W, T J - [2018] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
W, T J
Criminal Trial by Judge Alone
[2018] SADC 97
Reasons for the Verdict of His Honour Judge Stretton
13 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone. The accused was charged with six offences allegedly committed as a teacher against four adolescent students in three schools over the period 1992-1997. The complainants were honest and convincing witnesses whose accounts were compelling. With the exception of count 4 where the complainant’s recollection was insufficiently clear, the charges are proven beyond reasonable doubt. Observations as to the scope and operation of Division 9 of Part 10 of the Evidence Act 1929 and the meaning of ‘Protected Communications’ therein and as to the restrictive nature of Division 9 and the consequently hybrid and potentially difficult process required by the Division to assess for the purpose of ruling whether medical records in any particular case are Protected Communications.
Held:
For a complainant’s medical records to amount to ‘communications made in a therapeutic context’ such that they have the status and protection of ‘Protected Communications’ within the meaning of Division 9 of Part 10 of the Evidence Act 1929, there needs to be some nexus between the alleged offending and the trauma for which the treatment was sought, or some exacerbation of an existing condition as a result of the alleged offending. It is insufficient for the DPP to establish only that the records relate to a person who has the possibly unrelated status of complainant.
Verdicts:
Count 1 – Indecent assault – guilty
Count 2 – Unlawful sexual intercourse – guilty
Count 3 – Indecent assault – guilty
Count 4 – Indecent assault – not guilty
Count 5 – Indecent assault – guilty
Count 6 – Indecent assault - guilty
Criminal Law Consolidation Act 1935 (SA) s49(3), s56; Evidence Act 1929 (SA) s67F, referred to.
R v C,M [2014] SASCFC 166; C,M v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 89 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R,R & R,LJ [2008] SASC 35; R v T,WA (2014) 118 SASR 382; R v S,GJ [2012] SADC 150, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Protected Communications"

W, T J
[2018] SADC 97

The accused is a former schoolteacher charged with six sexual offences against four female adolescent teenage students.[1] It is alleged the offending took place at three South Australian schools between the years of 1992 and 1997.
[1] Although the accused is not related to the complainants, given the idenficiation of the schools and places, the accused will be referred to as WTJ or the accused so as to ensure the anonymity of complainants as required by s71A of the Evidence Act.
He pled not guilty and elected for trial by Judge alone.
The charges were joined in the one information and were the subject of pre-trial application for separate trials. For reasons published separately, the court determined that the matters would be tried together.[2]
[2] Ex tempore reasons delivered 23 July 2018 at 2.15pm. A second application for separate trials was made and a second ruling and reasons were delivered on 6 August 2018 at 3.23pm.
For the purposes of this judgment the court will refer to the four complainants as “AA”, “GG”, “BB” and “SS”.
The charges
First Count
Statement of Offence
Indecent Assault. (Section 56) of the Criminal Law Consolidation Act, 1935.
Particulars of the Offence
TJW between the 1^st day of May 1992 and the 1^st day of September 1992 at Mount Gambier, indecently assaulted AA, a person under the age of 17 years, by kissing her on the lips.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act.
Particulars of the Offence
TJW between the 1^st day of May 1992 and the 1^st day of September 1992 at Penola, had sexual intercourse with AA, a person under the age of 17 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Indecent Assault. (Section 56) of the Criminal Law Consolidation Act, 1935.
Particulars of the Offence
TJW between the 1^st day of May 1993 and the 31^st day of August 1993 at Penola, indecently assaulted GG, by rubbing her chest.
Fourth Count
Indecent Assault. (Ibid).
Particulars of Offence
TJW between the 1^st day of May 1993 and the 31^st day of August 1993 at Penola, indecently assaulted GG, by kissing her on the lips.
Fifth Count
Indecent Assault (Ibid).
Particulars of Offence
TJW between the 15^th day of August 1995 and the 1st day of October 1995 at Mount Barker, indecently assaulted BB, by kissing her on the lips and inserting his tongue.
Sixth Count
Indecent Assault. (Ibid)
Particulars of Offence
TJW between the 15^th day of August 1997 and the 1^st day of October 1997 at Semaphore South, indecently assaulted SS by kissing her on the lips.
Elements of the offence of indecent assault – Counts 1, 3-6
An indecent assault is an assault accompanied by or committed in circumstances of indecency. The elements of the offence are:
1That the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force or violence must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
2That the assault is accompanied by, or occurs in, circumstances of indecency. In this context, the indecent circumstances must involve a sexual connotation.[3] "Indecency" is conduct which, by any reasonable contemporary standards, can only be described as indecent. Whilst in certain circumstances, if a person consents to being touched, then that is not an unlawful touching, it is impossible for a person of the age of the complainants’ alleged ages to consent to an act of indecency as a child is not legally capable of consenting to an act of indecency. Any purported consent by a child is irrelevant.
[3] R v C,M [2014] SASCFC 116.
Elements of the offence of unlawful sexual intercourse with a person under the age of 17 – Count 2
It is an offence to have sexual intercourse with a person under the age of 17 years. The elements of the offence are:
1That the accused had sexual intercourse with the complainant. Sexual intercourse includes penetration of the vagina, labia majora or anus by any part of the body of the accused or by any object. Any degree of penetration is sufficient. Penetration for the slightest period of time is sufficient. Consent on the part of the complainant is no defence and is irrelevant.
2That the complainant was under the age of 17 years at the time the sexual intercourse occurred.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[4] a trial judge, sitting alone, is not obliged to express all the matters “which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law.”[5]
[4] CM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[5] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, W A [2014] 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.
It is fundamental however that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof, and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The accused in this case gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. The accused is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in exactly the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it at all times remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence.
In this trial it was variously put to complainants that they had made prior inconsistent statements. I have scrutinised each and every one of those matters carefully in accordance with the settled law as it applies to suggested prior inconsistent statements. Whilst there is no point setting out the settled and uncontroversial instructions reflecting the law that would be given to a jury, in short the prior inconsistent statements of a witness in a criminal trial are put to enable a court to assess whether it can accept the evidence given on oath as reliable or credible. The court must and has closely scrutinised the matters put to the complainants and their responses and applied the settled law concerning the analysis of them, in assessing the credibility and reliability of each and every complainant.
Both counsel agree that the prosecution case as to each complainant rests for the most part primarily upon the evidence of the respective complainant. The court has accordingly closely scrutinised the evidence of each complainant, and done so with great care.
The court will set out the complainants’ evidence in some detail. It will not all be set out, however it has all been closely considered, read, and re-read. It has all been subjected to the closest of scrutiny.
In this case, the evidence of the complainants and the accused are starkly opposed. The accused in respect of most of the alleged conduct completely denies the allegations made by the complainants. It is important to observe that in a case such as this it is not a matter of deciding who to believe or which of two versions of an event to accept, or who is more believable than the other, or anything of that nature. The question is always whether the prosecution has proven every element of a charge beyond reasonable doubt. The accused bears no onus, and has to prove nothing. Further, even if an accused gave evidence and was entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.[6]
[6] Douglass v R [2012] HCA 34 @ [13]-[14]
Motive to lie
In this case it has been put by defence counsel that at least one complainant had a reason or felt obliged to make false allegations against the accused. Any motive to lie and in particular any motive to make false allegations is relevant to the credibility of a complainant. Accordingly the court has given consideration to the submissions of defence counsel in that respect and to the evidence, suggested inferences and possibilities which defence counsel drew in aid of those submissions.
However, it is important to recognise that it is not for the accused to provide or suggest a motive for a complainant to lie. No onus as to this or indeed anything else lies on the defence. Lies can be told for any number of reasons, indeed people can lie for no apparent reason. Even if there were no apparent motive for a complainant to lie that does not mean that the court must find that that complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy the court beyond reasonable doubt that any complainant was telling the truth. The prosecution must prove each and every element of a charged offence beyond reasonable doubt before the accused may be convicted of that offence.
Evidence of complaint
Evidence of complaint was given in the course of trial. The court has had regard to that evidence in the strictly limited way permitted by law, and for no other purpose.[7]
[7] The Court applies the principles conveniently and most recently summarised in this Court in R v M,L [2018] SADC 92 @ [31]-[32].
Forensic disadvantage
A period of time has elapsed between the alleged offending and the trial. I refer to without repeating the dates set out in the particulars of the charges. As plainly indicated in the particulars, and reflected in the evidence given by the complainants at trial, all the offending is alleged to have occurred a considerable time ago; between 21 and 26 years ago.
That delay has resulted in a significant forensic disadvantage to the accused. Forensic disadvantage will occur where, as here, there are obvious difficulties for the accused in challenging and responding to allegations so long in the past.
The forensic disadvantages in having to answer allegations from many years past are plain. They will of course include general matters such as; there is or may be no independent support for the accused’s account now available or locatable, given the passage of time. Potential witnesses for the accused may no longer recall events at which they were present and hence be unable to support the accused’s version of events. The accused himself may no longer recall the occasions of or surrounding alleged events clearly or at all, or the existence of circumstances and matters that might potentially or actually support his defence. If the matters were more recent, evidence and potential evidence would have plainly been more available and accessible as to the alleged events themselves as well as all the surrounding circumstances such as time, place and the presence of witnesses and so on. I cite some specific examples.
·For example, in relation to count 1, AA alleges that the indecent assault occurred when it was dark and the accused parked in a secluded spot in the process of driving her to an interview at a regional television station, whereas the accused says he drove her there in broad daylight and did not stop at all. If the events were more recent the accused may have been able to obtain evidence corroborative of his version, in particular of the time of day, for example from other teachers or from the television station.
·Another example is that another complainant alleges the indecent assault in her case occurred on the last day of a specific term, whereas the accused says he did not attend school that day. If the events were more recent the accused may have been able to obtain evidence corroborating his absence from school on the day concerned.
·Another example is that if the alleged events were more recent, the accused may have recalled the presence of potential witnesses to support his case that he never conducted the informal ‘private’ lessons that some complainants alleged were the context for his offending against them.
The overall delay will likely have led to some complainants being less able to remember some matters of detail. That factor has disadvantaged the accused because of an inability to test the complainant’s account in as much detail.
The delay may also mean that the accused can no longer recall exculpatory circumstances to support his defence.
These are but some of the general and particular examples in this case of the obvious forensic disadvantage that will and do attach where, as here, matters are brought to trial many years later. The court has regard to the fact that the principle of forensic disadvantage applies to each and every one of the charges the accused faces, and the court takes that forensic disadvantage into account when scrutinising the evidence for the prosecution and when assessing whether the prosecution has proved its case against the accused. It requires that the prosecution evidence should be carefully and closely scrutinised with this principle squarely in mind.
The principle also dictates that conversely, allowances must be made, and the principle clearly borne in mind in the accused’s favour, when considering the accused’s evidence and any case advanced by the defence. The court has done that.
