R v Ian Wayne O'Toole

The evidence

1. Exhibit A is a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995.
2. It sets out the date of birth of the accused and that of each of the six complainants, together with a Schedule that shows the age of the accused and each of the six complainants at various dates.

Evidence of CW

1. CW is the complainant in Counts 1 to 5 on the Indictment. CW gave evidence that she was the youngest of the W family who lived on a dairy farm which bordered the BPS. She commenced going to the school in the third term of 1965 when she turned five, and continued at the school until it closed at the end of 1967 or the first term in 1968. She identified the school and surrounding landmarks by way of Google maps, which became Ex B.
2. CW gave evidence that her first memory of the accused was when he arrived at her home in summertime, before the school term started. He boarded with her family and drove a white Ford Cortina motor vehicle. She gave evidence that the accused was passionate about radios, that he had walkie talkie radios and was interested in shortwave radio.
3. A photo of CW at age five or six was tendered as Ex C. She also drew a sketch plan of the school, which became Ex D.
4. CW gave evidence that the first time something happened between herself and the accused happened during school hours when they went to the boys' toilets. She gave the following evidence: "Q. All right. Firstly, how did you come to go to the boys toilet? A. I - Mr O'Toole asked for somebody to help clean the toilets or clean up in the playground. He selected me, and so I followed him. We didn't have any brooms or mops. I followed him to the men's - to the boys toilets. Q. How far away roughly were the boys toilets from the classroom building? A. They would have been 80 to 140 metres. That sort of order. Q. What kind of toilets were the boys toilets? A. They were single stall toilets, but you walked through - they had a little wall around them so you forced to walk in a U-shape. You went in and around, and into the stall of the toilet. I remember outside the actual toilet stall was what I now know to be a urinal, very much like an old paint tin. The toilets were blue. When we - the toilets were - the building was painted blue. They were long drop toilets with a wooden bench across them. Q. Doing the best you can, can you just tell us what happened on that day that you went to the boys toilets with Mr O'Toole? A. I remember being on the toilet seat. I don't know if I was lifted or I climbed up. I can't remember that aspect. Standing on the toilet seat, Ian O'Toole pulled down my shorts and underpants. He took his penis out of the fly of his pants. He touched my vagina with his fingers. Then he rubbed his penis himself, the term I now know to be masturbated and then put his erect penis between my legs, moving in and out until a white liquid went over my thighs and legs. This is the evidence the Crown relies on to establish Count 1 on the Indictment.
5. CW then gave the following evidence: Q. When he put his penis on your legs, what part of his legs was that? A. Part of my legs? Q. Yes, part of‑‑ A. It was - it was between the top of my legs. Q. You said that there was a white fluid came out? A. Yes. Q. Did you know what that was at the time? A. No. Q. Was anything said by you or Mr O'Toole at that time? A. Mr O'Toole said, "This white liquid is called spunk." He said, "You should be happy you can make me do this." He told me it was a secret, I was very special, and I should not tell anybody. Q. Now, is there anything else you can remember about that time in the toilets? A. I know he was dressed in khaki." This is the evidence the Crown relies on in Count 2 on the Indictment.
6. Exhibit E was two diagrams she prepared of the inside of the school building.
7. CW gave evidence that the next incident occurred after the accused asked her whether she would like to stay after school to play with the radios. She gave this evidence: "A. He then said to me, 'Before we play with the radios I want to play a game in the storeroom.' I followed him to the storeroom, or - sorry. We were in - my next memory, we were in the storeroom. Mr O'Toole shut the blinds that were in the storeroom. He partially closed the door between the storeroom and the classroom, and I remember the main door to the school building was closed. Q. All right. A. He then‑‑ Q. Yes. A. Sorry. Q. Go on. A. He then said to me - no. He then took a blue mat, a blue raffia mat, and laid it on the floor. He said to me to take off my pants, and underpants and shorts, and lie down on my back on the floor. Q. Did you do that? A. I did that, yes. I don't‑‑ Q. What's the next thing you can remember? A. The next thing I can remember is Ian O'Toole kneeling down over me on his knees and hands. He lowered himself onto me, and I remember feeling the touch of bare, warm skin on my lower body. He pushed my legs apart with his knees and he moved up and down on top of me. The Crown relies on this evidence to establish Count 3 on the Indictment.
8. CW gave the following evidence: "A. He then raised his weight slightly from me and moved his penis to the area of my vagina at the - at the top of my legs. He lowered his weight and moved up and down. I felt his penis on and in my vagina. I don't know how far the penis went in but it went in. Q. And when you say it went in, where did it go in? A. To my vagina. Q. Was anything being said by Mr O'Toole when this was happening? A. Yes, while this was happening, he kept telling me how good it felt. Q. And do you remember how you felt at that time? A. I felt squashed, I felt pinned down. I felt uncomfortable. Q. And what's the next thing that you remember happening, Ms W? A. I - I remember a white liquid over me - a term I would now use as ejaculation and then I remember him saying, "If I did this to one of the other girls, she would probably fall pregnant". He then said to me, to get up, put my shorts back on - no, let me go back. When he said to me, "If I did this to one of the older girls, she would probably fall pregnant", I looked over my left shoulder to where the door between the store room and the classroom was partially opened and I can remember seeing where the student JL sat during school hours. She wasn't there then but I just remember looking in the vicinity of the seat she sat in and I again remember seeing the blue Raffia mat under me. Q. Now, Ms W, you said that there was white liquid - where was the white liquid? A. Around my lower body and between what I would describe as the top of my legs around my private genitalia. Q. What's the next thing that you can remember happening after‑‑ A. He told‑‑ Q. Yes, go on. A. Sorry. Q. Go on. A. He told me to get up, put my clothes back on and go outside. I went out and waited. I thought he was going to - I remember thinking he was going to give me a lift home but he came out, locked the school room door and said to me, "I have to go in a different direction. You will have to walk home." I remember thinking, "If I'm so special to him" which is something he again reiterated during while I was on the floor, he told me I was special to him and that was our secret …" The Crown relies on this evidence to support Count 4 on the Indictment.
9. CW gave the following evidence about another incident: "Q. Now, Ms W, do you recall any other incidents occurring with Mr O'Toole? A. Yes. I recall another incident in the store room after school hours. This one is different to the other one because I clearly recall a red Raffia mat on the floor. In this case, I remember Ian O'Toole taking his trousers down. I remember lying on the red mat on the floor‑‑ Q. If I could just stop you. Where was the red mat? Which‑‑ A. On‑‑ Q. ‑‑whereabouts was - which room? A. On the floor, in the storeroom. Q. Thank you. A. The blinds were down, the room was darkish. I remember him taking his trousers down and I remember - I was on the floor. I don't know if I had clothes on but I remember him on top of me and I remember his erect hard penis rubbing against me." The Crown relies on this evidence to establish Count 5 on the Indictment.
10. CW was asked about other incidents as follows: "Q. Apart from these incidents that you've told the Court about today, are there any other incidents that you can recall? A. I recall one image very clear in my mind of being in the boys' toilets and Ian O'Toole making me watch him urinate. The image is clearly of urine coming out of his penis. Q. And apart from these specific incidents that you've told us about, are there any other incidents that‑‑ A. I remember other incidents at the school in the store room and in the toilets but I cannot remember enough detail to be clear about those memories to describe. I know they happened, I know in the first instance, it was a blue mat and I know there was a red mat but I'm - I cannot remember other detail clearly. … Q. Can you remember another incident occurring with Mr O'Toole? A. There were two things I remember. The first one was simply at home. I remember standing in what was Ian O'Toole's bedroom in our house and my sister was there. The door was closed. I do not remember anything happening on that incident but my brother came calling for my sister and I and Ian O'Toole opened the door and let us out. Now the‑‑ Q. Do you remember which brother? A. I beg your pardon? Q. Do you remember which brother? A. My brother, BW. Q. Thank you. A. I remember on one morning before school, Ian O'Toole said he wanted me to go to school early with him so we could play a game. I didn't want to go. I remember him being cranky with me. I started crying and he told me to shut up. I then ran to the kitchen where my father had just come in from - from the dairy for breakfast. My father was talking on the phone. I was crying as I ran into the kitchen. Dad leant down; the phone was on the wall. Dad leant down and he put his arm out to me. I remember him - over - he was holding the receiver in his left hand and he said to whomever he was talking to, 'Just a minute.' He then - he was - he'd put his arm around me, I remember that so clearly. He then, over my shoulder said to Ian O'Toole, who had followed me towards the kitchen, 'Why is she upset? What have you done to her? Why is she crying?' Ian O'Toole said, 'I don't know what's wrong with her. I just offered her a lift to school. If she's late for school she will be in trouble.' My father said he would drop me at school later and he took me to school on the tractor later in the morning. After that incident, Ian O'Toole did not refer to me anymore as CW, he started calling me names. … Q. Ms W, can you recall where he called you that name? Whereabouts? A. I remember - I remember him using it both around the house, around our farm and in the school room, in the actual students' school room and in the playground. Q. All right. And can you remember him saying anything in your presence to anyone else about that nickname, or those nicknames. A. Yes. He would call me either "bossrathouse" or "bossrathouse, poke out tongue, blue lizard, clawya, shutup" in the classroom - beg your pardon, in the school ground and he would say to other student - student, 'That's her name.' At home, I recall him saying, while my siblings were present, her name is 'bossrathouse' - "
11. Exhibits F, G and H were photographs taken from CW's parents' collection of the school.
12. CW gave evidence of complaint as follows: "Q. Ms W, in the early 1990s did you tell someone about what had happened to you? A. I told my husband that something had happened, and I told my husband in the first half of 1994. Q. Can you remember what you said to your husband? A. I told him I had been molested by a school teacher. I shared no intimate details with him."
13. CW gave evidence that on 25 February 2017 she was fitted with a listening device and travelled to the Kurrajong Radio Museum where the accused was a volunteer. The recording of the listening device was played and became Ex J.
14. CW gave evidence that on 8 April 2017 she made two recorded phone calls to the accused. Those phone calls were played and the disc became Ex K.
15. CW gave the following evidence: "Q. When, if ever, did you speak to your sister KW about Mr Ian O'Toole? A. I spoke to my sister KW in either late December 2014, or early December 2015. That was the first time I had ever spoken to KW about the topic. Q. Right. Was that conversation in person or on the telephone? A. In person. Q. Can you remember what, if anything, you said to your sister KW? A. I said to KW that I had been sexually abused by a school teacher at BUP. I had - I was going to give a statement to the police, had anything happened to her? Q. All right. Did you say anything else to your sister KW? A. No. I beg your pardon. I asked her if it was okay to give her contact details to Detective Senior Constable Welsh. Q. Can you tell the Court what you recall KW's response was when you asked her that first question about - when you told her about what happened to you at BPS? A. She said that something did happen to her, and mum had asked her the same question in about 1997."
16. In cross-examination, CW gave evidence that the conversation with her sister KW took place in Scotland in late December 2014, or early January 2015.
17. She was asked: "Q. Ma'am, now that that's clear, can I ask you, are you there talking about the fact that you couldn't tell your parents about what had happened to you at BUP at the hands of my client because it would have destroyed them, made them horribly unhappy. Agreed? A. I am referring to the fact that once I realised that what had happened to me, which was when I reached adolesence, I couldn't tell my parents and it would have devastated them. Q. So you never told your parents. A. No, never. Q. Thank you. A. Beg your pardon. 1997, my mother asked me had something happened to me at BPS and I said, "Yes." I gave her Ian Mr O'Toole's name, full stop, end of the conversation. We didn't - she said to me, "Don't tell your father. It will devastate him," and then we - I never gave my mother any intimate details, I never spoke to my mother about intimate details of the happening. Q. Ma'am, I appreciate it is of the utmost importance for you that you never told anyone about these things, or discussed any of these things with anyone. Agreed? A. Agree. Q. You were careful to avoid discussing any of the details or any of the substance, for example, with your sister, KW. A. Correct. Q. Only the fact that the topic was raised, but no substance, no talk about‑‑ A. No, no substance."
18. CW was asked when she realised what had been done to her and gave the following evidence: "A. I knew what was happening to me when it was happening in terms of, this is what he was doing to me. Q. And you've talked about some significance in terms of when you realised in your adolescence, is that correct? A. That's correct. Q. So when did you realise you couldn't tell your parents about what had happened? Was that at the very beginning? A. At the very beginning I was six. Q. So what I'm asking is when did you realise you couldn't tell your parents about it, when did that come upon you ma'am? A. I don't know."
19. CW was also asked about the order in which the events occurred as follows: "Q. Do you remember the order in which they occurred, these events of sexual misconduct? A. I remember, yes, I do. Q. Just in relation to the question, did things happen of a sexual nature that you're just not able to place in some precise time and place? A. Yes, some things did. Q. And is that why you said in your evidence some other things happened but you can't just remember some of the details about them? A. That is correct, yes. Q. And was it the case that you were telling his Honour that at one point you were in the outside toilet, as you've described it, near the school and you can't remember whether or not you climbed up onto the sideboard which constituted the outside toilet or whether Mr O'Toole lifted you onto that platform? A. I said that this morning, yes. Q. Is it also the case that you can't quite remember how it is that you got down from the particular platform after something bad had occurred? A. That is correct. Q. And were you there speaking about when you look back and you think about it, really you can't say and with confidence how you got up and you can't say with confidence how you got down, after all these years? A. That is correct. … Q. Are you saying that some of the misconduct happened but it's difficult to place exactly when it happened in relation to other matters of misconduct, sexual misconduct? A. I remember the incident in the toilets was the first the incident you were just referring to."
20. CW was cross-examined about evidence she had given that the accused had threatened to sue her father over damage to the engine of the accused's car caused by petrol being contaminated by a tanning process. She gave this evidence: "Q. Ma'am, can I raise this with you, that there was no occasion when Mr O'Toole made a fuss about anything to do with petrol or petrol to be used for this car? A. I don't know how the drum was there, whether he asked dad to order it, or he ordered it himself. 44-gallon drums of fuel were delivered from Mville on the back of a truck. Q. The truth is, ma'am, this is something which you have spoken about with others relating to Mr O'Toole. That's what you're saying, because you never saw it? A. I remember my father telling me and I remember that we were told not to turn lights on unless they were absolutely necessary. I remember making sure lights were turned off, because for some reason we went through a period of hardship. Q. But you don't know whether that had anything to do with Mr O'Toole, do you? A. I remember what my father told me, yes. Q. Ma'am, when did your father tell you that? A. It would have been talked about at the time, and probably in - no, I beg your pardon, and in family reminiscences, I can't tell you dates, it would have been discussed when we were talking about BPS. Q. When you say that Mr O'Toole caused financial hardship, really you are unable to say it has anything to do whatsoever with the matters that you've referred to concerning the hide over the fuel drum. Agreed? A. Okay. Agree. Q. Ma'am, so you never saw that incident, and that's it. Agreed? A. I never saw the incident. Agreed."
21. CW was challenged as to the order in which the incidents occurred as follows: "Q. Okay. And ma'am, in relation to the sexual assault allegations to which you have referred in your evidence, can you say which of those allegations happened after you believe the tanning incident occurred, and which before? A. No. Q. Ma'am, all I am saying is does that reflect in your mind the difficulty sometimes of recalling details about the events? Agree? A. Details of the events are correct in my mind. Q. I hear what you say. The details of when everything happened in time, in terms of the order in which they happened, that is something, do you agree, which is unclear by reason of the passage of time? A. I remember the first incident in the toilet was the first incident. I remember that the incident in the storeroom was the second incident, but the other incidents in a time perspective, no, I do not remember their consecutive - their sequential order. Q. Thank you, ma'am. Now, is it also the case, looking at the second incident that you've described, are you not able to say when you consider that the tanning incident occurred with the drums? A. I don't know when that was. Q. By that you are simply saying, in fairness to you, it may have been before the second incident, or it may have been after the second incident? A. Correct. Q. In relation to the first incident in time, all you are really saying is it may have been before the first incident in time, or after the first incident in time, but you're not sure? A. Yes."
22. CW was further cross-examined in relation to Count 4 on the Indictment, and gave the following evidence, after being referred to [36] and [37] of a statement she made to police: "Q. And is it the case that in the course of this incident, which is discussed in those paragraphs, that did Mr O'Toole place his penis, to some degree, in your vagina? A. Yes. Q. And it's the case, as I understand your evidence, ma'am, that you don't know how far or to what extent this aspect of penetration occurred. A. Correct. Yes. Q. And, ma'am, in paragraph 36, you indicate in relation to this same incident that you don't remember the accused taking off his trousers or his underwear. A. Yes. Q. And, ma'am, can I raise this with you: that there was no penetration or penetration to any degree as you have described. A. That is incorrect. Q. Okay. And, ma'am, would you think back. And you thought carefully about what you thought into your statement, of course. A. Yes. Q. Okay. And the fact is, you have no memory at all of his taking off his trousers or his underwear, do you? A. Correct. Q. Okay. And that's because, ma'am, it's raised with you Mr O'Toole was never - in terms of that particular event you're describing, he didn't put his penis in your vagina. A. I disagree. Q. Ma'am, you've given some evidence, and is it the case, in terms of the place where this incident which is being discussed now occurred, in your evidence, it's in the storeroom? A. Yes. Q. Okay. And that's the storeroom which was, what, off the classroom? A. Yes. Q. Now, ma'am, you've described two incidents occurring in the storeroom. Agreed? A. Correct. Q. And would it be fair to say that the only real distinguishing feature, or the only distinguishing feature that you're able to refer to between those two events in the storeroom is that one involved a blue mat and one involved a red mat? A. No."
23. In relation to Count 5, CW gave the following evidence: "Q. Now, ma'am, you said in your statement - can I invite you to have a look at paragraph 40, which is on page 8. Can you see there, ma'am, where it says, "I recall another time"? Do you see that there? A. Yes. Q. "Involving a red raffia mat." A. Yes. Q. Now, you say that Mr O'Toole was rubbing his body against yours. A. Yes. Q. And you say - now, this is another occasion, isn't it? A. This is a separate occasion to the one referred to in the previous discussion. Yes. Q. And you say, "I am certain that he had his trousers off on this occasion." A. Correct. Q. Okay. But you don't mention or refer in any way to penetration to any degree of any part of your body. A. In this incident, no. Q. Okay. And in the other incident that I've referred you to, concerning paragraphs 36 and 37, you have no recollection. You just don't remember the accused ever taking off his trousers or underwear. Agreed? A. Correct. Q. And, ma'am, can I suggest this to you. So I'm raising something with you. And when I do that, ma'am, as you've probably been told, you can agree or disagree or say whatever you wish to say. Okay? Understood? A. Yes. Q. All right. A. Yes. Q. So, ma'am, is the fact, I suggest to you, that you are not able to say or recall any event when Mr O'Toole, the accused, penetrated any part of your body with his penis. A. I disagree."
24. CW agreed that she had no memory of the accused taking off any of his clothes in the storeroom. She gave this evidence: "Q. When you got into the storeroom, you have no memory of his taking any of his clothes off? A. I didn't see it happen. I have no memory of that. Q. Ma'am, can I raise this with you: you didn't see it happen because it didn't happen. A. I disagree."
25. CW gave evidence that she discussed these matters with her mother in 1996, 1997, but not specific details. She gave evidence that initially, she did not say anything to her mother because she did not realise "the enormity of what happened to her". She denied not telling her mother because she thought it would be very hard on her mother. She agreed that the first time she became aware that other people were raising a complaint was in 1996 or 1997, when her mother told her someone else had been sexually interfered with at the school.
26. CW was cross-examined about the closure of the school and whether it was 1967 or at the start of 1968. She was unable to say whether the sexual abuse by the accused went on for more than one school year.
27. CW was also cross-examined about her recollection of what the accused looked like as follows: "Q. Did you ever describe Mr O'Toole about what he looked like in terms of your - making your police complaint? A. I said he wore khaki clothing. That he had dark-ish hair. Q. Ma'am, I think you said in your statement that "I vaguely remember him having dark hair"? A. Vague, yes. Q. Because, ma'am, I'm not being a pedant but you really have no memory at all even of what Mr O'Toole looked like? I mean, to be frank. A. I cannot give an accurate description of Mr O'Toole, no. Q. In fact, ma'am, as at 16 July 2016 in fairness to you, you are able to say you vaguely remember him having dark hair? A. Yes. Q. That's about all you could say. A. Yes. Of his personal description. Q. It might have been dark-ish? A. Sorry? Beg your pardon? Q. I think you mentioned in your evidence, ma'am, that whether it was dark or not, it could have been dark-ish as in, you know, brown? A. Not jet - as in, not jet black, but a dark colour. Q. So brown hair, it could be brown hair? A. A dark colour. Any hair that is dark colour. Q. Any hair that is not blonde or red? A. Yes."
28. CW was cross-examined further about what her mother told her in the mid 1990's. She became aware that another person had made a complaint and that person was aged seven at the time of the alleged sexual abuse. She first raised that the accused drove a white Cortina when giving her statement to Detective Senior Constable Welsh.
29. CW was asked about other teachers who stayed at her home and gave evidence that a Gary McCormack had stayed there. She was then asked: "Q. Ma'am, isn't it the case, and you can disagree, that you did discuss certain things with your mum, for example about which teachers were at the school, what was happening in a general sense at that time concerning who stayed there - matters of that kind? A. In the conversation I had with my mother, the only name my mother - my mother asked me who it was and I said, "Ian O'Toole". We did not discuss any other teachers."
30. CW was also cross-examined about what she told her sister, KW, as follows: "Q. Have you spoken about this matter with your big sister, KW? A. About the matter, no. I explained yesterday that in either December 2014 or January 2015, when I was staying with her in Scotland, I asked her had something happened to her at BPS. She said yes. I ask no other questions. I do not want to know what happened to her. But I did ask, could I give her contact details to Detective Senior Constable Welsh at the Mville Police Station."
31. At the time she made her police statement on 16 July 2016, CW gave evidence that she was aware that three people were making complaints against the accused, namely, LW, KW and herself.
32. In her statement, CW identified two matters that she had discussed with her father, including a statement that the accused had driven her brother from BUP to the bus stop for the bus trip to Mville. She conceded that she did not remember what year the accused may have started teaching at the school, and that she was uncertain if the school closed in 1967 or 1968.
33. CW was cross-examined about the recorded conversation at the Kurrajong Radio Museum with the accused. She agreed that the accused did not confess to her any impropriety during that conversation. She was aware of the complaint by LW prior to that conversation.
34. CW was also cross-examined about her evidence that the accused gave her nicknames as follows: "Q. Ma'am, can I raise this with you, and you can agree or disagree? That the accused did not call you the names that you have described. A. I disagree. Q. Okay. Ma'am, can I raise with you that you've indicated the accused said to you words to the effect in the storeroom that, "If I'd done something like this to one of the older girls they might fall pregnant." Do you know what I'm referring to? A. The incident in the storeroom where I think referred to the blue mat, which is my first memory inside the storeroom. Q. Okay. What's raised with you is the accused didn't say that to you. A. He did say that to me. Q. It's raised with you that the accused didn't say those words to you at any time. A. He did say those words to me. Q. Ma'am, could I raise this with you: that in terms of the allegations of sexual misconduct as you have described them, these events did not take place? A. I disagree."
35. Following leave being granted to the accused to cross-examine CW on a statement she prepared in 2013 for submission to the Royal Commission into the Institutional Responses to Child Sex Abuse, CW was asked the following in respect of cleaning the school's toilets: "Q. Can I just raise this with you; there were no toilet seats over the hole on the long drop arrangement? A. The toilet seat was a wide toilet seat that went across the toilet stall. There was a wooden seat, and there was room either side of the spot someone would sit. Q. Right. That just being raised with you, ma'am, and you can agree or disagree, that there was no toilet seat to stand on if one was to stand on it, one would actually fall through into the abyss below? A. If one was to stand in that position, yes. But I stood to the side of where the hole in the toilet seat - the toilet bench seat was. It's not a toilet seat like in a modern day toilet. Q. In fact, ma'am, there was really nothing to clean in there, was there? A. That is correct, there was nothing to clean. Q. So there'd be no brushes or anything like that? A. No. Q. Ma'am, can I raise this with you; that Mr O'Toole didn't ask you on any occasion to help him clean the toilets? A. He asked for a volunteer from the classroom, and selected a person from the classroom to help clean the toilets."
36. CW was asked further about the complaints she made to her mother and husband, in which she had given evidence that she did not go into details. She was asked: "Q. When was the first time you've mentioned the issue of this person being Ian O'Toole? A. To my mother in that October 96 type era that we have discussed in previous examination, when she asked me - well, told me that another person had been interfered with, and asked me had anything happened to me, and I said yes. She did have a follow up question, which teacher. Q. Which year was that, ma'am, if I could ask? A. I have said mid to late 90's. 1996, 97. Q. Is that close to the time when you heard about LW having a complaint? A. In that same discussions with my mother, my mother had told me, and I thought I answered this the other day; my mother had told me that LW had asked that - in the situation where my mother was approached, LW had said, did mum know anybody at BPS or - that had been sexually interfered with, because something had happened to her when she was about seven years of age, she had a daughter who now was seven years of age, and was very distressed at the thought that something could happen to her daughter. Q. And did you mention Ian O'Toole then for the first time? A. Well, that was the same conversation-- Q. Same conversation? A. That same conversation with my mother. Q. Where was the conversation? A. That was in the bedroom of the first house that I lived in, in my home block on the south coast, and we have since built a new house. It was in the old house, and it was in my main bedroom. I was going to night shift, and I very clearly remember - sorry; I was going to rest before night shift and I have a very clear memory of my mother coming into the room to ask me."
37. Of the first incident in the storeroom (in respect of Count 4), CW was asked: "Q. And actually, ma'am, you have no actual memory of Mr O'Toole in the circumstances you've described penetrating your genitalia to any degree. Do you accept or reject that? A. I reject that. I do remember. Q. And, ma'am, when you gave the statement to the Royal Commission, you said, "He must have entered me as I clearly recall him saying that if he did this to one of the older girls, they would become pregnant". Do you remember saying that? A. That was in the Royal Commission submission. Q. That - yes, that's right. A. At that stage, I did not understand the definition of sexual penetration. I thought that the penis had to be all the way in the vagina for it to be considered sexual penetration. I said in my evidence I gave you last week that I didn't know how far he inserted his penis, but he did insert it some way. Q. What I'm raising with you, ma'am, is just in relation to this very small point. You said, "He must have entered me as I clearly recall him saying that if he did this to one of the older girls, they would become pregnant", and what I'm raising with you, ma'am, is that you actually have no memory of his - of Mr O'Toole penetrating to any degree, that you have inferred it because of something he said, but there's no memory of the actual penetration. A. Incorrect."
38. CW agreed that she was aware that police enquiries were being made about the accused before she made her police statement in October 2015. She agreed that she had said in her Royal Commission statement that when she heard the accused's voice on the Collectors Program, she was fairly sure that it was the accused from her childhood. She was asked: "Q. Ma'am, when you think back to the 1960's and some of the other teachers who were at the BPS. A. Yes. Q. Do you remember anything distinctive about their voices? A. No. Q. Ma'am, would it be fair to say that when you say no, that is because of the passing of more than 50 years. Agreed? A. In the other teacher, GMc, yes I agree."
39. In re-examination, CW was asked what other reasons she had for not telling her parents about the incidents, and she gave the following evidence: "A. I was very young when the incident happened, and I didn't understand - or incidents happened; I didn't understand the enormity. I learned the enormity through school yard whispers, and by then I blamed myself. My mother did not talk to me about anything of a sexual nature. The only thing she talked to me about was when my periods started in the May school holidays of 1973, and she very briefly told me what to do, and when I started to wear a bra in 1972, it was sixth class at high school. They're the only two times she told me anything. So by the time - or told me anything relative to a sexual nature. By the time I was an adolescent, and understood what happened to me, I didn't feel I could tell my mother, and I was horrified that, you know, school yard whispers have their inaccuracies, and I thought I had brought this on myself."
40. CW gave evidence that Mr M taught her for one term in 1965 when she was aged five years.

