Right, so you felt that when this occurred? You felt his penis being very hard when he did what you just described?---Pushed his body against me yes, I could feel that and I asked him to stop. I said, "Could you please stop it." I said, "I am not prepared for this." And then---
What was he wearing at this stage, if anything?---He also had his tee shirt and shorts on at this stage.
Right. What happens next?---And afterwards, he did - he stopped. (The applicant) stopped, and now he took - then he tended to talk a bit about the scholarship, and he is - I was, of course, at that moment, I was aware that (the applicant) was responsible for recruiting students in our department, and so (the applicant) described to me how the scholarship is awarded to the candidates, and he also told me that he ranked the candidates---
He ranked them?---Yes, he ranked, to say who is first and then second and third, and he's told me that he ranked the candidates from our laboratory, and he told me that in the research school, not every department can have a scholarship, so the only chance for the candidate to get the scholarship is the candidate is ranked in the first place, and he said things like if he doesn't want somebody to get a scholarship, he can just simply rank him or her in the third or second place, and also he - (the applicant) was responsible for writing references of the candidates from our laboratory, so he said - he told me how important the references is from somebody like (the applicant).
And so what happened, if anything after that?---After that, and we - after he talked about the scholarship and about how to - how important he is in the department in the recruiting of candidates in our department, and he started - he started to cuddle me again, but I struggled. I ask him to stop it, and he was - he got so impatient, and then he tried to take my nighties off. Meanwhile he was saying that - things like, "Look, I can give you all sorts of things in Australia if you obey me. If you don't agree with this," I don't know - I couldn't remember the exact words, because I was extremely emotional at the time, and he said, "If you didn't commit", something, "commit to this, I could make you never get scholarship, and your husband could never come to Australia, and your son could never come to Australia." And he said, "it doesn't matter how many publications - how many papers you can publish, you still couldn't get the scholarship." And afterwards, after he said all of that, I stopped struggling and (the applicant) took his t-shirt off, and he had a condom with him, and so he put the condom on, and then---
Do you know where the condom came from?---I think it's in his pocket in the shorts.
What happened after he put his condom on?---Afterwards that's the intercourse and at that time I had tears in my eyes and - because at that time I really feel sorry to my ex-husband and my son.
Now, when you say intercourse you mean that his penis entered into your vagina?---Yes. It was - - -
What did you feel, if anything, during that ---?---It was really quite painful. Although I didn't blood or something, but it was really quite painful.
You didn't blood - you mean you didn't bleed you mean?---I didn't bleed, I mean, sorry.
Why was it painful?---Because I was so dry there.
And did (the applicant) ejaculate?---Yes, he did. And afterwards I asked (the applicant) - I didn't remember - maybe I wasn't that polite or something, I just (sic) him to get out of room and he did.
Did you sleep the rest of the night or what did you do?---I stayed in my bed, but I couldn't fall asleep.
The next morning ---?---Maybe I had a little bit of sleep towards the morning."
In cross-examination she accepted that the incident made her feel ashamed, dirty and disgusted. She hated the applicant for that. It was perhaps the most awful experience in her life.
The next morning the applicant apologised to the student after she said she did not want to go to Sydney that day. He promised the incident would not happen again. He explained to her that it would be beneficial to him if she went with him to Sydney to demonstrate that he could have a "normal relationship" with a woman. The student agreed to go to Sydney in the applicant's car. Four people were in the car, the applicant's son, another Chinese woman, the applicant and the student.
A.5The trip to Sydney including the conversation between the student and the applicant in the tent
It was common ground that the applicant and the student stayed, on the first night in Sydney, in a tent set up in a garage in the applicant's brother's home. The student was asked by the applicant's sister-in-law if she would like to sleep with three boys in the small bedroom or whether she would like to sleep with the applicant in the tent in the garage.
The student said in evidence:
"I could remember (the applicant) asked me to be friendly towards him, to show his family that he had a normal relationship with woman, so I said, "Oh," I said,"I'll stay in the tent with the applicant."
And did you stay in the tent with him that night?---Yes, I did.
And during that particular night, did anything happen of a sexual nature?---Yes, the applicant also pushed me just a - I don't know, what's the word? He pushed himself against me and pull me towards him also, after I feel, I asked him to stop, to stop that. And I said things like to him, I said, "Look, your family is all here." I said, "You really don't want to be embarrassed if I told them that sort of things I didn't want," he then stopped.
And did he touch you anywhere at any stage, when you were in the tent?---Yes, he did , because he - he pushed his body against me and cuddle me and just, I don't know how to describe that, and just, he put himself around me and face-to-face and pushed his body up against me.
Did you say anything to him when he did that?---I asked him to stop that.
And did he?---Yes, he did.
And after that, did he do anything else of a sexual nature?---We didn't have any nice topic to talk, always money. As far as I could remember, always money, all these sort of things. He said things like he was so pleased, I don't know which are the words, he was so happy or something, to be so close to me. And he said, "I really had a long, long plan on you about how to get you here, and how to get your family here." These sort of things, but I think I hardly had any sleep that night, as well.
And can you recall whether he, the applicant, did anything further to you, other than what you have told us about?---Before he pushed himself against me, he always try - he just feel my arms and my legs, like that, and also tried to feel my breast, and afterwards, he pushed himself against me.
.......
But when you say, "feel your body," what do you mean?---He put his hand around, just to feel then like this, and also my legs, and---
Whereabouts on your legs?---In one occasion he also put his hand between my leg, between my legs.
And did you say anything to him when he did that?---Sorry?
Did you say anything to him when he did that?---I asked him to stop it, and he - it was quite obvious to him that I was extremely uncomfortable, and then, and then--
How did you fell when he was doing these things to you?---I really feel very disgusting, I have to say, and I feel extremely uncomfortable about that. And I could feel, when he push himself - push himself against me, I could feel that he was sort of - I could feel that his penis was hard.
Now did anything else happen further of a physical nature between you and him that night?---Afterwards, I talked to - I asked him to stop and he did, and we - I think that's about it, but I didn't have sleep."
The applicant and the student were in Sydney for several nights. On the second day the applicant's sister's family, who had also been staying at the brother's home, had left so the student thereafter slept in the lounge room.
In cross-examination, the student denied she and the applicant simply held hands in the tent. She accepted they engaged in a discussion in which the applicant told her he was a rich man, it was not important the money be repaid immediately and that the student could obtain a scholarship. The student asserted that the applicant talked and she listened. As to one particular matter, the student said in cross-examination:
"(Counsel for the applicant) ... And there was talk about you being able to get scholarships for your PhD?---When he always - I could remember he always - also told me how much he likes me, he liked me all these sort of things...".
A.6 & A.7The commencement of the relationship between the applicant and the student and the commencement, development and conclusion of the relationship of the applicant and the girlfriend
At some point during the 1991 Christmas break the female student, prior to leaving on holidays, told the student that the applicant and the girlfriend were having a sexual relationship. The female student said she knew of this because the walls of the applicant's house were thin and she heard the applicant go to the girlfriend's room regularly. The girlfriend was in China during the 1991 Christmas break. The student said she believed the applicant sent the girlfriend to China to be alone in Australia with her. She formed that belief after she returned from the applicant's brother's house in Sydney. A few days after returning from the applicant's brother's house the applicant drove to Sydney airport to pick up the girlfriend on her return from China. The applicant did not return to Canberra til one or two days later. According to the student, the girlfriend kept a "very close eye" on the applicant when she returned to Australia because he was teaching the student to drive. The girlfriend did not allow the applicant to take the student driving at night. She only allowed the applicant to teach the student to drive to and from the University.