Rulings affecting the course of evidence
A number of pre-trial applications were made, and in each case ex tempore reasons for ruling were delivered. Those reasons have been separately published. In brief summary;
·The defence subpoenaed medical records relating to BB’s treatment. The issue of access to those records, their status, and their ability to be adduced at trial in light of Division 9 of Part 10 of the Evidence Act 1929 and their potential status as ‘Protected Communications’ within the meaning of that division were the subject of several applications and rulings:
·The court ruled that for a complainant’s medical records to amount to ‘communications made in a therapeutic context’ such that they have the status and protection of ‘Protected Communications’ within the meaning of Division 9 of Part 10 of the Evidence Act 1929, there needs to be some nexus between the alleged offending and the trauma for which the treatment was sought, or some exacerbation of an existing condition as a result of the alleged offending. It was insufficient for the DPP to establish only that the records related to a person who has the status of complainant.[8]
·The court made observations as to the restrictive nature of Division 9 and the consequently hybrid and potentially difficult process required by the Division to assess for the purpose of ruling whether medical records in any particular case are Protected Communications, and ultimately ruled that certain medical records relating to BB subpoenaed by the defence were Protected Communications.[9]
·The court was however satisfied that within the meaning of Division 9 and section 67F of the Evidence Act 1929 there was a sufficiently legitimate forensic purpose that the evidence would materially assist the defence, that a preliminary examination by the court of the evidence was justified.[10]
·The court conducted an initial preliminary examination and described to counsel in an overarching way the potentially relevant materials contained in the medical records for the purposes of providing as much natural justice to the parties as reasonably practicable, and to better equip counsel to make submissions as to whether any of the medical practitioners should be required to attend or answer specific questions in the course of the preliminary examination.[11]
·Defence counsel submitted that one of BB’s medical practitioners, her treating psychologist, be asked to provide written answers to a series of questions. On preliminary review, the medical records of the psychologist were clear and extensive, such that there was no need for the purposes of the preliminary review for any further clarification of his diagnosis or conclusions.[12]
·The defence applied to adduce the evidence of the psychologist. In considering the application, the court as a part of the preliminary review process authorised by the legislation, conducted a detailed review of the Protected Communications concerned in the absence of the parties as also contemplated by the legislation and with the consent of the parties, to assess whether inter alia there was any material significantly probative of the important issues of credibility and reliability of the complainant concerned in relation to the allegations and there was not, beyond the already disclosed fact of the various conditions she has.[13]
·At the conclusion of the review and after hearing the further submissions of counsel, the court concluded that there was no material possibility that a failure to adduce the evidence would cause a miscarriage of justice and hence per section 67F(7) of the Evidence Act 1929 that in the circumstances of this case the public interest in preserving the confidentiality of protected communications was not outweighed by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.[14]
[8] Ex tempore reasons for ruling delivered 5 July 2018 at 3.50pm.
[9] Ex tempore reasons for ruling delivered 18 July 2018 at 3.06pm.
[10] Ex tempore reasons for ruling delivered 18 July 2018 at 3.06pm.
[11] Ex tempore reasons for ruling delivered 19 July 2018 at 2.19pm.
[12] Ex tempore reasons for ruling delivered 19 July 2018 at 3.33pm.
[13] Ex tempore reasons for ruling delivered 19 July at 3.54 pm
[14] Ex tempore reasons for ruling delivered 19 July 2018 at 3.54pm.
Cross-admissibility of evidence

The prosecution case was that the evidence of each separate complainant in relation to each of the counts of indecent assault, counts 1, 3, 4, 5 and 6 was cross admissible on the basis of ‘similarity of account’. Despite its potential admissibility as evidence of particular propensity as contemplated by the discreditable conduct provisions of the Evidence Act 1929, such purpose was disavowed by the prosecution and accordingly any such probative use will be ignored.
By way of separate pre-trial ruling the court held that the evidence was admissible on the basis of “similarity of account”, and also satisfied the criteria for admission of discreditable conduct per s 34P of the Evidence Act 1929.[15]
[15] Ex tempore reasons for ruling delivered 23 July 2018 at 2.15 pm. Whilst the evidence was not used as discreditable conduct evidence, because it had that character the court applied the higher s 34P criteria for admission.
It was not submitted that the evidence in relation to count 2, being a charge of unlawful sexual intercourse with a person under 17, was admissible in relation to the charges of indecent assault comprising counts 1, 3, 4, 5, and 6, nor vice versa. Accordingly it will not be regarded as relevant in any such way, or indeed in any way at all adversely to the accused.[16]
[16] The trial proceeded as a joint trial in light of the fact that as a trial by judge alone, there was no risk of prejudice. Reasons were delivered for this decision on 23 July 2018.
Expert Evidence
Expert evidence was called in the course of the trial. The court has applied the well-known principles applicable to the admissibility, probative value and treatment of this category of evidence that would have been set out in standard directions to the jury had this been a jury trial.
Evidence at trial
The court has carefully considered all the evidence tendered in the case, however in some attempt at brevity will not set it all out in these reasons.
Each of the complainants gave evidence as to the allegations against the accused. There were no other eyewitnesses to the events comprising those allegations, however there was evidence as to some of the surrounding circumstances. The accused gave evidence on oath and called other evidence.
Counts 1 and 2
AA is the complainant in relation to counts 1 and 2.
At the time of trial AA was a 39 year old sales manager, married with two children and currently living in New Zealand.[17]
[17] T 26.
AA attended Penola High School from 1991-1995.[18] In 1992 she was in year 9, aged 13 and turning 14 during the course of the year.[19] AA gave evidence that at that time she was very tall and physically developed for her age, and did very well academically.[20]
[18] T 28.
[19] T 28.
[20] T 29.
AA gave evidence that she met the accused in 1992 when he came to Penola as the music teacher. She thought he was around 26 and looked younger than the other teachers.
AA studied drama and was involved in the school plays. In 1992 the school play was a musical, ‘Money Talks’ for which she auditioned, securing a significant part in the production. The auditions were in May 1992 and the production was at the end of August/start of September 1992.[21]
[21] T 31.
The accused was involved with the production as the music teacher.
AA gave evidence that whilst her acting was strong, she was not a very talented singer, and that it was in that context that the accused suggested to her that she needed ‘private lessons’ to improve her poor singing voice.[22] AA said that the accused organised for the ‘private lessons’ to take place in the music room at lunchtime, which would take place twice a week and occasionally after school, commencing a few weeks after her audition.[23]
[22] T 30.
[23] T 30.
AA said that the private lessons would go for 30-45minutes. She would be seated on a stool in the music room with a music stand and sheet music in front of her; there was a door with a glass panel to the right and behind her, three practice rooms.[24] To her left were three windows with blinds through which you could see the tennis courts and oval.[25] There was paper placed over the glass on the door to the corridor, and the blinds on the three windows were always pulled down during the private lessons.[26] AA initially asked the accused why the doors and windows were covered and she reported that the accused told her it was to help her focus.[27]
[24] T 33.
[25] T 33.
[26] T 35.
[27] T 36.
AA gave evidence that the accused would stand behind her as she practiced. She said that initially he was about a metre back but after a few weeks he was standing so close that he would be touching her back as the lesson progressed.[28] AA said that during the lessons the accused would ask her questions about herself and they would talk a lot, for example about her family, poetry and the bullying she suffered.[29] AA said that as a result, over time, she developed a lot of trust in the accused and considered him a friend.[30]
[28] T 36.
[29] T 36.
[30] T 37.
AA gave evidence that as time went on, the accused began to touch her. She gave evidence that she used to wear her hair in a long plait and the accused started to untie and re-plait it.[31] After a few lessons of touching her hair and back, he began kissing down the left side of her neck and massaging her back to ‘help her relax’.[32] Soon each lesson would start with 15 or 20 minutes of personal discussion, and every lesson would involve the described touching.[33] AA said that at the time she believed that the accused was genuinely interested in her life, and his actions made her feel quite special.[34]
[31] T 37.
[32] T 38.
[33] T 38.
[34] T 38.
AA gave evidence that even outside of the private lessons, the accused would treat her as special, for example he would wave from the corridor to her in her other classes, he would ask other teachers to allow her to speak to him during their classes, and he would pass her notes in class through other teachers.[35]
[35] T 38.
AA said that as the production approached, the play was to be promoted on the local TV station. An arrangement was made for her attend the station in Mount Gambier for an interview. She dressed in her costume for the play which she recalled as a knee length purple velvet skirt with paisley shirt and stockings and shoes.[36]
[36] T 40.
AA gave evidence that the accused drove her to the interview in his own car. It was in the early evening. Whilst they should have gone straight to the television station, without saying anything, the accused parked in a secluded place adjacent the nearby Blue Lake. AA described what happened next in the following way:
QSo take us to the car at the Blue Lake. He was driving and you were in the passenger seat.
AThat's correct.
QCan you tell us in your own words in as much detail as you can what happened there.
AIt was dark and we parked up at the Blue Lake. Mr [W] was asking me questions about what they might ask me at interview, so trying to get me to remember directors' names and things that will try and pre-empt questions they might ask me at the interview to try and make sure that I wasn't going to stumble over my answers and to give me some heads up on what it might be like to be interviewed for television. There was some talk about that and he reached down and undid his seatbelt and with his right hand he put his hand on my closest leg and tried to put his hand up my skirt and he put his left hand behind my head and kissed me on the mouth quite forcefully and a lot, and I hadn't been kissed on the mouth before by Mr [W] and I recoiled a fair bit and, when he saw that I wasn't going to kiss him back, he said 'Right, let's go and do this interview then', and we left the Blue Lake and we travelled to the car park at Channel 8. I remember it being dark and quite cold. I think he opened the door for me, maybe gave me his coat to take to the interview and at the interview the person doing the interview asked me a lot of questions that I could not answer. I was very bad in the interview. I stumbled over the answers a lot. Mr [W] ended up answering most of the questions that the interviewer asked me and I remember watching the recording of that back with my family and everybody laughing at me because I did so terribly. My fringe was down in my eyes, it was getting in the way. I stuttered a lot.
QSo the interview was broadcast.
AYes, it was.
QDo you know whether that was broadcast live.
AI don't think it was. I think it was recorded at night-time and played during, I think it was a day-time television show.
QYou told us that you watched it with your family.
AYes. We had a recording of that interview on VHS and watched it with my grandmother and the rest of my family.
…
QBefore you move away from that, I'd like to ask, Ms (name omitted), what did you think when the event happened in the car, how did you react, what did you think.
AI was a little bit shocked about - I had been touched and kissed a lot in the classroom but never on my mouth before, so I was very inexperienced at kissing people at that time and I was quite, quite shocked. I didn't kiss him back.
QWhat about where he put his hand.
AVery nervous, that made me feel very nervous and yeah, made me feel nervous.
QAnd when you were - did that have any effect on what happened at the TV station.
AI think it did, yes.
QDid you have any particular thoughts or reactions at the end of the night when you thought back over the events of this evening.
AI don't remember too much after driving home, no.
That comprises the allegation of indecent assault which makes up count 1.
After that night, AA continued with the private music lessons and not long after the events of the interview, and before the production started, a further event occurred.
AA gave evidence that the practice rooms at the end of the music room had only a high external window, above the line of sight, and also had sound insulation.
In the course of the private lesson, in her own words, the following occurred:
QTell us in your own words and again in as much detail as you can please what happened.