Evidence of DA

1. DA gave evidence that he first met CW in 1988 when they both worked for the CSIRO. In 1993 they formed a relationship, and a couple of months into that relationship CW advised him that she had been molested by a schoolteacher who had been boarding with her parents. She did not tell him the name of the teacher at that time. He gave further evidence that she never went into details about what occurred, and they subsequently married in 1994.
2. DA gave evidence that on a trip to Bilpin around 2010, that the teacher that molested her ran a radio museum in Kurrajong. She also told him that when he had been living with them, that her father had allowed him to build a radio tower actually on the farm where they lived.
3. DA was not cross-examined.

Evidence of LW

1. LW was born on 5 February 1959. She gave evidence that she lived with her parents and brother at BUP and attended the BPS. She was six or seven when the accused came to teach at the school, and gave the following evidence: "Q. Can you tell us what you can remember about Mr O'Toole when he came to the school to teach? A. He was young. He had dark hair, wore long trousers. Kids used to call him "Tooleybags" behind his back. Yeah. He's - had very soft hands. Q. And you said that he was young. A. Yes. Q. And when you say young, what do you mean by that? A. He probably would've been, I don't know, mid to late 20s, maybe."
2. LW had provided a diagram of the school which became Ex M. She gave the following evidence about an incident that occurred: "Q. Now, LW, is there something that you particularly remember occurring when you were at BPS and Mr Ian O'Toole was the teacher? A. Yes. He ‑‑ Q. I'd just like you to - you're doing the best you can. If you can tell us what happened on that occasion. And if things were said, if you can remember either what he said and what you said, or words to that effect. A. Okay. He used to take kids to the toilet and get them to help him ..(fault in recording equipment).. Q. That's me. Sorry. A. I was always wanting to go, but was never picked. But that day, he picked me and I was so excited. Q. Do you remember how old you were, LW? A. I would have been probably six, maybe seven. Q. All right. And doing the best you can, just tell us what happened after you were picked. A. Well, we went and got the buckets and brooms and things and took them over to the boys' toilet. And ‑‑ Q. Who was there? Yourself and who else? A. Ian O'Toole. Q. All right. A. Yes. And we went into the toilets and he had the broom and he went and sat down on the toilet and started poking me in the vagina with the ‑‑ Q. Are you okay? A. Poking with the broom handle in the vagina. … A. Then, yeah, he was poking me with the broom handle in the vagina and I sort of - it was - what the hell's going on? Q. All right. Can you remember what you were wearing at the time? A. A little dress and little undies. That's what I always wore, so that's what I was wearing that day. Q. All right. And what's the next thing that you remember happening? A. He grabbed me around the waist and pulled me over to sit on his knee. He had his pants undone and his penis was sort of there. He was trying to get me to touch his penis and pull it out of his hands, but I put my hand in a fist and just wouldn't open my hand. Q. All right. How was he getting you to - what was Mr O'Toole doing to your body at the time he had his penis out of his pants. A. He was trying to - he had a hold of my hand, trying to push it onto his penis. Q. And did your hand ever touch his penis? A. Yes, it did. With my fist. Q. And did Mr O'Toole say anything to you at this time? A. He's just saying that if I did it, he'd - if I pulled it out and played with it, he'd pass me in the exams we had coming up. Q. And ‑‑ A. But I was - I was - yeah. I just was giggling and just didn't know what to do. Q. All right. And what did you do, if anything, with your hands when this was happening? A. Like I said, I was putting it in a fist and just wouldn't open it up. Q. And what's the next thing that you can then remember happening? A. I just remember his hands. They were just so smooth and just - yeah. Just that vision is in my head for as long as I can remember. He ended up giving up after a while and he got me off his lap and we stood up and we continued to clean the toilets. Q. All right. When you were sitting on his lap, when he put you on his lap, can you remember or not how you were sitting on his lap? A. I was sitting on his right - right leg - knee. And my legs were around - between his legs. And - yeah. My hands were sort of both in front of me when he was - yeah - when he was trying to get me to touch - touch him. Q. All right. And which toilets was this happening in? A. The boys' toilet." The Crown relies on this evidence to establish Count 20 on the Indictment.
3. LW gave evidence that she had rung the Education Department in roughly 1990 to see whether the accused was still teaching. She subsequently spoke to Mrs DW at her parents' place at Tuggerawong. She was not sure when that conversation took place but said it was probably in the late 90's. Mr and Mrs W, and Mr and Mrs Y were both visiting her parents. She gave evidence that she was first contacted by Detective Senior Constable Welsh in 2014, and that she made a statement on 14 July 2017.
4. In cross-examination, LW gave evidence that she first heard about allegations concerning other people in 2014 when Dectective Senior Constable Welsh got in contact with her.
5. LW was cross-examined on her conversation with Mrs W. She could not remember what year that occurred, but said it was closer to 1990. She gave the following evidence: "Q. Was there some discussion about things that perhaps people had heard about Mr O'Toole? A. Didn't, no. Because I didn't, when she said she hadn't heard anything, I didn't want to say, say anything, so, yeah. Because I, I don't know. Q. All right. So‑‑ A. Because like I said, I thought I was the only one, so I didn't want to make me, I guess it was‑‑ Q. That's all right. Ma'am, did you tell Mrs W that you'd been assaulted by Mr O'Toole? A. I can't remember, actually. Q. It's all right if you did and it's all right if you didn't. A. No. I can't remember whether I did or not. Q. Can I raise with you that you did mention something bad happened to you in relation to Mr O'Toole? A. Okay. Q. What do you think? You tell me. A. I may have done. I'm not sure. I can't‑‑ Q. All right. Okay. A. -really remember. Q. Is it possible that you said to Mrs W, "Well, has anything bad happened to anyone you know?" Or something like that. A. Yes. I would have said that. Yes. … Q. And Doreen and Bonnie, did you say words to the effect to them when you were present, "Look, has anything bad that you know about of a sexual nature happened in relation to Mr O'Toole?" A. Yes. Q. That was in the presence of Mrs W Senior. A. Yes. Yes. … Q. Was it in the context of that discussion that you said, "Look, something, you know, bad happened to me", but you didn't go into too many details about it and just left it at that. A. Yes. Yes. Q. All right. But you did ask, you know, did they know anything like that which had happened or heard about anything like that which had happened relating to Mr O'Toole. A. Yes."
6. In relation to the incident comprised in Count 20, LW was cross-examined as follows: "Q. Okay. And, ma'am, do you remember anything else about the day on which it happened or is that just the one thing that sticks out in my mind? A. I was just really happy that - and excited that he actually asked me to go and help him because I thought it was a great thing that I was noticed by the teacher. Q. Okay. And, ma'am, in terms of the account that you've given, would you agree that there was no - was it the case that he only - in terms of your account, ma'am, that you were only touched on the outside of your pants? A. Yeah. He was running the hand all up, like, pushing on the vagina with the broom handle, with the knob of it. Q. All right. And that was on the outside of your underpants. A. Yes. Q. Again, if I understand your evidence, ma'am, because of the way in which things occurred, you did not touch his penis. A. Not with an open hand. I touched it with my fist."
7. LW conceded that three years past between when Detective Senior Constable Welsh first contacted her in 2014, and when she made her statement in 2017. She gave the following evidence: "Q. Also, Ma'am, how many other people did you believe had been, as a result of things you'd heard and so forth, been victims of Mr O'Toole? A. I didn't know of anybody up until 2014, when Justin told me that there may have been a couple of others. Q. Okay. And‑‑ A. But up until then, I'd, I'd certainly had my suspicions about a couple, but I was totally wrong. Q. Who were the other people that Justin had told you were also now in the investigation? A. Well, mainly only CW at that stage. There's‑‑ Q. At that stage, it was CW - A. ..(fault in audio visual link)..CW. Q. -and did you think anyone else? A. And I was, I was really shocked. I, yeah. I didn't, never even thought of her. Q. Ma'am, when you think about it, anyone else that you understood was a victim at the time you made your statement? A. No."
8. LW was further cross-examined as follows: "Q. Ma'am, can I raise this with you, you can agree or disagree, okay? In around '96 or '97, that's 1996 and 1997, did you contact Mrs W, maybe on the telephone? A. No. Not on the telephone. Q. Okay. A. No. Q. So, you say you spoke to her in person? A. At my parent's place, yes, at Tuggerawong. Q. Okay. Okay. And, did you say that something bad had happened to you of a sexual nature when you were about the same age as CW? A. Well, CW is a year younger than me. Q. Okay. A. I didn't tell her, exactly, what happened. I just asked her whether she'd heard of any kids who'd had any issues. 'Cause at that stage, I didn't even dream on, dream that would be CW and KW, so-- Q. When you asked about people who had, may have had issues, you, in your mind, in the context of that conversation, you were talking about being molested? A. Yes. Q. Yes. Okay. A. No, it was more asking BY about BY, mainly. Q. All right. A. 'Cause, like I said, the boys went over more-- Q. Okay. A. --than the girls, so-- Q. And what I'm raising with you then, it might be hard to remember but that you mentioned to Mrs W senior that you'd been sexually interfered with and that it happened to you about age seven? A. No. I didn't tell her that. No. Q. Okay. And, you didn't tell her, you didn't mention that, you did not mention that? A. No."
9. LW denied telling Mrs W that she had contacted the Department of Education and that she was seven years old when the incident occurred. She was asked as follows: "Q. Ma'am, those two things about your being seven and contacting the department of education, did you tell anyone else that? A. My mother. Q. You told mum, yes. And what did you tell, did your mum, was anyone else there when you told mum? A. No. Q. Okay. All right. Now, ma'am, I'm just going to raise a matter and you can agree or disagree. Okay? Or say anything else you want to say. And is this the man in relation to the allegation of sexual misconduct that you have told his Honour about that, that didn't happen as you've described and that you weren't sexually interfered or assaulted as you've described? … WITNESS: I totally disagree with that."
10. There was no re-examination.

Evidence of EH

1. EH gave evidence that she attended BPS. In her last year there, before she moved to Scone with her family, there was a teacher who was in his twenties who lived with Mr and Mrs W, next door to the school. She was 10 years of age when there was an incident at school. She gave the following evidence: "A: I went to the toilet at the - in - at the school and I think I was sitting on the toilet and the teacher come in and then I was sitting on the toilet and he said, 'show us your poppy show'. He said, 'if you show me yours, I'll show you mine.'" When asked what happened next, EH said: "A: I didn't think it was a good thing. I don't know why he told me that, so I run out of the toilet."
2. In cross-examination, EH said she could not remember whether the incident occurred in 1965, 1966 or 1967. She thought it occurred in the mid 60's. She could recall two teachers at the school, but all she could recall of the teacher involved in the incident was that he was a younger male.
3. EH gave evidence that when she made her police statement on 19 January 2018, the investigating officer told her that he was investigating a teacher from the school who had sexually interfered with or molested a few children at the school, and he indicated that he believed these things were going on when she was there as a child at the school. She made her statement after being apprised of this misconduct. She could not recall the name of the teacher and just referred to the fact that it was a young male.

Evidence of BY

1. BY gave evidence that, in the 1960's, she lived at BUP with her husband and three children. She and her husband were friendly with Mr and Mrs W who were their neighbours. After they left BUP in 1973, they remained in regular contact with Mr and Mrs W.
2. BY gave evidence that there was an occasion when she and her husband visited their daughter on the Central Coast, when Mr and Mrs WI and Mr and Mrs W visited. On that occasion, one of the women mentioned the BPS. She gave the following evidence: "Q: Can you remember what was said? A: Well they said that the girls had been sexually abused, had BY ever said anything about it. Well he hadn't." Q: And who was there when that was said, apart from yourself? A: Well it was only us three women in there. Q: Who are the other two women apart from you? A: LW and Mrs WI. Q: And did anyone else speak to you that day? A: Yes, LW. Q: And doing the best you can, can you remember what LW said to you? A: Well, she admitted she'd been sexually abused, but other than - she didn't go into detail and that with me, no."
3. In cross-examination, Mrs Y was asked: "Q: Did you observe LW asking anyone whether they knew anything about this sexual misconduct going on? A: Yes, they wanted to know whether BY's son knew anyway, so, yeah, he was only in year 1 or 2, you know, and he never mentioned anything."