It appeared to the student that the applicant became extremely frustrated that he could not spend any time alone with her. As a result in February 1992 he booked a house on a beach to spend the night with her. The applicant lied to the girlfriend telling her that he and the student were going to a conference. The applicant and the student had sexual intercourse at the beach house. The student's explanation for having done so was that the applicant was then preparing various documents for the first husband to come to Australia. The applicant had by then become the first husband's financial sponsor. As such he needed to show various financial documents such as bank statements to the Australian Embassy in Beijing. Furthermore the student said she did not feel she had a choice to not have sexual intercourse as the applicant had too much power over her: "he wouldn't get my husband to Australia".
In cross-examination the student accepted it was possible that in February 1992 she knew that the Australian authorities had given her first husband permission to come to Australia. However, she said that even if she knew at that stage the first husband had been allowed to come to Australia, she could not refuse to engage in sexual intercourse with the applicant because he had power over her as her son was still in China. It was her view that if the applicant did not act as the financial sponsor of the first husband and her son, neither could come to Australia. The applicant also told her that he had many friends in immigration.
The student denied in cross-examination the suggestion that the applicant and the girlfriend ended their relationship as soon as she returned to Australia from China. Rather their relationship ended when the applicant and the student returned from the beach house in February 1992. She believed their relationship had ended because from that point on the girlfriend did not cook for the applicant as she had done.
The evidence of the student as to what happened between her and the applicant from the time they returned from Sydney and the occasion they went to the beach house is scanty. Questions asked of her in chief moved directly from the return from Sydney to the trip to the beach house in February 1992. In cross-examination she was asked and denied that during January 1992 she would come home early with the applicant from University and spend time with him in the same room. A question was put to her suggesting that she had sexual intercourse with the applicant in late January 1992. The question was not entirely clear and may not have been understood by the student. She nonetheless appears to have denied having had sexual intercourse then. It was certainly a matter she did not give evidence about in chief. The account given by the applicant of the development of their relationship in January 1992 involving holding hands, smiling and embracing, was not put to the student in cross-examination.
According to the student the applicant told her on many occasions he loved her and "he could marry me". He also told her that if she married him she did not have to repay the $11,000 in tuition fees. The student says she did not reply to the applicant's comments. While the evidence is not entirely clear it would appear that these things were said in the period before the husband arrived. The applicant was also helping her in March or April 1992, to prepare her thesis proposal.
A.8 Other events in 1992 and 1993
The first husband arrived in Australia in April 1992. Upon arrival he immediately went to live with the student and the applicant at the applicant's house. The applicant employed the first husband, at some point after his arrival, at a company he controlled. She did not tell her first husband of what had happened sexually between the applicant and herself because she was ashamed. The relationship between the student and her first husband was not a normal husband and wife relationship after he arrived in Australia. This was the result of her working in a number of positions. She worked as a tutor at the University of Canberra, as a tutor at the University and as a kitchen hand at the Lakeside Hotel, amongst other things. By this I took her at least to mean they did not have a sexual relationship. She also tutored two private students on the weekend. With the money she earned from the employment she began to repay the applicant for the tuition fees paid by him. The student commenced to pay the applicant rent as soon as she got her first job in March 1992.
In April 1992, after the first husband had arrived in Australia, the student and the applicant went to a flat in Campbell and had sexual intercourse. The student again said that she did not have a choice to reject the applicant's advances because she wanted to get her son to Australia who had remained behind in China. It would appear that at the flat the applicant told the student that he would get her son to Australia as long as she committed to him. When asked by counsel for the University what she meant by committing to the applicant she replied "Actually he offered sort of help to me and as the exchange of that he asked a sexual favour from me".
In May 1992 the student formally enrolled at the University as a PhD student. However before she enrolled she asked her first husband to return to China with her. He refused. She was "totally disappointed with him". It was then their relationship deteriorated. She said that even before her first husband came to Australia and after she and the applicant had sexual intercourse, she spoke to her first husband by phone and told him she wanted to go back to China. She had said that the applicant had lied to them in respect of the availability of employment. However the first husband refused to allow her to return to China because it would mean he could not come to Australia at all.
The student had delayed enrolling at the University till May 1992 because she wanted the opportunity of returning to China. She would also have been able to recover the $11,000 in fees paid to the University and then repay the applicant. She did not recall whether the applicant told her that if she delayed her enrolment she would end up paying less fees.
The student worked closely with the applicant on research at the University. Initially she was only competent in her area of expertise though after a while she became proficient in using computers which was the area of expertise of the applicant. They collaborated on papers. The student disputed during cross-examination that the applicant had engaged in substantial research in relation to the papers they worked on together. She claimed she had put in more effort than him. She received very little help with her research from the applicant and she believed he helped her and others in order to get his name on the publication of their work in academic papers. The student believed the applicant, as a senior fellow in the department, was expected to publish approximately five papers each year in which he was the principal author. She checked how many papers the applicant had published over a number of years by looking at the annual report of the school.
In approximately May, June and July of 1992 the applicant touched the student in a sexual way a number of times whilst at his office at the University. The student said she did not believe she had a choice because her son was in China. She said the applicant made sexual advances to her in his office because he could not do so at his house as her first husband lived there. She said there was one incident of sexual intercourse with the applicant at the University though this would appear to be a reference to digital penetration and cunnilingus. Her explanation for not having told the University lawyers of these occurrences was firstly because they did not ask her and secondly she was too ashamed to say everything.
In January 1993, the student and the applicant went to China to bring her son back to Australia. They were in China for six weeks. The applicant initially paid for the airfares and then the student repaid him. The first husband would have kept the records of how much money she owed the applicant. The student said she wanted to go to China by herself however the applicant insisted he went also because he wanted to do research at the Chinese University. She believed that the applicant had an ulterior motive in accompanying her to China in that he wanted to impress her parents with his wealth.
On the way to China the applicant and the student stayed overnight at Manila. Sexual intercourse took place between them. The student said she was able to engage in sexual intercourse with the applicant by telling herself that their relationship would end after the trip to China:
"..I told myself that I don't need to put up with this any more after this trip, and I thought it's going to be the end, so I just - I just - like that."
They then stopped over in Hong Kong and for the same reasons she again had sexual intercourse with the applicant. When in China she stayed with her parents while the applicant stayed at accommodation of the Chinese University. Upon her return to Australia, the student sent a fax to a professor who had been her supervisor in China ("the Chinese supervisor") and his wife to the effect that the applicant had been helpful on the trip. She explained that this related to assistance given by the applicant on the return flight in helping manage her baby son.
On the trip back to Canberra from Sydney airport on returning from China, at the beginning of March 1993, the applicant stopped the car to fill it with petrol. The student's son was asleep in the back seat of the car. The car stopped shortly after and the applicant said it had broken down. They stayed the night in a motel. There was a sexual encounter but not sexual intercourse that night. She said that was the last time she had any sexual contact with the applicant.
A.9Events leading up to and after the fight between the applicant and the second husband
In February 1993 the student received her PhD scholarship which was worth approximately $15,000. She was informed she was to receive a scholarship in November 1992. At approximately the same time her first husband received a $15,000 scholarship from another academic institution in Canberra.