AHe took me into practice room 3 and he had some tissues - he used to wear a suit coat and jeans and he - he took the - some tissues out of his coat pocket up the top on the chest (INDICATES) and inside the tissues was a condom and he said 'This is for you' and he laid me down underneath the window in practice room 3 where the blind was drawn and I remember the room either being quite new or freshly renovated because I could smell the carpet smelt new and the paint in the room smelt new and I could hear because it was lunchtime, people running up and down the asphalt and playing on the tennis courts outside and I was wearing my school uniform, shoes and socks, a dress and a jumper and he took off my underwear and he took off his jeans and underwear and didn't remove any of the rest of his clothing and he didn't remove any of the other of my clothing and he already had an erection and he put the condom on himself and laid down on top of me with his arms on my arms (INDICATES) and he said 'I need to know that this is consensual' and I was - I didn't know what to say, I stumbled and I think I said 'Whatever' or 'Okay' and then he penetrated me, his penis was in his - in my vagina and it was quite rough and it was hurting me and I wanted it to stop but I didn't know how to say 'I don't want this to happen'.
At that point in the witness box AA became very upset, and took a moment to regain her composure. She then continued:
AI didn't know how to ask him to stop, I was not liking where I was - where I was, I could hear children outside and I really started thinking that I'm a child, I'm in here with a teacher, he's on top of me, he's inside of me and I'm feeling scared and I'm feeling dirty and I'm not enjoying this and I want it to stop and it hurt and it was quite rough and I just wanted to get out of that room, I just wanted it to stop, I wanted him to get off me and I wanted to go and then I assume he ejaculated and he got off me and I was fumbling around for my underwear and trying to put that on and I angrily said back to him 'I hope that you know that I'm not a virgin, so I hope that makes you happy'. At that point he positioned himself between the closed door and myself and was holding my wrists and demanding to know who had taken my virginity and I was really scared of him and I just made up a boy's name just to get out of that door and I went out of that door and I went out of the main door with the paper on it and I just remembered feeling terrified that my other classmates might know that that had happened or the teachers somehow might have seen that that had happened, that I would get pregnant because I'd been menstruating since I was 11, so I was just - I was in tears and I was crying and I was running.
QHow long, if you're able to say, was the sexual intercourse going on for.
AI think it was less than five minutes.
QYou said earlier that you assumed he ejaculated.
AYep.
QAre you able to expand on that at all.
AI'm fairly certain he did, because he made some noise and then he stopped.
QAre you able to tell us anything more about that.
AWell, yeah, I remember him taking off the condom, tying a knot in the end of it and putting it back in tissues.
…
QHow did you feel immediately after that had happened.
ADisgusting, used, dirty, like something was wrong with me, like I was broken.
HIS HONOUR
QLike something was broken, is that what you said.
AYeah.
XN
QDid you tell anyone what had happened to you on that day.
ANo, I did not.
QDid you think to tell anyone.
ANo, I was terrified of telling anybody, I thought they would think that I was to blame, that it was my fault, that I put myself in that room.
That comprises the allegation which makes up count 2, of unlawful sexual intercourse with a person under the age of 17.
AA gave evidence that as a result, some days after the incident, she went to accused’s nearby teachers’ accommodation and hid on the porch waiting for him to come home.[37] The accused drove up in his car and alighted. AA told him that she didn’t want him to touch her and that she didn’t want that kind of relationship with him.[38] AA said that in response the accused went to hug her and asked her inside. She refused. She said she wanted it to stop. After this, there were no more ‘private lessons’.[39]
[37] T 50.
[38] T 51.
[39] T 51.
AA said that the accused stayed at Penola High for 1993 and 1994. AA said that while she was cast in lead roles for the next two school productions she tried very hard to not be alone with the accused during them.[40]
[40] T 51.
The first person AA said she told was her future husband, at some time before they were married.[41] She explained that they had met in 2008/2009 and that the conversation occurred around Valentine’s Day 2009 at their house in Cairns, Queensland. Her husband-to-be had been involved in a boating accident on the river whereby, very unfortunately, two people had consequently drowned.[42] AA said that he was not coping well, so she told him some small detail about what had happened with herself and the accused, so as to connect with him and the suffering he was going through.[43]
[41] T 52.
[42] T 52.
[43] T 52.
AA gave evidence that she told him that she had had private lessons with the accused in 1992, that they’d gone to Mt Gambier for the interview and he had kissed her, and that there had been unlawful sexual activity in the practice room.[44]
[44] T 53.
AA said that 2009 was very upsetting and emotionally raw for her and her partner, and then when subsequently advertisements appeared on TV concerning the Royal Commission her partner encouraged her to go to police,[45] so she wrote down her memories of 1992, went onto the Royal Commission website and made a complaint. In August 2016 she was asked by police to make a statement.[46]
[45] T 54.
[46] T 54.
AA gave evidence that she knew GG because she was in her class at school and was also involved in drama.[47] AA said that the last time she saw GG and her sister might possibly have been a meal at Fasta Pasta between 2010 and 2012.[48] There would only have been casual discussion, AA saying she did not remember speaking to GG about the accused.[49] AA said that at school she was part of a group including GG who would play a ‘truth or dare’ game in the playground at lunchtime, and one of the questions would sometimes be “have you slept with (the accused)” but they would always say no.[50] AA said she did not know and had not met either of the other two complainants BB and SS.[51]
[47] T 55.
[48] T 55.
[49] T 56.
[50] T 56.
[51] T 57.
AA was cross examined extensively as to the events, and generally. She was taken through the alleged events and surrounding circumstances in great detail. I do not set it all out but I have had close regard to it all. She was generally consistent with her examination in chief.
AA gave evidence that she could not remember the exact dates of the production and TV broadcast, but did not dispute a TV running sheet referring to the production dated 26 August 1992, as a possible date of a matinee put on for other students prior to the commencement of evening performances. She repeated that her recollection was that while she could not now remember which exact day the second incident, that is the sexual intercourse, occurred, it was after she had been interviewed for TV but before the evening performances commenced.
It was put in cross examination to AA that if such an upsetting event had occurred, surely she would not have been able to continue in the play and perform on stage. AA responded that she was a very resilient child, had done very well at school, and had always performed, even when upsetting events had happened. She gave the example of going ahead on another occasion despite there having been a family bereavement.
In cross examination she said she studied flute in year 8 but did not think she had flute lessons in year 9, that she could recall. She said she couldn’t remember taking her flute to the music room in year 9. She agreed that in her initial 2016 statement to police she said she had been in the music room doing a number of activities, including playing her flute, when the accused would touch her hair from behind. She responded that while she did not recall having flute lessons that year she continued trying to play the flute, and maybe she had brought it in to show him. She said that when she was giving that initial statement she was trying to remember all the reasons she was in the music room. She said she had now had more time to think, and now had a clearer picture that she was in there with the accused in relation to the production.[52] AA agreed that in a 2017 statement she also made reference to the accused mentioning flute as one of the basis for the lunchtime private lessons, and agreed that on reflection that was not correct.[53] AA agreed that in an initial statement she had said that she was 14 in 1992 but then on thinking about it recalled that she was 13 at the time. AA agreed that in her 2017 statement she said that when she confronted the accused at his home she had said she told him “I’m a student and you’re a teacher and I’m only 13 and I’m not ready for this type of relationship”, she agreed she had corrected references to 14 to 13, as she was 13 at the time. She said in relation to the matters put to her that she had pushed the memories of the events deep down inside her and had not brought them up for a very long time.[54]
[52] T 73-74.
[53] T 82.
[54] T 84.

AA denied seeking the accused out and spending a lot of time with him over 1993 and 1994, or either GG or her sister doing the same.[55]
[55] T 85.
Defence counsel put to AA that having told her partner a made-up story about having had sex with the accused, she felt obliged to report it to the Royal Commission, and inferentially, pursue fabricated criminal charges against him, and that maybe as a result she had convinced herself that what she had made up had in fact happened. AA vehemently denied the suggestion.[56]
[56] T 110-111.
AA’s husband gave evidence that they married 2011. He said that AA had in fact told him in 2008, in passing, that she had had intercourse with a teacher in High School. He said that in early 2009 he was involved in a white water rafting accident resulting in a double fatality which was very traumatic for him. He said that it was in this context that AA further opened up to him at that time, to connect with his trauma.[57] She told him that she was 14 or 15 at the time and it was with the male music/drama teacher.[58] He could not recall if she gave a name, or when and where it occurred.[59] He said that whilst she later gave more details she was hesitant to talk about it and it was obviously very troubling for her. He said his own memories of that time are blurry with trauma.
[57] T 125.
[58] T 126.
[59] T 126.
AA’s husband was cross examined in detail about the complaint evidence and matters generally.
Mr Sculley was then called. He currently works for WIN regional television station and was asked by police to make some inquiries into an interview for a Penola High drama production in 1992.[60] He located a single item concerning the production in question titled “Penola H.S. Play” dated “26/08/92”, which could represent the broadcast date or the date the material was recorded.[61] The footage (of the play itself) was tendered as P4. He said he had no practical knowledge of what time interviews were usually taped at that station, but it would not be uncommon for them to be taped after hours.[62]
[60] T 137.
[61] T 138.
[62] T 140.
Mr Denys was also called.[63] Mr Denys worked at the relevant time as a production assistant/coordinator/production manager at Channel 8. Mr Denys said that he was a production assistant on the “Woman’s World” program in 1992. He said it was a daily lifestyle program involving interviews and commercial content, broadcasted from 1pm on Mondays, Tuesdays and Wednesdays for 90 minutes. He gave evidence that content was generally recorded on Monday mornings but interviews could also be done outside those hours, in fact at any time, for example in the evenings, depending on the availability of those being interviewed. He had no memory of the “Money Talks” interview.
[63] This occurred later in the trial.
AA’s brother, who the court will refer to as LL, was then called.[64] He gave evidence that he went on the bus to school every day with his sister. He said she was sporty, very academic and loved drama and music; he remembered her participating in a number of productions with Penola High and the local theatre company.[65] LL said he remembered the plays well because AA was very good at drama and he helped her practice lines, which he didn’t enjoy.[66] He said he saw her in all three high school plays and one Penola Players play. He gave evidence that despite a family tragedy whereby both her grandfather and cousin died on the same day AA still went on and performed the play.[67] In relation to the production in the current matter, LL remembers seeing some footage of it on “Woman’s World”, the channel 8 program at midday.[68] He saw it when he was sick at home with tonsillitis with his mother and younger brothers. He recalled that in the interview, AA was sitting on the couch with the accused and there was a female interviewer.[69] AA appeared nervous and was fiddling with her hair.[70] They had a laugh about it at AA’s expense as she seemed so nervous.[71] The family recorded the interview on VHS. In 2010, he found the footage of the interview when looking for footage of his father as the tapes weren’t labelled.[72] He watched it for a couple of minutes and then turned it off. As AA’s 40^th birthday is approaching he recently went through tapes at his mother’s house to put together a presentation for the event, however he was not able to locate the tape.[73]
[64] T 143.
[65] T 144.
[66] T 144.
[67] T 145.
[68] T 145.
[69] T 146.
[70] T 146.
[71] T 146.
[72] T 147.
[73] T 147.
Ms Clayfield was called to give evidence. Ms Clayfield is a school services officer in administration at Penola High School. She said she has worked at the school for some 40 years and is familiar with the music suite. She said she had been asked to consider the windows and their coverings in the music room. The northern and western windows face out onto asphalt.[74] She said that in 1992, as the western window got afternoon sun and looked out to a busy thoroughfare it likely had a light beige calico curtain.[75] She said there is an air conditioner in the small music room; she could not recall one elsewhere.[76] In cross examination Ms Clayfield said that she could not say with any certainty whether there was curtaining present in 1992.[77] She said there were vertical blinds in the windows on the north wall of the main music room, and she thought they were there in 1992.[78]
[74] T 409.