Evidence of CF

1. CF was born on 19 December 1959 and attended the BPS from kindergarten in 1967. She gave evidence that the accused was the teacher there and she described him as follows: "A. He had dark hair, brown eyes, dark complexion, he had a funny tooth when he smiled. He was..(not transcribable)..built, young. He used to have a smirky grin on his face at times. He wore long pants a lot, but I do remember him wearing sort of board shorts, shorts for swimming lessons, and I noticed he had very dark hairy legs. Q. Apart from his appearance, is there anything else you can tell us about Mr O'Toole, what you knew about him when he was teaching at the school? A. He approached students nicely. I remember I had trouble saying words, and he used to make fun of that in front of the classroom, I remember that distinctively. Q. Did you know where he lived when he was teaching at the school? A. He lived with my Uncle D and Aunty D and my cousins, CW, KW, BW and WW. Q. Do you remember or not, how Mr O'Toole got to school when he was teaching at the BPS? A. Yes I do. He drove a car. Q. Do you remember what type of car it was? A. It was a white Cortina. … Q. Do you remember anything else about Ian O'Toole when he was teaching at the school, any interests he had or anything like that? A. I knew he used to like music, but he also had something at school like a radio that he used to speak into. Sometimes he had that. I do remember us children making like walkie talkies out of cans and string. But that's what I can remember."
2. CF gave the following evidence concerning the first time something happened between her and the accused: "A. I was inside the classroom. It was a lunch break. There was a projector in the room which shows pictures on the back wall. He got the boys - I can't remember the boys' names, that he got them to pull the blinds down, and there was a picture of a house on the wall. He proceeded to close the door and walked over to his desk. Q. When you say he, who are you talking about? A. Ian O'Toole. Q. When you say he closed the door; which door did he close? A. The one and only door to the classroom. Q. After he closed the door, who was in the room? A. Ian O'Toole and myself. Q. Okay. So after he closed the door, can you tell us what happened? A. He proceeded to walk over to his desk and he asked me to come over and stand beside him. And I saw the picture of this house on the wall. And he was showing me houses, I think it was my parents were moving to the city because they had their farm up for sale, and plus they were selling the house that they had at Warragamba, and I didn't understand a lot about houses in the city being a child raised on a farm. It's hard to comprehend that so many houses in the city. So he-- Q. Can you remember anything about the picture that was on the wall? A. Yes; it was a red brick home with a white picket fence, and there was a box on the fence, and at that time I didn't know what it was, and I asked him what it was, what was that thing on the white picket fence. He proceeded to tell me it was a mailbox and that all houses have those type of mailboxes. As we have on the farm, you have a big box out on the side of the road. So for me seeing that small mailbox on the white picket fence on a red brick was overwhelming for me, knowing that I was - my family were going to move to a city area. Q. Where were you in relation to Ian O'Toole when he was explaining to you about the mailboxes? A. Standing beside him. As he was talking to me about it, he was touching my arm, he was touching my shoulder, and he put his arms around my waist, he pulled me in towards him. He was telling me about the houses, and distinctively I felt very, very uncomfortable. Q. What's the next thing that you remember happening? A. He got me to sit on his lap. … Q. How did you feel when he got you to do that? A. I felt very uncomfortable. I was trying to distract what was going on because I did not understand what was happening. Q. And can you tell us what was happening at that time? A. He - I remember he got on me on the lap and he made me straddle him like with a leg either side. Q. Either side of what? A. Of his - at that stage, I can remember I was still looking at the pictures on - in the back of the school floor. I felt very, very - he put his hand down between my legs to go in the area and he was rubbing that area and then he pulled my underwear to one side and after that, I felt pain. I didn't know what it was."
3. This was the evidence the Crown relied on to establish Count 21 on the Indictment.
4. CF then gave the following evidence: "Q. CF, you said that you felt a pain -you felt pain. Where did you feel the pain? A. In my vagina. Q. Can you describe the type of pain? A. It was a sharp burning pain. I remember it very well. … Q. You said that Mr O'Toole pulled your underpants aside. … Q. What part of his body - do you know what part of his body he used to do that, CF? A. His penis. Q. And when was the first time that you saw - did you see his penis? A. No. Q. How do you know that it was his penis? A. Because there was all this wet stuff between my legs. Q. And apart from the stuff being wet between your legs, did you notice anything else about the wet stuff? A. It smelt. It was the smell as well as..(not transcribable).. Q. Did you know what it was - A. No. Q. -when this happened? A. No, I did not know what it was."
5. This was the evidence relied on by the Crown to establish Count 22 on the Indictment.
6. In respect of the evidence she gave that the accused was rubbing an area between her legs (Count 21), CF was asked: "Q. CF, you gave evidence yesterday that "He put his hand down between my legs to go in the area, and he was rubbing that area." What do you mean when you say "that area"? What are you referring to? A. I said yesterday, the vagina."
7. CF was then asked about the "wet stuff" between her legs: "Q. What's the next thing that you remember happening at that point, after you realised that there was wet stuff between your legs? A. I got off. I was so scared. I approached the door out of the classroom and the - I can remember. I ran to the toilet. Q. Was anything said by you or Mr O'Toole before you left the room? A. He basically told me, "Don't tell anyone. This is our secret. You're my favourite. If you tell anyone, I will find you and kill you."
8. CF then gave evidence that she had left the classroom and went to the toilet, where she took off her panties and threw them in the toilet. She was then asked: "Q. Do you remember anything else happening with Mr O'Toole, CF? A. Yes. There was another time when I needed to go to the toilet. And he used to take the little ones to the toilet, just in case there were snakes around. Q. When you say "he", who do you mean? A. Ian O'Toole. Q. Was this time - can you say whether it was before or after the other time you've told us about? A. This was after. Q. Where were you when you needed to go to the toilet? A. I was in the classroom. … Q. Did you leave the classroom? A. Yes, I did. Q. Did you leave by yourself, or not? A. I walked out the door by myself, and down the steps. And he followed, because he had to get another student to keep an eye on the other kids in the classroom while he took me up to the toilet. Q. Which toilet did you go to? A. Girls' toilet. Q. Can you tell us what the girls' toilet looked like. A. There was - there - sort of a tin type shed. There was a entrance into the toilet. We walked in. There was a - the toilet seat with the - a hassle of, like, a wooden bench thing there. It was like a - you know those old pit toilets. Because there was no flushable toilets, of course, in that area. Yep. Q. Doing the best you can, can you tell us what happened when you got inside the toilet. A. When I - yeah. As I walked into the toilet, he turned around. And as I went to take my panties off to use the toilet, Ian O'Toole was standing there in front of me. Q. What's the next thing that you remember happening? A. I remember him unzipping his - front of his pants. And there was this - this thing sticking out of his pants, and it was erect, and I leant forward and my head - I don't know whether it accidentally hit him or I deliberately hit the end of his penis, and I wet myself and he took off."
9. This was the evidence relied on by the Crown to establish Count 23 on the Indictment. She was then asked: "Q. Apart from your head bumping his penis when you were in the toilet, can you remember if anything else happened when you were in the toilet? A. He tried to grab my hand to touch it, and I think that's why I - I accidentally - or I don't know whether it was deliberate, like, all I can remember, I did what I did. Q. When you say, "He tried to get me to touch it," can you explain to the Court what he did or said to try and get you to touch it? A. I can't. I can't. Sorry, Crown, I can't."
10. CF gave evidence that she did not tell her parents what happened "because I live with what O'Toole told me when I was six years old". As an adult she told a friend, JFW, what happened and also told her husband, DB, when they were engaged that she was sexually abused when she was six years old by a school teacher, but never gave him names.
11. In cross-examination, CF was asked about the statement she made to police on 15 July 2017. She agreed that on the occasion when she was sitting on the accused's lap, he was trying to kiss her.
12. CF was further cross-examined about the incident where she was sitting on the accused's lap in the classroom watching pictures projected on the back wall of the classroom. She agreed that she was facing away from the accused. She was asked: "Q. Can I ask how this came about in the circumstance of your facing away from him with your back to him. How did he go about the kissing on the mouth, or attempting to kiss you on the mouth? A. He put his hand around my chin , tipping my head around. And then I was sort of like - as I was - he brought my head around, I sort of moved my body - the lower part of my body moved as well. … Q. Can I just ask you, ma'am - was that the first time you talked about turning around, or towards Mr O'Toole, in terms of his trying to kiss you on the mouth as you've described? A. In my statement, I think that's what I put there - on my statement. Q. You indicated in your statement, ma'am, that he was trying to kiss you on the mouth. But did you say whether you were facing towards him, or - that's to say, facing the projector screen - or whether you were facing towards him in terms of face‑to‑face, as it were? A. I was looking at the picture - to screen, and he put his hand on my chin to turn my head towards him. That was before that happened - the previous part happened. I can only remember what happened. I cannot remember every single god damn detail. Only what I can remember."
13. CF was asked whether she remembered which boys pulled down the blinds in the classroom and named two students. She was asked: "Q. Did you indicate in your statement that you couldn't remember who those boys might be that pulled the blinds down, or some other time in giving an account? A. Can't remember, I - like I said, there was only - I can't remember. They were young boys, and there was only a certain amount of young boys in that school. Q. I don't think you've ever previously suggested that Master H might have been someone who pulled the blinds down. A. No. But I am saying it now because I'm remembering bits and pieces."
14. CF gave evidence that the incidents occurred in 1966 because in 1967 the school closed. She gave evidence that the accused left in 1966 and they had another teacher towards the end of the year. Her last memory of the accused was in the schoolyard when they were practising for inter-school sports. She was asked: "Q. Ma'am, in paragraph 12 of your police statement, which is dated 15 July 2017, you spoke about the event which related to the slide projector, and you said that, "It was one day in 1966 or 1967, when I was either seven or eight years old." Do you remember saying that in your police statement, Mrs B? A. Roughly, yes. Q. And you're there indicating, do you agree, that this event as you've described it could have happened in 1966 or 1967? A. I don't know. I was six year old. Q. And is it the case that you're able to confine or limit the time to 1966 because, put simply, you remember being six years old? A. Could you repeat that question again, please? Q. CF, are you able to refine or limit the time to when the projector event happened because you remember that you were six years old, and that adds up to 1966 in your mind? A. I was six year old turning seven that year, but I remember what happened. Q. Okay. And all am asking, ma'am, is-- A. I remember - yeah. Your Honour, I'm sorry. I remember what happened, as I stated to you before. … Q. And what I'm raising with you now, Mrs B, in terms of your memory what has what you've spoken about in terms of the slide projector event, that would you accept that that might be in 66 or 67 because of the difficulty you have in remembering seasons and surrounding events? A. It would have been in 1966 because we had school holidays at the end of 1966, 67. The school was closed in those months, in that December or January. But I know those incidents happened in 1966. … Q. Ma'am, what is it which enables you to say that one of those events came first in time - that's relating to the projector - and one of the events you've described in the toilets was after that? What is it that enables you to say which one came first and which one came second? A. I was there. I know what happened. I know what happened in the classroom. And the second event happened afterwards. I have not got a time frame of that, sir. Q. Are you able to say how long after the first event the second event happened? … Q. Is there any way you can put some time between the two events? A. It could have been weeks after. It could have been days after. I can't remember, sir. Q. Okay. Ma'am‑‑ A. All I know it happened."
15. CF was further cross-examined about the incident with the projector as follows: "Q. You said in your statement, "Ian O'Toole reached around my leg, and put his hand between my legs, and pulled my undies to one side with his hand." You remember saying that? A. Yes. I remember that. I remember - I was there when it happened. I remember that. Q. You said, "I then felt a very sharp pain in my vagina area." A. Yes. … Q. Ma'am, when you said in your statement, "He put his hand between my legs, and pulled my undies to one side with his hand," and you said, "I then felt a sharp pain," is it possible that the cause of that sharp pain was his hand, or his fingers? A. No. Because - why would I be wet, soaking in semen? And it smelt. Q. Ma'am, you didn't see his penis at that time. Is that fair? A. I did not see his penis at that time. I wasn't looking at things like that. I wanted to see the pictures on the wall."
16. CF was asked why she did not report the incident to her parents. She gave the following evidence: A. How could I go home and tell my mum and dad about what happened, when I was threatened. He was the peer of the community in those times, a priest, a doctor were the peers of the community, as yourself. And then in those times if a child spoke up about something like that, what would the repercussions of that - and the threats that we were given. Your Honour, can I please have a break?"
17. CF was asked about her statement in which she said the accused unzipped his pants in both incidents. She did not see him do that when she was sitting on his lap, but saw him pull the zipper down in the toilets. It was put to her that the accused did not have zippers in relation to his trousers, but had buttons on the fly. She disagreed.
18. Finally, CF was asked: "Q. Ma'am, can I raise this with you, that Mr O'Toole did not engage in sexual misconduct with you in the ways that you have described? I suppose-- A. I totally disagree with that."

Evidence of DB

1. DB gave evidence that he met CF in June 1978 and they became engaged to get married. Before they married in 1980, CF told him that she had been molested whilst attending school by a school teacher. He was asked: "Q. Did Ms F tell you anything else about it at that time? A. No, not at that stage. Bit later on, she told me the - he - he used to make her sit on a lap, and do things. And that was about it. Q. Apart from those two conversations about it, have you ever been told any more details by Ms F about what happened? A. No. I never pressed."
2. He was not cross-examined.

Evidence of WW

1. WW gave evidence that he was born on 29 August 1953. He lived with his family on a farm that bordered the BPS, which he attended until his sixth year, following which, he went to Mville High School. He gave evidence that the last teacher at the BPS who lived with his family was the accused. He described the accused as being in his early to mid-twenties with an interest in amateur radio.
2. WW gave evidence that on an occasion when he was about 13, he went with the accused to BPS on a day when no one else was at school. He believed it was a weekend and he was given chocolates by the accused. He gave this evidence: "Q. When Mr O'Toole gave you the chocolates, whereabouts was he? A. We were in the school room. From memory, he sat on a desk. And then had me - put his penis in my mouth. I remember him commenting on the nuts. So I swallowed the nuts and then continued with mouth on the penis. Q. When you said that he commented on the nuts, and then you swallowed the nuts, when you swallowed the nuts, was his penis inside your mouth or not? A. No. I - yeah."
3. The Crown relied on this evidence to establish Count 24 on the Indictment.
4. WW then gave the following evidence: "Q. After you swallowed the nuts, you said his penis was back in your mouth? A. Yes. Back in my mouth. Q. Did you know what was happening at the time? A. No, not - not really. What I know now, to back then - no, I did not know what was happening."
5. The Crown relied on this evidence to establish Count 25 on the Indictment.
6. WW then gave the following evidence: "Q. What's the next thing that you can remember happening on that day? A. There was another thing - I can't remember whether it was the same day or not. Mr O'Toole put - got me to put on some Vaseline on my penis, and rub it between his cheeks. And also had - he - he was laying on the floor, and I was on top. And then I remember - whether it was the same day, or a different day - being reversed. I was on the bottom. He asked me to quote - he did not penetrate me - he asked me to squeeze my legs tighter. I do not recall whether he ejaculated or not. Q. On the occasion - the time when he was on the floor, and you said that you were on top of him‑‑ A. Yes. Q. ‑‑can you tell us what body parts of yours were touching what body parts of Mr O'Toole on that occasion? A. On that occasion, my penis would have touched his bottom cheeks. Q. On that occasion, was anything said by Mr O'Toole to you? A. I cannot recall."
7. The Crown relied on this evidence to establish Counts 26 and 27 on the Indictment.
8. WW gave evidence that he never told anyone what happened with the accused. The first person who told him about the accused was his sister CW who called him to tell him that she had reported the accused to the Royal Commission. That occurred on 17 January 2018. He was contacted by Detective Senior Constable Welsh on 18 January 2018 and subsequently made a statement on 31 January 2018. He was asked why he did not tell his parents and gave the following evidence: "A. It was something that when I was growing up, it was not a common discussion. I probably felt uneasy, but unlike current conditions where it is a thing that is taught at school to be open about, it was not something that was open general discussion item. I would have felt uneasy to say anything about it."
9. In cross-examination, WW agreed that he was not able to say whether the events about which he had given evidence occurred on the same or different days. The first event involved chocolate and the second event occurred with Vaseline. He agreed he could not remember any conversation with the accused.
10. WW gave evidence that he believed that the events occurred in 1966 because he believed the school was closed in 1967. Further, he was about 13 years, which put it in 1966.
11. WW gave evidence that he could not remember how he and the accused came to be at the BPS, but he had a memory of being there with the accused. He was asked as follows: "Q. In relation to the first event, given that there's no memory about anything that was actually said to you or anything that you actually said to Mr O'Toole, how was it that you came to understand what it was that you were to do? A. There would have been instructions, but I do not recall word for word or what was said. Q. Now, would it be fair to say, sir, that because you can't remember what was said and because you can't recall any instructions being given to you, that you - in terms of the account you've given - you're effectively assuming somehow that you knew what to do in terms of what happened. Fair? A. There would have been instructions. I cannot remember word for word what they were to be able to put them down in writing as a statement. Q. And consistent with that, it would be fair to say you can't remember any words. Agreed? A. Agreed. I can't remember exact wording or any words."
12. WW was asked about the second event involving Vaseline. He did not remember the accused getting it out, but the Vaseline came from the school. In his statement to police he had told police that his mother had made a comment about a greasy stain on his clothes. He gave evidence that it was on his underpants. However, he had assumed that it was his underpants and he now did not have a recollection of which item of clothing it was on.
13. At the time he made his statement he was aware that his sister CW had made a report to the Royal Commission in relation to child abuse concerning sexual misconduct on the part of the accused. He also was aware that his other sister KW had made a complaint. He believed at the time that both sisters had been victims of sexual misconduct at the hands of the accused. He was then asked: "Q. Can I suggest this to you - that there was no occasion when Mr O'Toole engaged in sexual misconduct with you, as you have described. Agree or disagree? A. Disagree. Q. Sir, do you think - you can agree or disagree, or say whatever you wish to say - might it be the case that when you became aware, or you believed, that your younger sisters had been sexually mishandled, or the victims of sexual misconduct by Mr O'Toole, that you decided to support them, and come forward with your complaint, because at that time you wanted to support them with your complaint? A. No. Not in those words. Q. Sir, when you say, "Not in those words," are you just disagreeing with me? Or is there something else you may wish to say in relation to what I just raised with you? A. I'm disagreeing with that I made that statement in support of my sisters. It was not made in support of my sisters."
14. There was no re-examination.

Evidence of NS

1. NS was born on 26 May 1953 and she was the sister of CF. She attended BPS until sixth grade and attended Mville High School for the first year of high school. In 1967, because of her father's illness, she commenced correspondence school at BPS. She attended there with her aunt, JM, who was one year older and was also doing correspondence. They sat at a desk in the utility room where stationery for the classroom was kept, together with some sporting equipment. In winter they moved into the classroom because it was heated.
2. NS gave the following evidence: "Q. When you were at the school doing correspondence and Mr O'Toole was there, did you receive any teaching or assistance from him or what was the situation? A. Yes. At the beginning when we started back there he offered to help us with any difficult work that we might have been doing that we might need his help with and he said that he would help us if we helped him with the class from time to time which we agreed on and I did quite regularly, yes. Q. What kind of assistance would you give to Mr O'Toole? A. With the reading of the children. Mostly music classes. The ABC broadcasting. All the students loved that because it was an outlet of seeing and learning new songs from the ABC broadcasting back in that year. Q. Was there any times when you were left alone with the students and Mr O'Toole wasn't there? A. There was a few occasions where J and I were with the students helping them through their schoolwork and things. I remember one particular instance one afternoon he said he was going to do the rounds of cleaning the toilets and he took the little girls with him to be able to go to the toilets on their way around so he went to the girls toilets first to clean and then down to the boys toilets after that. On his way around-- Q. Where were you when he was doing that? A. I was in the classroom with the students helping them through some of their work. Q. Doing the best you can, did you hear or see something? A. That particular afternoon I heard a lot of screaming and raced out to the veranda to see what was wrong. It was a country school and, of course, you're always worried about red bellied black snakes or big spiders in the toilet or something like that. And the little girls come running out screaming and I'll always remember particularly in my mind little CW. She was crying and screaming and running ahead of them and she stumbled and fell and she was trying to pull up her little undies at the same time as though she'd been to the toilet and had a fright. The other little girls come out, they were crying too but my mind was fully concentrating on little CW because I thought she might have been hurt. And Mr O'Toole come out waving a big gum tree stick so I looked around to see if there was a magpie and I couldn't see a magpie because we're used to magpies bombing us as well and I looked very concerned at CW and looked back at the teacher and the other little girls and he said - he just yelled out across the school ground, "Oh, they're scared of my big stick", waving this big gum tree stick. And then I heard him say to the girls, "Now remember what I told you", and CW stopped crying and screaming straight away as soon as he said those words. And I was still concerned but too young to understand why."
3. NS gave the following further evidence: "Q. Apart from that incident and you've talked about the helping Mr O'Toole with the students with the ABC broadcasting, do you remember anything happening at a time when you were helping with the singing or music lessons? A. Yes. One particular time he asked us to take over the singing class 'cause he needed to take KW to the utility room which was the room where we used to do our correspondence and he said he needed to help her catch up on some schoolwork she was struggling with a little bit of it and could we take over the broadcasting singing lesson. Which was turned up a little bit louder than normal but we did a lot of singing and I remember back in those days I was a pretty good singer so I sang with the children and helped them through singing the songs and they were gone for some time and when they came back into the room CW had - KW, sorry - she looked like she'd been crying and she was very red in the face, and she went across to the far side of the classroom to sit in her seat, and he said she was just a little bit concerned about the school work she was doing. She'll be right later. So we continued with our singing lessons. Q. Did you see Mr O'Toole and KW go into the utility room? A. Yes. Yes. And the door was closed between the utility and the main classroom, because the music was very loud."
4. NS gave evidence that she assisted the accused when there was sporting activities as follows: "A. Yes. We were doing a lot of training, basketball, tunnel ball, high jumps, racing, all those sort of normal sports country kids did in those days. And I remember Mr O'Toole coming to us and saying that little - LW wasn't feeling so well that morning. And I looked across and I thought she looked okay, but she never said anything to us about not feeling well, but he said she wasn't well and he needed to take her back to the classroom, which was a long way from where we were, across the playground to the classroom. And he was gone for some time, and then he come back on his own, and he said she still wasn't feeling well and needed to lie down."
5. NS gave evidence about an occasion when the accused arrived at her family farm, which caused CF to be terribly upset. She was asked what she observed and gave the following evidence: A. Okay. She said, "What is he doing here?" And I - yes. Q. Did she do something? A. She was jumping up and down, screaming and yelling. Yes. Q. Had you seen that behaviour before from CF? A. Never. I've never seen that from CF before."
6. NS gave further evidence that the accused had left BPS before it closed and there was a relieving teacher, whose name she could not remember.
7. In cross-examination, NS agreed that prior to providing her statement on 30 January 2018, the officer in charge had informed her that he was investigating child sexual assault matters or sexual misconduct matters concerning the accused. She agreed that she provided a lot of help to supervise the children in the classroom and with their sporting activities. NS gave evidence that she did her correspondence work in the school ante‑room. She gave evidence that the ante‑room at the school was used for the storage of stationery and some sporting equipment, but other sporting equipment was kept in a storeroom under the school. She was asked: "Q. Ma'am, can I raise this with you. In that room, there were no sports mats or matters of that kind, in the room that you were working in that you can recall? A. I can't remember all those things, no. Sorry, I just can't remember it. Q. But you can say, sports equipment and utilities to do with things aside from exercise books and pencils, they were downstairs in another storeroom, under the classroom? A. Yeah there was some big equipment downstairs. Q. Do you remember seeing at that time any - I withdraw that. A. Okay. Q. Do you remember seeing any mats or exercise mats or anything like that? A. I can't recall, I'm sorry. I can't recall."
8. NS gave evidence that she remembered a projector in the classroom which projected images onto a whiteboard which was placed over the blackboard at the front of the classroom. She also said that images may have been projected on the back wall of the classroom, but agreed that that was a longer distance from the teacher's desk than the blackboard was. Eventually she gave evidence that she remembered the slides being played but could not remember now whether it was on the back of the classroom or the front of the classroom.
9. NS agreed that the accused never hit any of the school children and she further agreed that he did not call them mean names. Rather, she gave evidence that he called students by their first and second Christian names. She gave the following evidence: "Q. You never heard him ridiculing any of the students with unpleasant nicknames or anything of that kind? A. I don't recall. Q. Was there no occasion that you can recall when Mr O'Toole was leading a chant of nicknames with the students joining in outside of the school building? A. I don't recall hearing that."
10. NS gave evidence about a mat that was placed on the floor between the teacher's desk and the childrens' desks, which was used for children to sit on whilst watching the ABC broadcasts. She gave evidence that the mat stayed on the floor.
11. There was no re-examination.

Evidence of Mr JFW

1. JFW gave evidence that he and his wife first met CF and her husband in the early 1980's and remained in contact with them for many years. On an occasion when he and his wife visited CF and her husband in the early 1990's, he gave evidence that CF told him something as follows: "A. I'll do the best I can here. Yes, one day I went outside to sit down to have a smoke. CF followed me out a very short time later, very short. And I'd watched her walking across to me. She was - you could tell she was pretty upset. Anyway, in tears, you could see tears in her eye and so forth. She came over to me and she said, "I've got something to tell you," and I said, "Really? Righto, away you go, go ahead." She told me that she was molested as a child, and‑‑ Q. Did she say where? A. I'm pretty - I'm pretty sure she said, "At school." And she then‑‑ Q. Did you say anything to her when she told you that? A. Yeah, I said - said to her, I said, "What do you mean by 'Molested'?" She said, "Sexually assaulted." I turned around and said, "Don't tell me any more. I'm not qualified to listen and help you." And how I'd just finished a PTSD course not long beforehand, and I'm - you know, chronic PTSD. I said - I said, "I couldn't" - wouldn't be able to handle it. So she didn't tell me any more, which was good. I did tell her to report it to the police, and "Go to your doctor and get a referral to a psychologist."
2. JFW gave further evidence that he and his wife lost contact with CF and her husband for a period of 20 years. Subsequently, they visited them in Uralla, and during that visit JFW overheard CF telling his wife about the sexual assault. CF told him that she could not remember telling him about it on an earlier occasion.
3. In cross-examination, JFW gave evidence that he was not told any of the details by CF.

