Applicants and their families
627 I turn now to the evidence of the applicants and their families about swastika at BSC.
628 Aside from the applicants, I deal here with the evidence of Zack's sister Courtney and Matt and Joel's brother Zac.
629 Zac's evidence was, in my opinion, quietly supportive of the claims made by his brothers, although I had a sense he was something of a reluctant witness. I found the restraint in the manner in which he gave evidence to be persuasive. He described himself as a Jewish atheist - a description which I find combines his continued self-identification culturally and/or ethnically as a Jewish person with the absence of an active belief in God. He described himself as not having been at all "openly Jewish" at BSC, but nevertheless gave evidence about the antisemitic taunts he received from other students.
630 Zac's evidence about swastikas began as follows:
Yes. Let's talk about swastikas. Your - what do you remember about swastikas at Brighton Secondary?---They were everywhere. Yes.
Yes. Be more specific. Everywhere literally?---Almost - I'm - on a lot of tables, if not most tables. They're in the bathroom, like, drawn on the walls. They were, like, etched into, like, the walls of the classrooms occasionally
631 Eventually, Zac was properly directed to describing, in a year-by-year way, what he had seen in terms of swastika graffiti. In years 7 and 8 (2013 and 2014), his evidence was:
In year 7, it was primarily in the - in the north block and the P blocks. I would say there was a lot of them in the north block that were scribbled on tables. I can't - I remember that in the P block, there were some that were scribbled on the lockers, which were outside the classrooms, and there were others scribbled on the - on the tables in the P block, and there was also some drawn in the bathrooms within the N block, but I believe it has been demolished.
Yes. So which N block are you talking about?---The - the main building, which is the one adjacent to Marriage Road.
Was there - when was the change, to your knowledge?---I'm not - not sure. I think it was towards the end of my schooling. And then - - -
When - yes. Where were you being taught in year 7 or year 8?---Primarily in the N block, in the part that's adjacent to Marriage Road, and then in year 8, I think it was a mix of the N block and the P block.
632 Zac's evidence is important corroboration of Liam's evidence about seeing swastikas. Zac and Liam were in the same year levels.
633 In years 9 and 10 (2015 and 2016), his evidence was:
In year 9, it was in the D block. I would say there was - it was a pretty similar situation. There was swastikas, like, etched into tables, etched into lockers and drawn within the toilet stalls. I think in - in the two major art classrooms, which are D1 and D3, there was quite a few.
Yes, and while we're on that, what sorts of devices were the swastikas drawn or made?---Well, I imagine people were using pens or pencils to etch them, or maybe scissors to etch them into the table. And the ones in the bathrooms were - were done with either Sharpies or Textas or felt-tipped pens.
634 In years 11 and 12, his evidence was:
That was in the E block, and I would say it was probably a similar situation, although I think the E block was quite new or had been refitted, so it was - when I started, there was probably less, and then there was more that were etched - like, drawn or etched as I went on.
635 In terms of numbers, Zac's description was:
Uncountable. Within the mid-hundreds.
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Like, around 500. Somewhere between, like, three and seven hundred.
636 In cross-examination, when asked about numbers he said:
There were so many I couldn't count them.
637 Subject to one matter, I accept Zac's evidence. His evidence was careful, not exaggerated, and I did not find him to be a witness who was giving evidence in any overenthusiastic effort to support his brothers or the applicants more generally. I found him a serious young man who was recollecting experiences that had disturbed him, but which he had attempted to deal with by putting to one side, and not reacting to them as much as he could. That is an understandable coping mechanism in the circumstances, not the only one - as my findings about Joel and Matt explain - but one I find was employed by Zac, and goes some way to explaining why, unlike his brothers, he did not complain to the teaching staff or leadership cohort at BSC.
638 The one matter I do not accept, in terms, from his evidence, is the same matter I do not accept, in terms, from many of the other student witnesses. Namely, the estimate of 500 swastikas as a raw number. As with many of the other student witnesses, I find that the number nominated was a guess. However, the inference I draw from the number, taken cumulatively with all of Zac's evidence on this, as with the other student witnesses, is that he gave a number like "500" as his way of emphasising that there was a very large number of swastikas that he observed over his time at BSC. Using a figure such as "500", in common parlance, signifies to the listener a very large number. That is, I find, what Zac intended to convey and to that extent I accept his evidence that over the period at BSC he directly observed, in every year he was there, a very large number of swastikas around the school grounds, in the classrooms, and in places such as toilets and locker areas.
639 Courtney's evidence about swastikas should be seen through the lens that she was until not long before trial still a student at BSC. She was the youngest of the student witnesses. She was at BSC through years 7 and 8, and only a few days of year 9 before she left. She gave evidence about a specific swastika incident in one of her year 8 classes:
I've told them an incident that happened with my friend where they wrote - where boys in her class wrote swastikas on her book. And I told the teacher with my friend, and he said he would do something about it when - after a while he didn't, and we kept on asking, and he hasn't. He didn't do anything.
640 Courtney gave the name of her friend whose book was written on, and the names of the boys who drew the swastikas. She identified the teacher coordinator she told as well, a Mr Chalk, who otherwise did not feature much in the evidence. She then described the punishment she knew the boys received:
Did anything happen to the boys at all?---They - as a punishment, they - they got to go on an excursion to the Holocaust Museum for the whole day and when they came- and when the boys came back, they basically made fun of the place and laughed at it.
And how did you feel when they laughed at you?---Pretty frustrated, to be honest.
641 There was no evidence from the respondents about this incident. They did not, for example, tender a Chronicle entry to demonstrate that Courtney's complaint had been recorded. They did not tender any Chronicle records to demonstrate this disciplinary consequence had been imposed. I infer there was no record of this complaint and the disciplinary consequence, because the respondents were otherwise astute at tendering any Chronicle records which contained disciplinary consequences imposed for complaints about antisemitic conduct.
642 In terms of her direct evidence about the swastikas she saw around BSC, Courtney's evidence was:
MR BUTT: And what about swastikas, did you see those at school?---Yes, I saw them across the building in year 8 in 2021 when I was there.
Sorry?---In year 8 and I saw them on the walls and in the bathrooms and so, in year 7.
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Maybe when you see the map, tell us what you saw in year 7 and tell us what you saw in year 8?---In year 7, in the - in the N building, around - in year 7 and 8 there was in N2-22 and N2-23 there were a lot of swastikas on the tables and the chairs, like, the whiteboards. And there were some on, like, the side of the lockers and next to N2-23, where the bathrooms were, inside, like, in cubicles, there were swastikas on the back of the door.
How big were these swastikas?---Probably like four to five centimetres.
Yes. How were they drawn?---I think they were drawn with Texta and pencil and then in year 9, in the nine days I was there, I saw some in the D building around D7 and in the bathrooms next to D2 and D1.
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And how many did you see - well, while you were a student there?---There were, like, 40 to 50.
And did - how did that - was it consistent across the time or was there more or less in different times?---When I - in year 7, there was less than the other years and it got, like, gradually worse as, like, as in going into year 9.