[75] T 409.
[76] T 410.
[77] T 411.
[78] T 412.
The following agreed facts were tendered concerning the play, the music suite at the school and AA’s age:
1.The file on the exhibit marked ‘P4’ (disc) is entitled ‘Penola HS Play 260892.’
2.The file on exhibit ‘P4’ is a converted file, from an original recording, that relates to an entry in a run sheet ‘Penola HS Play’ with a date 26 August 1992.
3.A run sheet is a document held by the southern region of the Win TV Network in 1992 constituted as the SES 8 Network.
4.A date on a run sheet relating to a segment, in the ordinary course, will reflect that a portion of film was recorded and aired on that same date, however this is subject to unexpected news events.
5.A copy of the ‘supportive vision’ “Penola HD Play” which the witness Andrew Sculley retrieved from archive is on the disk, Exhibit P4.
…
17.Between 1989 and 1990, the building at the rear of the stage area of the hall at Penola High School (which previously functioned as a suite of dressing rooms) was renovated so it could function as a designated Music Suite. The Music Suite comprised a ‘Main Music Room’ and several ‘Music Study Rooms’ or ‘Practice Rooms’. The whole area was designed to be multifunctional so it could still be used variously as dressing rooms, storage area, and office space.
18.A video walkthrough of the music suite was conducted by police on Sunday, 29 July 2018 to illustrate the layout of the music suite as it currently exists. A copy of that video is contained on Exhibit P16.
19. An accurate plan of the layout of the Music Suite is Exhibit P17.
20. As marked on the plan:
a. Window A is an ordinary mid-level window;
b. Window B is an ordinary mid-level window which is likely not to have had curtains fitted until approximately 2002;
c. Windows C and D are high level windows which were not likely to have had curtains or blinds at any point, although Window C had either an air conditioner or solid panel in place of the glass at all relevant times;
d. Windows E and F are each ordinary mid-level windows which would have had blinds fitted at all relevant times. There are vertical blinds on those windows today as depicted in the video Exhibit P16;
e. Window G is a high level window which was not likely to have had curtains or blinds at any point.
…
21. The complainant, Ms (AA) was born on 3 October 1978.
…
26.Penola High School is located at 43 Cameron Street, Penola, South Australia.
27.On 23 January 1992 the accused was permanently employed as a music teacher at Penola High School. He remained teaching at Penola High School until the end of 1994 at which time he took leave from his position.
28.Throughout his time teaching at Penola High School the accused utilised the school music room to conduct music lessons with his students.
29.Throughout his time teaching at Penola High School the accused resided in the teaching staff accommodation located on Cameron Street, Penola, SA.
Counts 3 and 4
GG is the complainant in relation to counts 3 and 4.
In light of the course of evidence in relation to these counts in the information, the court notes that the prosecution had opened its case in relation to these two counts in the following way: “… the accused on one occasion slid his hand down from her shoulder onto her breast, that is count 3. ….. on one occasion, just like the account I’ve summarised in relation to (AA), (GG) will tell your honour that the accused on an occasion after school leant over and kissed her on the lips. That is count 4. He ceased his advance when she recoiled or resisted.”[79]
[79] T 7.
GG gave evidence that she is currently 39 years old, born in Yugoslavia and that she came to Australia in late September 1992 with her parents and an older sister who I will describe as NN.[80] She started school at Penola High School at the end of year 9. While she did not do music in 1992 she did so in 1993 in year 10 at the age of 13. The accused was her music teacher. Her music lessons were part of the ordinary, compulsory curriculum.[81] She said that the accused was young, approachable and friendly; seemingly more like a friend to the students compared to the other teachers.[82] GG gave evidence that the accused would ask students, mainly girls, to stay behind at lunchtime or after school one at a time, and a lot of the time the girls would want to stay behind.[83]
[80] T 150.
[81] T 152.
[82] T 153.
[83] T 153.
GG gave evidence that the accused asked her to stay behind after class a couple of times at the start of 1993.[84] On the first occasion, he asked her to stay behind after class at the end of the school day.[85] She didn’t know what it was about, so she sat down at a desk in the empty music room waiting for him.[86] GG said that she recalls windows with closed blinds facing the outside area. She said the accused approached her and started talking to her. She can’t recall what he was talking about. She said she felt his left hand on her right shoulder as he stood behind her.[87] GG said that after he had rested his hand there for a few seconds it moved down underneath her school dress over the top of her breast, where the hand stayed for a few seconds.[88] She said he may have still been talking at that time. She stood up, facing him, and said she had to go as her sister was waiting on the bus; at that the accused then kissed her on her mouth for a couple of seconds, trying to use his tongue.[89] She was shocked, then left the room to go to her bus.[90] She said that nothing like this had ever happened with the accused before.
[84] T 154.
[85] T 155.
[86] T 155.
[87] T 157.
[88] T 157.
[89] T 158.
[90] T 159.
GG gave evidence that on a second occasion he asked her to stay back again. She had only a limited memory of this event. She has a recollection of him sitting in front of her, trying to kiss her, but said that on that occasion he wasn’t able to.[91] She cannot recall physical contact with him on that occasion.[92]
[91] T 161.
[92] T 161.
GG said that at the time she did not tell anyone what had occurred because she was shocked and embarrassed.[93]
[93] T 161.
GG gave evidence that the first person she told was her sister NN, and then her friend MD.[94] She said she told her sister a few months after the event; she told MD a month or two after she told her sister. She can’t clearly remember either conversation. GG said she continued in the accused’s class after he kissed her because she had no other choice.[95]
[94] T 161.
[95] T 162.
She gave evidence that she remembers the accused asking her to come to his unit which was close to the school on one of the after school occasions.[96] She told him that her parents wouldn’t allow it.[97]
[96] T 162.
[97] T 163.
GG said she met AA in 1992. She thought AA and the accused were close and friendly.[98] She was friends with AA but not close friends; they would sometimes chat at recess and lunch.[99] GG said she moved to Victoria a year after she finished school. She didn’t keep in contact with anyone from Penola High although she thought AA went to university in Adelaide. She said she may have spoken with AA on a couple of occasions after school.[100] She did not think about the accused until she was approached by the police in recent times. She does not know BB or SS.[101] She said she never spoke with AA about what had happened between her and the accused.[102]
[98] T 164.
[99] T 164.
[100] T 164.
[101] T 165.
[102] T 165.
GG was cross examined at length.
She was asked about how long the bus would wait after school and she replied that usually the bus left on time but would sometimes wait five minutes for students running late.
GG agreed there was at least one occasion when the accused attended her house for a meal with another teacher who was Serbian. [103]
[103] T 169.
It was put to GG that she had said in evidence that the first event with the accused was at the start of 1993 and she explained she had not meant January but perhaps May to June 1993. She agreed she had told police in her June 2016 statement it was ‘halfway’ through the year.[104]
[104] T 170-171.
GG agreed that when she had first spoken to police she had said she was wearing a shirt as part of her school uniform, but in fact it was a dress, which she later remembered.[105] GG agreed that she had corrected that when she gave a further statement in October 2017.[106] GG agreed that in relation to the first occasion, she had told police in June 2016 that the accused had put his hand under her school uniform onto her breast, whereupon she got to her feet, he pulled his hand away and he had leaned towards her and kissed her on the lips. She said the second occasion was a month or a couple of months later. It was put to her that in her 2016 statement she had said that it was about two weeks later and she responded that she accepted what was being put to her about her statement but as to the fact she could not say yes or no to that, but she thought it was a month or two months later.[107] GG agreed that she had initially told police that on the second occasion that the accused when he had leant forward had kissed her, but on reflection while she thought he did kiss her she was not sure.[108] GG agreed that at a meeting on 20 March 2017 she had said that in relation to her statement wherein she had said that the accused kissed her on the first occasion she had said to the prosecutor she thought that on the first occasion he had leant close but not kissed her. GG repeated that he did kiss her on the first occasion, and explained her comments to the prosecutor on that day on the basis that ‘because I wasn’t thinking straight – not straight, I wasn’t thinking about the occasion but now when I’m being asked to think about everything that happened 25 years ago, certain memories will come back.’[109] GG agreed that she had told that meeting that he kissed her on one occasion, for between 5 and 10 seconds and the accused tried to use his tongue. She agreed that at that meeting she had said it was on the second occasion rather than the first, but that she could have been confusing the two occasions when she spoke to them.[110]
[105] T 172.
[106] T 176.
[107] T 173.
[108] T 175 ‘I’m thinking yes but I’m not sure’.
[109] T 177.
[110] T 178.
GG agreed she liked the accused and would speak to him in the yard or around the school, as did everybody else.[111] GG agreed that AA was often with the accused, she thought in 1993, and that the talk was that she liked him, although AA had not in fact told her that.
[111] T 178.
The court adjourned over the weekend, and when the case resumed on the following Monday, GG was again questioned about her recollections as to the two meetings with the accused. GG repeated that the accused kissed her on the first of the two occasions. GG was also taken back to the second occasion, and she said that having thought about, he did kiss her on the second occasion. She said ‘I actually had to sit back and think about all my past, which I was trying to ignore because I moved on, like I said, from my high school year, I don’t think about it, I never had to think about it until this occasion, and, yes, he did kiss me.’[112]
[112] T 184.
Finally, GG was asked whether she had a meal at Fasta Pasta with AA at some time between 2010 and 2012, and she replied that she moved back to Sydney in 2010 and had no memory of having a meal with AA between 2010 and 2012.[113]
[113] T 186.
In re-examination GG was again asked about her memory of whether the accused kissed her on one or both of the occasions he had private meetings with her. She repeated she was certain that he kissed her on the first occasion, and now having thought about it, she was also certain he kissed her on the second occasion. She explained her answers in the following way; ‘Because I tried to get rid of those memories, I didn’t want to think about it. I really – didn’t even want to be involved in this because I was – unfortunately. I really pushed those memories aside because I moved on with my life, I didn’t - until Mr Billington[114] approached me, I didn’t need to think until now, better say the right thing, what’s correct, and hopefully can help someone else.’[115]
[114] The officer in charge of the investigation.
[115] T 187.
The next witness was GG’s older sister, who I will describe as WW. WW gave evidence that through another Serbian person the family knew, the accused had attended their house for dinner on several occasions. The accused was GG’s music teacher. She saw her sister chatting with the accused at their home; she was friendly towards him. WW said she saw the accused interacting in a friendly way with other students but she didn’t see anything untoward.[116] She said she could not recall a conversation from that time with GG about how she felt about the accused, although after her sister had been contacted about the current proceedings in 2016/2017 she asked GG about it and GG told her what had happened.[117]
[116] T 195.
[117] T 196.
In the course of cross examination WW said that GG never told her anything in 1993 about inappropriate behaviour between herself and the accused.[118] WW said that after being contacted by the detective, GG told her that the accused had tried to kiss her and had not mentioned actual kissing or breast touching.[119] WW said that she could not recall her sister writing the accused any letters. WW said she may have seen AA once or twice in Penola after school[120] but she could not recall having dinner with AA at Fasta Pasta in 2010-2012 in Mt Gambier.[121] She said she had no memory of sitting in the bus after school, waiting for her sister.
[118] T 197.
[119] T 198.
[120] T 199.
[121] T 199.