Evidence of KW

1. KW gave evidence that she attended BPS, which was a single teacher school. She gave evidence of the school and its surrounds and provided the names of the students who were at the school when she was there. She further gave evidence that no cleaners were employed at the school and it was up to the students to do the cleaning.
2. KW gave evidence that the teacher at the school boarded with her family whose farm adjoined the school property. Her father had converted part of the verandah to a bedroom to accommodate the teacher and it was the accused who used that room. She was nine years of age when he arrived at the school in 1966 at the beginning of the school term. She recalled that he had a white Cortina car which he parked undercover in part of the farm yard sheds. She also gave evidence that his main interest was CB radios and that her father had helped him build an aerial comprising two timber poles set approximately 20 metres apart, with a wire in between which ran to his room.
3. KW gave evidence that from time to time the school children would listen to ABC broadcasts on radio and would sit on a mat in front of the classroom for that purpose.
4. KW gave the following evidence: "Q. Now, Ms W, do you recall the first time something occurred between you and Mr Ian O'Toole? A. Yes. That - that incident is quite vivid to me. It occurred after school. We had all gone back to the property. I was at home with my - with Mum. I think my parents and older brothers were, when they came home from school, went to help in big - on the farm, in the dairy. At times, Ian O'Toole would take a trip to the local convenience store, for different reasons. This particular day, he asked my mother could I come with him, and did she want anything at the store at the time. … Q. If you can just tell us what happened on this occasion. A. As we - yes - as we were approaching the school, there was a reason that Ian actual(as said) gave, where he had to go into the school ground to get a book, or to pick‑up something. I can't recall exactly what that was. He parked the car around the back side of the - the far side of the school. Not the road side of the school, but around the other side, which is unusual at times, because he normally parked in front of the school. We went into the class - into the school. I don't have much recollection of what he did the first time he went into the school, whether he picked up a book or whatever. But then we went back into the anteroom and he said he wanted to play a game with me, a game of mummies and daddies. Now, I was very confused about this, not knowing what he meant by that, but he said he would show me and he took me through the whole thing. Is that-- Q. Yes, Ms W, if I just get you to stop there. Can you remember what time it was or not? A. It would have been in the afternoon probably. The school finished about 3.30 so it would have been 4 o'clock by the time we - if we walked home. I can't remember this particular day but I'm assuming I've walked home. It would in around about half past four in the afternoon, perhaps. Q. When you went back to the schoolhouse with Mr O'Toole on that day, were there any other people at the school building? A. No. The school building was isolated, nobody there. Q. So if you can just - when you said that he said about playing a game, where were you when he said that to you? A. I must have been in the anteroom. Yeah. I'm not a hundred percent. I may well have been in the main classroom walking back out, but in the anteroom, I would say. Yes. Q. Did Mr O'Toole do anything when he said to you about playing a game? A. Yes. He prepared the anteroom for our game. The mat that we spoke about earlier, it is usually rolled up after we had finished playing with it - not playing with it, when we finished using it in front of the radio, and it stood in the anteroom. I probably should have said that before and I have overlooked saying that. But he took the mat and laid it out on the floor. He then took the chair that was by the desk of the senior students, and sat it at the end of the mat. Q. Is this in the anteroom of the classroom? A. No, in the anteroom. He pulled the blinds down in the anteroom as well. There were two windows there that overlooked - the property to the left side of the school belonged to another lady called MM. She was a widow who had a dairy farm there and her dairy, and the actual dairy itself, semi looked over the school, not fully, but you could see part of the - what we call the bales or the dairy - yes. Q. Now, Ms W, you said that he got a chair. What did-- A. Yeah. Q. --Mr O'Toole do with the chair? A. He put it at the end of the mat at-- Q. What's the next thing that you can remember happening after Mr O'Toole moved the chair to near the mat? A. I can remember that he took down his main trousers. He still had his underpants on at the time. He had asked me - well, he had - I know that my undies were taken off. Whether I had taken them off or he had, I can't remember at the time. I still had a dress on, I recall. However, later, the dress did come off. The initial incident, he coaxed me over. Now I was kneeling in front of the chair that he was sitting on in his underpants. He pulled his penis out from his underpants. Now, when I say "out" he sort of tucked his underpants down under his testicles a wee bit so it wasn't as though it was through the fly of the pants. He coaxed me over to hold his penis with my hands, and he instructed me to rub and to massage the penis, which I did. I wasn't doing it how he liked and he did encourage me to go faster or move in certain positions for that."
5. This was the first incident relied on by the Crown in support of Count 6, and in relation to the Alternative Count 7 on the Indictment.
6. KW then gave the following evidence: "Q. Did he say anything else to you while he was doing these things? A. Other than giving me instructions on what to do, not initially, no. He was just - well, he was saying - I guess he was saying that, yes, when I was doing it right I was a good girl for doing it right, and to keep working - well, not keep working, sorry, to keep doing this and he would tell me when to stop doing it. So I was massaging it and it got to a point where he said, "Yes. Stop. Stop." So I stopped at that point, but what he did then was to encourage me to lie down on the matt on my back. He took my dress off so I was naked on the mat. Now, I cannot recall if he-- Q. Did he say anything to you when that was happening? A. Not that I recall, just encouragements that I was being a good girl and doing what he asked, and that was good, and he wanted, yes, to show me how mummies and daddies played games. He then laid - I wouldn't say he laid on top of me. He probably held his main weight, but what he did was to ask me to squeeze my legs together and he had his penis between my legs, and he was moving around, and I could feel the movement. It wasn't penetration but it was very close to my vagina when he was moving around. This continued with his moaning and then suddenly I thought he had actually wet himself because I felt moisture between my legs when he'd actually ejaculated. That was the first time I'd come across anything like that, so that's how I vividly recall it. I think I must have been frightened or scared at this time. I can't recall."
7. The Crown relied on this evidence as conduct comprising Count 6 and also the Alternative Count 8 on the Indictment.
8. KW gave evidence that when these things happened she was in a "sort of confused state" but that she was instructed to do things and she felt that she must do what her teacher told her to do. She had felt his penis next to her vagina right at the top of her legs. She gave evidence that the accused noticed the wetness on her legs and said: "That is spunk that you see on the mat." She was asked: "Q. Did he say anything further about that? A. He tried to explain to me in words that I recall to the effect that yes, this was a fluid that daddy's had built up inside of them and then had to be released every now and then. May not have been the exact words but it was that conversation. But it wasn't - I do recall him saying it wouldn't harm me and it was a natural thing."
9. KW gave evidence that they cleaned the mat on the verandah of the school with buckets of water. She was asked: "Q. Did Mr O'Toole say anything else to you at that time? A. Kept reassuring me that I had been a good girl. That I wasn't to tell anybody about this lesson. I would be in big trouble if I told my mother or father about what had happened. If I continued to be a good girl, not say anything, when we got to the convenience store he would buy me a treat. The treats in those days were either lollies or ice cream which was a rarity for us children on the farm so it was a true treat. Q. Do you remember where you went to after you'd cleaned up the mat? Where did you go to? A. My recollections after the mat was cleaned are vague until we were in the car driving to the convenience store. There was a conversation about what treat I would prefer. I can't remember the exact conversation. And when we arrived at the convenience store he bought the supplies that my mother had asked for and what he wanted for himself and the treat for me was included in that."
10. KW then gave the following evidence: "Q. Can you remember another time where something happened with you and Mr O'Toole? Again, doing the best you can, can you tell us when that was and‑‑ A. Okay. There was another clear recollection of an incident similar to the one I just described in that a reason to go to the convenience store again. And again he sought permission of my mother for me to go with him to help carry the goods. My mother agreed to this. We left in his car to travel towards the convenience store and again there was a reason given to pull into the school. A similar scenario of parking the car around the back of the school. I don't have any recollection of actually going into the school but again the incident occurred in the anteroom. Q. Was there anyone in the school building when you went in this time with Mr O'Toole? A. No. It was a similar time in the afternoon, probably around 5 o'clock. I can't be certain of that time. It was after school. The students had left the school to go home. Q. Can you tell the court what you can remember Mr O'Toole doing and once you got inside the school building? A. My recollections are of the incident. The leadup to it I'm not so clear. He had again pulled the chair in the anteroom and put it at an angle. The mat wasn't there on this occasion and he asked me to - first of all he took his trousers off again and sat on the chair. He still had his underpants on. I was asked to kneel in front of him. … Q. You were in the anteroom and Mr O'Toole got the chair out. Can you remember words to the effect of anything that Mr O'Toole said to you? A. He said I was a good girl. He did reiterate that several times and, again, he was teaching me about mummies and daddies and what they do. Q. You said that he sat on the chair. Doing the best you can, can you tell us what happened when he sat on the chair? A. When he was seated in the chair, he then took his penis out. I was kneeling in front of the chair. He had asked me to start rubbing his penis again or not again, start to rub his penis, instructing me how to do this."
11. This was part of the conduct the Crown relied on to establish Count 6, and the alternative Count 9 on the Indictment.
12. KW gave evidence that the accused asked her to put her mouth over his penis on this occasion. She gave the following evidence: "A. And for me to rub my tongue and move my mouth about, around. At this point I still had my hands on the lower part of his penis. This went on for a while. Not a while, this went on for a little bit, and then he put his hand on the back of my head, not forcefully, but just to keep it - to help me move my head in the direction that he wanted me to move it in. It got to the point where he ejaculated. Now, some of that did go into my mouth and I recall that very vividly because of the taste and it just was a bit much, so I pulled my head back, and I was upset at that stage. Q. When Ian O'Toole's penis was in your mouth, what were you doing when it was - when his penis was in your mouth? What movement or what were you doing? A. I was kneeling in front of him and I was trying to follow the instructions that he was giving me, telling me I was a good girl for doing it right and things like that. Q. And it was in your mouth and were you doing anything with your mouth while it was in - the penis was in your mouth? A. No. I was asked to rub my - my hands were doing actions of rubbing the penis. My mouth - he'd asked me to roll my tongue over my mouth but I can't recall if I did that or not, but I had been reassured in the words that I was doing okay or words to that effect. Q. Apart from his penis being inside your mouth, and his hand being on the back of your head while his penis was in your mouth, before that was there any other part of his body that was touching you? A. I may recall his knees coming to my side, but I can't recall too much more of - of that, no. Q. When you were touching his penis before it went into your mouth, was there any part of his body touching your body at the time you were touching his penis with your hands? A. I - I can't recall if his arms were on my shoulders or where they were. That, I cannot recall. I was between his legs and that part I do recall. His legs were either side of me, as I was fairly close to him with my head down, so I can't remember what part of my body his knees - I think it might have been his feet were a little further out and next to mine. I don't have clear recollections of that."
13. This was the evidence relied upon by the Crown as part of Count 6 and the alternative Count 10.
14. KW then gave the following evidence: "Q. What's the next thing that you can remember happening after you had that sensation in your mouth and he had said to you that you were a good girl? What's the next thing that happened at that time? A. I am a little vague with details, but I know we - I know that I dressed myself, put my - no, I put my - I wasn't undressed at that time. I'm sorry. I'm getting my incidents mixed up. I remained in my - my dress. He pulled his pants up and I can't remember the time barrier at all on this but we will now go to the convenience store and we shall buy a treat, what he indicated - asked me what sort of treat I may like, but I recall can't recall what I said, but there was-- Q. Did you get a treat? A. I'm sure I did, yes."
15. KW gave evidence about incidents that happened at her house as follows: "Q. Can you tell us about the incidents that you remember at the house, taking one at a time, if we go to the first one that you can remember at the house? A. The first one is a vivid recollection. I - I found mathematics or arithmetic, as well called it at that time, a very difficult subject, especially when it came to fractions or divisions. Prior to this incident I recall my father trying his hardest to teach me how to understand fractions by getting pieces of fruit or vegetable at the kitchen table and chopping them into halves and quarters and trying to get me to put pieces together to say whether I had one and a half or two or that sort of thing. I was very nervous leading up to our school arithmetic test or exam at that stage. I didn't want to disappoint my father but I recall after the exam I had a conversation with my friend JL and JL is an intelligent girl and our answers weren't the same. Now I know JL is usually correct, she was very good at it."
16. KW gave evidence that she was distressed when she got home after the exam. She was asked: "Q. Ms W, can you remember either the words used or words to the effect of anything that Ian O'Toole said to you at that time? A. In words to effect and I was distressed, he asked me to come to his room with him and he would be able to help me. I don't know if he said get a better mark or whether he would look at my paper. I know that we went to his bedroom. Q. What happened when you went into his bedroom? A. When we were in the room he said words to the effect that we could alter the answers on the exam paper. But I had to be a good girl first and do as he instructed. Q. Did Ian O'Toole's bedroom have a door on it? A. There was a door and he said to make sure the door was locked. Q. Was there a window in the room? A. There was a window in the room. There was two windows in the room. Because this was an extension my father had built, the original window that was from the bedroom had been boarded over or painted over and there was a window with curtains out onto the lawn on the outside. Q. What's the next thing that you can recall happening or being said once you were inside the bedroom with Ian O'Toole? A. Ian sat himself on the edge of the bed. Again, he revealed his penis. I cannot tell you whether he had taken his trousers fully off at this stage. Q. I'll just stop you there. Where were you when he was sitting on the bed? A. Initially I was standing beside him in the room just watching then he encouraged me - coaxed me over closer to hold on to his penis. Q. Can you remember words to the effect of what he said to you at that point about his penis? A. He asked me to rub it again with both my hands. While I was doing this I recall his hand had gone into my underpants."
17. The Crown relied on this evidence to establish part of Count 6 and the alternative Count 11 on the Indictment.
18. KW continued to give the following evidence: "Q. What part of your body was his hand touching when it was under your clothes? A. His hand was between my legs on the upper part and while I was rubbing his penis he inserted his finger. Now, I can't recall how far in but I do recall the finger being put into my vagina. Q. How did it feel when his finger went into your vagina? A. Uncomfortable. This was a foreign feeling to me and I was upset and I think I didn't even realise that that's where a vagina was. I do recall that. Q. What's the next thing that you can recall happening or seeing or you hearing at that time? A. Other than his hand in my pants, I can only recall continuing to rub his penis until he ejaculated again. And again the semen went on his clothes onto the floor. I can't recall it landing on my dress, if I had a dress. I can't recall any of that. I do recall we then cleaned this up with a cloth. I don't think it was a tissue, whether it was paper or cloth, a tissue, I'm not sure. Q. Ms W, again if you can remember the words he used or words to the effect of, did Mr O'Toole say anything to you at that point? A. I can only recall him reassuring me that I had been good in doing what he had asked me to do and he then moved from the bed over to his desk where the exam papers or the test papers lay. He encouraged me to come over near to where the chair was. I can't recall if he asked me to sit on his knee or whether I was standing beside the exam paper. Q. What's the next thing that you remember happening? A. He handed me an eraser and a pencil. There were some numbers on the test paper that he asked me to erase. He was going to help me get a better mark to make my father proud, I do recall him reiterating that during this." The Crown relies on this evidence to establish part of Count 6 and the alternative Count 12 on the Indictment.
19. KW gave evidence that following a geography exam at school, she arrived home in a semi-agitated state. The accused asked her to go to his room. She gave the following evidence: "Q. Did you go into his bedroom with him? A. Yes. I went into the bedroom with him, and he had my test paper on the desk. Q. Was the door to the bedroom closed or open when you were inside the room? A. The door was closed as we went into the room. Q. When you went into the room, where was Mr O'Toole in the room? A. Initially he was standing. And then he sat on the edge of the bed. Q. Where were you when you went in‑‑ A. He asked me to come closer to him. Q. Did you move closer to him? A. Yes. I had - I - in words to the effect of, "You're a good girl. Come here. I'm going to ask you to do something." I can't say that was the exact words. But that was the context of that part of the conversation. Q. Were you sitting or standing? What position were you in when he said that to you? A. I only recall standing initially. He had sat on the bed, coaxed me closer. And I can't recall if I was sitting on a chair or standing. That part of it I can't recall - not on this occasion. Q. Can you tell us the next thing that you remember happening after you moved closer to Ian O'Toole. A. He lowered his trousers, and revealed his penis again." … Q. Did you observe anything about his penis? A. Just that it was outside of his trousers. Q. Did he say, or tell you, anything at that time, after he pulled his penis out of his trousers? A. I can't recall exact words spoken. He again said that I was a good girl, and he wanted me to do something for him again. I - I don't know the exact words. But I did approach - sorry. Q. Did he tell you what he wanted you to do? A. He - he took my hand and said he wanted me to rub them up and down the side. I can't recall him using the term "penis". Q. You said he took your hand. What did he do with your hand? A. Put it around his penis, and asked me to - to rub. Move it about. Q. What did you do? A. I - I did as - I did as he instructed."
20. The Crown relied on this evidence as part of Count 6 and the alternative Count 13 on the Indictment.
21. KW then gave the following evidence: "Q. While you were rubbing his penis, can you remember anything else happening at that time? A. He - he lifted up my - my - the skirt on my dress, and again, put his hand between my legs while he was encouraging me to rub his penis. He‑‑ Q. When you say "between your legs", what part of your body are you talking about? A. It was around my vagina, again. Q. Were you wearing underpants? A. Yes, I was. Q. Was it on the inside or the outside of your underpants? A. So he had put his hand - on the - from what I recall, it was the inside of my underpants. Q. You said that he was rubbing your vagina, and you were‑‑ A. Moving‑‑ Q. Sorry? A. I was going to say I - I recall him moving around - his hand around my vagina. And inserted a finger. But again, I - I can't say how far that was. I just knew it - it was there. Q. How did it feel when his finger went inside your vagina on this occasion? A. I - I sort of knew what to expect on this occasion. So I wasn't so surprised, if that's the right word to use. … Q. Mrs W, I'm asking you how physically it felt. A. Right. Uncomfortable, I guess. No. "Uncomfortable" would be the word. But it was familiar. I‑‑ Q. What's the next thing that you can remember happening? A. I recall again ejaculation but I can't recall much after that other than words of reassuring words in effect that I was a good girl and I had done what was asked of me. Q. When you say ejaculation, where did he ejaculate onto? Can you remember? A. Just onto his penis, onto his clothes, part of the bed. Q. Apart from telling you that you were special and - sorry, a good girl and that you had done what he'd asked, do you remember Ian O'Toole saying anything else to you on that occasion? A. He said that I wasn't to tell my mother or father about this otherwise I would be in big trouble."
22. The Crown relied on this evidence as part of Count 6 and the alternative Count 14 on the Indictment.
23. KW gave evidence of going for a swim in the river after school and also swimming lessons in the river from school. She gave the following evidence: "Q. During those school swimming lessons, do you recall Ian O'Toole ever doing anything to you in relation to those school swimming lessons? A. Occasionally he would coax you to swim to him or he would swim to you and he would hold you tight against his body saying he was supporting you in the water or if he wanted to correct a particular swimming style or a stroke I may not have been doing well he would hold me around my waist. Q. Did you ever feel anything when he was holding you tight on those occasions? A. Yes, his penis seemed to be erect in his swimming trunks. I could feel that against my back. Q. On the times when you were just at the river doing leisure swimming, were there any occasions when you were leisure swimming at the river that Mr O'Toole did anything to you? A. Yes, there were occasions. On the shallow side of the river sometimes he would be sitting in the water about waist deep, would coax me over to him and then would turn and have me sort of sitting forward of him. His penis erect on me and occasionally he would put his hands into my swimsuit. I can't recall too much more about that. There were times when he would ask me to put my hand into his swimsuit to hold his penis and massage. We were under the water. The bottom half was under the water at this time. Q. On those occasions when he asked you to put your hand under his swimmers and massage his penis, did you do that? A. Yes, I can recall doing that, yes."