The student moved out of the applicant's house on 21 May 1993 with her son. She said that she had been planning to move out for a long time before then because her son and her first husband were now both in Australia and he had a job. She decided to separate from her husband. She had repaid the applicant all of the $11,000 she owed. Her first husband had obtained a scholarship and she believed he did not need her any more. She wanted to be rid of the applicant and the first husband. The student's own scholarship commenced in February 1993. Accordingly she believed the applicant did not hold much power over her any more. The student said during cross-examination that it was not until she left the applicant's house that she let her true feelings of hatred show in respect of the applicant.
The first husband remained at the applicant's house. He attempted, unsuccessfully, a reconciliation with the student.
When the student left the applicant's house, she moved into a flat in Hawker in Canberra. She did not tell the applicant or her first husband where she had moved. At some point after May 1993 the applicant obtained her telephone number and found out the student was in a relationship with the second husband, though they were not then married. They married in February 1996. They had started living together when the student moved from the flat in Hawker to a flat in Lyons in October 1993. At the time she left the applicant's house, the student and her second husband were then friends.
At a point after the student left the applicant's house, he showed her a document relating to her scholarship funding which she says she was not supposed to look at it. He told her that the trust providing the funds for her scholarship was in financial trouble and that if she did not move back to his house and cease associating with her second husband he was in a position to cut off her scholarship. The applicant was a member of a committee administering the trust funds.
On 28 March 1994 a fight occurred between the second husband and the applicant. The applicant suffered an injury to his eye. The day after the fight the student went to visit the applicant in hospital. The applicant told her he would not report the incident to the police though he would report it to the industrial department at the University because, it would seem, he might claim for compensation. One to two days later the applicant rang the student to tell her that his daughter and son-in-law had urged him to report the incident to the police and he did. He warned that the police would be visiting her flat. At that stage she was then living with her second husband in the flat. The student rang back shortly after but denied saying that he had better not tell the police because she would tell the University things he would not want to hear. She did accept, however, that she said something to the effect that she would tell the University about his assaults of Chinese students and she named herself and the girlfriend.
The substance of the student's account of then what took place is that at a later stage the applicant invited the student to his office at the University where he asked for her cooperation in dealing with the consequences of the fight. He suggested to her that she keep quiet about their prior sexual relationship. He said she could suffer an embarrassing time in court at the hands of his solicitor.
At Easter 1994 the student's Chinese supervisor was visiting the University and was staying at the applicant's house. The Chinese supervisor invited the student to the applicant's house to talk about the fight. When there she was informed by the applicant that he had given the police a statement in relation to the fight. He also said he had prepared a second statement and that the student should get her second husband to agree with his version of the fight. Otherwise the industrial office at the University would prosecute and it was likely that the second husband would be dismissed from the University. The student did not agree with applicant however she did not say anything.
When interviewed by the police the student, on 11 April 1994 or a day or so before, was asked whether she had ever had a sexual relationship with the applicant to which she answered no. The policeman then repeated the question and further stated the applicant had told him they had had a sexual relationship. The student claims she then said the following:
"(The applicant) is a little bit twisted person." I said, "I am not going to answer that question." And then Robert Ball asked me something, "Why do you want to hide it from people," or something. I said - and then I told him, yes, that I do not want (her second husband), I said, "I don't want (her second husband) to know." And then he was a little bit - maybe he thought I was a little bit stupid, or something. He said, "How come you have -" things like, "How come you can't - you can't keep that as a secret from him." He said, "There was a case there. Of course this will be open to the public." That's the first time I knew that (the applicant) had really told the police about the sexual relationship."
A week prior to the fight between the second husband and the applicant the applicant left a letter and a feather on the student's desk at the University. The second husband read it and tore it up.
A.10 Complaints by the student
During the period following the fight, it would appear, the student told her Chinese supervisor and his wife that she had had a sexual relationship with the applicant. They informed her that the applicant had already told them about it and that he had also told another senior academic. The Chinese supervisor and his wife advised the student to tell the University what had transpired. The student made several written statements about the fight and/or her relationship with the applicant. The first was made to the University about 11 April 1994. She made a written statement to the police on 11 April 1994 or a day or so before. She made a second written statement to the University on 19 April 1994. It is in this second statement that she first mentioned that she had a sexual relationship with the applicant. She wrote to an industrial officer of the University in May 1994 to explain the difference between the two statements. The student did not, in the first statement, say she had been involved in a sexual relationship with the applicant. She did so because the applicant had threatened to get her second husband dismissed from the University and that he would embarrass her in front of her second husband in Court.
The student believed that the applicant was her supervisor for the PhD right up until the fight occurred.
B. The applicant's account
The following emerges from the evidence of the applicant. Again it is, to some extent, a gloss on the evidence in relation to matters which are not material.
B.1.Events leading to the student coming to Australia
The applicant first became aware of the student when her PhD application file was passed to him from the mathematics department in 1989. The applicant decided that she should be entered in the next round of scholarships to be held in 1990. He had been the departmental student co-ordinator for approximately twenty years.
It was the applicant's task to select PhD applications for further consideration by the head of the department. He would then write "interested" or "not interested" on each application. As to whether the candidate should be awarded a scholarship, the applicant would arrange to have the files of worthy candidates sent back to him prior to the next scholarship round. He thus had the capacity to omit students from being considered for scholarships. The applicant would take the files collected since the previous scholarship round and do a rough ranking of approximately eight to ten of them in his mind. He would then talk to the head of his department and together they would reach a ranking. The applicant said he only had the capacity to exclude an application. He could not admit a person as a PhD candidate on his own as there were several more steps above him before a candidate was admitted.
At the beginning of 1990 the applicant first entered the student for a PhD scholarship in his area. He entered her again in the middle of 1990 and then in early 1991. He ranked her with the head of his department on each occasion however they were never able to rank her in the first or second position. She was always ranked fourth or fifth.
In March 1990 the applicant wrote to the student in China suggesting that it was unlikely she would get a PhD scholarship in the early 1990 round because she was ranked lower than number two. The letter is in evidence and, from its terms, appears to be the first letter sent by the applicant to the student. He suggested to her that there was the option of an overseas post graduate research scheme scholarship and the possibility of a PhD scholarship in a later round. Other options were canvassed. In a later letter in April 1990 he outlined a number of other scholarships. The last and least favourable option mentioned was as a full fee paying student. That letter is also in evidence. In it the applicant refers to the possibility of lending the student the money to pay for her "fees, etc". During the remainder of 1990 and in 1991 he corresponded with her and sent her further application forms. None were successful.
The applicant wrote to her in 1990, probably before he went to China in late 1990, indicating that her chances of obtaining a scholarship were not good. He stated the best he could possibly hope was for her to obtain a fee waiver scholarship, that is she would not have to pay any fees however she would not receive any money for living. Prior to meeting the student the applicant spoke to her by telephone to ascertain her level of English which he stated was not very good however he found it dramatically improved after she came to Australia. From the terms of the April 1990 letter, this phone contact appears to have occurred in April 1990.
In October of 1990 the applicant went to China to present a paper at a conference in Beijing. It was his first visit to China. The student's first husband had spoken to the Chinese supervisor who then invited the applicant to visit the Chinese University. The applicant first met the student when she and her first husband met him when disembarking from a boat he was sailing on up the Yangtze River. He then saw her a number of times socially. She also attended two of his seminars conducted at the Chinese university.