Count 5
The complainant in relation to count 5 is BB. BB gave evidence that she is now 37 years old and a senior public sector manager.[122]
[122] T 203.
BB gave evidence that she attended Cornerstone College High School in Mt Barker in 1993, from term 2 onwards.[123] She said the accused started at the school in 1995, her year 10, and in the second half of the year he became her music teacher. At the start she said their relationship was good and they were friendly; they would discuss music, social things, her family, and he seemed to her more like a peer than a teacher.[124] BB said that the accused’s interactions with other students appeared less close than those with her.[125] BB said they would joke a lot, he was very informal and he would comment on her clothes, her hair, and her style. They would talk about music, the band he was in, and other things. BB felt they had a special relationship.
[123] T 205.
[124] T 206.
[125] T 206.

BB gave evidence that the music lessons were in a transportable building next to the oval, which also had private partitioned rooms for practice. She and some friends were given permission to use the music room at lunch time and use the musical equipment there.[126] There was a concert band at school; she showed an interest but the band was full so the accused suggested she join the senior choir instead.[127]
[126] T 207.
[127] T 208.
BB gave evidence that the accused then offered her an informal arrangement whereby he would give her extra singing tuition at lunchtime.[128] She agreed. BB said that her parents didn’t know about it or need to know as there were no fees. The accused arranged for the private lessons to be in the music room on Friday lunchtimes. The lessons commenced early term three 1995, her year 10.[129] BB said that they turned out to be quite informal. They would chat and muck around, as well as prepare jazz songs. It was always just the two of them. She felt close to the accused, that he was a friend.
[128] T 208.
[129] T 210.
BB gave evidence that sometimes during these private lessons, the accused would touch her shoulders and diaphragm to “correct her posture”. To do this the accused would stand behind her, placing his hand flat on the upper part of her stomach.[130]
[130] T 210.
BB gave evidence that on the second last day of term 3 the accused announced he would be leaving the school. BB said she felt really upset, as not only was the accused a fun music teacher but she thought of him as a friend and maybe a bit betrayed that he hadn’t told her privately.[131] The next day, she had a private singing lesson with the accused. She attended at the music room, the accused was there, and she said that after she entered he closed the door and events unfolded in the following way:
[131] T 211.
QWhat can you tell us, in your own words and as much detail as you can, about what took place at that private music lesson following the announcement he would be leaving.
…
QThat was the next day, was it.
AYes, the Friday.
QThat was the last day of term.
AYes. I went to the classroom for the singing lesson. Mr [W] was already there. He closed the door. We started going through some songs. We probably chatted a bit first and started going through some songs. Then I was upset, I became upset and talked to him about the fact that he was leaving and I was sad that he was leaving. So he, I suppose moved to physically comfort me. I recall, he was sitting at the piano so there was a window behind us, the piano was facing the wall, the door was to our left and the classroom seats were to our right and he gestured for me to sit down on the piano stool next to him and then he - he was stroking my hair and talking to me and he had his arm around me and then he - there was a curtain - the window was only sort of head level, it was a smaller window but it looked out onto the oval and the staff room was on the other side of the oval so he pulled the curtain closed across the window behind us. Then he began to kiss me and touch me more around my waist and then at some point I stood up and I was standing facing him and he fondled my breasts. I can remember the bra I was wearing actually and then he began rubbing my - the backs of my legs and my bottom over my skirt and I recall that I had my period at the time and I had a pad that he would have felt as he reached around sort of his hands over my buttocks and between my legs, and I definitely recall being a bit relieved that - I suppose it went through my mind that - I felt quite frozen at the time I think and shocked and a bit unsure of what was happening but then after sometime -
QYou said you were relieved about having the pad in.
AYes. I saw that he felt it, he sort of recoiled a bit and I felt relieved that perhaps things might have gotten worse if that wasn't there. So that sort of continued until the bell rang.
QWhen you say 'continued' describe in your own words what happened. I appreciate these things are embarrassing. Bearing in mind with the courtroom situation, everyone here is a professional, we hear this topic of evidence regularly, so there's nothing to be embarrassed about so just in your own words.
AHe was kissing me. He was touching me, I had - it was winter school uniform so I had a thin cotton shirt on, he was touching my breasts over that. He was rubbing his hands up and down the backs of my thighs to my bottom and sort of around my bottom cheeks. The exact sequence of events, it's 23 years ago, so I couldn't tell you the order in which all of those went and for how long but it was long enough that this went on until the bell went for the end of lunch.
QCan you give us a rough idea of how long at all.
AI think lunch was a 45 or 50 minute period. I would have eaten my lunch and then gone there so it might have been half an hour, 40 minutes in total that I was in there so this activity might have gone for 20 minutes or so, half an hour.
QYou mentioned kissing; just by reference to that word, can you tell us just in your own words about that, what was the nature and the tenor of it.
AIt was with tongue and it was - I suppose - I can't remember if I'd kissed other boys in that way by that stage but probably not so, yeah, it was.
QHis tongue was in your mouth that's what you're saying.
AYes.
XN
QWere you kissing him back.
ANo.
QHow were you responding.
AI would describe it as freezing I suppose, I mean I didn't stand rigidly - I possibly did stand rigidly still actually. I didn't know what to do so I didn't do anything.[132]
[132] T 212-215.
BB went on to say that when the bell rang, the accused opened the door, appearing to unlock it.[133] He then turned to her, put his finger to his lips indicating a shooshing gesture, and she nodded to him to indicate that she understood.[134] She left, got her books and went to her art class.[135]
[133] T 215.
[134] T 216.
[135] T 216.
BB gave evidence that at that time, her best friend was NN who was also in her art class.[136] BB said that about 15 minutes into the art class she started to feel quite distressed about what had just occurred, so she went to the toilet.[137] NN followed shortly after and asked what was wrong. BB said she told NN that the accused had kissed her and that she was feeling freaked out, but she didn’t go into more detail with NN.[138]
[136] T 216.
[137] T 216.
[138] T 216.
BB said that a couple of weeks into the following term, term 4, she had to do a project on a social justice issue in her religion class, and she announced that she would do sexual abuse.[139] She then had a conversation with another girl KK in that class about sexual abuse, and following that, the two girls spoke to the accused about his conduct towards BB.[140] BB said that the accused initially acted as though he didn’t know what they were talking about and asked if they had heard rumours about him. BB told him that he needed to watch himself and had to stop his behaviour; to which she said he responded “fair enough, thank you for coming to me about it and it won’t happen again”.[141]
[139] T 218.
[140] T 218.
[141] T 218.
BB said that at the time she regarded it as a one off error of judgment on the part of the accused. BB went on to say she didn’t want her parents to know about it, and she did not want anything done. However at the end of term 4 KK reported what had occurred to a teacher, which was passed on the deputy principal, so BB was called out of class, her parents were informed, and she was taken to Mount Barker police station and told she had to make a statement about it. She reluctantly gave a statement to police. She said she was reluctant to do this because she felt as though she was breaking the accused’s trust by getting him in trouble. She told police that she wasn’t going to press charges.
BB said that when she and her mother got home from the police station, she got out the white pages and called every listed “TJW” until she reached the accused. She said she told him that KK had told the authorities what had happened, the two of them had to make statements, but she had not said anything too bad, however that she had been told that he would not be going back to the school.[142] She said that the accused sounded panicked, asked her questions and thanked her for letting him know.[143]
[142] T 220.
[143] T 220.
BB said she got into contact with KK in 2015 when BB decided to go to the Royal Commission. BB said that nothing else occurred between her and the accused. BB said she did not know and before trial had never met AA, GG or SS.[144]
[144] T 221.
BB was extensively cross examined.
BB was taken over the allegations in fine detail, together with her contact with the accused, the dynamics between herself and the accused, the accused and others, and herself and others concerning the accused. She was taken in detail over the events whereby her situation had been disclosed to a teacher and then reported to police at the time, and why at the time she had said she did not want to pursue charges against the accused.
BB had disclosed prior to trial that she had been diagnosed with a borderline personality disorder and that she had received considerable counselling and treatment over time. She was extensively cross examined about that condition, her symptomatology and whether, as put by defence counsel to her, her condition may have caused her to think things had happened which had not in fact happened. BB was cross examined extensively as to problems and challenges she had undergone in her life, and any relationship those issues may have had to her condition.
BB agreed she was upset when she found out the accused was leaving on the last Thursday of term three.
BB agreed that she is aware that fear of abandonment is a symptom of borderline personality disorder and she is diagnosed with the condition, but not with that symptom.[145]
[145] T 224.
BB agreed she spoke to police in 1995 only after KK made the school aware of the situation. She said she disclosed that the accused had kissed her but didn’t give a great deal of detail. She agreed she may possibly have said to KK ‘I scored Mr [W]’ but thought it was unlikely that she would have used that terminology. She explained that “scored” was a term that was used at the time but she doubts that she would have placed the onus on herself like that, as the accused came onto her, not the other way around.[146] BB said that she did not tell the complete story in her 1995 statement because she didn’t want to get the accused in trouble, eg she left out the breast touching.[147] BB agreed she told the police in November 1995 that the accused was just comforting her, but in fact that wasn’t the case.[148]
[146] T 228.
[147] T 230.
[148] T 244.
BB agreed that at the time she signed a document saying she didn’t want to press charges. She said she did that because she didn’t want the accused to get in trouble. BB said that at the time she didn’t understand that she had a choice not to make a statement. She repeated that she called the accused afterwards because she still thought that they were friends; she denied feeling abandoned by the accused.
BB agreed she had been diagnosed with borderline personality disorder in 2014.[149] She agreed she had self-harmed previously, had at times been impulsive, abused alcohol and had anger issues.[150] She said that she had suffered disassociation which to her felt like she could sense that things are happening to her but that she is not present for them; like they’re happening to someone else.[151] BB said that it did not mean thinking things are happening, when they are not. BB said that according to her psychologist she no longer met the criteria for the condition.[152]
[149] T 236.
[150] T 237.
[151] T 237.
[152] T 237.
In response to further cross-examination BB said she had told police that she had suffered two sexual assaults since 1995.
BB was further cross examined about the effect of her condition. She agreed that in circumstances of high stress, she could view things happening as though they were happening to someone else in a dissociative way.[153] She said she has never imagined anything that has not happened.[154]
[153] T 241.
[154] T 242.
Under further cross examination BB agreed that her borderline personality disorder had caused difficulties in her life. She said that the incident with the accused was a catalyst for a lot of her developmental and identity issues.[155]
[155] T 249.
BB said that in early 2015, she had a couple of conversations with KK; she may also have spoken to her in 2016 via Facebook.[156] BB said that the Royal Commission process suggested that if she had had trauma and counselling that she might be entitled to compensation and she had made enquiries about that.[157] In response to further cross examination BB said that the prosecution had been a large part of her life since 2014 because of the psychological burden of waiting.
[156] T 249.
[157] T 251.
BB agreed she signed a farewell card for the accused at the end of 1995.[158]
[158] T 252.
The next witness I will refer to as NN.
NN gave evidence that she is now 38 years old and attended Cornerstone College,[159] becoming friends with BB from year 8. She was a member of the group of students who would use the music room at lunchtime.
[159] T 260.
NN gave evidence that she knew the accused although he wasn’t her teacher; she did not speak to him directly, but he was seen as a “cool” and friendly teacher. In 1995, she was aware that the accused and BB had private lessons during lunch, after school, or both.[160]
[160] T 262.