24. The Crown relied on this evidence to establish part of Count 6 and the Alternative Count 15 on the Indictment.
25. KW was then asked: "Q. When you said there were occasions when he put his hand inside your swimmers, can you tell the court what parts of your body he touched when he put his hand inside your swimmers? A. It was mainly in the area between my legs but that is all I recall of that. Q. When you say the area between your legs, can you tell the court what part of-- A. Yes, around my vagina, yeah, around there. Q. Do you recall anything else happening when he had his hand inside your swimmers? A. He would tell me it was a nice feeling that I was giving him and I, again, I was doing things which he said I was a good girl for doing. And I was kind and I was nice. …"
26. The Crown relied on this evidence to establish part of Count 6 and the alternative Count 16 on the Indictment.
27. KW gave the following evidence about other incidents that occurred while swimming: "Q. Is there another incident that you recall at the river with - where you were with Ian O'Toole and something happened? A. My mind's gone blank. There were a number of occasions so he did put his penis between my legs at one point while we were under the water. And when I say "between legs" and just asking me to hold tight, and he just moved about. Q. When he did that was his penis - where was it in relation to his swimmers? A. I can't recall if he had taken his swimmers down or just - I can't recall where they were. I just know his penis was between my legs. We were under the water, waist down under the water, and he was just moving about. That's the only recollection I have of that. Q. And are there any other occasions that - where you remember things happening at the river with Mr Ian O'Toole? A. There were other occasions, but I can't clarify them at the moment. I can't say exactly what happened. It gets a little muddled in time, the other events. There's specific events I recall vividly and others not so clear."
28. The Crown relied on this evidence in respect of alternative Counts 17, 18 and 19 and as part of Count 6 on the Indictment.
29. KW gave evidence that there were a number of occasions when they were swimming that the accused put his penis between her legs while they were under the water, and he would ask her to hold tight. She gave this evidence: "Q. When he did that was his penis - where was it in relation to his swimmers? A. I can't recall if he had taken his swimmers down or just - I can't recall where they were. I just know his penis was between my legs. We were under the water, waist down under the water, and he was just moving about. That's the only recollection I have of that. Q. And are there any other occasions that - where you remember things happening at the river with Mr Ian O'Toole? A. There were other occasions, but I can't clarify them at the moment."
30. KW gave evidence that the accused called her by the nickname "Moose" and that he called her sister CW, a string of names like "Boss, Rathouse, Shutup, Valour, Retown lizard, Poke out tongue, Blue lizard" or similar words. She was asked: "Q. Did you ever hear anyone else apart from Ian O'Toole use those names in relation to CW? A. There was a time after school, I can't recall the reason why there was an accumulation of students down by the wattle tree at the front gate. CW, I'm not sure what she had done, but Ian O'Toole then encouraged us to start calling her this string of names. There would have been four or five students there."
31. KW gave evidence that she could not remember the exact words used by the accused, but stated that, "he started the chant and encouraged the rest of us to repeat what he was saying". This was on an occasion at the wattle tree where there were four or five students present.
32. KW gave evidence that the school closed at the end of 1967 and that the accused left her home at the end of the school term, towards the end of December. No other teachers boarded at her home after that.
33. KW was asked whether there were other incidents. She gave this evidence: "A. The other incidents, similar pattern to massaging his penis, but I cannot give you details of where that occurred or what the leadups to these incidents were, so rubbing the penis. Q. At the time these things happened between - to you by Ian O'Toole, did you understand what was happening? A. No. I - I was a little naïve about the situation at the time, and it wasn't until I got a little more mature that I began to understand fully what had happened. … Q. At what age did your understanding of what had happened to you with Ian O'Toole change? A. When I was about 12 or 13 I had changed schools and various conversations I had different - I can't recall exactly a moment that it came upon me. It was a gradual, oh my goodness, that sort of thing happened to me when I would hear a similar story from someone else, not in that school but on another - from a radio news bulletin or just general school girl gossip about the maturing body. And - and‑‑ Q. Ms W, at the time when these things were happening to you, when Mr O'Toole was teaching at the BPS and living at your home, did you tell anyone about what he did? A. No, no. I never discussed it with anybody. Q. Can you tell the Court whey you didn't tell anyone? A. Originally it was the - the comments that I was - that were said to me that I would be in big trouble if I told anybody about any of these incidents. That's partly the reason. The other part I - I - perhaps I didn't have the courage to speak up against a teacher. I had to accept what was happening."
34. KW described what happened to her as "her secret", and "something that she didn't want anyone to know about because she felt humiliated". She gave evidence that on an occasion when she returned home from Scotland in 2000, and her mother had asked her whether the accused had interfered with her in the time he was at the BPS, she gave the following evidence about what her mother said: "A. She had heard that one of the other students had been interfered with, I'm sure is the word that she used in the conversation and had that happened to me. … Q. What was your response? A. Oh, gosh, that's hard. Okay, I told my mother that, yes, but only in the river, touching me in the river is what I think I said, words to that effect." When asked if her mother responded: "A. She said not to tell my father of anything that had happened."
35. KW then gave evidence of a conversation she had with her sister CW in Scotland at the end of 2014 or the beginning of 2015, when CW visited her: "Q. Ms W, just doing the best you can, can you just tell the Court words to the effect of what your sister said and words to the effect of what you said? A. On the arrival of my sister to Scotland - to the house - had Ian O'Toole interfered with me in any way? She used the word interfered; I really clearly remember that. I was taken back and I asked her why she had said that. And she told me that she had been a victim of his and she was quite perturbed about it and had gone to the Royal Commission with the case and the commission had said, yes, she had consent to take her case forward. So she took it upon herself to see if I had been a victim as well. Q. After CW said that to you what, if anything, did you say to her? A. I said, "Yes, I had - had been." I didn't tell her any details and she immediately said, "I do not want to know any of what he's done to you. I just want to know as - was there something.""
36. In cross-examination, KW agreed that the conversation that she had with her mother in around 2000 concerned something that happened by way of sexual misconduct between her and the accused, but that it was restricted to the swimming or river events. She agreed that the timespan for each of the events was 1966 and 1967 and that she could not give a definite order of when the events happened. When asked whether they happened in the first term of 1966, KW said she had no recollection and did not know.
37. KW was asked: "Q. What I raise with you is that Mr O'Toole, he didn't go to that part of Taylors Arm with you to get any supplies or shopping at your mum's request. That is what is being raised. A. All right. You're saying he didn't, no, he did. He did drop us there."
38. KW was asked the following about the incident in the accused's bedroom at her family home, after the maths exam: "Q. Madam, when these things happened, do you really have a memory of where everyone was in the house? A. I know they weren't around. I - only one occasion did I recall my mother was in the kitchen, but where the others were‑‑ Q. Were you in the kitchen with your mum and Mr O'Toole said something to you, initiated some kind of contact which led you to go to his room? A. I can't recall exactly where I was in the house at the time we had the conversation. Q. Madam, can you just tell his Honour what your specific memory is of your mum being in the kitchen on this particular occasion after school, during the term, what is your memory of your mum being in the kitchen at that time? A. The kitchen dining room was a - a big room. At the far end of that room was an old fashioned wood burning stove. Q. But I want your particular memory‑‑ A. I‑‑ Q. ‑‑of your mum in that room at that time. A. I know, I'm trying to recall whether my mother was - I - I can't - I can't recall exactly where she was. Yeah. Q. When you said, "Just prior to me going to his room Mum was in the kitchen at the opposite end of the house", you don't really know that, that's something you have assumed. A. Yes. Q. In fairness to you, Madam, when you said, "Dad was still working on the farm", you don't really know that, you didn't see him working on the farm, it's something that you have assumed. A. It - it was normal practice after the cows had been milked that my father went to the piggery to sort - to feed the pigs. And that did take substantial time, and it wasn't uncommon. Yes, I have assumed he was still working on the farm, he wasn't in the house. Q. But you don't actually have a memory of that. You're referring to a practice, or an expectation. A. No. Okay, I don't, okay."
39. KW was asked: "Q. Ms W, when you look at it through your mind's eye, is it a bit foggy and blurry when you try to see in your memory what has happened in the room? A. I wouldn't describe it was foggy or blurry, I have recollections, yeah. Q. I think in your statement you have a recollection or a memory of seeing, was it JL's exam paper on the top of a pile? A. It was somewhere on the pile, I don't know if it was on top, but when my paper was moved I could see that hers was there. Q. You have a memory of seeing, at some point, JL's exam paper on the desk of Mr O'Toole. A. I'm trying to remember what position it was in. I saw the 80% mark, but maybe I have assumed. I didn't see a name on top of the paper, but it was the same questions. Q. Do you think you may have assumed you saw Jenny's test paper on the desk, because you don't actually have a memory of it? A. All right, okay, that's correct."
40. KW was asked further: "Q. I think, Madam, at some point when you think back, in terms of the memory, you don't remember if you're on his knee or standing next to him. A. That's correct. Q. Is it reasonable to say that when you think back it's very hard to say where you actually were in the room, when you think back? A. No. I can recall where I was in the room."
41. KW was asked about what occurred at school in the ante-room. She could not recall where the bucket came from to clean the mat following that incident. She gave evidence that the water appeared to be soapy and came from the water tank. She was asked further whether it was after school on a school day and said that she did not recall it being on a weekend. She could not remember what the treat was that she was given on that particular day. KW gave further evidence that the distance to Taylor's Arm was 16 kilometres along a gravel road.
42. KW was challenged about her memory of whether the sexual misconduct at school occurred on a week day or a weekend as follows: "Q. What I'm raising with you is that, when you said, "I don't recall it being a weekend. It may be. I don't recall that." Were you there referring to the issue that - you can say it happened later in the day - after 3.30 - but you couldn't say, in relation to these incidents, whether, in fact, they were on a weekday or a weekend? A. I can only give my word that I - because of activities that we do on the weekend, it was unlikely that that situation would have happened on a weekend. This is memories of 55 years ago. So it would be most - most likely to have been after school, considering it was late in the afternoon, and the sun was setting. If we were going to go to the convenience store on the weekend, it would have been during the day. But I recall that the sun was setting in the afternoon. So therefore, I have concluded, in memory, that it was after school. Q. What you're referring to there is - you'd agree - you don't have an actual memory whether these events that you've described occurred on a school day. Is that fair? A. Because I can't be a hundred per cent certain, I have to say, "Okay. That's a fair comment." Q. That is simply to say that in terms of the incidents you've described, which occur in the ante room - which is within the classroom, or in the school building - you don't have a recollection of going to school earlier that day, do you? An actual recollection. A. No, I don't."
43. KW agreed that she had constructed various contexts around the actual events of sexual misconduct as she described them. She agreed that in respect of the statement she made about the incident at home concerning her maths exam, she did not know that her mother was in the kitchen or where her sister CW was at the time. In respect of her father, she was asked: "Q. And when you say, "Dad was still working on the farm," you didn't see him doing that. You had no idea where he was, agreed? A. My father always worked late in the evenings. The farm had a lot of places and things to do. If he wasn't working on the farm, he would have been at the house. So as I said, he could have been in the dairy, he could have been in the piggery, he could have been out on the fields dealing with the cattle. He wasn't in the house. Q. Ma'am, what I'm raising with you is you've constructed a context which moves everyone out of the picture so that I'm suggesting to you Mr O'Toole can do these terrible things to you in his room. Obviously, these things can't take place in front of other people. That's what I'm suggesting to you, ma'am. A. I know there was nobody close by and I write in my constructed sentence to give you the indication of that. As I say, I'm not a legal person when I'm writing these things. If I had known that this was relevant, then I would have just said they were not within hearing distance of the bedroom."
44. Similarly, in relation to JL's exam paper, she was asked: "Q. You actually don't have a memory of seeing JL's exam paper, do you? A. I didn't see her name. I saw her writing. She was a very - she had a very distinctive writing style so that's why I've said - I didn't see her name actually on the paper. The papers were at an angle from what I can recall, and that's how come I knew that the mark was at the bottom of the page, her mark, and that's where I've drawn my conclusion from, from what I can recollect."
45. KW gave the following evidence: "Q. Then what I'm raising with you is that when you go into the room this is connected in your evidence to being in some way persuaded because you were concerned about your mark, agreed? A. Agreed, yes, for mathematics. Q. But in fact, ma'am, can I raise this with you? You've constructed a number of things which go to that explanation about which you in fact have no memory. A. I have snippets of memories, and I try to construct a sentence from my snippets of memories. As I say, it wasn't a rolling memory that I had. It was pictures at that stage, visions, rather, not pictures, just visions of different epochs of time. Q. The epochs of time, are you referring to sections of time? A. Yes, that's - that's correct. Q. Those sections of time, they in your mind and your memory, what divides them for you to say this is one epoch or that's another epoch, were these three epochs-- A. It's visions - it is the way my memory is. I don't remember every second of what happened in that incident. It's just different things that occurred that have remained in my memory. I could - that's - yeah, that's my answer. I don't have a point A to point B memory. It's just bits of it. I don't know if it was one second in time, three seconds in time. It was a period of time that I just recall, and I've constructed my sentences on the - on the bits of memory that I have on the incident. Q. Ma'am, is it the case in terms of what you've indicated that when you look at or when you go to speak about an event, whether it's in the anteroom in the classroom or whether it's in Mr O'Toole's room at your home at that time, you cannot - you have no - you were unable to say how long those incidents or events went for? A. I can't give you the exact time, no. No."
46. It was put to KW: "Q. Is it the case that when you look back in your memory that really the only things you can actually remember other sexual - is the sexual misconduct events or are the sexual misconduct events, is that fair? A. I - I disagree."
47. In respect of the mat, KW gave the following evidence: "Q. And there was, when the radio times would happen, what would happen, the children, including yourself, would go and sit, sometimes, on the mat at the front of the classroom? A. Yes, that's correct. The mat was then rolled up after these ABC Radio programmes had finished. The area where the mat was in front of the radio was leading to the door - to the entry room, to then out the school, so it was a main walk through, out of the school. The mat was only put in front of the radio when these radio series were in progress. Q. Ma'am, I want to raise this with you, that that mat stayed on the floor, it never got rolled up, and that was the mat that the kids sat on when they would move down to the front of the class. A. No, it did get rolled up. When we finished, it did get rolled up. And just - and put wherever it was stored, which I can't remember exactly where that mat was stored. The mat was only put out when the radio programmes were in progress, during class time. Q. Is that the mat that you're saying was put on the floor in the anteroom, when this sexual misconduct occurred? A. Yes, I - yes, that's correct. Q. Is that the mat that was then doused with soapy water? A. Yes, that's correct. Q. How big was that mat? A. It probably would have been, I'll give it to you in feet, approximately, it would have been six to eight feet in length, and the width would have been four to five. I am uncertain of the exact measurements of it. I know it would have sat about six or seven students on it, when we were all sitting together. Q. And Ma'am, you don't remember where that mat was taken from? Because it's quite a large one. A. I can't recall exactly where it was stored. … Q. Ma'am, it is your evidence, is it not, that where the mat came from and just how it came to be placed on the floor is a matter that you were unable to recall? Is it fair? A. That is fair. Q. Ma'am, in paragraph 24 of your police statement, you indicated that he pulled out a large maroon coloured mat from the cupboard in the anteroom, and laid it on the floor in the room. Do you remember saying that? A. Okay. I said that. You have reminded me. Q. What I want to suggest to you, ma'am, is that there was no mat put on the floor in the anteroom. A. There was a mat put on the floor in the anteroom. I cannot confirm exactly where the mat was, and I have assumed it was in the cupboard in the anteroom. There was a mat on the floor. Q. And would that be an example, ma'am, in your police statement where you have constructed the issue of a maroon coloured mat, a large maroon coloured mat being taken from the cupboard in the anteroom because you constructed that. A. Yes, I agree. I have assumed that's where it was."
48. KW was questioned about her second statement dated 9 June 2020, in which she changed the date she spoke to her mother from her visit to Australia in October 1997 to her visit in September of 2000.
49. In respect of her evidence that she had gone to Taylor's Arm with the accused, KW was asked: "Q. Madam, what I'm raising with you is that there were some occasions when you were with Mr O'Toole to go and pick your brother up from that bus stop and that was short of Taylors Arm. The bus went further towards BUP then Taylors Arm. A. No. Q. No? A. No, I disagree. I - "
50. KW confirmed that she spoke to CW about the incidents in 2014 when CW raised it with her. She was then asked about her memory of events as follows: "Q. To that extent, the matters that you've raised over sexual misconduct, they occur against a background of things you believed were happening at that time, is that fair? A. Memories of 55 years ago, that would be fair, yes. Q. Ma'am, this lack of memory concerning other events going on at the time, is that one of the reasons why you can't say which event was first in time, which event was second in time, would that be fair? A. Yes. Q. And you were asked this question, ma'am, this was when I was asking you some questions yesterday at T 329, line 39, the question was: "In fairness to you, Madam, when you said 'Dad was still working on the farm,' you don't really know that. You didn't see him working on the farm. It's something that you've assumed." And you answered: "It - it was normal practice after the cows had been milked that my father went to the piggery to feel the pigs, and that - it takes substantial time and it wasn't uncommon. Yes, I have assumed he was still working on the farm. He wasn't in the house." Do you remember saying that? A. Yes, I said that. Q. Actually, ma'am, you've assumed he's not in the house, is that correct? A. That's correct. Q. And you've made a further assumption that that's because he is working on the farm. A. That's correct. Q. That would be something which relates to this question of your memory at T 330 line 25, question - this was a question that I asked you, ma'am, just to place it in context - "Your memory is going through the door of the room?" And you say, "It's not a complete memory, in time span. I just remember certain epochs of time. Q. Is it the case that when you really interrogate your memory, you don't remember walking into the room? But you remember being in the room, at some stage? A. Yes, okay, yes." Q. Do you remember saying that? A Yes. Q. And, Ma'am, what you're really saying, with respect to you, is that you have no memory of how you came to be in the room? A. I cannot remember walking to the room. I can remember the door being locked, or closed. Q. And you don't have a memory of when this might have occurred in 1966 or 1967, agreed? A. Agreed. I cannot give a precise date."
51. It was put to KW that a large part of her statement related to events which she had thought were probably happening but about which she had no memory. She gave evidence that she recalled the incidents clearly.
52. KW was also cross-examined about her evidence that the accused used nicknames in relation to CW, and the chant he encouraged at the wattle tree. She gave evidence that she had a clear memory of the chanting. It was put to her: "Q. He's leading the chant. Does he start chanting‑‑ A. Encouraging. Not leading."
53. She did not mention the wattle tree in her statement, nor did she have any recollection of one of her brothers calling CW nicknames. She was then asked as follows: "Q. What I do wish to be clear about if I may is Mr O'Toole never called CW by any of these names that you've referred to. He just didn't call people by nicknames basically at school, and that included CW A. That's not my memory. Q. Ma'am, I'll ask you a couple more questions. Ma'am, could I raise this with you, and you can agree or disagree, you have no memory of Mr O'Toole ever putting his finger in your vagina as you've described in your evidence. A. I have a memory of that. Q. I raise this with you: you don't have a real memory of Mr O'Toole placing his penis in your mouth as you've described. A. Reword that question please - repeat that question. Q. You don't have a real memory of‑‑ A. A real memory. Q. A real memory. A. No. Q. So a memory of Mr O'Toole placing his penis in your mouth as you have described. A. I have memory of that. Q. Ma'am, were a number of the incidents of sexual misconduct that you've described in your evidence, were they to your mind similar? A. Incorrect. They varied. … Q. Ma'am, to the extent that you've indicated Mr O'Toole engaged in conduct which involved placing anything including fingers in your vagina, and also to the extent that it involves his placing his penis in your mouth, you don't have a real memory of that. … Q. Ma'am, if I raise this with you, that Mr O'Toole didn't engage in sexual misconduct with you as you have described. A. Incorrect."
54. There was no re-examination.