While the applicant was in China, he was told by the Chinese supervisor that the student was one of his better students, she was capable of very good research, she was an excellent teacher, she had won teaching awards and that as a lecturer at a local Institute of Technology she would not have an opportunity to carry out quality research. Furthermore the Chinese supervisor asked the applicant to do all he could to bring the applicant to Australia to do her PhD. The applicant believed this went beyond a good academic recommendation and it was a plea.
Around April 1991 the student and her first husband agreed that she would come to Australia as a full fee paying student and she was admitted on that basis. She passed the English exam before July 1991 which is when the applicant paid her tuition fee of $11,000. He had offered to lend the student the money at 10% interest. This was not the first occasion in which he had lent money to a student of the University. He could recall having lent substantial sums to four students including the student. Some of them were male. He had lent the girlfriend $3,500 for her tuition fees which she quickly repaid. He had lent the female student $1,500 believing that he would be repaid by the ANU however that never eventuated and thus he was never repaid.
At the time he lent the money to the student in 1991 the applicant said his net worth in property shares and fixed assets was approximately $1,500,000. He considered the $11,000 lent to her as spare money.
B.2.The student's first one and a half months in Australia
On or around Melbourne Cup day in 1991, the student arrived in Australia. The applicant met her at Canberra airport. The applicant had previously discussed with her first husband that she would stay at the applicant's house in Canberra. He accepted that the student may not have known about the arrangement. The applicant agreed with the student's description about who lived in the house when she first arrived. He had also then told her that the female student would shortly be leaving his house.
The applicant was paid rent by some of the students living in his house. He said he did not run the house as a profit making exercise though he later conceded he may have made a profit. The girlfriend paid $50 a week for the master bedroom and she was paying this while in a relationship with him. The male student paid $30 a week and the female student paid nothing as she did not have any source of income. The student paid $30 a week until her husband came to Australia and then they moved into the master bedroom and paid $50 a week. The applicant slept in the lounge room until the female student moved out. Then the student moved into the female student's bedroom and the applicant moved into the room the student formerly slept in.
The applicant helped the student find employment when she first came to Australia. He introduced her to people at the University. It was part of his job as student-coordinator to see she was settling in. She went to the University almost every day during November and December 1991. As to her finding work, he looked through the newspapers and telephoned friends to see if any work was available for her. Before 29 November 1991 they applied for a position for the student at another tertiary institution in Canberra. He helped her prepare the application. He also called the mathematics department at the University before Christmas 1991 to see if there were any tutoring positions available. A staff member from that department suggested there was possibility of obtaining work there. The applicant delayed introducing the student till early the following year as her spoken English was not then very good.
During November and December 1991 the applicant could not recall the student ever talking about her first husband. She mainly talked about her son. He noticed that she missed her son very much. A few days before Christmas in 1991, the student spent a substantial amount of time in her bedroom looking at pictures of her son and crying. By Christmas 1991, the applicant began to wonder whether the relationship between the student and her first husband was good. She never discussed him, only her son.
B.3 The bushwalk
The applicant came up with the idea of going on a bush walk to get the student out of the house and cheer her up because she was often in her bedroom crying. He had also arranged to have his youngest son for a couple of weeks over Christmas. His son lived with his mother. The student's spirits were extremely low prior to the bushwalk. She told the applicant she missed her son desperately.
On 26 December 1991 the applicant, his son, the student and his neighbour's son went on a bushwalk in an area called "The Castle" in the Budawang Ranges in an area between Nowra, Braidwood and Batemans Bay in New South Wales. The applicant had intended to go on a day trip and believed they would return home by 9 in the evening. He had told his neighbours they expected to return home by then. The applicant had previously been bushwalking in that area four or five times.
The party left Canberra at 9.30 in the morning. It was normally a two and a half hour drive to the carpark where they were to leave the car to go bushwalking. However the applicant's son became car sick when they left the main road and drove onto a bush road. They had to stop three times. As a result they arrived at the car park at 1.00 pm. The applicant had planned that the entire bushwalk would take approximately seven hours. He told the others that it would get dark about 8.00 that evening. They could bushwalk until 4.00 pm and then turn around and head back to the car with time to spare.
They walked through rather rough terrain. They followed a path to "The Castle". The last stretch was up a very steep slope. The applicant believed this slope to have a vertical rise of more than 30 metres. They went up the cliff arriving at the base of "The Castle", and then walked along the last line of cliffs. By then it was 4.00 pm. The applicant told the party they had to turn around and head back. On the way back they reached the cliff again and the applicant's son refused to go back down it. The applicant tried to coax him however he failed.
The applicant's neighbour had given him an old map of the area which showed another path. They walked back up to where they had previously been, then they cut through some very thick scrub in an attempt to intersect this other path which they did. They then commenced to follow the other path in a direction which the applicant believed would lead to a fork in the original path which they had previously seen at the commencement of the bushwalk. He knew this path was not steep and therefore would be simpler for his son to travel down. The path they had intersected was overgrown and eventually petered out. At this stage it was approximately 5.30 pm or 6.00 pm and it had begun to get dark. The applicant had two options. The whole party could either walk back to the cliff which his son could not get down. It would be dark by the time they got there. Alternatively they could follow the creek which according to the map led back to the car park. He chose to follow the creek. There was however very thick scrub in the creek bed.
It became dark. At approximately 8.00 pm the applicant told the others it would be too dangerous to walk down in the dark. He found a gravel bank wide enough for everyone to lie down on. When they stopped walking the student discovered she had a leech on her leg. The applicant wore jeans and a t-shirt. He had a bag with him containing approximately four litres of water, an old raincoat and a nylon jacket. He had planned to eat in the bush. However because they arrived late at the car park they ate before they left. The boys wore jeans and the student wore shorts and a t-shirt. The applicant believed that night he gave the nylon jacket to one of the boys and the raincoat to the student.
After they stopped in the gravel bank the applicant went down to the creek to see if they were close to the river. He believed if he could find the river he could find his way back to the car and get a lantern from the car, come back to the party and lead them back to the car. However this failed and the applicant fell over and got wet so he returned to the group.
It became extremely cold that evening. The applicant recalls at about 9.00 pm the student sat beside one boy and he sat behind the other with their legs on either side of them. The boys lent back on the student and the applicant's chests to keep warm. Eventually the boys fell asleep. The student went and sat on a small flat rock. The applicant went and sat beside her. The student was attempting to go to sleep. She had her arms around her legs and rested her head on her knees. She began to get very cold and was shaking from being cold, worried and depressed. She started to sob and talk about how she missed her son and that she was meant to telephone him that evening. The student had told the applicant prior to the bushwalk that she had prearranged to call her son that night in China because China was three hours behind and the applicant had told her they would be home that night.
She also began to talk about money and that she was devastated she was not successful in obtaining the position with the institution to which application had earlier been made. She believed the reason why she did not get the job was because of her English. She spoke of the $26,500, a figure the applicant had found out from immigration; a year in income she needed to be able to obtain a visa for her son to come to Australia.
When the student spoke of those things the applicant sat behind her to try to keep her warm. He put his legs on either side of hers and put his arms around her waist. He said he does not exactly remember where he placed his arms when he sat behind her. He believed he would have placed them around her arms at waist height. He was sitting lower than her on the gravel whilst she sat on the rock. Further discussion occurred. The student also stated that her husband would not get a job in Australia, she would not get a scholarship and that it was going to take too long before she could get her son to Australia. She told the applicant that she had decided to go back to China.