NN gave evidence that there was an occasion, which she thought was Thursday 28 September 1995, when she and BB had been sitting outside at lunchtime on a dirt pile and BB became upset and started crying, saying “he has to go, he has to go” about the accused.[161] NN said that she and BB stayed back late and skipped class because BB was so upset.[162]
[161] T 262.
[162] T 263.
On Friday 29 September, NN recalls that she and BB were in the last art class of the day before a weekend. NN said that BB was fidgety, angry and upset, and left the classroom.[163] The teacher Mrs Kempie told NN to go after BB, which NN did; BB had locked herself in a toilet stall and was crying.[164] NN said she asked her what was wrong, saying BB was obviously quite traumatised.[165] NN got Mrs Kempie to come and assist. BB said something to the effect of “he can’t do this, I can’t believe he did this, he has to go”.[166] NN wrote “scored” in her diary but she cannot recall if BB had actually used that word; she just gave NN the impression of this with her words.[167] Mrs Kempie got BB out of the toilet and took her away. NN said that their friendship drifted apart at the end of year 10; and that they had not really seen each other since.[168]
[163] T 263.
[164] T 263.
[165] T 264.
[166] T 264.
[167] T 264.
[168] T 265.
In cross examination, NN said she kept a personal diary every day which she would write in before she went to bed while the events were fresh in her memory.[169] On 28 September 1995, she agreed she wrote an entry about BB crying at lunch, possibly about the accused leaving.[170] The next day, she wrote an entry about BB running out of art class, and that she wrote “she scored Mr [W]! She’s making a huge deal of it though”.[171] NN explained that in the 1990s, it wasn’t necessarily the initiator who “scored” in the relevant encounter.[172] NN gave evidence that she did not believe that BB said she kissed the accused in so many words. NN said that at the time BB seemed upset about it, not proud.[173] NN said here were a few girls at the school who liked the accused, one being KK.[174] NN said that she never saw any signs of jealously between BB and KK. NN said that on the Thursday, she did not necessarily believe that BB was crying about the accused leaving, but they could’ve been connected.[175] NN said that “Making a huge deal of it” likely referred to BB being upset. The later reference to BB being a try-hard could refer to her being uncomfortable and being more extroverted to cover up her nerves; they had all been drinking on the night in question.[176]
[169] T 268.
[170] T 269.
[171] T 271.
[172] T 271.
[173] T 272.
[174] T 273.
[175] T 273.
[176] T 275.
NN agreed she wrote an entry on 2 January 1996 as to BB “blowing her problems out of proportion”, meaning that BB’s problems were not as significant as her own.[177]
[177] T 276.
The next witness was KK.At the time of trial KK was 38 years old.
KK gave evidence that she attended Cornerstone College with BB.[178] KK studied music and spent time in the music room. KK recalled that the room had a lock on the door.[179] She said that towards the end of 1995 she had a conversation with BB on the topic of abuse, and they discussed the accused behaving inappropriately with both KK and BB.[180]
[178] T 280.
[179] T 280.
[180] T 281.
KK gave evidence that, in that context BB, said that the accused had been inappropriate with her, without giving details, on more than one occasion.[181] KK said that following this they spoke with the accused about it, most likely in the music room.[182] KK said that BB did most of the talking, telling him that his attitude towards the female students stank and that he was behaving inappropriately.[183] KK said that the accused apologised, saying something like “I‘m sorry about that, … thanks for bringing it up”, and indicated that he wouldn’t continue in his behaviour.[184]
[181] As later indicated the court in considering the case against the accused has ignored the suggestion that the accused has behaved inapapropriately with KK.
[182] T 281.
[183] T 282.
[184] T 282.
KK gave evidence that she later spoke with another teacher which resulted in her being required to give a statement to police.[185] She gave evidence that she does not know AA, GG or SS.[186]
[185] T 282.
[186] T 282.
KK was cross-examined about her evidence.
In cross examination KK said that the confrontation with the accused was a highly emotive conversation, so her level of stress meant that she wasn’t listening to everything BB said.[187] She does recall that BB said that the accused’s attitude stunk and that it was inappropriate. KK said that the conversation happened towards the end of the forth term, around late October, although it could have been November as she said to the police at the time.[188] KK agreed she had a crush on the accused at the time, and that she thought that she had a special bond with the accused, but she rejected defence counsel’s suggestion that she was upset that he wasn’t paying her as much attention as he had earlier.[189] She responded that she was in fact upset because she realised that his behaviour was actually predatory in relation to the students in her year and that he was in fact using her.
[187] T 283.
[188] T 283.
[189] T 284.
KK gave further evidence in cross examination that the conversation with BB arose through a social justice class; and that around that day she twigged what was going on with the accused and she took BB’s selection of sexual abuse as a topic as a sign that she was also being taken advantage of.[190]
[190] T 285.
KK said that from early 2015 she had been in contact with BB for a short period via Facebook messenger.[191] She agreed that the accused came up during their communication, and that they would discuss the Royal Commission and the processes. She said that all these messages had been disclosed, and observed that defence counsel had them all.[192] KK agreed she met with BB on 10 June 2015 at the Macclesfield Hotel, and on another occasion they met for about half an hour at a café in Hahndorf.
[191] T 286.
[192] T 290.
A number of agreed facts were tendered in relation to the accused and BB.
6.Between October 1995 and August 1996 Ms Ruth Blenkiron was employed as the Acting Manager of the Special Investigation Unit at the Department of Education and Children’s Services (“DECS”).
7.On 9 May 1996 Ms Ruth Blenkiron (DECS), interviewed the accused in relation to (BB)’s complaint to police in November 1995.
8.The accused, in conjunction with Ms Ruth Blenkiron and Ms Anne Walker (Union Representative), created the document titled “STATEMENT IN RELATION TO THE (BB) INCIDENT” as a file note and written record of the accused’s account of what had occurred at Cornerstone College. That statement is Exhibit P10.
9.Ms Blenkiron informed the accused that the “STATEMENT IN RELATION TO THE (BB) INCIDENT” would be placed on his personal file held by DECS.
10.On 28 May 1996 Ms Marilyn J Sleath, Director, Personnel at DECS sent the accused a letter stipulating seven (7) guidelines the accused was directed to follow. That letter is Exhibit P11.
11.The accused was employed as a teacher at Ross Smith Secondary School for the remainder of 1996 and the first two terms of 1997. During this period he was being monitored by the Principal, Ms Judith R O’Brien.
………
23.The complainant, Ms (BB) was born on 29 June 1981.
………
30.In 1995 the accused commenced a contract of employment with Cornerstone College as a music co-ordinator and music teacher.

Partway through examination in chief, the accused’s counsel handed Dr Begg a brief selection of annotated and highlighted extracts counsel had made from BB’s trial evidence,[408] and Dr Begg indicated they did not cause him to revise any of his views. It was still unclear why the defence did not provide Dr Begg with BB’s trial evidence in its totality, which would have provided a much more detailed and complete account and history.
[408] T 624-5, Exhibit D23.
In cross examination Dr Begg gave evidence that BPD sufferers exist on a spectrum between “mature borderline” eg normal functioning and an acute affliction.[409] Many of the DSM-5 criteria can be found by observing the history of the person, and sufferers only need to meet five of the nine criteria to be diagnosed with BPD. Dr Begg said that while he agreed that there was sufficient to diagnose the disorder, he simply could not judge how much that might affect BB’s day to day behaviour, in other words where she sat on the spectrum referred to.
[409] T 627.
In further cross examination Dr Begg gave evidence that sufferers commonly have poor impulse control, overly strong emotions and a poor sense of self.[410] In terms of the symptom of ‘disassociation’, Dr Begg said that disassociation refers to a breakdown in the normal connection between thoughts and emotions which can occur along a continuum of severity, including a person responding in an emotionless behaviour as though the traumatic incident is not really happening to them.[411] This can make someone’s understanding of the events better or worse depending on the sufferer, including a vivid and accurate recollection of what took place. [412]
[410] T 628.
[411] T 629.
[412] T 630.
Dr Begg said that it is common for everyone to experience a fight/ flight or freeze response to events, but a person with BPD will be less tolerant of those feelings and more prone to disassociate.[413] Dr Begg said that BB’S description of watching herself from afar is an example of disassociation but he cannot diagnose what sort of disassociation she experiences, ie a vivid recollection or an inaccurate recollection.[414] Dr Begg said that whereas a sufferer is more likely than a healthy person to have a distortion, he cannot determine that here without more information,[415] indeed her relationship could have been a true reflection rather than a distortion.[416] Suggestibility can occur when a suggestion of what happens is made to a sufferer and they then adopt that as a true reflection of events.
[413] T 631.
[414] T 633.
[415] T 633.
[416] T 634.
Dr Begg indicated that BPD is common for sexual abuse sufferers; hallucinations are unusual when sufferers are not under stress, often they are pseudo-hallucinations as an internal response where there is an element of disassociation.[417] Dr Begg said that BB may have an accurate recollection of what has happened, even when under stress and when suffering trauma.[418]
[417] T 636.
[418] T 637.
Assessment of primary witnesses
The court has had close regard to the evidence of all the witnesses in the case, the exhibits tendered, and indeed has subjected the prosecution witnesses to special scrutiny in light of the age of the matter and the corresponding forensic disadvantage suffered by the accused. The court has read and re-read the evidence given and reviewed all exhibits tendered.
The court has also had close regard to the submissions of counsel and has applied all the normal directions a jury would receive concerning the assessment of witnesses in a case such as this and generally. The court will not set out counsels’ submissions but has closely considered all their submissions, particularly as those submissions concern the crucial issues of credibility and reliability of each of the complainants.
AA gave detailed evidence as to the events surrounding counts 1 and 2. The preliminary impression she gave in the witness box was of a mature, articulate and sensible woman. The accounts she gave of the events comprising counts 1 and 2 appeared sincere and credible. The account she gave of the accused firstly suggesting she have private lessons, then over time in the course of those private lessons standing closer to her, then touching her, then the touching becoming more intimate had the distinct ring of truth about it. Her account of the gradual process whereby the touching led to kissing on the neck, all in the context of the accused seeming to become close and a friend to her was an ultimately sad but all too familiar and highly credible account of a grooming process preliminary to the alleged intimate kiss and alleged intercourse to come.
AA’s demeanour and delivery were impressive, and she became genuinely and seemingly sincerely upset at times in the course of her evidence that accompanied the more upsetting aspects of her evidence, for example when describing the aftermath of the alleged intercourse and her efforts to talk to the accused about it at his teacher housing premises a few days later.
AA’s account of why and how she first complained about the incident, in the context of trying to empathise and connect with her partner when he was going through a difficult time, appeared credible and compelling. That was consistent with the charged events having occurred. The court has carefully considered the defence submission that she fabricated the alleged offending against the accused in that context and then felt obliged to both take it to the Royal Commission, and inferentially for that same reason felt obliged to pursue that fabricated case against the wholly innocent accused, perhaps even convincing herself that it had all happened. Giving that submission the fullest weight, and closely considering the evidence, and always bearing in mind that the accused bears no onus whatsoever even to suggest a motive to lie, there was simply no suggestion of that occurring in this instance, and indeed if one were to fabricate allegations for that purpose there would be no need to fabricate two separate allegations and a long course of grooming with the detail that AA provided.