Evidence of Ms Nicole MacFarlane

1. Ms MacFarlane gave evidence that she was the director of child protection investigations within the Employee Performance and Conduct Directorate of the Department of Education. She had been responsible for preparing responses to applications made by the officer in charge under the Government Information Access Act 2009. She had made three statements dated 2 March 2018, 14 June 2020 and 20 June 2020, to which were annexed various records relating to the employment by the Department of Education of the accused. The three statements became Exs W, X and Y respectively. Ms MacFarlane gave evidence that inquiries revealed there were no admission registers for the PHPS, that is, the enrolment of students, at the relevant time.
2. Ms MacFarlane was cross-examined about the accused's leave record which demonstrated he had taken leave at BPS on 31 October 1966. His leave record did not indicate when he commenced at BPS.
3. She was also cross-examined about Ex 1. She gave evidence that the accused commenced at PHPS on 28 January 1969.
4. In re-examination, Ms MacFarlane clarified the leave record and gave evidence that the letters "FP, HP, and NP" meant full pay, half pay and no pay.

Evidence of AA

1. AA gave evidence that she lived with her parents and brother in PH. Ex Z was a drawing of the family home. AA attended PHPS from third class to year six. Her father died in 1967 when she was nine years of age.
2. In 1968 she was in fifth class. Exhibit AA was a drawing of the school classroom during year five and six.
3. AA gave evidence that the accused came to live in the family home after her father died. A drawing of his bedroom became Ex AB. She described the accused as around 23 years old, solidly built with dark eyebrows and black hair. She was asked as follows: "Q. When Ian O'Toole boarded at your home what kind of relationship did you have with him? A. He was a "sir" at my school. We respected and we did what sirs or Mrs Such and Such told us to do. We were obedient children. I as brought up, as I said, post second world war. I did chores. I was responsible in the household to help out, and my relationship was in the sense that I - just after my father died, I would have been still grieving. And I didn't know anything about sex."
4. AA gave evidence that her mother worked a lot of nightshift. The accused was not AA's teacher at school. She gave the following evidence about an incident at school when she was sitting on a bench seat in the playground: "Q. In that incident in the playground, can you remember what time of the day it was? What part of the day? A. It was either recess or lunchtime, Madam Crown. Q. Where were you in the playground just before this happened? Where were you? A. I was - to my - to my memory, I was - well, my memory, it's - it's what happened. I was sitting on the bench that was lined up against the brick wall of the main building, and-- … Q. Were you sitting by yourself or were you sitting with other people? A. I was sitting alone, Madam Crown. Q. What can you remember happening when you were sitting alone on the bench in the playground? A. I remember Mr O'Toole sitting beside me. His leg was touching my leg and he was sitting to the left‑hand side of me, and he pushed underneath my uniform, I think - I'm not sure - to my underpants, grabbed me on the bottom and then walked away. Q. So, you said that he grabbed you on the bottom. What did he use to grab you on the bottom? What part of his body? A. His right hand. Q. What did he do when he grabbed your bottom? A. He said nothing. He simply grabbed it and got up and walked away. Q. You said that he didn't say anything. Did you say anything? A. I can't remember. I was simply in a bit of shock. I didn't know what to ‑ how to make any real sense of it. I didn't know. I was a little girl."
5. The Crown relied on this evidence to establish Count 28 in part, and the Alternative Count 29 on the Indictment.
6. AA gave the following evidence about another incident at school: "A. Yes, ma'am - Madam Crown. I was in the classroom. I had gone back to the classroom, either it was in research or - recess or lunchtime. I'd closed the door, leaving it a little bit ajar because I wasn't supposed to be in the classroom, but I had to go and make up my work from what I knew I missed when the teacher was talking. Q. All right, can I just stop you there. A. Yes, ma'am. Q. When you went back into the classroom, where did you - which part of the classroom? Where did you go inside the classroom? A. I sat in my designated seat - timber seat - where the chair part would fold down from the desk behind me. There was an inkwell and places to put our pencil. Q. All right, I'm just going to stop you there. A. Yes, ma'am. Q. When you went back in this time and sat at your desk-- A. Yes, ma'am. Q. --were there any other people in the classroom when you first went in or not? A. No, Madam Crown, they were out at recess or lunch. Q. What happened while you were sitting at your desk? A. Mr O'Toole entered the classroom. He came - I had my books and papers and pens in front of me. He came up to my I think - no, my - I think - hang on. He came up on my right-hand side. He pushed me down in the seat with his shoulder. I don't remember him even saying anything. And he put his hand under my underpants and rammed his hand with - you know, like, it looked like this, right, and he - he - God. Q. Where did he ram it, Ms AA? A. Into my vagina, Madam Crown. … Q. You said that he - and that he rammed his hand into your vagina. A. Yes, Madam Crown. Q. What did you do once his hand was inside your vagina? A. He left the room and I went up to the toilets, and tried to wipe the smell and the dampness of my underwear off." … Q. Can you just tell the court how far or what part of his hand went into your vagina? A. I believe from my memory it was his right hand, shoving, shoving, shoving, shoving into my vagina, Madam Crown. … Q. Do you remember any other part of his body touching you while his hand was going in - that part of his hand was going in and out of your vagina? A. No, it was - his left hand and shoulder sort of stayed in the same place, but that's the left hand and shoulder that he pushed me down into the seat with. … Q. Physically, can you tell the court what it felt like for you physically when he put his hand inside your vagina? A. It hurt. It hurt. It felt like I was being stretched. It felt like the size of his hand was like he was pushing - it would have been - my understanding it would have been - my vagina would have been a small place, you know, because I was a developing child and" -
7. The Crown relied on this evidence to establish Count 28 in part, and the alternative Count 30 on the Indictment.
8. AA was asked whether the accused ever did anything to her at home. She gave the following evidence: "A. Yes, Madam Crown. He asked me to take my clothes off, my uniform off, and he would - he would initially like he would, you know, moist my breasts and run his hand up and down my abdomen. He would like grab my hips and I wouldn't be - penetrate my underpants, because I was - I was scared and after the - I think it was after the incident at school, I was scared. I was really - I didn't know how to think about it. And he would ram his penis up - on the - ram and ram and ram and ram and ram-- … Q. --how often did he touch you in a sexual or indecent way? A. Continuously. I just felt in myself it just kept going on and on and on, and I had to obey him. He was a sir. It was different. They were held in a higher esteem, teachers in those days. Q. Did there come a time though, when he stopped doing things to you? A. When he left my home, I believe. Well yes, he'd left my home."
9. The Crown relied on this evidence to establish Count 28 in part and the alternative Count 31 on the Indictment.
10. AA was asked whereabouts in the home did these things happen and gave the following evidence: "A. Just in his bedroom. I do remember from your house question, there was a time when he pulled down my - my underpants and was just gyrating on my stomach until - I understand it now, until he ejected his sperm onto me. It was"--
11. The Crown relied on this evidence to establish Count 28 in part, and the alternative Count 32 on the Indictment.
12. AA gave evidence that on one occasion after school, when it was dark, when she was in the accused's bedroom. She was asked: "Q. Do you remember how you came to be in Mr O'Toole's bedroom, on this occasion? A. He was at the door and said "come on - come on in." Q. When he said that to you, what did you do? A. I obeyed him, as a sir. Q. Did you go into his bedroom? A. Yes, I did, Madam Crown. Q. Just doing the best you can, can you tell us on this occasion, what happened when you went into the bedroom? A. He asked me lie on the bed, and he said "this will feel good." … Q. You lay on the bed? A. Yes. Q. You still had your school uniform on, when you lay on the bed? A. Yes, ma'am. … Q. ‑‑his bed. After you lay on his bed, on this occasion, can you tell the Court what happened? A. He initially started ramming his fingers - pulled my pants back and started ramming his fingers into my vagina. In and out, in and out, in and out. And then started to gyrate, grabbing - sort of by the hips, and started to gyrate. He got some Vaseline from the - from a Vaseline jar on the table. And he got a lot of it, and he put it all over my stomach and my pubic area - down on my pubic area. And then he began to - what I would describe as gyrating up and down on my stomach, until he was - ejaculated and finished. Q. When you say he was gyrating on your abdomen‑‑ A. Yes. Q. ‑‑was any part of his body touching your body when he was doing that? A. Yes. It was his penis. His penis rubbing up and - pushing and pushing and pushing up on - on - on my body, you know, my - area. Q. When he was moving his penis up and down on your abdomen, can you tell the Court whether he had any clothes on, or not? A. He had pulled down his trousers, and pulled down his underpants. He'd undone his belt from his pants, and exposed his - we'll say pubic area, and his penis, and his hair around his penis. That's what I remember, ma'am. Q. You told the Court about how he rammed his fingers into your vagina, and also how he gyrated up and down using his penis on your abdomen. A. Yes, ma'am. Q. Did he touch any other part of your body while this was happening, on this occasion? A. He would - he would put his tongue in my mouth, and he would‑‑ Q. Did he do that on this occasion? A. I'm not exactly sure if it was that occasion, or it might have been another occasion in his bedroom. Q. Is there anything else that you can remember him doing on this occasion, where it was dark outside? A. Yes, ma'am. He - he ran his hands over me. I remember him sort of grabbing and sucking on my nipples. Q. When you said, "he ran his hands over me," what part of your body did his hands touch? A. Like my chest, my breasts, down the side of me, around in the - in the Vaseline that had been left there with his semen in it. That's what he did, ma'am. Yeah. Q. On this occasion when it was dark outside, and these things happened to you that you've told us about, can you tell the Court whether or not anyone else was at home on that occasion, or not? A. I'm unaware whether my brother was at home or not. But because he was around 13, he'd started to isolate from the family, and be in his own space. It was that or he'd gone round to see a girlfriend that lived in Westwood Street. Q. What about your mum? A. And my mum, I'm sure, when the door was shut - like it was shut when they were having intimate time - I didn't even know that - I didn't understand that - but the door would be shut, because she went to sleep. And - and the - the door in - that goes into the hallway would be - we'd close it up to reduce the noise that was going into her room. … Q. Did Mr O'Toole, at some point, stop doing these things to you when you were lying on the bed? A. Yes. After he ejaculated, Madam Crown. Q. What did you feel, if anything, when he ejaculated? A. The smell. I'm sorry if I'll insult any males. The smell is very acrid, and nothing I'd smelt before. And it was almost - I don't know, it was just a very uncomfortable smell. I didn't - I wanted to get it off me. Q. Apart from the smell, did you feel anything on your body when he ejaculated? A. Slime. Q. What did Mr O'Toole do when he stopped doing these things to you on this occasion? What did he do? A. He would just get off me and do his - pull up his underpants, pull up his trousers, zip them up, put the belt on. And say - and say nothing. I don't think he said anything. I just got up and left."
13. The Crown relied on this evidence to establish Count 28 in part, and the alternative Counts 31 and 32 on the Indictment.
14. AA gave the following evidence about what happened next: "Q. What's the next thing that you remember doing on this occasion, when it was dark outside and he'd done these things to you? After he ejaculated. A. Yes. I went into my bedroom. I hung my school uniform off - up with the singlet, and the underpants - I took another clean pair of underpants and some afternoon clothes, and went into the shower to clean myself of these smells, and cleaned myself with Sunlight soap. That was what we used for basically everything in those days. Q. You said you got some new underpants. A. Yes, ma'am. Q. What happened to the underpants that you'd been wearing when you went into the bedroom of Mr O'Toole? What happened to those underpants? A. I washed them under the shower, and scrubbed the soap around the vaginal area after I'd already scrubbed my body with the Sunlight soap. And, of course, wrung them out, and dried myself, and put my clothes on, that I'd brought in, and the new underpants."
15. AA gave evidence about another occasion after the accused had taken her to a local milk bar and bought her lollies and an ice cream. She was asked: "Q. Where did you go to inside your house when you walked in on this occasion? A. Again, he asked me to lie on his bed. And then he perpetrated his violence towards me. Q. I'm going to ask you, so, you lay down on his bed. Can you remember what you were wearing at the time? A. I've - uniform, Madam Crown. I just come..(not transcribable)..school. Q. Can you remember what Mr O'Toole was wearing on this occasion? A. It was like a business shirt. I think it may have been long‑sleeved, I can't be completely positive about that. He wore wool pants with a belt around them. Q. When you went into his bedroom what did you do? A. I did what I was told to do, Madam Crown. Q. And what was that? What did you do? You just have to tell us. A. To lie on his bed. Q. And after you lay down in his bed, what's the next thing that you remember happening on this occasion? A. His pushing up my dress and singlet to about my breasts, asking me to take my underpants down, I wouldn't do it, and then he proceeded to ram his penis against my vaginal area again and again and again and again. Q. Now, Ms AA, so you said that - you said, no, you wouldn't take your underpants off. So when he was ramming against your vaginal area with his penis, was his penis touching clothing or skin? A. It was touching the underpants, Madam Crown. Q. Apart from this physical movement Mr O'Toole was doing, can you remember him - remember seeing him do or remember hearing anything else at this - when he was going this? A. It was like a sloshing sound. I remember him grunting - grunting, and - grunting. I remember clearly his face, clearly his face. I've never forgotten it. Q. Did he stop doing this at some point? A. Yeah, he did and - sorry, and, again, my underpants were damp and smelly, you know, that acrid smell. Q. What did he, Mr O'Toole, do after he stopped ramming his penis on the outside of your underpants? What did he do? A. I don't remember him saying anything. All I remember is he got off me and, again, pulled up his pants, his long pants, and - and his underpants and did up his belt. Q. Can you remember what you did then on this occasion? A. Again - so, again, I got up, went to the bathroom in - in my singlet and underpants. Before that I grabbed some clean underpants because I couldn't stand the smell, and so - but yeah, and a change of clothes. I hung my uniform up and went to the bathroom with my singlet and - in my - in my singlet and I - dirty underpants. Again, I took clean underpants in there and showered and washed myself and, you know, I felt - I kind of felt like I wasn't there, like I was detached off it, I really-- … Q. And this occasion that you've told us about, do you remember whether there was anyone else at home on this occasion or not? A. I believe my mother's door was shut to her bedroom, which she did every time she had a sleep in the afternoons often. She might go shopping in the morning and-- Q. I'm just going to stop you there. A. I remember she was at home, yeah." The Crown relies on this evidence to establish Count 28 in part, and the alternative Count 33 on the Indictment.
16. AA was asked whether she could remember other particular incidents that happened in the accused's bedroom, and gave the following evidence: "A. Yes, I remember a time when he asked me into his room and he - he undid his pants and he's, you know, pulled his underpants down and he started - the Vaseline jar was on the bed, right, and he started to rub his penis up and down with his right hand, and eventually it went very stiff and he moved his left hand under his penis and ejaculated the - the - the sperm into his hand, and - and then he - he said, "It's just a little bit," you know, "It's just a little bit," and then he lifted it up to my nose, my face, and I could smell it, and I think I just left the room then. I just - he might have asked me to - to - to get down on the bed. "It's just a little bit," but I don't remember whether I did that or not. Q. On this occasion that you've told us about, at any time on this occasion when you were in Mr O'Toole's bedroom, did any part of his body touch you, or not on this occasion? A. No, we were about 4 foot apart, and, like, at the end of the bed. Maybe it was 3 foot beds, 4 foot bed at the end, and he stood on where we were in - in front of the bottom of the bed, and he stood on the - from where I was, he - he stood straight in front of me and I was standing straight in front of him. It was like he wanted to show me it was just a little bit."
17. The Crown relied on this evidence to establish Count 28 in part, and the alternative Count 33.
18. AA was asked whether she remembered things happening at any other place at her home with the accused. She gave the following evidence: "A. Yes, I remember it was probably a Saturday afternoon because I'd done ‑ polished all the furniture in the morning which, again, was part of my chores. I was in the garage. I was - I had made a bow and I was - I was making a bow and going - and, you know, like, you tie a bit of string to one end and the other end so it's firm and-- Q. All right, I'm just going to get you to stop there. So, you were in the garage making a bow, and whereabouts in the garage were you making the bow? A. At the back of the garage where my father's tool bench was and, you know, one of those things you attach the - the drill to with a sander you put on the end. Q. Now-- A. I was - apologies, sorry. Q. Do you remember if anyone was at home that day when you were out in the garage making the bow? A. I could hear no‑one around. … Q. Now, Ms AA, can you remember what clothes you were wearing this day you were in the garage making a bow? A. Just afternoon clothes, normal clothes. I think it was long pants and a short‑sleeve but puffy shoulder‑type-- Q. Were you wearing anything underneath your long pants and your top? A. Yeah, I had my underpants on. I'm not sure whether I had a - a training bra on because I was, you know, I was distinctively developing. Q. When you were inside the garage, did anyone come into the garage? A. Yes, Mr O'Toole came into the garage. Q. Did Mr O'Toole say anything to you when he came into the garage? A. Yeah, he leaned over me and - and, like, asked me, "What are you doing?" and told me that was really good. He made me feel, you know, comfortable even though I felt very awkward around him. … Q. What's the next thing that you remember happening; either you see or hearing happening? A. I remember him - I would have - his thumb going around my anus and then I remember him starting to have sex. I was standing up. He told me to bend over, and all I could do was look at the air vents on the old cupboards that were in the garage - in the garage. It used to be a kitchen so it had cupboards all around. Q. All right, I'm just going to get you to stop there. Okay, you said that - just bear with me - he asked you to bend over. When did he ask you to bend over? A. When he came into the room and after he's said, "That's," you know, "What's that you're doing? That looks really good," something in that sense. Then he asked me to bend over. Q. When he asked you to bend over-- A. Yes, ma'am. Q. --did you do that, or did you do something else? A. Yeah, I did what he told me to do. He was a teacher. Q. Can you tell the Court - just describe what position you were in when you bent over. How did you bend over? A. I bent over hanging onto the - the old railway sleepers that were the bench where my father worked on with his tools, and-- Q. I'll just stop you there. I note for the record that the witness has both her arms up, roughly at shoulder height, with her hands appearing to hold something in front of her. HIS HONOUR: With her arms stretched out in front of her. Q. Arms stretched out in front, and what position were your legs in when you bent over, Ms AA? A. I had - he - he'd told me, "Just take your pants down," and I did, and I pulled the right part of my pants off my - with my left leg and pushed - pushed the - the - the - that side of me down - that side of the clothes down, and it - God, here I'm doing it - "Take your shoe" - took my shoe off and - and then - then I was exposed to him. Q. What position were your legs in when you-- A. Apart. Q. --were bent over like this? A. Apart. They hadn't been apart until he told me to do that. Q. Where was Mr O'Toole when you were bent over in this position? A. Behind me, madam. Q. Can you tell us what Mr O'Toole did when he was - did to you when he was standing behind you? A. Yes, what I said. He seemed to rub his finger around my anus, and then he proceeded to put his penis inside me. … Q. --what part of your body did he put his penis in? A. I believe it was my vagina, madam. I'm truly believing it was my vagina because it frigging hurt. It frigging hurt. Hurt, hurt, hurt, hurt, hurt, hurt. Shit, sorry. … Q. Once Mr O'Toole put his penis inside you, Ms AA, can you just tell the Court what happened? Did he keep it inside there or what happened? Did it move in and out? What happened or not happened? A. It - it moved in and out, and then he asked me if I would lie on the garage floor - the wooden floor - and "It's just a little bit, AA. It's just a little bit, AA. It's just a little bit, AA.""
19. The Crown relied on this evidence to establish Count 28 in part, and the alternative Counts 34 and 35 on the Indictment.
20. AA then gave the following evidence: "Q. You said that he asked, "would you lie on the floor?" Did you do that, or not? A. Yes, ma'am, I did. Q. What position was your body on - when you laid down on the floor, were you lying on-- A. On the floor, on my back. I was lying on my back, Madam Crown. Q. What position were your legs in, when you laid down on the floor? A. They were straight at first, then I believe he told me to open up my legs, and again I pushed one side of my pants right down, and shoe off. … Q. Did something happen to your pants, before you laid down on the floor? A. But yeah, I think I was just a little bit wet, I didn't smell the - that thing. Q. When you laid down on the floor, did you have your long pants on again, or not? A. I - yep - yes, I believe I did. Q. You said that you pulled your pants down again, when you were lying on the floor. A. Mm-hmm. Q. What happened, after you did that? A. He told me to bring my legs up, and then-- Q. Did you do that? A. Pardon, ma'am? Q. Did you do that, when he asked you to do that? A. Then - it's the teacher, I just did what I was told. I didn't understand it. Q. Where was Mr O'Toole - where was he in relation to you, when he asked you to do that? A. He had pulled himself up, holding onto my ribs - type place, and proceeded to rape me, and eject his semen into me. I knew that because of the smell. Q. I'm just going to ask you, if you can just listen to each question. So, he lay on top of you, and you said he grabbed around your rib area? A. Yeah, sort of - hips - hips kind of - top of my kind of hips, you know to-- CROWN PROSECUTOR: Ms AA, I'm just going to stop you. I note for the record, that Ms AA had both arms bent, and appeared to have her hands on the side of her hips, and then she lifted up her arms and was moving them in a forward and backward direction. Q. After Mr O'Toole had hold of your hips, what part of his body was touching your body, when you were-- A. His - his hair. His - kind of like - pubic hair, was rough and his penis - well he, he just kept pushing and pushing. Q. Where was he pushing his penis? A. Into my vagina, Madam Chair - madam. Q. What was happening to your body, on the floor, when this was happening? A. I could feel it rubbing, hurtfully, against the floor, as I was pushed up and down the hard - hard, wooden floor. There was no carpet, or mat, or nothing, it was just the hard floor. Q. Do you know how long he did that for, Ms AA, or not? A. I've said - I think five to ten minutes, but really, as a little girl I thought it was going on forever. It just seemed to be going on forever, and I couldn't - obviously at that stage in my life, I couldn't understand-- … Q. What happened when he stopped pushing his penis into your vagina? A. Yet again, he got up, pulled his underpants up, pulled his other pants up, put the belt on, and helped to pull me up off the floor, and then, basically he left. Q. What did you do, after he left the garage? A. I went up to our family home, and-- Q. Did you do anything before you left the garage, and went into the home? A. I was trying..(not transcribable)..I don't think I went back to the bow and arrow. I think I - I went up - because I remember, like - the store thing I remember that, I went up - you know, then to have a shower, put some clean underpants on, wash the pants in the shower, and there was blood on my underpants." The Crown relies on this evidence to establish Count 28 in part, and the alternative Count 36.
21. AA gave evidence that she did not tell anyone about these assaults. She gave the following evidence: "Q. Is there any reason why you didn't tell anyone? A. I was frightened, terribly frightened, and I thought my mumma would be very cranky with me and make me feel like it was all my fault. Q. Why were you frightened? A. Because what he had done and he'd said, you know, "This'll kill your mother. You can't tell anyone. This'll kill your mother." And I thought naturally in my own head I had seen him on a weekend dressed in his camouflage clothes with his rifle, and I thought, sincerely thought, that he would kill my mother if I told her. And then I was frightened that he might kill me as well."
22. AA's drawing of the garage became Ex AC. AA gave evidence that she did not remember how long the accused spent in the family home.
23. The Crown was given leave to ask leading questions in relation to [18] of the statement made by AA on 28 March 2018. She gave the following evidence: "Q. Did Mr O'Toole stop sexually and indecently assaulting you around the time you got your period for the first time? A. Yes, ma'am. Q. Was the time that you got your period when you started high school in 1970? Is that correct? A. Yes, I was fully bleeding by 1970. Q. In 1970, you were in year one at PHHS. Is that correct? A. That's correct, Madam Crown."
24. In cross-examination, AA was asked about her second statement she made to police on 6 April 2018, which included allegations concerning a number of incidents of sexual misconduct which were not present in the first statement made one week earlier. She was asked: "Q. In the second statement of 6 April, you describe that after the first statement that you'd given about a week before to the police, you started to have continual flashbacks? A. Yes, sir, all my life, sir. Q. Is it the case that what appears in that second statement, that that was the product of these flashbacks which you had after you made the first statement? Would that be fair? A. It would be fair to say, sir, that in order - that would have been really the last statement that I made. The first statement I don't believe I actually made about the school, but that came as the second statement originally, I believe? … Q. So can I ask you this, ma'am? In that second statement, when you said, "Since making this statement to Detective Bartlett, I have had continual flashbacks," what are you referring to there? A. I'm referring to - I'm referring to the ongoing flashbacks and anxiety and depression that have continued throughout from the - from - every place of assault that - and the nature of his behaviour has continued in - I know it, you know. I know it because it's never ever ever ever left my mind. It's ruined my life, sir. I'm sorry I have to answer it that way but that's the truth. … Q. What I'm asking, ma'am, is in the second statement of 6 April 2018, did some of the additional things you described‑‑ A. Yes, sir. Q. ‑‑did they arise as the result of some flashbacks after the first statement? A. Flashbacks, and a feeling of that Vaseline spread over me. I know I speak in an intellectual sense. However, that - well, for - for what I experienced, it feels like he's smearing it all over my tummy again. I'm watching it. I'm watching it from above him. Smearing all that Vaseline on me, sir. … Q. When you made the second statement, you referred to some additional sexual misconduct on the part of Mr O'Toole towards you. Agreed? A. Yes, sir, I agree with that. I agree with that. Q. You indicated in your second statement, that after that first statement you had some dreams and some flashbacks? A. All my life, sir, yes. Q. In terms of some of the further or additional matters you described in your second statement-- A. Yes, sir. Q. --did they come into your mind in the course of having flashbacks or bad dreams? A. Are you referring to the second statement seven when I was giving my statement to Detective Bartlett? Q. Yes, ma'am, and in particular when you said, "After giving my statement, I remember two incidents that happened with Mr O'Toole." A. Yeah, that's what is written, sir. Q. Did those two incidents; did they - did you become aware of them in the week or so prior to the second statement, having had flashbacks and bad dreams? A. No, I've had flashbacks and bad dreams all my life, sir, and I was very aware of the fact, not only was he ramming his penis against my vagina area, I was feeling some penetration by that because he was ramming his penis into me. Not ramming it anywhere else. He was ramming it straight at my vagina. Q. So, is it the case, ma'am, that both the first and the second statement relate to flashbacks and bad dreams that you'd had over a long period of time? A. To - it is related to - it is related, but not separate from the incidents which occurred that I remember very clearly, very distinctly. … Q. When you gave your second statement - so, I'm talking now about 6 April 2018 - you were clear, were you not, you were clear that Mr O'Toole had had penile‑vaginal intercourse with you. Would that be fair? A. That's very hard to answer, sir. I felt that. I watched what was happening, but at the same time, I disassociated from what was happening because I didn't want to - I didn't want to face it. I didn't want to feel it. I didn't want to know what was happening, sir, because I didn't understand it."
25. AA confirmed that the accused had penile-vaginal sex with her for the first time in the garage. She was then questioned about [48] of her first statement, in which she said, "[The accused] never penetrated my vagina with his penis". She gave the following evidence: "A. In that sir, I am referring to when he - sorry, excuse me for the statement, sir. He rammed his penis, when I was in my underwear, on his bed. I would say distinctively, he did not enter my vagina, in the sense that my underpants were off, and he was pushing his vagina(as said) into me, with my underpants off. I was referring to, when I had my - my - my school underpants on. Initially, he would gyrate on me, and put his fingers in me, and ram his penis into my underwear, and clearly, he would have ejaculated, because the smell, the acrid smell wasn't there, obviously, before he carried out those actions. … Q. Is it the case, that on 28 March 2018, when you said that "Mr O'Toole had never penetrated my vagina with his penis," did you mean never, or did you mean something else? A. Not - I'm taking this statement back to being in the bedroom. When I say to you - which I've tried to say to you - when - say he would penetrate my vagina with his fingers, clearly his hand was in my underpants and pushing his hand up into me. For me, that's clear."
26. AA was asked about dreams that she had had as follows: "Q. All right, ma'am, but really the question is much more simple, do you agree, that after your first statement you were assisted in remembering things that happened, other things, as a result of some dreams you had. That's all I'm saying. A. Not completely as a result of the dreams I had, sir. Q. And, ma'am, in fairness to you, are you saying partly as a result of the dreams you had, would that be fair? A. Yes, sir. That would be - that would be a fair statement."
27. AA agreed that she was unable to place in chronological order the incidents or events of sexual misconduct. Of the incidents at school, she could not say which came first in time.
28. AA was questioned about the time period during which the sexual and indecent assaults occurred. She gave evidence that she was between 10 and 12 years old and they occurred between 1968 and 1969. It was put to her that she was unable to say any of the sexual misconduct alleged occurred in 1968, with which she disagreed.
29. AA was cross-examined about her evidence that she did not tell anyone about the incidents because she was frightened. She gave the following evidence: "Q. You were asked why were you frightened and you answered: "Because he had a gun and he'd said, you know, 'This'll kill your mother. You can't tell anyone. This'll kill your mother.'" Do you remember saying that now, ma'am? A. Yes, I do remember saying that in the context in which I was asked I believed. Q. When you said, "Because he had a gun and he'd said, you know, 'This'll kill your mother,'" was Mr O'Toole telling you that he was going to kill your mother or shoot your mother with the gun? A. Sir, I've explained that I saw him with a gun. Okay. And I - I thought when he said, "It will kill your mother," I thought that that was keeping the secret between him and I, because I thought - I thought I was safe with him, but he frightened me because he had that gun and because he said - he said, "It will kill your mother," yeah, in reference to what he was doing to me. I - right, when I saw that gun he was holding in his hand and in his army clothes, I thought, excuse me, oh shit, he's got a fucking gun, you know. And that was terrifying to me because I had parents that fought in the Second World War. Guns were there to kill people. … Q. Ma'am, isn't it the case there that you're saying that Mr O'Toole was referring to the gun saying that he'll use it or might use it to kill your mother? A. No, sir. He said it to me - the gun was another part of the sequence of the offence that occurred in his bedroom. When he said he - to me he implied that it was a secret. "It'll kill your mother if" - basically, my understanding, "If you tell her." Obviously, I was frightened, as I said to you."
30. AA was asked about the first incident of sexual misconduct as follows: "Q. Are you able to identify a first incident of sexual misconduct as in-- A. Yes, sir. Q. What was that? A. That was at the beginning of his - to my knowledge and belief, that was to the beginning of when he started to set me up for the sexual play in which he performed-- Q. Yes, ma'am, but just to stop you there, which event was that event? Can you describe that event? A. That event was in the bedroom, sir. Q. That event was in the bedroom? A. Yes, sir. That's where it started, sir. Q. That was the first event in time? A. Yes, sir. Q. That event, then, was before you were touched on the bottom in the schoolyard? A. Yes, sir. Q. What was the last event, are you able to say that? A. That's the rape. Rape. It began in the garage and continued his behaviour in the home on his bed. Q. Is that the last event that you're able to remember? A. It - it is difficult to say, sir, because it was continuous."
31. AA was unable to give evidence as to when the accused came to live at her house. Nor was she able to say whether he lived there for a short time or a long time.
32. AA was further questioned about the dreams she had had as follows: "Q. In terms of the dreams that you have about these things, is it the case that, when you have the dream about it, that doesn't help you to place the actual - the subject of the dream, in a certain time, is that fair? A. The dreams have continued, sir. I can't - I can't tell you - because you've got such a short period of dreaming, I can't tell you that it was happening. I can tell you, I - I experienced it in my dream, but I can't tell you when I woke up exactly. Sometimes, not all the time, exactly what I had dreamt about, and that's fairly common knowledge, that people forget their dreams at times, and at other times they remember them. … Q. Suppose, you're having a dream about one of the things that you've referred to in your evidence? A. Yes, sir. Q. You have the dream about a particular event in the dream, but you don't know when it's happened. The dream doesn't tell you what year or when it's happened, would that be fair? A. No, I mean, of course it's a reasonable thing to ask me, but in reference to it, I'm really not sure what you're - what answer you're trying to get from me. … Q. Ma'am, when you speak about the continual flashbacks and dreams, you are speaking about dream experiences that you've had for a long time? A. No, sir. Q. Are you speaking about dream experiences that you had since making your first statement about a week before? A. I've had dreams and flashbacks all my 50 years on this planet. He's not out of my head anytime. His face - he's not out of my head."
33. AA gave evidence that she remembered events of sexual misconduct that occurred when Mr A was her teacher in fifth class when she turned 11 on 29 October 1968. It was put to her that the accused never boarded at her house in 1968 and that he never taught at PHPS in 1968. She gave evidence that he became a boarder in late 1968. She was asked: "Q. Ma'am, when you say that you believe Mr O'Toole became a boarder in your home in late 1968, what do you base that on in your memory? A. In my memory, I say to myself it was around that time. I can't - again - place the activities in the sense of - I believe he was in 68. That's my honest belief. And I believe he was in 67. But I'm not sure of when he actually came to the school, and when he left the school. I have no dates or times in my head of when that occurred succinctly."
34. AA was asked whether she remembered what car the accused was driving and she described it as "a white old Mazda".
35. AA was asked about a number of other boarders who stayed at her family home. She gave evidence that a Mr Z was not there in 1968 and 1969. Nor could she recall with certainty when another teacher, Mr R, was staying there.
36. It was put to AA that the accused did not board at her home in 1968 and 1969, which she denied, stating that it was her belief that he did. She gave evidence that she was aware when she made her statement to the police that there were allegations from other people concerning the accused. The police had told her he had been charged and that there were "Five or six of us that were going to come to court and give witness to his behaviour towards us."
37. The defence case was put to AA as follows: "Q. Ma'am, Mr O'Toole never did anything which involved his penetrating your vagina either with his fingers or with his penis. A. He did it, sir. I don't really quite know how you want me to answer that. He did it. … Q. Yes, ma'am. What's being raised with you is that Mr O'Toole didn't engage in sexual misconduct with you in the ways that you have described. A. I disagree, sir. Q. Ma'am, I raise this with you that in 1968 and 1969 Mr O'Toole was not a boarder at your home. A. Well, it's my - to my acknowledgement and belief he was a boarder at my home."
38. In re-examination AA was asked about the evidence she gave concerning the first incident, which included the words, "I remember it in the process of time". She was asked what she meant by that phrase, and gave the following evidence: "A. I remembered back in the process of time to that assault that started to occur against me by him. I remembered back in time to that first assault, to that first time. I remembered back to it. I don't know how else really to explain it to you. It was - perhaps a rephrasing of that question."