The applicant then offered her encouragement to her to stay in Australia. He recounts their conversation:
... "don't over react, just be patient, believe in the future, be optimistic, my judgment is that you're a strong student", I'd worked with her for about six or eight weeks already, "you'll definitely satisfy a scholarship, don't worry about the job, your English is improving quickly, by first semester next year I feel very confident that you'll get employment". I think what I said to her then was "trust me, trust my judgment, I believe in you, I quite like you, I'll do whatever I can to support you."
All right, what did she say after that?--- I don't remember exactly after that, I remember a little bit later she said to me, she'd sort of picked up on the remark "I quite like you", and said, "Do you think I'm an attractive woman?" I said, "Yes". She said, "How long have you liked me?" And I said, "I first noticed your photograph in the application form and the reason I noticed it was that it looked like a mother." It looked a maternal photograph and I think four of my most recent five female students have all been young mothers and I'd had excellent results with them and so that to me was a plus, also on the application form it said that she had a son.
Is this something you were saying or ---?--- I told her this, yes.
Right?---And then I said when I met her in China in 1990, October 1990, I was very impressed with her vigour and youth and optimism and she's quite an attractive young woman, too.
Is that something you also said to her?---Yes.
The applicant denied having told the student that night he could help her bring her son to Australia. The applicant said they talked until the moon rose that evening. He suggested he should try to walk to the car as the moon was bright however, the student asked him to remain as she was afraid of animals in the bushland. The applicant did not get any sleep that evening however he believed the student got some sleep.
In relation to whether the applicant fondled the student's breasts while he sat behind her, he said he may have brushed his forearms against her breasts at some stage however:
"there was nothing explicitly sexual in terms of the way that she was describing about cupping my hand and squeezing her breasts. Any contact there was, was entirely accidental".
He also denied having said to her that evening he had a long dream about her or mentioned any plan of his to get her to Australia.
The next morning as soon as it was light enough, the applicant and the student woke the boys and moved down the creek. About half an hour later they found the river then they found the car park approximately 15 minutes later. On the drive back to Canberra the applicant drove to the police station at Braidwood knowing his neighbours would have reported them lost which they had.
The student, the applicant and his son arrived back at the house in Canberra around 11 in the morning of 27 December 1991. The applicant showered and slept intermittently. Later that day the student called her first husband in China. The first time she was not successful as her first husband was not at his office. On the second call she was successful. She did not explain to her first husband what happened the evening before. According to the applicant's phone records, the call was slightly over one minute long. The applicant telephoned the girlfriend in China that evening at approximately 9.45. She then had been his girlfriend of one year.
Before the bushwalk the applicant had arranged to visit and stay at his brother's house in Sydney on 28 December 1991. The applicant's brother's house was small. He lived there with his wife and two sons. His brother and sister-in-law had arranged with the applicant to bring a tent as there was not enough accommodation. He had asked the student to go with him and she agreed prior to the bushwalk. The day they came back from the bushwalk the student suggested she would cook some Chinese food to take to Sydney.
After they had each telephoned China, the applicant went to her bedroom and the respondent went to his bedroom to sleep. He can recall that both he and the student were exhausted. The applicant denied having gone to the student's bedroom that evening and having had sexual intercourse with her that night. The applicant denied having apologised to the student the next morning and did not state "This won't happen again".
B.5The trip to Sydney - including the conversation between the applicant and the student in the tent
At the time the applicant and the student went to Sydney he was in a relationship with the girlfriend. He believed his family was aware of that relationship and it was not necessary for him to show his family that he could have a normal relationship with a woman. He did not recall whether he had discussed with the student where she would be sleeping whilst in Sydney though he did not think it had arisen. He said he thought she would be sleeping in the house somewhere. He was expecting his sister-in-law to organise that matter.
The applicant's account of what occurred in the tent was:
"... So she was saying - asking me how quickly she can get her son here, and she knew that the main problem was financial capacity. She mentioned about the amount of money that she had that her family would have to have. She also knew that she would have to get her husband first, and I actually put it to her that her relationship with her husband didn't seem to me to be that good, why was she so anxious to get him to come to Australia.
Just stopping you there, why did you say that to her?---Because I'd noticed the night before that she spoke to her husband for just long enough to ask him to let her speak to her son.
Right?---When I would have expected that she'd have said more to him than that.
All right. And what did she say to that?---She said, in fact, her relationship with her husband wasn't that good, and I think I can understand more about it now, having heard...
No, no, just confine yourself to what was said that night. We want the conversation as best you can remember it?---Yes, okay,. She said her relationship with her husband wasn't that good, that her mother had opposed her getting married to him and that she was very much in love with him for a number of years but the pressure from the mother eventually wore the relationship down, and she was - she didn't actually say to me then ---
(Counsel for the University objected.)
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Now, (the applicant), was there any other conversations you can recall, that night?---Yes, the main focus of the conversation that night was on the steps necessary to get her son, and the time necessary for each step. The first step was to get her husband, the next step was to get her husband a job. It was very, very difficult to make the case from the financial capacity point of view, unless she had a scholarship. In the normal course of events the earliest time she could have been proposed to a scholarship with (sic) the beginning of 1990 ---
Well, is this something that was said that night?---Yes, yes.
All right? So, I said that I could put he in the 1993 round, that if she worked hard in - during 1992 it may perhaps get her application that much stronger that she'd succeed in 1993.
Right?---Her objection to that was that she couldn't put in the application for her son's visa until after she had the scholarship, and that that would take months and so it was going to be 18 months or more before she could get her son, and that was just too long for her. She just wasn't prepared to endure the separation..
Were there any other topics of conversation that night?---We discussed the possibility of getting into a relationship as well.
(Counsel for the University objected).
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That is right?...We talked about the possibility of getting into a relationship. She said that it would have to be kept secret cause her son was staying with her husband's parents in China and if they heard anything about her getting into another relationship they might stop him from coming to Australia.
His Honour: Sorry, she said who might do that?---Her parents-in-law.
Counsel for the applicant: While this conversation was taking place where were the each of you in this tent?---Lying down beside each other.
Where were the two mattresses in the tent?---They were beside each other.
Was there any space between them?---No.
Were you touching in any way?---I touched her hand and she took it but she seemed to take it just as an expression of support. There was nothing in terms of physical intimacy.
Was there any other occasion on which you touched her that night?---No.
You have heard the student describe that night that you touched her, I think, on the arms and the legs and between the legs. Did you do any of that?---Certainly not on the legs and between the legs. I may have touched her on the arms.
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His Honour: I would be interested in knowing, (the applicant), what it is, as you recall it, you did say about the matter?---Yes, I'd already worked with---
When, and in what context?---Yes, I'd worked with her for about six to eight weeks and I was convinced she was a strong student. She was very strong in mathematics but not computing.
Counsel for the applicant: I think his Honour wants to know what you actually said to her, and when?---Yes. And so, I said to her, "Look I know I can help you publish a lot of papers. You need help from the computing side and we work well together" - we already had two papers just about ready for publication and I said, "I've been recruiting - I've been the student coordinator in the department for nearly 20 years; I know exactly how strong you have to be as a student to get the award of a scholarship. Believe me, I know that you'll get it and I'll help you show how good you are. I'll help you write the papers; do the research for them; I'll help present the case in the best way possible; and I've got great confidence that you'll get a scholarship and, in fact, if things go well, I'll even propose you for an early award of a scholarship. I'll put you up for what they call an out-of-rounds award" - which is an exceptional case. And, in fact, that's the way it happened. Things went so well during 1992 that I proposed her for an out-of-rounds awards in September of 1992.