The court has regard to the matters put to AA in cross examination from her statements and the suggested inconsistency therein. The court has full regard to the submissions made by the defence concerning those statements and in particular all the matters set out on pages 1 to 17 of the defence closing written submissions.
In each case AA agreed that she had made the recorded statement concerned. In each case AA provided an explanation of why she said what she said. She explained where her recollection had changed or improved or worsened over time, and she described the circumstances whereby that had occurred. In each case, her explanation was frank, credible, and understandable in the circumstances as she explained them.
Issues raised with her in particular were details as to the window in the practice room where count 2 was said to have occurred, her reported age at the time of the offending, and for example whether she was in the room with the accused in the relevant year with her flute or whether her attendances in the relevant year when they were allegedly alone together in the music room only related to her singing. AA’s explanations about her memory at the time she gave the statements, and her recall of these details, and of how she corrected her age after thinking more carefully about the year when it occurred, were all credible and convincing.
In terms of the complaint evidence, AA said that she first mentioned the offending to her partner in the context of the boating tragedy that her partner had suffered, so as to empathise with his suffering and indicate she had been through difficult times as well, and the partner also gave evidence that she told him at that time. Those circumstances are credible and consistent with AA’s evidence as to the nature of what occurred at the time of the offending and her attitude to it then, and what she was trying to achieve in mentioning it to her partner at the time of his particular trauma. The partner also said that she had mentioned something briefly in passing to him the year before, which AA did not mention or recall in her evidence. It is likely that, as a throw away comment by AA who had suffered the abuse herself, it may well not have been recalled by AA as it was a brief reference to what she already knew, but would be much more likely to stick in the partners mind, hearing such an allegation for the first time. The evidence indeed gave the appearance that AA and her partner had not put their heads together and were operating from their own honest but separate memories of the circumstances of the complaint.
The defence submitted that AA was both very clever and a talented drama student who accordingly could have made everything up, and who also therefore claimed she had tried very hard to not spend time with the accused after the alleged events, when in fact the evidence of GG and to a lesser extent WW was that they were variously, seen talking and together in that period. It is clear that GG and WW memories of whether AA had been relating to the accused in an uncontroversial way 20 years previously in the school yard, and whether that was before or after the “Money Talks” production were understandably general and impressionistic. AA never said that she did not speak to the accused after the charged events, indeed she said that she did participate in the school’s productions over the next two years and that the accused was involved with them. Rather, she primarily indicated that she tried never to be alone with the accused, meaning alone in a room where such events could be repeated. AA never said she did not speak to him in the schoolyard.
AA in the course of her evidence said that she might have seen GG and her sister last in around 2010 at a meal at Fasta Pasta, but said that if she did there would have been no discussion of the events involving the accused. When GG and her sister gave evidence they did not recall such a meal. Given that no-one suggests that if such a meal occurred eight years ago that anything of consequence occurred at it, it is quite understandable that some or most of the attendees would not recall it. The inconsistency does not therefore reflect adversely on any of the participants.
As to the timing of the interview at the television station, relevant to the time of day of the allegations that form count 1, the independent evidence is, upon close analysis, equivocal. The evidence is that while often or ordinarily interviews would occur during the daytime, it is clear that they could occur anytime, depending on the availability of those to be interviewed. The reality is that it was never in dispute that the accused drove AA alone to the television station for the interview and accordingly had every opportunity to park in a secluded spot by the Blue Lake and kiss AA exactly as alleged.
In the final analysis, AA was a mature, articulate and sensible witness who gave evidence clearly, well and with all the appearance of being a completely truthful and reliable witness, in particular as to the events comprising both counts 1 and 2 in the information. The accounts she gave of the events comprising counts 1 and 2 came over as sincere and credible. The account she gave painted a compelling picture of the targeting of an attractive and mature-looking[419] but adolescent young woman, of the grooming of her, and of the accused firstly kissing her then having intercourse with her. Her account had the distinct ring of truth about it. AA’s demeanour and presentation were excellent, and even giving the fullest weight to the defence’s submissions that AA was clever and at the time a talented actor, she had all the hallmarks of an honest and truthful witness giving a reliable account of what had occurred to her. The various inconsistencies put to her were in the final analysis minor and completely understandable in light of the timing of the events and her recounted efforts to recall them, once the matter was proceeded with in recent times.
[419] See for example the video of the “Money Talks” production tendered as P4 and the extracted stills tendered as P5.
GG gave evidence concerning counts 3 and 4.
GG came across in the witness box as a very open and straightforward person. She was also mature, thoughtful, and gave the impression that she was a little surprised that this had all been brought up so many years after the event, when she had tried very hard to put the events out of her mind and move forward with her life. She seemed to bear no great animosity towards the accused and indeed it is the case that she had not actively pursued any complaint against him at the time nor over the many years since the event. Indeed GG gave the impression on more than one occasion that she did not particularly want to be here in court having to think back, recall, and relive the events in question.
GG’s evidence as to the accused touching her breast after resting his hand on her shoulder, was straightforward and credible.
There is in the court’s view no probative evidence as to complaint, any such evidence being vague and recent. The court has regard to the defence submissions generally as to GG and her sister’s evidence as to complaint, and in particular that the alleged complaints to GG’s sister did not mention the touching of her breast. Having closely assessed GG, it is likely this is due to GG playing down to her sister what she alleged had happened, consistent with her overall stance of trying to put it all behind her and forget about it.
There was a degree of uncertainty and inconsistency from GG as to on which of the two occasions the accused kissed her, or rather had just tried to kiss her. The court has described some of that inconsistency earlier in these reasons, and indeed had close regard to the defence written and oral submissions concerning the issue. In each case GG accepted what she had said on the prior occasion, and explained her efforts to recall events and how, in effect the inconsistencies were due to her memory and the passage of time. On close analysis, the evidence gave the impression that the inconsistency occurred as GG has indeed tried to put these matters out of her mind, and now many years after the event she has had to think through and try and distinguish two similar events a short time apart each of which involved a recollection of the accused either kissing her or trying to kiss her and which on each occasion she recoiled from. She has thought about it intently at trial and it is likely that her final position after the adjournment that the accused kissed her on both occasions, which the court adjudges to be an honest and genuine effort to recall the events, may well be true and accurate, however it is possible that elements of reconstruction and assumption may have played a part in reaching that final position. At the end of the day, whilst it is likely that that GG’s final position represents an actual and best memory of the events concerning the kissing issue, an element of uncertainty remains as to when and how many times the kissing occurred, on the prosecution case.
BB gave evidence as to count 5.
It must be said that from the outset BB was a very impressive witness in the witness box. She is currently a senior South Australian public servant, having previously worked in public relations and operated her own businesses. She came across as an intelligent, thoughtful and mature woman. She has tertiary qualifications and a postgraduate qualification in psychology. In the witness box BB gave evidence in a sensible, careful and straightforward way. BB was taken through the relevant events in detail and responded well and in an apparently credible and considered manner.
Her evidence as to the accused talking to her personally, about a range of personal and musical topics such that he related to her like a friend or peer and thereby developing a bond between them, presaging the offer of private lessons, which such lessons then involved the accused starting to touch her shoulders and diaphragm had the ring of truth about it. BB’s evidence of the accused taking advantage of her distress at his imminent departure and hence her apparent affection for him, to sit beside her, start hugging her and then to kiss her on the mouth also had the ring of truth to it as it was given.
BB was cross examined extensively concerning the events, her relations with and contact with the accused, and the issues she has had in her life including her diagnosed BPD and including at least one other instance where she was sexually assaulted, and these issues were to varying degrees examined in detail. Her answers appeared consistently open, spontaneous and very frank in response to the questioning on these often very personal and potentially upsetting topics. BB came across as open about the various challenges she has had in life and how she has dealt with them. She at no stage appeared to minimise or dispute any of these issues or avoid addressing the sometimes upsetting and challenging questions.
Her account of events the subject of count 5 was clear, seemingly credible, and remained largely consistent throughout the course of examination in chief and the lengthy cross examination.
Her evidence as to her complaint to NN was in the court’s view consistent with the event having occurred. The complaint is recalled slightly differently as between the two, BB saying that amongst other things she told NN that the accused had kissed her, and NN recording in her diary that BB had ‘scored’ the accused, meaning something intimate had occurred, along with NN recalling that while she could not remember the words exactly, BB was very upset. It is clear from both BB and NN’s evidence that BB was also very upset that the accused was leaving the school.
BB agreed that what she had said to police at the time was less serious than what she now alleged, but maintained that was deliberate as she did not want to get the accused into trouble at the time, and only gave the statement because she thought at the time that she had no choice not to give a statement. That evidence is consistent with the unchallenged evidence that she told police at the time that she did not want to pursue charges against the accused.
The court has close regard to all the defence’s submissions as to BB and why she might be making the allegations up or imagining the events in a far worse light than the actual reality, for example that BB was suggestable and that KK’s comments to her in the context of BB’s choice of sexual abuse as a topic for her presentation suggested or put into BB’s mind that the accused may have abused BB.[420]
[420] See for example para 13.1 of the accused’s closing written submissions.
The court has close regard to Dr Begg’s evidence as to BPD, BB and all his observations concerning the matter. The court makes full allowance, in the accused’s favour, as submitted by the defence that the court should do,[421] for the fact that Dr Begg did not examine BB nor have access to her medical records. However it was common ground between the prosecution and the defence, as it was common ground between BB and Dr Begg, that BB had indeed been correctly diagnosed with BPD, and had indeed suffered from it for a significant period of time. BB did not dispute the diagnosis and that she had suffered from the condition for a considerable period of time, nor did she dispute the DSM 5 symptoms that such a condition could reflect.[422]
[421] See for example para 16 et seq. of the accused’s closing written submissions.
[422] The relevant extract of DSM 5 was tendered as D23.
The Court agrees that, as submitted by the defence, the court should carefully scrutinise BB’s evidence and closely consider, or as submitted by the defence ’warn’ itself to carefully consider, whether the BPD which all agree BB has suffered over time affects her reliability. The condition indeed is a basis to scrutinise her evidence carefully,[423] and consider whether as submitted by the defence[424] the potential distortion of reality a BPD sufferer can have raises a real possibility that BB has a different recollection of events from that which in reality occurred.
[423] Para 17.1 of the accused’s closing written submissions.
[424] Para 17.2 of the accused’s closing written submissions.

As set out in R v Bromley,[425] the Court directs itself that if it finds BB’s mental condition may affect her capacity to give reliable evidence, which the court finds such condition has the potential to do, the court must approach her evidence with considerable caution and scrutinise it with special care. The Court may at the end of the day act on BB’s evidence if convinced of its accuracy, aware of the possible danger of acting on her uncorroborated evidence.
[425] (1986) 161 CLR 315
It was of some concern that Dr Begg was not provided with any of BB’s extensive trial evidence prior to forming the various opinions he formed, assumed adversely to BB for the purposes of his evidence a critical matter actually in full dispute at trial ie the issue of whether there was a normal teacher-student relationship rather than a special ‘grooming’ process occurring, and wrongly assumed that an ‘enraged’ BB had initiated the allegations of abuse at the time when the actual evidence was that she never initiated any complaint against the accused at the time and watered down the contemporaneous statement she was forced to give the police at the time to reflect an innocent ‘comforting’ process because she still regarded him as a friend and did not want to breach the trust she thought was between them.