643 Courtney was then asked if she told anyone:
Yes. I told Mr Chalk and most of the time when there were - and it came up, I often didn't really say anything because I didn't want attention to be drawn to me, because they I would be called many things when I have, like, "You're a snitch," and swear words to me.
Where did you tell - where did you have that conversation with Mr Chalk?---In his office and when - and, like, recess and lunch.
So when you told him, what did he say?---Pardon? Sorry.
Did he say anything? What did he say when you told him?---He said, like, "Yes, we will look into that or we will try and get it removed," and after a year, two years, it's still there.
644 Like many of the other BSC student witnesses, Courtney gave evidence that she did not hear Mr Minack and BSC teachers ever telling students not to draw swastikas, and that aside from the one incident she did not see students being punished for drawing swastikas. She added:
They [the teachers] didn't comment on the swastikas. I didn't hear one teacher say that it was disrespectful and that they should remove them, them being Jewish or not.
645 She explained why she did not complain:
Because even though I already complained many times before, I felt like there was no need to any more, because they weren't going to do anything about it, and because of past experiences. And if I did go to them, I would get called many things if I did, and it seems like the principal just wouldn't do anything, so I gave up and just let it go and had to deal with it.
646 In cross-examination, Courtney was asked about the complaints she made to Mr Chalk:
Okay. And it was just a report to Mr Chalk, no other teachers?---Yes.
And you reported it once?---Yes.
Okay. And what - do you recall what you said to him?---I said - from what I can remember, I said that there were swastikas around the school, and I didn't feel comfortable, and they were pretty disrespectful.
Did you tell him the location of the swastikas?---Yes.
Did you take him to them and show him?---No.
Where were they located? Where did you tell him they were located?---Bathrooms, walls, chairs, tables.
Did you give him a specific area, or did you just say bathrooms, walls, tables?---I gave him specific areas.
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So you said you did give specific locations. Do you recall the words you used when you were telling him the specific locations?---From what I can remember, I told him specific, like, rooms, in 222 and - and 223 around where I was mostly doing my learning, and in the year 8 building as well, with the rooms and the bathrooms.
Is that what you told Mr Chalk, or - - -?---Yes
647 Courtney was cross-examined about her estimate of 40 to 50 swastikas that she observed, and that the number was no more than a guess. She responded:
Well, mostly from being - in the start of year 7, I could definitely say there were about 20, 30, and then going into year 8, there were more than that. And from what I can remember, I can definitely ..... say that there were 50.
But you didn't count them?---No.
648 With respect to the cross-examiner, to put to this witness that she did not count them ignored the context of her evidence. Her evidence ranged across two years. I do not see how, and in what context, she would have had any reason, contemporaneously, to count all the swastikas she saw. This is but one example of some of the unrealistic aspects of the cross-examination of the student witnesses.
649 Mr Chalk was not called to give evidence. I draw no inference about that omission because Courtney volunteered her complaint evidence for the first time in the witness box and the respondents were not on notice of it through her witness outline. The respondents' main submission about Courtney's evidence is that her evidence concerned events outside the relevant time period and was irrelevant. That is because the events occurred in 2021.
650 I do not accept that Courtney's evidence about her specific swastika complaint and what occurred is irrelevant. To the contrary. First, it is clear and probative evidence of the kind of student antisemitic behaviour that occurred in a classroom at BSC. In that sense it is consistent with the applicants' own evidence about similar classroom conduct. Second, by 2021, the tragic treatment of Courtney's brother Zack, at the hands of a group of BSC students and motivated (as I find elsewhere) by the fact Zack was Jewish, was likely to have been, I infer, well known amongst BSC staff. It was unsurprising, but appropriate, that Courtney's complaint about the swastikas was taken seriously by Mr Chalk. The year 2021 was also the year after the Worklogic inquiry, which was completed in October 2020. I infer all BSC teachers were by 2021 well aware of the need to respond appropriately to complaints about antisemitism. I find this illustrates the stark differences in approach at BSC between what occurred during the relevant period and what occurred after the applicants' complaints and the Worklogic report.
651 I find that, prior to the end of 2020, there was not in the evidence to which the Court's attention was drawn a single example of a disciplinary consequence where students who had engaged in antisemitic behaviour were sent for a study trip to the Melbourne Holocaust Museum. Not once. Although this was, I find, not the only appropriate disciplinary consequence, it was an obvious one, and an educative one. Whether or not it had the desired impact (Courtney's evidence may suggest it might not, especially without appropriate teacher follow-up), it was a proactive attempt to educate students about the impacts and context of their antisemitic behaviour. This approach was not present, on the evidence, during the relevant period. These findings are consistent with the other evidence, including from Mr Minack, that suggests BSC as a school, and Mr Minack and the leadership cohort in particular, have sought to ensure the recommendations made by Ms Dickinson were implemented, and acted upon. That was because, I infer, Mr Minack was required to ensure that occurred, rather than because he necessarily wished to.
652 Both Zac and Courtney were cross-examined, as the other student witnesses were, about whether they reported what they saw, whether they took notes or photographs, and their inability to give any evidence about the response of "the school" to any reports that were received. Like most of the other student witnesses, they responded appropriately, essentially accepting all the propositions put to them. As I have found for the other BSC student witnesses, I do not consider those (appropriate) concessions detract from their evidence about what they observed, which I accept. Nor does it preclude an inference being drawn, which I do draw for reasons I explain further below, that Mr Minack and the teaching staff at BSC over the relevant period are likely to have observed swastikas around the school, in excess of the specific examples about which they gave evidence, without any or any adequate action being taken to remove them or to address the ongoing student behaviour in drawing them.
653 The applicants' evidence about swastikas was not uniform. It is fair to say this aspect of antisemitic behaviour featured larger in some of the applicants' evidence than others. This was especially so for Joel and Matt. That feature is consistent with the fact, I find, that it was Joel and Matt who did most of the complaining about the presence of swastikas, and were the loudest voices to Mr Minack and BSC teaching staff about the presence of this graffiti at BSC.
654 Liam's evidence was that he saw swastikas:
Everywhere. In the male bathroom. I couldn't say if they had in the female bathroom, but they were all over the cubicles, all over the mirror, in the classroom, on the table, underneath the table, on chairs. They were everywhere.
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So how did that feel seeing it around the school?---Terrifying that this was normal. It was a normal culture to walk around the school and see swastikas everywhere.
And for what duration of time did you see those while you were there?---The entire time that I was there.
How did the numbers change?---Increased. Increased. There was - I remember there were maybe 15 swastikas in one of the cubicles that I went in, and - I mean, obviously I didn't go into the same cubicle every time, but there were numbers more throughout the years that I was there.
If you had to put an approximate figure on it, what would you put?---I would say over the two - two and a bit years that I was there, from 15 it probably went up to about 40.
And what about your property, your personal property. What, if anything, happened to that?---My locker was graffitied on a lot. Phrases such as heil Hitler was written on my locker. Luckily, it wasn't used with permanent marker, so I was able to take it off quite quickly.