This conversation you are talking about, when did it take place?---The conversation took place in the tent in Sydney.
This is on 28 December?---On the 28th, yes.
Was there any other conversation you had with the student prior to having sexual relations with her that amounted to some sort of threat to her?---My whole focus at that time was to try and encourage her to stay in Australia and so everything I said to her was to try to make her feel more optimistic about her future; about how - "I'll support; other people will support you. Just, you know, believe that the future will turn out." So, there was never any suggestion of threat from me. It just would've been a stupid thing to do at that time."
During cross-examination the applicant repeated what he had stated in examination in chief about the topic of conversation in the tent:
"And when do you claim the relationship between you and her started?--- That's all to do, I guess, with the - with what you call a relationship. We were certainly talking about our future together in Sydney in the tent and in the early days of January. The physical - the physical side of the relationship in terms of me expressing affection to her - to her in the physical sense was after the - after the relationship with (the girlfriend) finished.
And did you tell her that if she worked well with you academically that you'd made a wonderful pair?---Yes. I said - I said to her we do work well together academically. We make a wonderful pair. That I'm strong in computing and she's strong in maths and between the two of us we were doing very, very well. We published a lot of papers in a short time.
And did you believe that she could get a senior lectureship as soon as he (sic) finished her Ph.D?---I felt that she went - that she'd already had - I don't know exactly, about 6 years, I think, as a lecturer in China. And I felt that if she published papers at the rate that I felt she was capable of that by the time she finished her Ph.D she might be able to walk into a senior lectureship somewhere.
And you told her that?---Yes, part of our long term plan together.
Anddid you tell her that you could have a good career together?---Yes.
And did you do that before the bush walk?--- No, this was in the tent in Sydney."
B.6.Development of relationship between the student and the applicant
The applicant said that in January 1992 he and the student worked intensively on papers together as part of the plan to obtain for the student a PhD scholarship. They worked both at the University and at his house and they were gradually becoming more comfortable with each other physically that is, they were expressing affection to each other spontaneously yet not in a sexual way. At the end of January 1992 the applicant said the relationship moved into what he termed as a sexual phase. They commenced riding home on bicycles together in the afternoon between 3.30pm and 4.00pm, they were spending time together and enjoying physical intimacy though they did not have sexual intercourse.
The sexual side of their relationship gradually built up when in the last few days of January 1992 they routinely went to the applicant's house and lay next to each other unclothed. The applicant said this was entirely consensual on the student's part. He let her set the pace of their relationship. The first time they had sexual intercourse was on 28 January 1992. A day or two later, they had gone home early in the afternoon, one of the student's female friends called her at home after having tried to call the student at her office. The student told the friend she had gone home early because of period pain. The friend later paid the student a surprise visit. The student then became frightened that someone would discover their relationship. The student wanted to spend time with the applicant alone. Accordingly he made arrangements to book a beach house at Currarong on the New South Wales South Coast. They went there on the 15 and 16 February 1992. The applicant said he was not in a relationship with the girlfriend at that stage. He said the student told other people including the girlfriend that they were going to a conference.
At the beach house they had sexual intercourse. He believed the student consented to it because it was with her encouragement he had booked the beach house. By encouragement, he was referring to when the student had told him after nearly being caught at his home by the friend it was too dangerous to do anything at home. She had asked if they could go somewhere private for her to spend time with him alone. The next occasion they had sexual intercourse may have been when they were on a bushwalk at Mount Kosciusko which was prior to the student's husband coming to Australia in April 1992.
When the applicant was asked during cross-examination about whether he initiated sexual contact with the student he said that he initially felt constrained because he was in a relationship with the girlfriend. He did not move the relationship along with the student until he had finished the relationship with the girlfriend. He said his relationship with the student developed in a normal way by them holding hands and eventually the student responding spontaneously to him. His physical approaches were accepted willingly for the first week and after that they were returned by the student spontaneously. He said in cross-examination that it was not until July of 1995 that he was convinced the student may not have been in love with him at the time.
B.6.2The time at which the applicant became the student's academic adviser
I deal with this issue later in this judgment.
B.6.3The applicant's understanding of his responsibilities as academic adviser
Counsel for the University tendered a circular entitled "ANU Circular No.1578" and dated 11 November 1992 which deals with the conflict of interest that can arise in decision making affected by close personal relationships. Also tendered was a pamphlet published by the University in 1994 entitled "Dealing with sexual harassment at ANU". At one point in his evidence the applicant said that he had no idea that he was in breach of University policy till he disclosed his relationship to a person, who I infer was an officer of the University, after the fight with the second husband in March 1994. However the applicant said that he had spoken to a professor from the University in June 1992 in Montreal, Canada about the professor's relationship with a student. The applicant rejected the suggestion that he then knew he was in breach of the University policy.
B.6.4The process of bringing the student's first husband to Australia
Within days of arriving in Australia the student told the applicant that it was vital to bring her first husband to Australia as quickly as possible. Accordingly in early November 1991 the applicant began to make inquiries as to how that could be done. He called the local Immigration office on 16 December 1991. He believed the student's financial status would be an issue. He decided he would not formally approach the Australian authorities until he found out whether the student was successful in obtaining the job at a tertiary institute at which she sought employment. The applicant was involved in gathering together documentation to support the application. The applicant found out the student was not successful in obtaining the employment she had sought on 19 December 1991. The applicant wrote a letter to the Australian Embassy in Beijing and another to the local overseas student office, in the Department of Employment, Education and Training, on 23 December 1991. He understood that her first husband would be coming to Australia as a student dependent.
He received a letter dated 23 January 1992 from an officer of the Department of Employment, Education and Training accepting the student's nomination of her first husband for student dependant status. The applicant said he showed the student this letter because he wanted to keep her informed of her first husband's situation though the student said she had not seen this letter. He believed that her first husband would be informed either by the student or by the Australian Embassy in Beijing whether or not he was successful. He would then have to send his passport to the Australian Embassy in Beijing and have a visa entered into it. The applicant believed it was a simple process once the overseas student office approved the nomination by the student. He was certain he had informed the student of the effect of the letter received from the Department.
The difficulty the applicant has is that he denies that intercourse took place at all on 27 December 1991. If the student's account is to be preferred to his denial, then any belief she might have that he abused his power has a foundation in fact. It is a somewhat circular argument, in my opinion, to take her evidence of a threat having been made, as she understood and recalls what was said on the night of 27 December 1991, and then point to that understanding as colouring her evidence such as to require its rejection. It is probable that either sexual intercourse took place that night broadly in the circumstances described by the student or it did not at all. If it did then any antipathy the student may have then developed to the applicant, which I accept may have coloured her evidence of other and later events in the sense that answers were situations embellished, cannot, in my opinion, be called in aid in submitting that her evidence of what occurred on the night of 27 December 1991 should be rejected. While her antipathy towards the applicant might, in a theoretic sense, have coloured her evidence of what occurred on the bushwalk and in the tent, the link, as I discussed earlier, between what occurred on the bushwalk and later on the night of 27 December 1991 and also in the tent is such that the evidence in relation to these incidents really stands or falls as one. Either the applicant was starting to make sexual advances in December 1991 or he was not. If he had sexual intercourse with the student on 27 December 1991 it is probable he made a sexual advance by squeezing her breasts the night before and made a further sexual advance in the tent the night after.