This very sparse and partial provision of available material to Dr Begg by the defence, and his wrong assumptions, materially reduce the probative weight the court can ascribe to Dr Begg’s views insofar as they affect what may have affected BB in the specific instance at bar. On the other hand, there is no cause to in diminish Dr Begg’s general comments and views as to the nature of the BPD condition.
All agree,[426] as does Dr Begg, that it is open to accept that the events alleged by BB did occur exactly as she said they did. Indeed Dr Begg indicated that while BPD can involve the various distortions and inaccuracies he mentioned, the condition is often associated with sexual abuse sufferers, and it can sometimes mean that the person’s recollection is particularly vivid and accurate. The court has regard to the full extent of Dr Begg’s evidence, and has taken it all into account, and as a result has very carefully scrutinised BB’s evidence in light of everything Dr Begg has said, and the principles set out in R v Bromley.
[426] Para 17 of the accused’s closing written submissions.
All that said, and closely considered, BB came across as an intelligent, mature, sensible, highly credible and reliable witness who remained consistent over extended examination and cross examination as to the events she said occurred, which such events also had the ring of truth about them.
The circumstances of BB’s complaint were consistent with the events having occurred, and her evidence as to the surrounding and subsequent circumstances was supported variously by both NN and KK. Both NN and KK were credible and reliable witnesses.
SS was the complainant in relation to count 6.
SS was also a mature woman, aged 36 at the time of trial. She gave evidence very well, demonstrating a clear and essentially consistent recollection of the alleged events. SS came across as a quiet, contemplative, careful and straightforward witness with a good recollection of the events she was describing.
SS’s evidence was peppered with credible and convincing detail, including the way the accused engaged her in conversations about the music industry, and how the accused worked into that area of conversation more personal topics such as her needing to wear revealing clothes in that industry, wishing she was older, whether she was allowed to receive personal calls at home, getting her phone number, how he would be able to help her musical career, get her gigs, and whether she would be able to go to his house to play music with him there.
At the end of the day SS presented as a quiet, palpably honest, and reliable witness. She was very convincing.
SS’s mother was a very good witness, who presented in a reasonable, rational and straightforward way. She gave every appearance of an honest reliable witness giving an accurate recollection of events.
KM and RS gave evidence in support of SS’s evidence. They were both good witnesses who presented as clear and reliable.
In particular they both supported SS’s evidence that the accused gave SS private lessons, with KM indicating that the accused did lock the door when the accused was conducting private lessons with SS. KM’s evidence as to the events on the days of the alleged offence supports SS’s evidence that she did go and see the accused that day, and KM’s evidence that when SS then exited the room SS’s demeanour was significantly affected was consistent with SS’s evidence that at that moment she was shocked and had frozen at the accused kissing her on the lips.
Each of the other witnesses in the prosecution case was credible and straightforward.
The accused gave evidence on oath.
The court has regard to the accused’s evidence on oath and takes into account all the defence submissions in support of it, and importantly the issues of forensic disadvantage earlier discussed, and the fact that the accused is entitled to credit for giving evidence on oath.
The accused denied on oath all the allegations against him. He was extensively cross examined.
In relation to allegations that were either not raised at the time or he denied at the time, he flatly denied those allegations at trial. In relation to count 5 that he indecently assaulted BB by kissing her, wherein he is recorded at the time in the subsequent investigation as admitting per his own statement as kissing BB, the accused said that his statement was wrong and that BB kissed him, that he could not recall how his statement which he asserted to be a draft had somehow got into the hands of the department. This was prima facie inconsistent with agreed facts 6 to 9 wherein the accused had agreed that the statement was an agreed document created in conjunction with others that was placed on the file as his official account of the events.
Unfortunately, simply stated, overall, the accused was a poor witness. For much of the initial portions of his evidence, the accused looked downwards, avoided eye contact and mumbled. His delivery was uncertain and unconvincing, yet the content of much of his evidence purported to be detailed.
The accused was inconsistent over the course of his evidence as to whether he had one on one teaching relationships with students. His denials of such contact and teaching in relation to the complainants who alleged it were particularly unconvincing. His change of account over time as to the occasion he attended SS’s house had all the flavour of a deliberate change of evidence designed to support his stance that he was not pursuing SS.
Unfortunately, at the end of the day, the accused was a poor witness.
Consideration and conclusions
The court has considered all the evidence strictly within the parameters of its espoused and articulated purpose and admission. In particular, the court ignores any other potential use or possible purpose of any evidence that it might otherwise have, such as similar fact, propensity or discreditable conduct evidence. In particular, in relation to some of the complainants, other conduct led either as to the accused’s other conduct occurring on the occasion of the charged offence or as occurring on another prior occasion before the charged offence, is entirely ignored for any such other or any impermissible purpose.
The court disregards any evidence of any other inappropriate conduct alleged by any witness against the accused, except insofar as it was led by consent and without objection as part of the narrative. Any such evidence will not be considered in any way adverse to the accused, either as discreditable conduct or to suggest any propensity or bad character.[427]
[427] For example KK made passing reference to a suggestion that the accused had also behaved inappropriately in relation to KK.
The court initially considered the case against the accused in relation to each complainant separately, based only on the evidence against the accused relating to that single complainant.
The court has had regard to all the exhibits tendered and the submissions thereto.
In relation to each count, the court has regard to everything called, tendered, put and argued by both the prosecution and the defence. The court has regard to the accused’s evidence on oath and the accused’s case, and has considered each and every argument put and submitted by each counsel, and in particular defence counsel.
In the final analysis, overall, the direct evidence in this matter has proven so clear and compelling it has been unnecessary to have regard to the evidence in relation to the allegations comprising 1, 3, 4, 5 and 6 which the prosecution led as ‘similarity of account’ evidence in support of its case concerning those charges. Whilst the court ruled that evidence admissible prior to trial, the court has not placed that evidence into the scales against the accused.
The Court has carefully considered all the evidence and concludes beyond reasonable doubt that there has been no collusion between any of the complainants concerning the matters alleged against the accused. There was no indication of such collusion and their evidence to the effect that there was variously no contact or no discussion about the alleged events was credible and reliable.
In relation to counts 1 and 2, having considered everything put and tendered, the court finds the account given by AA of the events comprising both counts 1 and 2 proven beyond reasonable doubt. In coming to that conclusion, the court has considered the evidence, and the defence case. The Court finds that the accused’s denials are not reasonably possibly true.[428]
[428] Douglass v R [2012] HCA 34 @ [13]-[14].
In relation to count 1, the court finds beyond reasonable doubt that, in the circumstances as recounted by AA on oath, the accused in August 1992, in the context of driving AA to a television interview for the school play in which AA was performing, parked his vehicle in a secluded spot adjacent the Blue Lake in Mount Gambier, placed his hand on AA’s thigh under her skirt, his other hand behind her head and forcibly kissed AA on the lips, and that AA was under the age of 17 at the time. AA was a child and legally unable to consent to an indecent assault.
The court finds beyond reasonable doubt that the accused’s action in kissing AA on the mouth in the described circumstances was an intentional and unlawful application of force without AA’s consent in circumstances of indecency with a sexual connotation, and that each of the elements of the offence of indecent assault have been proven beyond reasonable doubt.
In relation to count 2, the court finds beyond reasonable doubt that, as described by AA in her evidence, the accused, in August 1992 took AA into practice room 3 of the music room at Penola High School, took a condom from his pocket, said to AA 'This is for you', laid AA on the floor, removed her underwear, laid on top of AA then saying 'I need to know that this is consensual' to which AA replied 'Whatever' or 'Okay', and the accused then had penile-vaginal intercourse with AA for several minutes until he ejaculated. AA was under the age of 17 at the time. Consent is irrelevant to such a charge. The Court finds that the accused’s denials are not reasonably possibly true.
In relation to count 2, the court finds each of the elements of unlawful sexual intercourse with a person under the age of 17 proven beyond a reasonable doubt.
In relation to count 3, having considered everything put and tendered, the court finds the account of events given by GG as to count 3 proven beyond reasonable doubt.
In particular the court finds proven beyond reasonable doubt that in the first half of 1993 the accused asked GG to stay behind after class at the end of the school day, which she did on two occasions. On the first of those occasions the accused stood behind GG as he talked to her, placed his hand on her right shoulder, then slid his hand down and underneath GG’s clothing onto her breast leaving it there for a few seconds. GG was a child and legally unable to consent to an indecent assault. The Court finds that the accused’s denials are not reasonably possibly true.
The court finds beyond reasonable doubt that the accused’s action in sliding his hand underneath GG’s clothing and onto her breast in the described circumstances was an intentional and unlawful application of force without AA’s consent in circumstances of indecency with a sexual connotation, and that each of the elements of the offence of indecent assault have been proven beyond reasonable doubt.
In relation to count 4, having considered everything put and tendered, whilst the court accepts that GG was an honest witness and that on at least one of the two occasions where she met with the accused at the end of the school day, the accused kissed her on the mouth, in light of the inconstancies as to her account as to that issue over time and the state of her memory, it is not possible to conclude beyond reasonable doubt on which of those two occasions that occurred, and accordingly when each of those occasions is considered separately whether it occurred on either of those occasions. Accordingly, as to count 4 there is a reasonable doubt as to the charged offence as particularised.
In relation to count 5, having considered everything tendered and put, and in light of her diagnosed borderline personality disorder having approached her evidence with considerable caution and scrutinised it with special care, the court finds the account of events given by BB proven beyond reasonable doubt.
In particular, the court finds proven beyond reasonable doubt that in the last week of school term 3 1995, the accused, in the context of a private singing lesson, while sitting on a piano stool next to BB after initially stroking BB’s hair, kissed BB on the mouth inserting his tongue into her mouth. The kissing continued for approximately 20 minutes and was accompanied by other fondling. BB was a child and legally unable to consent to an indecent assault. The Court finds that the accused’s denials are not reasonably possibly true.
The court finds beyond reasonable doubt that the accused’s action in kissing BB using his tongue accompanied by the fondling described by BB, in the circumstances was an intentional and unlawful application of force without BB’s consent in circumstances of indecency with a sexual connotation, and that each of the elements of the offence of indecent assault have been proven beyond reasonable doubt.
In relation to count 6, having considered everything tendered and put, the court finds the account of events given by SS proven beyond reasonable doubt.
In particular, the court finds proven beyond reasonable doubt that in the last week of term 3 1997, on either the last or second last day of term 3 after a fire drill SS went to the school music room to return an article she had amended at the accused’s request whereupon the accused said to her “oh my gosh I’m going to miss you (SS)” moved towards SS and kissed SS briefly on the lips and said he was going to stay in touch with her. The Court finds that the accused’s denials are not reasonably possibly true.
The court finds beyond reasonable doubt that the accused’s action in kissing SS on the lips in the totality of the circumstances was an intentional and unlawful application of force without SS’s consent in circumstances of indecency with a sexual connotation, and that each of the elements of the offence of indecent assault have been proven beyond reasonable doubt. SS was a child and legally unable to consent to an indecent assault.
Accordingly the verdicts of the court are as follows.
Verdicts
Count 1 – Guilty.
Count 2 – Guilty.
Count 3 – Guilty.
Count 4 – Not guilty.
Count 5 – Guilty.
Count 6 – Guilty.