What was it used with?---Sorry?
What was it used with?---Like, a pencil - a grey lead pencil, which I was able to rub off with a standard rubber. And I went again to the administration office to complain that my locker had been defaced with "heil Hitler" on it. They didn't say, "Can you come show us? Would you be able to take a picture of it for us and show it to us? We will have a look at it later." Nothing. They just said, "We will write it down and we will give it to the principal."
655 I return later in these reasons to this kind of evidence given by Liam about what happened when he went to the BSC office to complain.
656 In year 8, Liam's evidence was that the graffiti became worse:
My locker, again, was defaced, on the inside this time as well. Cubicles - I mean, it's not my property, but cubicles, the - the swastikas were everywhere, more so than the previous year. The - the phrase "Heil Hitler" was written on my locker, again in pencil, so I was able to rub it out. And I - I went to the administration office so many times to tell them that my locker had been defaced again, that people are starting to go inside my locker and - and draw stuff in there. And it was my property and I didn't feel comfortable knowing that people were able to get into my locker and to get to my stuff.
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And so what was the standard process that you - you're going - you're saying you're going a lot to - what was the process?---I would go to the administration office. I would tell them what had happened. On more than one occasion I would ask them to come down and have a look. I wouldn't have rubbed out the - the swastika or the -the "Heil Hitler" sign yet, because I wanted them to see. And I just recall days of waiting for something to happen. But every morning I would come back to my locker and still see the "Heil Hitler" sign on there and a swastika, to - to the point where I just rubbed it off myself.
657 I accept Liam's evidence. I explain below why I consider his evidence was generally honest and reliable, contrary to the respondents' submissions. His evidence has the additional attribute of establishing the way he was targeted by other students, with this kind of graffiti being specifically directed at him. I infer that is because he was easily identified as a Jewish student. I accept, and find, as I explain in more detail below, that Liam may also have been targeted for bullying because he was a quiet and somewhat shy young man. Nevertheless, it is clear on the evidence that the kind of bullying he was subjected to had an overwhelmingly antisemitic flavour and therefore it was the fact he was Jewish which can be identified as the principal reason for the disturbing treatment he experienced.
658 Guy's evidence described how his first visit to BSC as a sixth grader, for orientation, was the first occasion when he observed a lot of swastikas around the school. That was at the end of 2016:
And when we came in, immediately, you could see that there was swastikas everywhere, which, at the time, I wasn't sure of their meaning fully, but I was aware that it had something to do with Jews and Nazis which I had learned about previously, and there were students - many students from higher year levels that we had met that - they introduced themselves and we would talk to them and they would make some jokes that were - at the time, to me - I didn't know that they were highly offensive, but I quickly realised as I learned more and more about what it is to be Jewish and what - what happened during World War II and the significance behind those things and why they were eventually hurtful.
659 This was a specific recollection Guy had, and I found it persuasive in terms of how different the swastika graffiti situation at BSC was from other school environments.
660 Guy gave specific evidence about swastikas being drawn on his books, such as the following:
And in terms of swastikas, what, if anything, happened to your property or books?---Yes. So I just said in class, Timur [redacted], in Year 7, at least, he would draw swastikas on our books. Just at random times, he would say, "Guy, can I see your book?" And then he would draw it, and there was nothing really I could do to stop him because I - I was quite scared of him, so I just allowed it to happen.
661 He explained why he did not complain:
we had the idea that the bigger kids - and the bigger kids would tell us that, if we told on them, or if we - yes - if we told on them, that they would just bash us or beat us up, and I believed them, and the students in our year level, they were all bigger than me, so I - they - they also took - took up that sort of mindset that, if someone would tell on them, they would tell them that they would beat them up.
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in year 8 there was a group consisting of a kid name Elias [redacted], Jack [redacted], Lucas [redacted] and Timur [redacted], and there were some others, but I don't exactly remember their names. And so that was a group that kind of - that was controlled anti-Semitism in the school as they - they were, like, the biggest kids and the scariest kids.
662 I accept that evidence. As I have explained elsewhere, Guy was a persuasive, careful and reliable witness, in my view. He was clearly reasonably small in stature and I accept that he felt unable to complain against the other students he identified.
663 Guy also gave evidence about his direct observations of swastikas around the BSC grounds and building:
So generally, they were all over the school, but there's ones that I can remember because I saw them every single day where - and so in the W building, so W11 and 10. They were drawn on - on the desks with permanent marker and on the tables, the legs of the tables. There was a swastika there as well. There was - on, like, two of the tables. There was two on one and one on one - another one in W10. And W11, there was one I remember drawn underneath the desk. In terms of the P buildings, in P4, there was one carved into the desk ..... that I saw drawing in class was Paul Varney that I had reported to him. I told him that there was one literally carved into the top of a desk. And there was - - -
Which year was that? Guy, which year was the report?---Year 8.
And what did you say to Mr Varney?---I told him that there's a swastika literally carved into the desk.
What did he say?---He said he will tell someone about it.
Did - did anything happen?---To the - from the, like, to the day that I left the school a year later, it was still there, so - - -
Right. Sorry, continue, please?---There was, on the P buildings behind - facing towards the hockey pitch, there was swastikas drawn with permanent marker on the wall of the buildings. There was one that was, like, carved into the radiator of the fan that was outside the P Building. They, like, pushed in the fins of the radiator into a swastika. In the - the S buildings, the old S buildings, there were a couple of windows that you could reach from behind where there was a small bench and you could walk up to the windows which were always dusty, due to the woodwork building being near and the sawdust being on the - on the windows. So there - the - the swastikas were, like, drawn on using the dust on the windows, so that you could see them from inside the classroom.
How big was it - how big was it?---It was pretty big, it was about, say, the size of a notebook that's open, I guess. Like, how can I describe how big it is. The size of a basketball, I would say.
Okay?---The - in - the woodwork and metalwork buildings, which were S1Pand S2, in S2, which was the metalwork room, there were - there - it said that students had used the tools from the metalwork to file a swastika onto the top of the desk - one of the desks which I sat on, and in the woodwork room, it's the same, that they had carved the swastika into the desks using the tools. On - there was one which I remember seeing every day on the stairs leading to the L4 classroom, that was drawn on the railing using permanent marker, and I think those were the ones I remember most.
And so, in terms of the size of them, what were the ranges of - do you remember the bigger ones and the smaller ones? Where were the bigger ones, where were the smaller ones?---The bigger ones were mostly on the dusty windows and the rest were only, like, the size of, like, a 50 cent coin or, like, the palm of your hand, it ranged from that.
And how many did you see across your three years?---I would say 100.
664 As well as the report to Mr Varney, Guy described reporting the swastikas drawn into the dust to his maths teacher, Ms Michaels:
I had told her that there was a swastika the size of, like, a basketball drawn on the window that I was facing and she - she said that she would get someone to look at it or to do something about it.
What, if anything happened?---Nothing.
665 He described the number of swastikas as increasing over his time at BSC:
It definitely increased as there were - the old swastikas that you would - you saw from Year 7 and then there was new - new swastikas, like, every week, up until Ninth Grade, when I left.