Counsel for the applicant pointed to other matters which were said to exemplify the student's vindictiveness and paranoia which resulted in the student's preparedness to modify the facts to suit her animus against the applicant. I have already dealt with her belief that the bushwalk was part of a plot. It was said that the student believed that the assistance given by the applicant to bring her husband and son were part of "a grand plan" even though the former would bring their sexual relationship to an end and the latter would end his control over her. This belief was said to evidence paranoia. I do not accept this. It cannot be doubted, in my opinion, that the capacity the applicant had to offer or withdraw assistance in relation to the student's husband and son, could be used to influence the student and influence her behaviour towards him. It is true that by offering to assist and assisting, the applicant was setting in train a process that would remove at least one aspect of his influence. By early 1992, as the applicant perceived it, they had a relationship based on mutual affection. I accept that this is probably what the applicant believed though it had, and he should have known it had, its origins in the abuse by him of the position of power and influence he had over the student. His perception was nurtured by his insensitivity and indifference to the position of the student and her likely feelings about him. In those circumstances his preparedness to assist was understandable even if he ran the risk that, on the arrival of the husband, he might be displaced. Equally understandable is that the student, having entered the relationship in the circumstances she described as having occurred on the night of 27 December 1991, would view his willingness to assist and offer to assist as a means of retaining control of the type he had adverted to on that night.
Another matter pointed to by counsel for the applicant said to evidence the student's vindictiveness and paranoia is the statement made by the student in her written statement of 11 April 1994 given to the University that the applicant was "dead wood of the University". It may be accepted that it is an extravagant statement showing ill will towards the applicant and it is not supported by another academic, the panel chair, having regard to the terms of a letter the panel chair wrote on 31 January 1995 to the head of the research school which is in evidence. However does the extravagance of the claim and the ill will it shows found a conclusion that her evidence is false? When giving evidence the student did not hide her present attitude to the applicant. It was one of antipathy and ill will. If their relationship developed in the way she described, then her present attitude to the applicant is an understandable and reasonable one. The existence of that attitude is consistent with the truth of her account as to the significant events in December 1991 and not, in my opinion, a ground for doubting it in the circumstances.
The point made by counsel for the applicant that no evidence was called to rebut the denial by a female witness called by the applicant that she gave erotic or sexual massages is a point of no substance. Real issues would have arisen about the admissibility of such evidence as, ordinarily, counsel for the University would not have been able to lead evidence to impeach the witness's credit by proving the facts she denied.
I turn to consider a submission by counsel for the applicant that the student's evidence was, at times, absurd and riddled with illogicalities. I have already dealt with some matters raised in this context. Two matters of substance are raised though they are related. The first is that the student continued to have a sexual relationship with the applicant till March 1993 and, in China, went to the trouble of travelling some distance to consort with the applicant. It was plain that the student missed her child. It would have been unusual had it been otherwise. The applicant, on his own account was actively assisting the student to bring her son to Australia. This, in my opinion, is the single most important reason why the student was prepared to co-operate with the applicant by engaging in a sexual relationship with him.
The student's explanation for having a sexual relationship with the applicant in China when there to collect her son was:
"Your Honour is familiar with that. When [the applicant] was staying in his accommodation, did you have sexual relationships with him whilst he was in those premises?---Yes, I did.
And why did you do that?---At that time, [the applicant] was trying to give my family the impression that we had very close - or very good relationship, and he asked me to go to the apartment he lived in the university, and I really didn't want to go, but he told me something like, he said - he knew that I was very ashamed about the relationship, and he said something like, "If you didn't come," and he said he would tell my parents and also my previous colleagues in the university that I had an affair of or sexual relationship with him."
It is common ground that the relationship between the applicant and the student, whatever its dimensions, came to an end shortly after their return from China. Its conclusion was not at the applicant's initiative. It was the student's action that terminated it. The applicant's account of what occurred in China was that the student would sometimes ring and ask the applicant if he wished to go out to a restaurant and would she come and meet him. Sometimes arrangements were made when they met at the Chinese University.
I accept that it was curious, if the student's account is accepted, that the applicant resorted to threats, of sorts, to gain her co-operation in China when threats, on her account, had not been an overt feature of their relationship for some time. When the matter was raised in cross-examination, her lengthy answer explaining her reasons for having sexual intercourse in China was more discursive and less precise than the earlier explanation that there had been threats. She said:
"You see, again, I suggest to you that the occasions when you had sexual intercourse on this trip to China and in China were with you consent?---(the applicant) asked me to go to his place - the place he lived and he asked to have sexual intercourse with me and I wasn't willing to do that at all but (the applicant) was always where - and even I told him that my parents would never allow me to marry a western man. The circumstance when I told my parents that was at that time that (the applicant) was making allegations to my parents, I should say - say very many things to upset to my parents about my-husband. My parents really got very, very upset. That was when I went to visit my parents-in-law and (the applicant) visited my family and he talked to my - to my parents and (the applicant) told my parents things like - I think he made a things like how useless my ex-husband was in western country and also he told my parents that my ex-husband didn't help me anything because every day I was quite busy because I had several jobs and I also cooked the meals and he told my parents that when I cook meals and my ex-husband just sit there and watching TC or read newspapers - really upset my parents very much. To my understanding I think at that time (the applicant) wanted to impress my parents by his wealth and also to say things to my parents to upset, to say - to make some really very - say things he shouldn't. I didn't tell my parents about these sort of things but after he said that my parents really got very upset and then my - so, after I came back from my parents-in-law my Mum asked me several questions and they questioned me that if what (the applicant) said was true or not and my - I told my Mum things like - I say, "Mum, look, I'm so happy to get home I really don't to talk of these sort of things." Of course, at that time I couldn't tell my mum. I couldn't because my parents had never agreed me to come to Australia. I couldn't tell my parents that I had separate jobs. I have to work extremely hard every day and I couldn't tell them that - because (the applicant) told my parents that I worked as kitchen hand in the Lakeside Hotel, it was really extremely demanding. Of course, I wouldn't tell them that I work - I start from 6pm at night and finish at 2am during - 2 o'clock, am."
However it is relatively clear that, on her account, she was beginning to reveal to the applicant her reluctance to meet his demands and to resist them. In that lengthy answer the student made reference to the criticism of the student's first husband by the applicant in discussions he had with the student's parents. Her perception was that the applicant was seeking to bolster his position as a potential husband of the student by impressing upon the student's parents his wealth while criticising the first husband. The applicant accepted he said things critical of the student's first husband though his explanation for doing so, which I do not find credible, was that he was being badgered by the student's mother to explain why the student looked so much older after a year in Australia. The applicant denied doing so to drive a wedge between the student and her first husband. I consider that it is probable that this was his objective.
In February 1995 the applicant wrote to the student's mother. During cross-examination he ultimately accepted that he was attempting to persuade the student's mother to persuade the student "to reach some accommodation" with him about the whole matter. The letter, which is in evidence, is a threat. In essence the threat was that if no accommodation was reached, then the student would be "crippled financially" by the maintenance of defamation proceedings by the applicant against her.