Evidence of The Officer in Charge Detective Senior Constable Justin Welsh

1. Detective Senior Constable Welsh gave evidence that he commenced the investigation against the accused in July 2014. At that time, he contacted CW and LW. He obtained a statement from CW on 16 July 2016. As OIC, he then contacted the NSW Department of Education, but the file for the accused could not be located.
2. The OIC obtained a surveillance device warrant and on 27 February 2017, arranged for CW to be fitted with that device and to travel to the Kurrajong Radio Museum where the accused was working as a volunteer. The recording of the conversation between CW and the accused became Ex J.
3. Subsequently, the surveillance device warrant was utilised to record two telephone calls made by CW to the accused. Those calls were played in court and the disc became Ex K.
4. The OIC gave evidence of other persons he spoke to during his investigations. He took a statement from LW on 14 July 2017.
5. The OIC gave further evidence that on 27 July 2017 he went with other police to the Kurrajong Radio Museum and arrested the accused. An ERISP interview was conducted and the disc was played to the court. It became Ex R.
6. The OIC gave evidence that in January 2018 he contacted a Ms K, who provided him with two aerial photographs of the BPS and surrounding area. They became Ex T.
7. The OIC gave evidence of the enquiries he made between 2018 and 2020 of the Department of Education, through Ms MacFarlane, and gave evidence of the documents provided by the department. He also received from Mr DB a chronological list of schools between 1901 and 1920, which became Ex U.
8. Detective Senior Constable Welsh was cross-examined on the records provided by the Department of Education and in particular, the accused's leave record, which became Ex 1. He agreed that there was no date shown on the record when the accused commenced at BPS. More recent records produced by the Department of Education became Ex 2, comprising three pages of coloured photocopies of leave cards. The OIC agreed that they comprised the best record that the accused commenced at PHPS in January 1969.
9. The OIC was cross-examined in relation to the complainants making their police statements. He agreed that he told them he was investigating a number of issues relating to sexual misconduct when they were at BPS in the 60's. He was asked: "Q. Did you tell them that you were investigating a Mr O'Toole? A. I believe the initial conversation with - for people I was contacting who I didn't know were victims were - I was investigating sexual misconduct at the school during that period. But I don't believe I named Mr O'Toole. Q. Can I raise this with you, sir - that you did do that in the course of the early conversations, to focus their minds on what it was you were actually inquiring about? A. No. No, that's not the case at all. Q. Did you tell any of the complainants that you received complaints relating to sexual misconduct from other victims at the school? A. Yes, I obviously did tell them that, as a result of the Royal Commission, I'd received a notification about a - a victim of child sexual abuse. And I was conducting an investigation. They - they obviously asked questions why I was ringing. So I had to provide them with some - some answer."
10. The OIC gave evidence that CW was the first complainant that he was aware of, however, because of her health difficulties, a significant period of time passed prior to her statement being taken. A Detective Bartlett had spoken with AA. He gave the following evidence: "Q. Did any of the complainants ask you if it had happened to anyone else? That is to say, did the sexual misconduct happen to any other person when they were at the school? A. They could assume that, because I was contacting them about sexual misconduct at the school. Q. That question was, did they ask about - did any of the complainants ask, "Well, did this happen to anyone else?" or some further details? A. Yes. Obviously I had to tell them there was an investigation, and I was investigating a matter. So‑‑ Q. It would not have been surprising to you, but as it turned out, many of the complainants, in fact, knew each other. Some were related by blood. A. Yes, that's right."
11. In re-examination, the OIC clarified that in Ex 1, the date of notification for the accused to be posted to BPS was 4 May 66. He confirmed the date of appointment at that school was 24 May 66 and that he was transferred to Mount Parry School on 30 January 1968.
12. The OIC further clarified in re-examination that statements were taken from the various complainants between 16 July 2016 and 28 March 2018. The investigation involving AA started independently from his investigation.
13. In further cross-examination by leave, the OIC acknowledged that AA came into the investigation a little later than the other complainants and that the accused was offered a record of interview in relation to AA by notification to his solicitor's office.