666 Guy explained that he now attended the American School of Milan, in Italy. His evidence was that he had not seen a swastika at that school. Many of the applicants and the other BSC student witnesses gave similar comparative evidence about schools or learning institutions they attended after BSC. That comparative evidence is a matter to which I give some weight. The situation at BSC during the relevant period was abnormal. That in itself tends to indicate a failure by Mr Minack, the leadership cohort and the teaching staff to adequately address antisemitic behaviour. It also suggests, in my view, an inappropriate level of tolerance for such behaviour.
667 In cross-examination, Guy was challenged directly about his evidence-in-chief. Unlike some of the other student witnesses, he was prepared to take on that challenge:
Now, you gave some evidence about there being swastikas, I think you said,' all over the school', was your evidence. You did have the - a phone with you at school and it - as I understand it, you even sometimes got into trouble for taking it to class, didn't you?---That's correct.
You never took a photo of any of these swastikas, did you?---No.
That would have been a very easy thing to do, wouldn't it?---Sure.
But - well - the evidence from the school will be that, when swastikas came to the attention of staff, they were removed. You're not in a position to dispute that, are you?---Yes.
Well, why do you say you're in a position to dispute that?---Because they were there. Because it's true that they were there.
Well, I think we might be talking about different things, Guy, so I just want to be clear about this. I'm talking specifically about swastikas that came to the attention of staff by way of report or because they saw them. Those swastikas were removed, having come to the attention of staff. You can't dispute that, can you?---With - I mean, I - as I said, one instance of me reporting a swastika, for example, Mr Varney, I told him that there was a swastika carved into the desk and I saw that throughout the years, all the way until I left the school and that was in Year 8 when I reported it.
We will come specifically to the one that you say that you reported to Mr Varney. Leaving that one to one side, though, are you in a position to dispute that any other of the swastikas that came to the attention of staff were removed?---I'm not sure what you mean by that.
Well, I will try and start you differently, Guy. The teachers will also be giving evidence about what - that they did not see these swastikas around the school save for the ones that they reported and then were removed. You're not in a position to dispute what they saw and didn't see, are you?---Do you mean that I have physical evidence or do you mean that I - I know that they were there and I saw them with my own eyes?
I'm trying to be careful to distinguish between things that you saw and things that the teachers will say. Okay. So - - -?---Okay.
The teachers will say that save for the ones that came to their attention they did not see any around the school and you're not in a position to dispute what the teachers say about what they saw or didn't see, are you?---I would say that I would disagree with the teachers.
Just to be clear. You disagree in the sense that you say that there were swastikas around the school?---Yes.
HER HONOUR: I don't think it's worth pursuing any further, Mr Young.
MR YOUNG: I understand, your Honour.
HER HONOUR: It's a difficult question.
MR YOUNG: I wasn't planning to.
668 While in one sense the respondents were quite entitled to pursue this line of cross-examination, as they did with every student witness, I do not consider the answers given by the students to be as probative in favour of the respondents as the respondents appear to suggest. This is especially true of Guy's evidence. What I infer from Guy's evidence is that he did not accept at all that the swastikas were not visible to the teachers, and he did not accept the teachers did not see them. That was, I find, his honest evidence based on the number and location of the swastikas. He refused to concede or accept that the teachers could have not seen the swastikas.
669 I give some weight to his state of mind on this matter. As I explain elsewhere, the teachers' evidence was by and large a reconstruction because I do not accept most of them had any real active recollections of their day-to-day observations at BSC during the relevant period. They had many other matters to focus on, at all times of the day. Their denials and their evidence to the effect that they "would have" reported swastikas, or "would have" stopped anyone they saw drawing them, is, I find, no more than wishful thinking in hindsight, given the context of a hotly contested proceeding where their attitude to antisemitic behaviour was under challenge. It is a human reaction to assert one would have reacted strongly. We all like to think in such situations that we would do so. However, I am satisfied on the balance of probabilities that the teachers, at the time and in the moment, did not in fact react as their evidence suggested they would have wished they had.
670 As for the two specific reports Guy said he made - one to Mr Varney and one to Ms Michaels - I make the following findings.
671 Mr Varney could not recall Guy reporting a swastika to him in class. His evidence was that he did not believe it would have happened because he was "pretty sure I would recall that" because it would have been "such a big event". The respondents submitted the Court should accept Mr Varney's evidence and disbelieve Guy. I disagree. I have explained elsewhere why I found Guy to be a reliable witness, and to have taken a serious approach to his evidence in this proceeding. However, he may have appeared to some teachers at BSC during his time there, at the time he gave evidence he was several years older, and I find he had reflected maturely and seriously on his experiences at BSC and had committed to participating in this proceeding, including giving evidence from overseas, because he had a truthful narrative to give the Court about what had happened to him at BSC. I also give some weight to the contemporaneous complaints by his mother Sarit Cohen to BSC, and her evidence about those complaints, and about what her son had told her at the time was happening to him at BSC. I also found Mrs Cohen to be a serious and reliable witness, who was at the time of these events very concerned about the attitude of Mr Varney towards her son, and about the reports her son was giving her about antisemitic behaviour at BSC and the apparent tolerance of it.
672 In contrast, I did not find Mr Varney a reliable witness. I set out my reasons in detail below where I deal with Guy's individual complaints. On this particular issue, I accept Mr Varney has no active recollection of the incident, and that is unsurprising, for reasons I have explained about the circumstances of teachers at a busy secondary school like BSC. I do not accept his speculation about why he "would" have remembered. In my opinion this was nothing more than wishful and defensive speculation given with hindsight, in the trial context. Contrary to his speculation, I find Mr Varney did not, during the relevant period, take antisemitic behaviour from students especially seriously, and was not sensitive at all to students with Jewish identity, or who were developing and exploring their Jewish identity as young people. My findings below about his use of "shalom" to greet Guy contributes to my reasoning here. As to Guy's evidence about his complaint to his maths teacher, Ms Michaels, the respondents did not call Ms Michaels. The applicants made no Jones v Dunkel submissions about her. I draw no adverse inference because she was not called. However, I do accept Guy's evidence. For the reasons I have explained, he was a reliable witness. The respondents submitted the Court should not accept Guy's evidence on this matter "without any corroborating evidence". They did not develop why that should be so. This was a submission repeated for several of the applicants' witnesses. It is unclear what objective basis the submission has. I reject it. There is nothing inherently or objectively improbable or unreliable about Guy's evidence, and nothing about his circumstances at the time of this event, or when he was giving evidence, that would suggest the Court should not accept his account without corroboration.
673 I therefore find that, on two occasions, Guy Cohen complained about swastikas he observed in classrooms and on both occasions the swastikas were not removed, no inquiries or investigations were undertaken about who might have drawn them, and no broader, proactive and educative steps were taken by Mr Minack, the leadership cohort or BSC teachers to discourage such antisemitic graffiti.