I refer to this letter and the remarks made by the applicant to the student's parents about her first husband because they illustrate the manipulation of the relationship between the student and her parents that the applicant was prepared to engage in for his own ends. While the letter was written by the applicant at a time when the character of the relationship with the student had altered markedly, it nonetheless manifests a preparedness to exploit for his own advantage the relationship between the student and her parents. It is exploitation of the same character described by the student in her account of what the applicant said when she resisted his suggestion she should visit him and have sexual intercourse. I accept the student's evidence as to why she continued to co-operate with the applicant and meet his sexual demands. In my opinion, when in China, the student began to indicate a reluctance to meet the demands of the applicant. In those circumstances he resorted to the threat of exposing his relationship with the student to her parents and others in order to persuade her to maintain the relationship.
More generally, I reject the suggestion that the student's conduct before the trip to China and during it constituted exploitation and manipulation by her of the applicant to gain his support and assistance in bringing her son to Australia. Plainly she was prepared broadly to accept the applicant's assistance because it achieved what she wanted. Her son in Australia. However she was not manipulating him to gain it. He was quite prepared to volunteer it.
The University has established to my satisfaction that the applicant had sexual intercourse with the student on the night of 27 December 1991 in the way described by the student. It has also established that incident was preceded by sexual contact on the bushwalk and was followed by sexual contact in the tent in Sydney. What happened in January 1992 is less clear. It is probable that there was sexual contact of the type described by the applicant during that month involving the holding of hands and embracing. I am not satisfied that the applicant and the student left the University early during the month of January 1992 to return to the applicant's house for sexual intimacy culminating in sexual intercourse in late January 1992.
The quality and nature of the relationship between the applicant and the student from January 1992 onwards is difficult to distill with precision from the evidence. The applicant's account is of a mutually loving relationship as he perceived it. The student said that he often said he loved her and wanted to marry her. That he would have said such things is consistent with his having had that perception of the relationship at the time. Nonetheless it is quite possible that his perception was distorted by his infatuation with the student. It is also possible that he failed to see that her preparedness to co-operate with him, and particularly to do by having sexual intercourse, stemmed, not from any reciprocated feeling of affection but from the need she felt to do so. It was a need based on the fear of the consequences of not doing so.
The relationship was, in my opinion, as I have just described it. It had the added dimension, in my view, that things were said by the applicant about help he would provide that were intended by him to be both an inducement to the student to co-operate and a demonstration of his affection in the sense that he could and would help her. She saw and understood them to be simply an inducement to co-operate in maintaining a sexual relationship. I am satisfied, and it is not in issue, they had sexual intercourse on several occasions during 1992 and 1993, namely at the beach house, in the flat in Campbell and during the trip to China.
CONCLUSION
It was accepted by counsel for the applicant from the outset of these proceedings that if the allegations made by the student were substantially correct then there was little that really could be put against the suggestion that the applicant's conduct was serious misconduct. That concession was, in my opinion, properly made. Similarly in final oral submissions it was essentially conceded that if the allegation of non-consensual intercourse on 27 December 1991 was made out then little could be said in resisting the penalty of termination, that is suspension for three years that was imposed on the applicant. Again that concession, in my opinion, was properly made.
It is to be recalled that the student's account of what occurred on the night of 27 December 1991 involved the applicant discussing with the student his capacity to secure for her a scholarship if she submitted to his sexual advances. This account might be viewed, at one extreme, as evidencing a clumsy, insensitive and inept attempt at seduction by a person endeavouring to seduce a woman with whom he was infatuated. It was attempted by saying things designed to persuade and cajole which were misunderstood at least to the extent that the student understood the applicant to be saying he would act, in a positive sense, against her interests rather than simply not continue to act in her interests. However any such misunderstanding on the student's part, would have been entirely justified. At the other extreme this account might be viewed as a callous, brutal and premeditated abuse of power involving a direct threat of using the power to defeat the interests of the student to require the student to submit to sexual intercourse without her consent.
Without the benefit of a frank account and explanation from the applicant of what he said and why he said it is difficult to say with any certainty where the truth lies as to why he behaved as he did. Having observed the applicant give evidence for three days I am inclined to think the position is closer to the position as I first described it rather than the latter description. However in saying that I am not indicating that I do not view, or that the University was not entitled to view, his conduct as having been entirely reprehensible. Even viewed in the most favourable light to the applicant, it involved a gross abuse of his position within the University and his position in relation to the student as her de facto sponsor. It is an incident which occurred in circumstances where the applicant had made clear from the outset, as manifest in the correspondence the applicant sent the student in March and April 1990, that he was a person within the University involved in the selection of students for the grant of scholarships and also a person prepared to argue the case for the student. Neither misrepresented the position in 1990 nor in late 1991.
The allegations particularised against the applicant were as follows:
"DRAFT PARTICULARS OF SERIOUS SEXUAL HARASSMENT
Period between 1/12/91 and 30/3/93
It will be alleged that (the applicant) was in a position of influence vis-a-vis (the student) in that (the applicant):
a)was her academic adviser;
b)assisted (the student) in securing a position as a post graduate student at the school of RSISE where (the applicant) worked;
c)loaned (the student) $11,000 by way of paying her first year ANU fees;
d)sponsored financially (the student's) husband's entry into Australia;
e)promised (the student's) husband employment in Australia;"
f)provided (the student's) husband with employment in Australia;
g)further financially assisted (the student) by not charging (the student) rent from November 1991 until March 1992;
h)told (the student) that he could assist her in obtaining a scholarship;
i)told (the student) that he could cause disruption in her payment of scholarship moneys;
j)told (the student) that if she married him she would not have to repay the loan of $11,000;
k)assisted (the student) in the preparation of her thesis proposal;
l)threatened to tell the parents of (the student) about the prior sexual relations between (the student) and (the applicant);
m)knew (the student) was missing her son, husband and family;
n)knew (the student) was depressed, lonely, isolated and had limited financial resources;
o)arranged accommodation for (the student) namely in his own home where he habitually resided.
That whilst in a position of influence as outlined above (the applicant) engaged in conduct with (the student) that was sexual and unwelcome and caused her to feel
a)offended, or
b)humiliated, or
c)intimidated.
The sexual conduct was:
a)touching (the student's) breasts when she was on a rock in the bush in December 1991;
b)touching (the student's) genitals when she was in a tent in Sydney in December 1991;
c)sexual intercourse on approximately 10 occasions;
(i)in (the applicant's) house in December 1991
(ii)on the coast in a beach house in February 1992;
(iii)in a flat in Campbell in April 1992;
(iv)on the trip to China to pick up (the student's) son in January/February and March of 1993 in Manila, Hong Kong, China and in a motel between Sydney and Canberra."
Some of the matters referred to in these particulars I have expressly dealt with in the preceding section of this judgment when making various findings. Some I have not because they were not in issue such as the payment by the applicant of the student's fees. However ultimately it is necessary to address only one matter. On the evening of 27 December 1991 the applicant abused his position as an employee of the University by pressing himself sexually on a student in the way she described in her evidence. The University had a valid reason to terminate his employment. Accordingly, I dismiss the application.
I certify that this and the preceding one hundred and one (101) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ ......
Dated: 19 August 1996
APPEARANCES
Counsel for the Applicant: Mr C.M. Erskine
Solicitor for the Applicant: Porter Pilkinton and Bradfield
Counsel for the Respondent: Mr R.J. Purnell SC
Solicitor for the Respondent: Mallesons Stephen Jaques
Dates of Hearing: 26, 27 & 28 February 1996, 1, 2 and 19 April 1996
Date of Judgment: 20 August 1996
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