674 Zack's evidence was that he saw swastikas around BSC from the start of his time there in year 7, but they increased. He described where he saw them, by reference to a map of the school that was in evidence as tab 1256 of volume 4 of the court book (school map). Most of the student witnesses and the applicants used the school map to indicate where they saw swastikas. When they were giving their evidence by reference to the school map I am satisfied they, including Zack, were describing what they saw from an active recollection. They had no difficulty in identifying the places where they saw the swastikas. As students, and unlike the teachers, these places were where they spent most of every day, five days a week. They were, I find, very familiar with these surroundings.
675 Zack's evidence was:
I would see them around the D Rooms, under 18, I would see them a lot around the bike shed, and there was actually a little passageway that came off the bike shed that went through the back of the - I'm pretty sure the E classrooms and it went all the way back around - sorry - it went through the back of the - between the S rooms and the E rooms and on the left of the bike shed, all the way up to the D rooms, there was a little passageway where the classrooms weren't used and they were all throughout there. The windows were always broken through, it was graffitied etched onto walls. Yes.
I was going to say which locations did you see them in specifically. Can you be - - -?---Yes. So especially around that area, because I guess it wasn't patrolled a lot by teachers. No one really went back there a lot, and yes, so it was just on walls and windows and chairs, tables.
How were they marked?---Some were, like, graffitied with sharpies, some were etched on with, like, a pencil. Some looked to be etched in which knives but I'm not sure. But anything that they could use, any pen or anything.
And across your time, how many swastikas did you see?---Throughout my whole years?
Yes. Have - have you just been confining this to Year 7 or is this - - -?---This is general.
Yes?---I would say around 50.
676 I accept this evidence. While his estimate of the total number of swastikas is lower than most of the other applicants and student witnesses, it is to be expected that students may have observed different numbers of swastikas. Indeed, in my assessment of the witnesses, some of the students were more intent on noting them, or being on the lookout for them, than others. Zack struck me as a young man who did his best through his time at BSC to ignore or put to one side the antisemitism he experienced, and tried not to focus on it. This is apparent from his answers about how seeing swastikas made him feel:
And how did your - was that feeling you had constant throughout your time, or how did it change?---I feel like, over time, it became so normal that I almost got used to it, and so, after a while, it would affect me still, but would be more at the back of my head, because it was just a normal experience for me.
How do you feel about that, looking back now that you're out of Brighton?---Can you repeat that, sorry?
How do you feel about that, looking back now that you're out of Brighton?---I feel the same way, but I wish more people would feel like they have the voice to speak up.
677 Therefore, I accept Zack was giving his best recollection of the number of swastikas he saw, but I nevertheless accept that based on all of the evidence, the correct finding is that there were more than 50 swastikas at BSC across the period, and that it is more likely than not that there were more than a hundred.
678 Zack was another witness who, like many of the other student witnesses, stated that he could not recall seeing a swastika in a public place outside BSC.
679 Zack was cross-examined by senior counsel for the respondents along the same lines as other witnesses about his evidence on swastikas. I find he firmly, and persuasively, rejected the suggestion he was mistaken about the number he had seen.
680 I found Joel Kaplan's evidence about the number of swastikas he witnessed to be somewhat exaggerated at some points in his evidence. He began his descriptions of them by saying "[t]hey were pretty much everywhere", adding that in year 7:
They were also pretty much everywhere as well on almost every surface.
So what - well, give - be precise. Where were they?---Desks, tables, chairs, walls. Some in the floor.
And did it change in terms of year 7 and 8? Was there differences?---No. There was still swastikas everywhere on the walls and desks, floors.
681 A little later, he attempted to put a number on what he had seen:
upside of hundreds. Probably eight, nine hundred.
682 He was able to give evidence that he removed some of them himself:
Did you - you didn't - - -?---I - I did remove a few myself.
How did you do that?---I had a - a permanent marker that I carried with me.
Sorry?---I would have a permanent marker - - -
Okay?--- - - - and normally I would scribble them out or if they were scratched into something, I would scratch them out with scissors or something. It was just easier for me to remove them.
683 This kind of evidence is probative, I find, of Joel's active recollection of seeing large numbers of swastikas. This is specific evidence about specific actions he undertook himself to try and deal with them, and that he carried a permanent marker for the purpose of drawing over swastikas he came across.
684 While I generally found Joel's evidence to be honestly given, and I found his accounts of at least most of the specific incidents to be generally reliable, I find he was given to some exaggeration in his evidence, borne no doubt of how passionately he felt about the issues in this proceeding, and how angry he was about his experiences at BSC. His descriptions of how many swastikas he saw is a good example of this exaggeration. The way I consider it is appropriate to understand the evidence I have extracted above is that Joel saw a lot of swastikas, and he saw them in a lot of different places. I do not consider his estimate of seven to nine hundred is reliable. I do not consider his evidence that there were swastikas "everywhere" can be taken as literally as he may have intended it to be taken.
685 That said, I do accept Joel's evidence that he saw large numbers of swastikas over the relevant period, in a variety of locations. By reference to the school map, he was able to give descriptions of the locations of the swastikas he saw, including what was called the "N block" that was demolished in 2017:
In the N block, they were on - on the walls, a lot of the classrooms. And the locker bay. This is the new map, so the building - the building has changed a bit, but in the old map, there was one long corridor down the centre of the building. There was often swastikas there.
Who was that accessible to?---That was the year 7 corridor, but other year levels had classes to it. There was also teachers' offices there as well.
686 He continued his description by reference to places he referred to as the S block, P block, E block and D block, where he did maths in year 9:
All right. And where did you see - what, if any, swastikas did you see there?---Often on the tables, and they had - the tables had little pockets in them that you could put your books. They were often inside those pockets as well.
So just explain what are you talking about? Pockets?---So they had, like - like little cubbies in them. So they were a square table. They sat four, and they had somewhere just under the table where you could slide your books in during class, and they had swastikas. They also - some of them would lift up as well like the old fashioned desks, and there were swastikas under those as well.
687 Joel gave some examples of specific incidents. One was as follows:
Okay. And what about Ms Sarikizis? Do you remember that incident?---Yes. So I was in - she was the substitute for one of my teachers. She was in the east building. I'm pretty sure the classroom was E101. We walked into class, everyone sat down and on - on the front of the class, there was a - like, a metal panel over - I think it was one of the gas valves or something because it was in the science building and on it was a big, red swastika made out of plasticine. It was probably 30 centimetres by 30 centimetres. It was - it was quite big and I reported it to Ms Sarikizis in front of class and she - instead of removing it, she told us how swastikas were - used to be a good thing and they used to be symbols of peace and she didn't take any action to remove it. So I had to take it down.
How did that make you feel?---It made me feel quite bad. Quite, you know, alone. Isolated. Because not even a teacher would remove the swastikas quite obviously placed in the classroom.
688 Ms Sarikizis had a different recollection of this incident, and her evidence was that it took place in the art room. Her account of what occurred was also quite different. It did not involve her observing a swastika; and instead involved her walking into a class where the students were in the middle of an animated and heightened discussion about swastikas, and observing Joel - out of character, according to her - waving a piece of paper around and shouting that there was a swastika. Her evidence then concentrated on her attempts to settle the class down, and that she had said to Joel words to the effect 'Did you also know that it was an ancient symbol for victory?' and that, in substance this had further heightened Joel. Her evidence was that she did not see a swastika and thought it was a joke.
689 Ms Sarikizis was tested considerably in cross-examination about the reliability of her recollection, and whether indeed she had any active recollection or had been essentially prompted by the respondents' lawyers to give the evidence she had given.
690 Ms Sarikizis was quite uncertain, and unclear about her interactions with the respondents' lawyers, who she had interacted with and when and about what. Eventually she did appear to concede that the bulk of her evidence about the incident consisted of recollections that came back only after she had spoken to the respondents' lawyers:
What I am trying to ascertain is the date. Mr Young said in court in cross-examination of Joel on 7 June:
Ms Sarikizis will be giving evidence, and she will say that she does not recall that incident at all -
what Joel was testifying about. So is it fair to say that your recollection now of whatever it is that you recall came after 7 June?---It came after. I didn't remember initially.
So, in essence, your explanation for what you're remembering with Joel waving the paper is caused by the communication you've had in recent months?---Yes.
691 This is how she explained what had been put to Joel (that she did not recall any swastika incident) and why this varied from her sworn evidence. She gave the following evidence in examination-in-chief:
Ms Sar[i]kizis, if you had your time again, what, if anything, would you have done differently in that situation?---In hindsight, I should have documented it. I should have documented it in my Chronicle. I should have reported it maybe to a coordinator. But as I said, his behaviour was unlike him, so I thought it was a joke.
692 She repeated this sentiment during cross-examination. Ms Sarikizis became quite upset during her evidence. She tended to look at the respondents' counsel, I find, apparently seeking reassurance and support. I have no confidence she had an active recollection of the incident at all. In my view she was reconstructing, and doing so after having been briefed on several occasions by the respondents' lawyers. I do not say that critically of the respondents' lawyers; but rather to explain why I consider her evidence is unreliable. I consider she was genuinely trying to piece together, in a reconstructive way, accounts put to her in briefing sessions with the respondents' lawyers, and fragments of her own memory, which I find was not a reliable memory about this incident. All that was combined with her obvious distress, and uncertainty about the consequences of what she was saying in her evidence.
693 Therefore, I do not accept Ms Sarikizis' account as reliable. By the same token, I am not persuaded by aspects of Joel's account. Doing the best I can on the evidence, I find it is more likely than not that:
(a) Joel did see a swastika in a class being supervised or taught by Ms Sarikizis;
(b) it was quite a large one, coloured red and stuck onto a panel in the classroom as Joel described;
(c) Joel was heightened and upset when he complained about it in class to Ms Sarikizis;
(d) there was some commotion in the classroom about the swastika;
(e) Joel's behaviour was out of character as he was generally a quiet student;
(f) Ms Sarikizis did not arrange for the swastika to be removed;
(g) Ms Sarikizis said something about swastikas that was not negative, but tended to put their use in a positive light, which further heightened and upset Joel; and
(h) Ms Sarikizis did not report the incident, or the swastika, no investigation was undertaken and no student was identified and disciplined for the display of the swastika.
694 While a single incident, the evidence about this incident is a good example of what was wrong in the environment at BSC at this time. First, it is clear evidence of a school environment in which students felt sufficiently free to create a display of a large swastika in a classroom. That in itself says something about the levels of tolerance for antisemitic behaviour, and something about the lack of inhibition felt by students in engaging in antisemitic conduct, including in a classroom. Next, the reaction of the teacher in charge of the class was a wholly inappropriate one. This incident occurred in 2019, that being the year Ms Sarikizis says she taught Joel. That was the year of Mr Minack's speech. By this stage, I find, there was a generally heightened atmosphere at BSC about the presence of swastikas around the school, and about antisemitic conduct, if for no other reason than by this time the complaints of the applicants and their families were relatively regular.
695 There is no evidence of any communications to staff from Mr Minack about swastikas and what staff should be doing about them. I find this was simply not an issue to which any attention was paid by Mr Minack, and staff were therefore not encouraged to take the issue seriously. That approach shows in Ms Sarikizis' response. She should have been outraged. She should have understood why Joel was outraged. She should have made it clear to the entire class that the graffiti of that kind was not acceptable under any circumstances, and was abhorrent. She certainly should not have said anything that sought to cast the clearly antisemitic use of a swastika in a positive light. But at this point, at BSC, there was no leadership from Mr Minack or his leadership group on this issue. As I explain elsewhere in these reasons, the Jewish students who were complaining, and their families, were treated as nuisances, as if it was they who were in the wrong, and their complaints were either ignored or not taken seriously. The evidence about this incident is a clear illustration of what a great deal of the evidence reveals.
696 Joel also gave evidence of sending at least two email complaints to BSC staff about swastikas he had seen. One was sent on 6 March 2019, not long before Mr Minack's speech, to Mali Lewis. Joel wrote:
Today (6/3/19) in class (enrichment maths), Charlie [redacted] was saying very anti-Semitic comments like: "I don't think we should allow the Star of David and if I see one I will draw a swash sticker on it" and "Jews just use the holocaust as an excuse when anything happens" when I asked what he was drawing he said "swash sticker" see attached above (evience.m4a) with an audio recording[.]
697 The audio recording was in evidence and played in court. I accept this is Joel trying to provide as much 'proof' as possible to his teacher about the incident. I accept the recording bears out his email complaint. This was what he said about this incident:
It made me feel, like, quite isolated. I know it sounds like I'm repeating the same words, but isolated and degraded. Because I went out and I had to - I had to get evidence before the teachers would even listen to it. And I sent them the evidence. I sent them proof of him saying it, and nothing came from it.
Perhaps as a preliminary question: why did you choose, on this occasion, to send an email and a recording?---Because I've told the teachers multiple times about anti-Semitism happening, and they - they would ignore it. They wouldn't do anything about it. And I thought, you know, if I was able to get a recording then I could give it to the teachers, and the teachers had to do something. They couldn't say, "You know, we couldn't prove it." They would have it there. The evidence. Everything.
698 I accept that was how Joel felt, and in the circumstances his feelings were entirely justified. He was seen as a nuisance and a complainer, instead of the Mr Minack taking systemic action in response to a and worrying trend of other students engaging in antisemitic conduct, directly at Jewish students and in class, being taken as seriously as it should have been.
699 Joel was cross-examined on this incident:
But in the email that you sent to Mr Astorino and Ms Lewis, you didn't say that, did you, that this thing has been going on - this kind of thing has been going on in this class before?---Well, it would be a waste of my words telling them stuff they already knew.
And you didn't say anything along the lines of, you know, "Here's some evidence. Now do you finally believe me," did you?---Well, again, I was doing it out of desperation. I didn't really think of the exact wording as I was saying it. I wasn't as literate when I was in year 9 or year 10.
Year 10. And you didn't say anything in the email about, "I've been complaining about this kind of thing for years," did you?---Again, I wasn't writing the email to prepare for a lawsuit; I was writing it - as you say, I sent it straight away. I didn't plan out what I was writing. I wasn't a lawyer. Don't have the amazing email-writing skills that you guys do. Just wrote it down and sent it off.
But these are all things from your evidence this morning and from yesterday that, as you told her Honour, you feel very strongly about, don't you?---I do.
And the only thing that you reported was this one thing that happened - and I'm not trying to diminish it, but this one thing that happened involving Charlie in this one class, isn't it?---It wasn't the only thing I reported.
Well, I mean in that email?---In that email. Well, that's the only thing that I was sending them evidence about.
700 Again, the theme of this cross-examination was unrealistic, and undertaken with the benefit of hindsight. As Joel said, he was a year 11 student complaining about antisemitic conduct. He was not setting about to establish a forensic trail to lead to a trial occurring some four years later. He was not doing anything but, I find, desperately trying to make his teachers believe what he was saying, and do something about it.
701 Joel gave evidence about a second email he sent to Ms Frangoulis in 2020. Ms Frangoulis was the year 11 coordinator. Joel's evidence was that, at this time, he had started doing an elective subject at Holmesglen TAFE:
And everyone there, the staff, the students, they were all very friendly. They were all very accepting of my religion.
702 However, at BSC, Joel's evidence was that the antisemitic conduct continued. The behaviour was especially targeted at his kippah:
Physical. I know people ripped by kippah off, even girls, boys, people I knew, people I didn't know. I couldn't go get something from my locker without my head being touched.
703 Joel sent Ms Frangoulis a photo of a swastika drawn in the boys' bathroom, on the wall next to the sinks, which had been up for quite a few weeks before he reported it. His evidence was that nothing was done after he reported it. He was cross-examined about his evidence:
In your email you didn't say anything like "there's hundreds more at the school," did you?---Again, I wasn't writing my emails to prepare for a future court case. I was writing them to point out the issue at hand which was the - - -
Precisely, you were writing them to point out an issue with swastikas and you pointed out one, didn't you?---There was hundreds of swastikas, I previously informally reported. This swastika, not only did I actually have to take a photo of it for anything to be done, I was also told off for using my phone at school.
Well, no, you had an exception to use your phone in class, didn't you?---I had my exception, but it was only in class, not outside of class. I was told that I shouldn't be using my phone outside of class.
All right. Well, you didn't say to Ms Frangoulis, "There are hundreds more and I can show you," did you?---Well, she should - she was a teacher at the school, she could have very well looked around and seen them.
You didn't say, "They're in every room in the school," something to that effect, did you?---Again, as her job, being the coordinator, it's her job to look after the - where we have our lockers. It's not - it shouldn't be my job to go around and police the swastikas. It is inherently her job as a teacher to be looking out for that. I shouldn't have to spoon-feeded them evidence like I had to do with the Jay [redacted] and finding who sent the email. It should have been - they should have looked after it, not me.
704 I reject the suggestion in the line of cross-examination that because there were only two emails sent by Joel, the Court should disbelieve his evidence about what he observed, and disbelieve that he complained verbally to teachers about what he observed. The suggestions put to Joel seek to apply an inappropriately forensic lens to the approach taken by an early year 11 student who was experiencing distress at the antisemitism he saw around him.
705 If the other suggestion in this line of cross-examination (which was not limited to Joel) is that the Court should not find any failures or omissions by Mr Minack, the leadership cohort at BSC and the teaching staff because there were no written complaints made with sufficient frequency to justify anything but isolated reactions to those individual written complaints when they were made, I reject that contention as well. Like the other applicants, when Joel complained he was not at this point constructing a forensic case against the school. He was a year 11 student in some distress due to the atmosphere at the school, trying to make his teachers take action about the antisemitism surrounding him. I accept his evidence and I reject the insinuations that either, first this was the only swastika Joel observed because it was the only one he reported, or second that because he did not respond on this occasion with a wider suite of allegations, his evidence about the presence of swastikas elsewhere, with nothing being done about them, should not be accepted.
706 Since there was a record of this particular complaint, the respondents did not dispute the fact of the complaint, and therefore did not dispute the presence of the swastika. Joel's evidence that the swastika had been there for some weeks was not challenged. I accept that evidence. Joel's response, extracted above, is an appropriate one. It was not his responsibility to document swastikas, or to monitor how many there were. These matters were the responsibility of Mr Minack, and his teaching and administrative staff.
707 It was not suggested to Joel in cross-examination that Ms Frangoulis took any action on receipt of the email referred to above. Ms Frangoulis was not called as a witness, although an outline had been filed and served. She is one of the witnesses about whom the applicants submit a Jones v Dunkel inference can be drawn, and I have accepted that submission.
708 Joel's evidence that nothing was done by Ms Frangoulis, or any other members of BSC staff (including Mr Minack), about his report - and photo - of a swastika stands unchallenged. I accept it.
709 Matt's evidence was, like Joel's, at times prone to some exaggeration. Like Joel, it was clear Matt feels terribly wronged by what happened to him at BSC, and of all the applicants he struck me as the most determined to bring Mr Minack and the teaching and other staff at BSC to account. At times, in my opinion, this led to his evidence becoming overly dogmatic. It also meant he was prepared to make his point with a level of exaggeration or emphasis that I do not consider constituted an active recollection of events, but more of a reconstruction, fuelled by his palpable sense of injustice.
710 That said, much of Matt's evidence I accept. In general, and I explain, I accept most of his evidence about the presence of swastikas around the school, his complaints about them and the failure of Mr Minack and the BSC staff to take adequate or appropriate action to remove them, and to proactively encourage BSC students to change their behaviour to reduce the levels of antisemitic conduct at the school.
711 This was Matt's description of where he saw swastikas in year 7:
So year 7, I was only - the only buildings I was really in was the P block, which is 17. I was - I also attended a few classes in the library and in the east block, but that was only in E111 and E119, which was my science class and my art class. And in all - all of those, like, and I was also around the oval and that grassy area I spoke about before at lunchtime and there was swastikas at all of those locations. The most common ones in the - were in the P block, which were - they were either scratched into the surface of the table or on the edge of the - the tables were the most common ones and the edge, they were scratched in quite deeply, because it was - the tables were made out of timber, but they had a - like, a protective surface on the top, but on the edge it was exposed, so students would get scissors or something sharp and scratch it in there and also on chairs. We had grey plastic chairs. They would use whiteout or a black Sharpies to draw swastikas on them. And this is all in the P block, sorry. And then on - on the walls, there - they were white walls, but behind them were - there was - I don't know what it was, but it was black, so when you scratched the paint off, it came up black underneath it, so students would scratch in swastikas onto the walls and you could clearly see the black swastika.
And is there anywhere else in year 7?---Yes. So in the library, a similar situation with the desks and not at the walls in the library at that time, because they had been doing - they had been making classrooms in the library, because, when they closed the north corridor, they we remaking classrooms. So they - all the - it was all renovating at that time. But in E111, again, they had - they had tall plastic stools and on the back of the stools they would use - students would use scissors and - and whiteout to scratch it in to the stools and also it had, like, a plastic, like, resin floor that they would scratch swastikas into. And then in the art class, they had unlimited things to draw swastikas with and they did it everywhere, students. Sorry.
712 And in years 8 and 9:
They were all drawn, like, with the same sort of tools I just mentioned, but as the years got later there was more swastikas came up, even in the - I had more classes in the P block and in E111 and E119 and even in those rooms.
713 And on complaints he made:
It's okay. What, if any, complaints did you make about them at that time?---I made complaints to the classroom teachers. I remember one being Mr Tran. And I also made complaints to Nathan Hutchins.
And what did he do about it, if anything?---Nothing to my knowledge.
714 In terms of numbers (I infer, in year 7 and possibly year 8), Matt's evidence was:
And how many are we talking about in year 7 or year 8 in that period of time approximately?---At that time, I wasn't in much of the school, I would say 80 to 130. Sorry, it's a bit rough.
715 Matt was taken back to the location of swastikas he saw later in his examination-in-chief, again by reference to the map of the school that was in evidence. Again, he gave a detailed description of where he saw swastikas, what they were drawn on and what they looked like. He described reporting what he saw to his year level coordinators - in year 8, this was Mr Nash. He explained why he stopped reporting them as much as time went on:
Earlier on, it was more often. Earlier in year 8, it was more often, but as I saw nothing was being done, I - I stopped reporting the swastikas as much.
716 In terms of numbers, Matt's evidence about the numbers by year 9 was:
How many swastikas are you talking about by year 9, roughly?---By year 9, probably 450. Sorry, by year 9, 450.
So, I mean, how are you experiencing that sort of number?---I couldn't - I couldn't spend five minutes at the school without seeing a swastika. Inside the class, outside the class, going to the bathroom. Every corner I went, I was - I was seeing swastikas. If I was getting anti-Semitic abuse in class and I went to leave the class, I would go to the toilet to have a five-minute break, I couldn't have a break from the anti-Semitism, because wherever I went, I would see swastikas.
Did you report these?---I remember reporting some in, specifically, D1 to Ms Trinh in my English class, but I didn't report many, because I had been reporting them last year and nothing happened.
How visible - if you can be specific, which ones - how visible are they in the relevant areas?---I mean, for an example, in D1, they're on top of the tables; they're on the walls. There was three teachers in there. They were extremely visible. And this was in most classrooms. They were very visible.
717 He gave evidence of observing similar numbers in year 10 (2020), and again gave detailed descriptions of where he saw the swastikas, although he stopped attending BSC in March 2020. It will be recalled this was the commencement in Melbourne of restrictions and lockdowns arising from the COVID-19 pandemic. In terms of what he was seeing at this point in year 10, Matt's evidence was:
So by the time you left, how many swastikas approximately had you seen?---I had seen 600 swastikas.
718 Matt then informed the Court he had forgotten some, and went back over his time at BSC and described other places where he had seen swastikas, and what they looked like. I accept that his memory had been revived by other aspects of this evidence and these observations that he had forgotten were genuine recollections.
719 As with many of the applicants, and student witnesses, Matt was asked to compare what he saw and experienced at BSC with his experiences after he left. He said:
Since you left Brighton, how often do you see swastikas?---I have never seen a swastika since I've left, and I've been at - I went to Sandringham College for about a year and I went to Holmesglen Institute in Melbourne.
720 Matt was not challenged on this evidence, or the absolute nature of it. I accept it. I accept his evidence, and the considerable amount of other evidence consistent with this from the other applicants and student witnesses, establishes it is more likely than not that the manifestation of antisemitism at BSC was well out of the ordinary, and exceptional. This was not a problem every state high school in Melbourne was having. Indeed, the respondents did not seek to suggest this was the case.
721 I do not accept Matt's estimates absolutely. In cross-examination, Matt's evidence became somewhat exaggerated in an effort by him, I find, to get his point across when he felt under threat:
Can I ask you some questions just about swastikas. In your evidence, I think you gave evidence that there was somewhere between 650 and 800 swastikas that you saw over your time at school; is that right?---I don't believe that's correct.
No? What would you say, then, was the number?---I thought I said 600. Could we go to the transcript?
That number, though, is just - I beg your pardon - is just based on your memory, isn't it?---Yes. I have a - quite a good photographic memory.
Well, I've asked you some questions about other topics. Is it fair to say that if your memory is wrong about those topics that it's likely also to be wrong about what you observed of the swastikas?---I - I actually, if I was to estimate, I would say there's close to 1000 swastikas, but because I'm trying to get the most accurate as possible, that's why I said 600, because that's the amount I know was there; that was what I was sure was the amount.
722 However, I do accept there were large numbers of swastikas over the relevant period at BSC, and that Matt was likely to have counted well over a hundred during his time there. I find of all the applicants, and student witnesses, it was Matt who was most 'on the lookout' for swastikas, especially in year 9. He was outraged, felt disbelieved, and was intent on finding as many as he could. This behaviour is entirely understandable in the circumstances. It is a shame his intensity in finding swastikas was not shared by BSC staff.
723 I accept Matt did complain to his teachers, to year level coordinators and on occasion to Mr Minack about the swastika graffiti. For example, in 2019, Matt says that he reported incidents to Ms Trinh and Mr Lynch-Wells in which a student, Elias, drew a swastika on a piece of paper and threw the paper at Matt. He says that no punishment was given relating to the incidents. Both Ms Trinh and Mr Lynch-Wells gave evidence that they do not recall any such incidents being reported. That is understandable but does not affect my satisfaction that Matt made these reports. My reasons are the same as for the other applicants and student witnesses.
724 The respondents sought to connect Matt's regular behaviour difficulties, and the amount of time he was pulled up for them, with a failure on those occasions to complain. Hence the following cross-examination:
Just to be clear, Matt, I understand from the answer that you've given that you mean that you did not report that anti-Semitic conduct to those teachers; is that right?---Not - no, sorry, not while they were telling me off or - or - or speaking to me about my behaviour. I did other times to Ms Trinh and Ms Hart, but not while they were speaking to me about my behaviour.
725 Matt's explanation makes perfect sense. He repeated it later and I accept what he said there also. The cross-examination was, once again, unrealistic. A teenage student being pulled up for his behaviour is unlikely, and certainly unlikely on a regular basis, to add to the trouble he is in by repeating complaints about antisemitism and antisemitic behaviour. It simply is not realistic. Indeed, that was how Matt explained it too:
Why do you say "no"?---Because - I explained myself just before. If I was being spoken to about my behaviour, they would not tolerate me mentioning any other student's behaviour because they would say, "This is about you, not other students." And I - but I reported it to Ms Trinh at other times.
726 The evidence from the applicants' family members who complained (such as Ms Abadee) was not direct evidence based on their observations, and I give it no weight in reaching my conclusion on the prevalence of swastika graffiti at BSC.