The Crown case

1. The Crown case is that the evidence outlined above establishes beyond reasonable doubt each of the elements of Counts 1-5, concerning the allegations brought by CW. With respect to KW, the Crown case is that the elements of Count 6, the charge pursuant to s 66EA(1) of the Crimes Act 1900 are made out, in that the evidence outlined above establishes two or more of the allegations KW brought in respect of Counts 7-19, with the exception of Counts 17 and 18. It is only if I am not satisfied that the elements of Count 6 are made out, that I consider the alternative counts as separate offences.
2. The Crown case is that Count 20, the allegation brought by LW, is established by the evidence outlined above. Further, Counts 21, 22 and 23, which concern the allegations brought by CF, are further established by the evidence set out above. Further, the Crown case was that if I am satisfied that the elements of the offence in Count 22 are not made out (carnal knowledge), on the basis that I am not satisfied beyond reasonable doubt that there was penetration of CF's vagina by the accused's penis, a statutory alternative count would be available pursuant to s 76 of the Crimes Act 1900, if I am satisfied beyond reasonable doubt that, notwithstanding that there was no penetration, the accused placed his penis in the area of CF's vagina. The reason for the consideration of the alternative statutory count is based on the evidence of CF that at no time during that incident did she see the accused's penis.
3. The Crown case is that I would be satisfied that the elements of each of the offences in Counts 24, 25, 26 and 27, concerning the allegations brought by WW, are established beyond reasonable doubt.
4. In respect of the allegations brought by AA, the Crown case is that I would be satisfied beyond reasonable doubt of the elements of the offence in Count 28, being an offence pursuant to s 66EA(1) of the Crimes Act 1900, in that I would be satisfied that the elements of two or more of the offences in Counts 29 to 37 were established beyond reasonable doubt. It is only if I am not satisfied that the elements of the offence in Count 28 are established beyond reasonable doubt, that I consider the alternative counts 29 to 37. The Crown conceded, however, that there was no evidence establishing the elements of Count 37.
5. In her address, the Crown submitted that the evidence established that the accused commenced his appointment at BPS on 24 May 1966, and taught at the school until it closed at the end of the school year on 27 December 1967. The accused had confirmed that history in his ERISP interview (Ex R).
6. At the time he commenced in 1966 there were 12 students attending the school. Two students left at the end of that year, and two more students left in May 1967. In the beginning of 1967, two older students, NS and JM, who had been attending the school to do high school by correspondence, returned to their high school (Ex X, annexure D).
7. Whilst he was the teacher at BPS, the accused boarded with the W family on their farm, which was adjacent to the school. Mr and Mrs W had four children, WW, BW, KW and CW. In his ERISP interview, the accused had recalled the names of the W family, his bedroom was on the verandah of the house, and the telephone number. He also recalled that the whole school would go to the river at the farm and he would at times go there by himself or with the W children. The accused also recalled that he drove his white Cortina motor vehicle to school.
8. The Crown submitted that the accused in his ERISP interview recalled the layout of the school and school grounds, including the toilets, and in his recorded telephone conversation with CW, remembered the coloured raffia mats at the school and that he must have had something like a slide projector and screen at the school. The accused also recalled his interest in radios and that Mr DW assisted him in constructing an aerial at the W property.
9. The Crown case was that the accused, at the relevant time, had dark hair according to a number of the witnesses and it was not put to them that his hair was not dark.
10. The Crown submitted that many of the details of which the complainants gave evidence were supported by evidence that came from the accused. This was relevant to the issue of forensic delay and the effect of any delay. It was submitted that the accused had quite a good memory of a variety of different matters and details from the period 1966 to 1967.
11. The Crown set out in tabular form (MFI 31) references to the evidence it relied upon as proof of the particular counts. The Crown submitted that each of the complainants were reliable and credible witnesses and each gave coherent and compelling evidence about what the accused did to them. The Crown further submitted that there was no contamination of the evidence in anticipation of the accused so contending, and the Crown also relied on tendency evidence.
12. The Crown then addressed the evidence adduced from each of the complainants as follows.
13. The Crown submitted that CW gave coherent and compelling evidence. She was a credible and reliable witness because her memory was accurate about her age on starting school in the third term when she was five, and having another teacher for a short time before Mr O'Toole commenced in May 1966. It was submitted that any variance about her recollection about when the BPS closed and she commenced at Medlow school, was a matter of small moment. The fact that CW recalled Counts 1 and 2 which occurred in the toilet, as the first incident, and Counts 3 and 4, which occurred in the storeroom, as the second incident, but could not put other incidents in a consecutive sequential order was consistent with the passage of time, but did not give rise to doubt about either the credibility or reliability of her evidence.
14. In relation to Counts 3 and 4, where she gave evidence that in respect of the first incident in the storeroom, she could not remember him taking off his pants was an example of her honesty. The Crown submitted that the court would not expect people to be able to remember every aspect of an event so many years ago and the fact that all detail was not recalled was not a reason to reject her evidence. Further, her recollection in respect of Counts 3 and 4 that after the accused ejaculated he said, "If I did this to one of the other girls, she would probably fall pregnant", together with CW's evidence that she had looked across into the classroom where JL sat, were consistent with a real memory of the event happening to CW. Further, CW conceded things appropriately, that she could not recall or qualified her evidence where necessary.
15. The Crown submitted that the listening device evidence recorded on 25 February 2017 (Ex J), was also consistent with CW reliably recalling things that happened to her. The evidence demonstrated that she was keen to get the accused to clearly and unambiguously apologise to her for what he had done.
16. The Crown submitted that CW withstood having her evidence tested in cross‑examination, either by giving consistent responses or by conceding when she did not recall something. Her evidence was also supported by other witnesses, for example, in relation to the accused selecting students to help him clean the toilets (evidence of LW, EH and NS).
17. The Crown submitted that CW presented as a careful and precise person. She was cross-examined over three days, during which her memory and honesty were thoroughly tested. The Crown submitted that the evidence established that the accused had a sexual interest in CW and acted upon it. Thus, if the Court was satisfied in relation to one count on the Indictment relating to CW, I could use that evidence of those particular tendencies, as set out in [6] of the Tendency Notice, to satisfy myself of other counts on the Indictment relating to CW.
18. The Crown submitted that LW presented as a straightforward person who made a genuine attempt to answer questions. She had described the accused as, "young, he had dark hair, wore long trousers …and had very soft hands." The evidence established that she was seven when the accused commenced teaching at BPS and eight when he left at the end of 1967. The Crown submitted that her evidence was not diminished and neither her credibility nor reliability were weakened in cross-examination, and therefore I would be satisfied that the elements of Count 20 were established beyond reasonable doubt. The Crown submitted that her evidence of what occurred in the toilet had all the hallmarks of a real memory and I would be satisfied that not only was the offence made out, but it could be relied upon as tendency in relation to the tendency set out in [3] of the Tendency Evidence Notice.
19. The Crown submitted that the complainant in Counts 21, 22 and 23, CF, was a credible and reliable witness who was consistent in her evidence, notwithstanding that she was at times overwhelmed. Her drawing of the school (Ex O) was consistent with Exs G, H and the photographs in Ex T. She also gave evidence that the accused drove a white Cortina and that it had distinctive lights. She gave evidence that the accused liked music and had an interest in radios. She had a clear recollection that the events happened when she was six or seven, and that the school closed down in December 1967 or January 1968.
20. CF gave evidence that the toilet incident occurred after the classroom incident. She could not say how long after it happened. She also said in relation to the classroom incident, that she could not see his penis and that she did not know what it was at that time. She was, however, very clear of what had happened to her when she was sitting on the lap of the accused.
21. The Crown submitted the evidence of CF, to the extent that children were accompanied by the teacher to the toilets because of snakes, was supported by the evidence of NS and KW.
22. The Crown further submitted that I would be satisfied that the accused had a sexual interest in CF and that he acted upon it. That evidence could be used in relation to other acts involving CF, and also be used in relation to other complainants in accordance with [3] of the Tendency Evidence Notice.
23. In respect of Counts 24 to 27 on the Indictment, it was submitted the complainant WW was a direct witness who gave honest evidence. It was clear that he was highly uncomfortable discussing what the accused had done to him, but he had a clear recollection of the event which the Crown submitted could be described as a "vivid" memory of events that, in the Crown's submission, anyone would be likely to remember many years later. That was the act of the complainant fellating the accused.
24. The Crown submitted that the evidence of WW could be used in two ways in relation to tendency, both in relation to the offences committed upon WW, in that the accused had a sexual interest in him and acted upon it, and also as tendency evidence in relation to other complainants. The Crown noted that in respect of complainant AA, she made an allegation that the accused had touched her around her anus with his fingers, similar to some of the evidence given by WW.
25. In relation to Count 6 on the Indictment, the complainant KW presented as a highly anxious witness, but one who the Crown submitted was also a credible and reliable witness. The Crown submitted that she presented as someone anxious to please, in contrast to her sister CW, and the Crown relied on that personality difference to submit that it was not surprising that the accused engaged in more sexual acts with KW than CW, or that the accused praised KW as a good girl, and called CW derogatory nicknames. It was submitted that KW was compliant and the Crown submitted that, having regard to the evidence in its totality, it supported a finding that the accused was a very skilful manipulator of children, astute in assessing their personalities, and his behaviour varied accordingly.
26. The Crown submitted that KW was very honest when deeply interrogated about her memories in cross-examination. An example was her evidence concerning where the mat in the ante-room actually came from.
27. The Crown submitted that the evidence in cross-examination concerning Count 11, which took place in the accused's bedroom, and related to the maths exam paper, demonstrated that KW was honest in explaining that she did not see JL's name on the paper, but recognised her writing.
28. The Crown referred to KW's evidence that there were other things which the accused did to her which she was unable to recall in detail, and that it was unsurprising, given the number of acts, the frequency and the passage of time, that she did not recall all of the acts in detail.
29. The Crown submitted that in relation to Counts 7, 9, 15 and 17, KW described only her masturbating the accused's penis at his request, and did not refer to the accused's touching her hand at the time. The Crown submitted that omissions in that respect would not cause me to reject her evidence or to markedly diminish it. Having regard to the Markuleski direction, the Crown submitted that although such acts of indecency were not offences at that time, and therefore are not unlawful sexual acts for the purposes of s 66EA, they are nonetheless acts which are capable of establishing the tendencies in [3] and [7] of the Tendency Evidence Notice.
30. The Crown submitted that I would be satisfied that the accused maintained an unlawful sexual relationship with KW during the time he lived at the W's home, and taught at the BPS. The evidence of KW proved that the accused carried on and kept up a relationship with her. In doing so, he committed unlawful sexual acts at the school, in his bedroom at her home and at the river on the family farm. It was also relevant that the accused made numerous references to "mummies and daddies" when assaulting her. The Crown submitted that "mummies and daddies" are usually in a relationship and therefore the accused was making KW think she was in a relationship with him, where he was teaching her how to be a mummy, and he was pretending to be a daddy. The Crown submitted that I would be satisfied beyond reasonable doubt that the accused did two or more of the unlawful acts set out in Count 6. The Crown, however, conceded that the evidence was deficient in respect of Counts 17 and 18, but relied on evidence KW gave about other events at the river as tendency evidence.
31. In respect of s 66EA, the Crown submitted that it was not a requirement of particularity in relation to the unlawful acts set out as particulars in the count. If I was satisfied that the accused maintained an unlawful relationship, it was only in the event that I was not satisfied that there were two or more unlawful acts that I would go on to consider the alternative counts.
32. The Crown referred to KW's evidence about things that the accused said to her, which included instructing her to massage his penis, telling her that she wasn't doing it how he liked it, encouraging her to go faster or to move positions. He also called KW a "good girl" and told her she was a good girl for doing it, and to keep doing it. The evidence established that the accused also wanted to show KW how mummies and daddies played games. He called his ejaculate "spunk" and explained it was a fluid that daddies had built up inside them, and then had to be released every now and then. The accused told her that it would not harm her and that it was natural. The accused also told her that she would be in big trouble if she told her mother and father about what had happened. He told her that if she continued to be a good girl and not say anything, when they got to the convenience store he would buy her a treat. When KW had fellated him and he ejaculated into her mouth, she became upset. The evidence established that he told her she had done well and had done what he had asked her to do.
33. The Crown submitted that the evidence established that in the river, the accused had his hand inside her swimmers and told her it was a nice feeling, that she was a good girl for doing it, that she was kind and nice. All of those conversations occurred, and the court would accept that it showed that the accused was maintaining an unlawful sexual relationship with KW. The foundation of that relationship was the fact that he was her teacher and also a boarder in her family home.
34. The Crown submitted that the evidence of NS supported a conclusion that the accused had numerous opportunities during school hours at the school, during sports training or at the river to commit the offences he is alleged to have committed, in the way alleged by CW, LW, CF and KW. NS gave evidence that the accused often had herself or JM supervise the students when he was not there, including when he took students to the toilet. The evidence of EH also supported the allegation about the accused having opportunities by taking the students to the toilets.
35. In relation to Counts 28 to 37, the Crown submitted that the complainant AA gave her evidence in a direct and forthright manner, notwithstanding her acquired brain injury suffered in 2013. The Crown conceded that she needed to be reminded to focus on the question being asked and to some extent was fixated about the accused and the affect his conduct had had upon her. The Crown submitted she was obviously keen for the court to appreciate she was only a young girl at the time of the alleged offending, but the Crown submitted that she gave compelling evidence which was both credible and reliable. Further, her evidence withstood careful scrutiny.
36. The Crown submitted that AA gave an accurate and detailed description of the accused. She was correct in giving evidence that he was 23 years old at the beginning of 1969, as he turned 24 on 15 November 1969.
37. The Crown submitted that AA gave accurate evidence about the home and garage. Although she recalled the accused had a white four-door Mazda motor vehicle, her description of its lights was consistent with the evidence given by CF.
38. The Crown conceded that AA was unable to say exactly when the sexual offending commenced except that she was between 10 and 12 when it started, when the accused moved into her home as a boarder.
39. AA gave evidence that the accused stopped sexually and indecently assaulting her around the time she got her period, and that occurred in 1970 when she was in her first year of high school. The Crown submitted that I would be satisfied that the unlawful sexual acts particularised in Count 28 occurred within the period charged, as did the events concerned in the alternative counts.
40. The Crown submitted that AA gave evidence which demonstrated a clear memory of the particular incidents that she was able to give evidence about. The unlawful sexual acts continued frequently whilst the accused was boarding at her home. She had a relationship with him because he was a boarder in her home and although she was not taught by the accused, he was nonetheless a teacher at her school. The way in which AA described her interactions with the accused made it clear that him being a teacher was an important aspect in that she felt she had to be obedient to him, that he was someone in authority and someone to be trusted. Further, the things that the accused said to her, the treats that he gave her, together with threats about which she gave evidence, were all matters consistent with the accused having a relationship with AA and the Crown submitted that it was consistent with him manipulating AA to ensure that he could continue to engage in unlawful sexual acts with her. The Crown submitted that AA's evidence established that the accused started by touching her and progressively won her trust and compliance until he was frequently having penile-vaginal intercourse with her.
41. The Crown submitted that in her evidence AA spoke about the accused in a conflicted way. She loved and trusted him, however, she was also scared of him. This was understandable given that when AA was nine, her father had died and she was at the time obviously looking to receive some attention from a substitute male figure.
42. The Crown submitted that the fact that AA was cross-examined extensively about dreams and flashbacks made it clear that she was able to say what she could actually remember happening when she was awake, and was consistent with the fact that she sometimes dreamt about these things. Her concession that her second statement to police arose partly as a result of dreams was a fair statement and amounted to a reasonable concession. Further, her evidence about dreaming for a short period was consistent with the nature of dreaming itself and the Crown submitted AA was quite open about the things that she could remember and those that she could not.
43. The Crown submitted that the evidence AA gave about incidents at the school and her home, and in the garage, appeared to be very real memories that she had in which she described things that actually occurred to her. It was submitted that when analysed closely, the matters that AA was unable to recall would not be matters that would cause a reasonable doubt about the incidents that she had given evidence of had occurred. Given the repetitive nature of the sexual acts as described by AA that the accused committed upon her, the Crown submitted it was not surprising that AA was not able to recollect all of those matters, for example, her evidence about the incident in the garage amounted to a very vivid picture of something that she clearly remembered happening to her, and the circumstances in which it occurred.
44. The Crown submitted that the credibility and reliability of AA was supported by her evidence about other boarders who stayed at the house, which showed she was able to give responsive answers in some detail. The Crown submitted that I would be satisfied the accused had maintained an unlawful sexual relationship with AA, that there were more than two unlawful acts that the accused committed upon her. He had plenty of opportunity in her home to act in the way that AA alleged.
45. The Crown conceded that there was no evidence proffered to support the allegation in Count 37.
46. The Crown submitted that the absence of an admission register for students at PHPS would not give rise to any doubt in respect of Count 28. Other documents that were exhibits in the trial, including Ex 1, demonstrated that the accused taught at PH and that he commenced there on 28 January 1969.
47. The Crown submitted that in relation to the question of contamination and/or concoction of evidence by and between the various complainants, CW and AA had independently reported the accused to the Royal Commission into Institutional Responses to Child Sex Abuse. CW did that in 2013 and she was first called by the Officer in Charge, Detective Senior Constable Welsh, on 29 July 2014. The Officer in Charge was later contacted by detectives in Sydney and informed about the existence of the allegations AA was making against the accused.
48. CW made her first statement to police on 16 July 2016. LW first spoke to Detective Senior Constable Welsh in 2014. She gave very frank evidence about the fact that she did not know of anyone else, although she had her suspicions, but they were completely wrong. LW made her statement on 14 July 2017, a year after CW. There was no evidence that LW and CW spoke during that time.
49. CF made her statement on 15 July 2017. Both LW and CF were living in Queensland at that time. KW made her first statement on 6 September 2017, two months later. She gave evidence that the first person she told the details of what occurred to her by the accused was Detective Senior Constable Welsh.
50. WW made his statement on 31 January 2018. He also gave evidence that the first person he told the details of what the accused had done to him was Detective Senior Constable Welsh. AA made her first statement to Detective Senior Constable Bartlett in Sydney on 28 March 2018.
51. The Crown submitted that CW stated that in 1994 she told her husband that she had been molested by a school teacher, but gave him no details. That evidence was confirmed by the evidence of her husband DA.
52. CW also gave evidence that in 1997 her mother asked her had something happened to her at BPS, and she replied "yes", and gave the accused's name with no other details. Her mother told her not to tell her father and it was not discussed again. In cross-examination of CW, she gave evidence that her mother told her a person had contacted her saying that she had been sexually interfered with and asked her mother if she knew of any others who had been interfered with at the school. Her mother asked CW whether she knew of anyone and CW replied, "it happened to me". She also said that she was seven when it happened.
53. In December 2014 or January 2015, on a visit to Scotland to see her sister KW, the evidence established that CW told her sister that she had been sexually abused by a teacher at BUP and that she was giving a statement to police. She asked KW had anything happened to her, and KW said something had happened and that their mother had asked her the same question. CW asked KW if she could give her contact details to Detective Senior Constable Welsh.
54. KW gave evidence that she did not tell CW any details in that conversation and that CW had said to her, "I do not want to know any of what he's done to you".
55. CF had given evidence that she told her husband DB that she had been sexually abused when she was six years old by a school teacher but did not give him the name. She also told a friend, Mr JFW on an occasion in the early 1990's when JFW and his wife were visiting, that she had been molested as a child at school. When he asked her what she meant by molested, she said, "sexually assaulted".
56. CF's husband DB gave evidence that when they were engaged, before they were married in 1980, CF had told him that she had been molested whilst attending school by a teacher. She told him that he used to make her sit on his lap and do things, but she did not tell her husband any more details. On the occasion when she told JFW about being sexually assaulted at school, he had said to her, "Don't tell me anymore. I'm not qualified to listen and help you." He explained that he had chronic PTSD and that he told her to report it to police and go to her doctor and get a referral to a psychologist. On a subsequent occasion when CF and her husband were visiting Mr and Mrs FW, CF told Mrs FW about the sexual assault and in CF's presence, Mrs FW said to JFW, "Did you hear that?", and he replied, "Yeah. I know all about it."
57. The Crown also relied on the evidence of the occasion in the mid-1990's when LW visited her parents' home at Tuggerawong when they received a visit from Mr and Mrs Y and Mr and Mrs W. The evidence of Mrs Y was that LW told her at that gathering that she had been sexually abused at the BPS by the teacher and that LW did not go into any detail with her. The Crown submitted that the evidence established that CW, LW and CF had all told people independently of the fact that they had been abused by a teacher many years before any report was made to the Royal Commission or police.
58. It was submitted that all of the complainants experienced deep shame about what had happened to them and grew up at a time and place where there was little or no discussion about sexual matters with children. WW's explanation for not telling his parents was demonstrative of that.
59. The Crown submitted there was no evidence that any of the complainants knew of the details of the allegations by the other complainants. The mere fact that they knew at some point that others were part of the investigation and prosecution would not diminish the weight to be given to their evidence or the rejection of it. Further, the fact of differences in the individual evidence supports the conclusion there was no collusion or contamination in relation to their evidence. Although there was commonality in terms of the common links identified in the Tendency Evidence Notice, there was no evidence that in any sense the individual complainants had given evidence that was identical, rehearsed or had features which would raise concern about either contamination or concoction.
60. On the issue of delay and forensic disadvantage to the accused, the Crown submitted that in relation to the evidence of KW, she was subjected to cross‑examination of the minutia of the way her memory worked. Although she had made a concession that she constructed some evidentiary context, upon careful analysis of her evidence it was clear that what she was doing was in fact drawing an inference which was a reasonable inference that was open to her. Examples of that was evidence she gave about the mat in the ante-room at the school, and the fact that her father was not in the house because he was in the dairy or feeding the pigs, as was his usual habit.
61. The Crown submitted that KW was actually displaying honesty in going through this process of deconstructing in this way. The Crown submitted that this should not lead to a discounting of the weight to be given to her evidence.
62. The Crown submitted that the court should apply tendency reasoning in the following way - if the court finds any of the acts occurred, including uncharged acts, the court would go onto consider whether the accused had the alleged tendencies. When considering whether one of those acts occurred, the act is not considered in isolation, but considered with all of the evidence, and it is then determined whether a particular act or act relied upon took place, and if it was found that none of the acts occurred, then any suggestion that the accused had the tendency alleged must be put aside.
63. If accepted, that one or more of the alleged acts occurred, it would be necessary to consider whether from that act or acts, it could be concluded that the accused had the tendencies alleged. If it was so concluded, then the fact of that tendency or state of mind may be used in considering whether the accused committed the offences charged. In respect of CW, if the tendencies were found, they could be used to consider whether any of the other acts were committed upon CW. The court would also consider whether any of the acts committed upon CW were linked by the common features when acts alleged to be committed upon any other complainant in accordance with [3] of the Tendency Evidence Notice.
64. In respect of the burden of proof regarding tendency evidence, the Crown relied on the High Court's decision in R v Bauer [2018] HCA 40 and Jackson v R [2020] NSWCCA 5. Given that there was uncertainty concerning a case involving multiple complainants, the Crown submitted that in relation to the counts on the Indictment, as opposed to uncharged acts, the court would have to be satisfied beyond reasonable doubt that they occurred.
65. The Crown submitted that in relation to tendency evidence reasoning, the evidence of CW was a logical place to start. It was submitted that the tendency evidence increases the likelihood that the allegation of each count on the Indictment was true. The Crown submitted that the evidence establishes that when the accused was a teacher at the BPS and boarding at the W home, and later, when he was boarding at the home of AA, he was prepared to engage in sexual and indecent acts with young school age children who he knew as pupils or as children of families in whose homes he boarded. In those circumstances he used his authority and standing as a teacher or boarder to create those opportunities or exploit his circumstances. The Crown submitted that the tendency evidence here is powerful for the evidence in support of the account of each complainant when their evidence is considered separately.
66. The Crown submitted that the accused's responses to CW in Ex J and K, the recorded conversations, were extraordinary and not credible. The Crown submitted that most people accused of sexually penetrating a six year old would react with distress, anger, concern or some mixture of those emotions, and it would be expected that they would deny it categorically. Here, the accused stated a number of times that he did not remember, and a number of times that, if it did happen, he was sorry.
67. The Crown pointed to an inconsistency in the accused's memory of matters unrelated to sexual abuse in those conversations, for example, his denial that he had threatened to sue her father in respect of damage done to his car. Further, the Crown submitted that by saying that he wished CW well, that sat awkwardly with someone in circumstances the accused was in, namely, of just being accused of very serious criminal behaviour.
68. The Crown submitted that when CW said, "And you're sorry for what you did to me though? You're sorry for anything you did to me?", and the accused responded, "Well, if yeah, if that's so, yeah. My word I am, yeah, because yeah that's just not on", was a very unusual response in the particular circumstances. By stating that he could not remember the abuse and saying things such as, "Yes, if that's what happened, I'm incredibly sorry, incredibly sorry", was inconsistent with details that the accused correctly remembered about his time at BPS and boarding with the W family. The Crown submitted that it was extraordinary that the accused asserted that he was unable to remember if he sexually assaulted CW. Even if he did not remember some of the details many years later, the Crown submitted the accused would know if he had ever sexually touched her or not. The Crown submitted that the complete absence of unambiguous denials in circumstances where it really would be expected they would be forthcoming if the allegations were untrue. Without seeking to undermine the accused's right of silence or to elevate the evidence to something more than it is, the Crown submitted that I was entitled to make use of that evidence.
69. In relation to the accused's ERISP interview (Ex R), the Crown submitted that his answers at Q44 to 50 amounted to an admission of touching the four complainants, CW, KW, LW and CF. Whilst the accused denied sexual intercourse, he later in his interview retreated from that admission. The Crown submitted that whilst CW was not able to give a particularly full description of the accused's appearance, unlike some of the other complainants, there were a lot of things about the accused that would satisfy the court that she was referring to the accused as the person who abused her. There were also many other matters in the ERISP interview which supported the accounts of the various complainants, as well as their reliability and credibility.
70. In anticipation of a submission from the accused, the Crown submitted that the contention that the five complainants made statements within a period of some two months was not made out on the evidence.
71. In terms of forensic disadvantage to the accused because of the delay in complaint and prosecution, the Crown conceded that disadvantage with respect to the death of Mr and Mrs W and also of JL. It was submitted that some of those matters may be of disadvantage to the Crown rather than the accused. In respect of forensic disadvantage to the accused, the Crown submitted that there was no evidence on behalf of the accused about attempts to find out other sources of evidence that were not available. In terms of the independent evidence and records of when the accused was at BUP and the students who were there, were all matters which indicated that there was no disadvantage. Similarly, the fact that the accused drove a white Cortina was admitted by him. The Crown submitted that the absence of school records related solely to the admission register of students at PHPS.
72. The Crown submitted that a trial is not a memory test, notwithstanding that the events occurred a long time ago. The Crown submitted that each of the complainants in their own way compellingly recalled the accused and the time he was in their young lives, either as a teacher or a boarder, or both. It was unsurprising that given their ages at the time and the passage of time since the events, there was some difficulty with dates and timings, however, the Crown submitted that such matters were not of critical importance to the elements of the offences.
73. The Crown submitted that all of the complainants made appropriate concessions when unsure of details, and spoke frankly and honestly about what they could and could not remember. Any inconsistencies within their evidence were relatively minor and were consistent with the recounting of events that occurred a long time ago. What was apparent was that all the complainants had been deeply affected by what they said the accused did to them and have dealt with it in different ways, and gave evidence about it in different ways. The Crown submitted that having regard to the whole of the evidence and the collective picture, when using the evidence in accordance with the directions, the court would find that the accused was a man who repeatedly and frequently took advantage of his position of trust as a teacher and boarder, to sexually and indecently assault the complainants when they were very young children who trusted him.
74. The Crown made a further submission in respect of CW and Count 4 on the Indictment, the offence pursuant to s 67 of the Crimes Act 1900 being carnal knowledge. The Crown submitted that the court would accept CW's explanation that she did not know the legal definition of sexual intercourse and believed there had to be full penetration of the penis to constitute sexual intercourse. The Crown submitted that her evidence was clear that CW's vagina was penetrated by the accused's penis, and further submitted that CW at no time told either her husband or KW the details of what the accused had done to her.
75. The Crown made a further submission in respect of the witness CF in relation to Count 23. The Crown submitted CF gave evidence that the accused tried to grab her hand to touch his penis, and that she, in the course of that happening, accidentally or deliberately leant her head forward and her head then touched the end of his penis. They were the circumstances in which the Crown alleged an indecent assault occurred.
76. The Crown made a further submission in respect of Count 27 in respect of WW, an offence under s 81A of the Crimes Act 1900. The Crown submitted that WW's evidence was quite brief about that incident. He gave evidence that the accused was on top of him and got WW to squeeze his legs tighter and the accused did not penetrate WW. Notwithstanding the brevity of the evidence, the court would be satisfied that the accused participated in an act of indecency with WW.
77. The Crown made a further submission in respect of the evidence of AA to the effect that evidence which she gave about what occurred after the milk bar was entirely consistent with evidence she gave about an event occurring when it was dark outside. The Crown had opened the trial on the basis that those events were completely about the other way. It was submitted that that was not a reason to have a reasonable doubt her evidence. It was submitted that in respect of Count 28, the offence pursuant to s 66EA, the Crown did not have to particularise the unlawful acts relied on. The Crown submitted that AA's memory about what occurred was sufficient and clear to be relied upon in respect of both incidents.
78. Further, in respect of the cross-examination of AA about her statement in which she had said the accused never penetrated her vagina with his penis, that evidence had to be analysed, having regard to the whole of her evidence in which she was being very genuine and thoughtful in her responses. The Crown submitted that in her mind it was very clear that there was a progression from grooming, to the instance where he put his penis on the outside of her underpants, and then to the incidents where there was penetration in the garage with his penis and then after that, other incidents of repeated penile-vaginal intercourse about which she was unable to be as specific.

The accused's case

1. Counsel for the accused submitted that the defence case had been prosecuted through cross-examination of the Crown witnesses. In respect of a Crown case relying on evidence of events that occurred more than 50 years ago, it was submitted that reliability of the Crown witnesses was most important. The accused submitted that evidence of each complainant was demonstrably unreliable, so that the elements of each offence on the Indictment had not been proved beyond reasonable doubt. Further, it was submitted that the evidence of each complainant was so unreliable that it could not be used for tendency purposes in support of the counts either intra-complainant, or in support of counts on the Indictment concerning other complainants.
2. The accused submitted that the evidence in the Crown case was generally unreliable because of the effluxion of more than 50 years, the effect of the passage of time on the complainants' memory and the absence of context evidence concerning those memories, for example, WW's evidence that he could recall no conversations that took place, KW's evidence that she could not recall how they got to the bedroom, and CW's evidence concerning the mat, together with other inconsistencies in the complainants' evidence with the available objective evidence.
3. Counsel also submitted that the Crown evidence was specifically unreliable, for example, AA who had suffered an acquired brain injury. Further, much of the evidence was not independent with respect to CW, KW, WW and LW, as each knew the others had made a complaint or statement, thereby contaminating their evidence and reducing its probative value so that proof beyond reasonable doubt of any count on the Indictment was not achieved, and because of its diminished probative value, it was not available for use as tendency evidence. Further, a number of the complainants, being CW, KW, WW, together with CF, were related by blood.
4. These submissions were then fleshed out by a detailed analysis of the complainants' evidence, particularly in cross-examination, to demonstrate the Crown had not proved beyond reasonable doubt the counts on the Indictment, and further, that the evidence of each complainant should not be used for tendency purposes either intra-complainant or inter-complainant.
5. In relation to the evidence of AA, the accused referred to her evidence in chief where, in relation to Count 30, the incident where she alleged the accused had rammed his clenched fingers into her vagina, she said that she believed that she was "disassociating and just staring at the blackboard … that was, like, detaching myself from the experience …".
6. It was submitted that AA raised this issue of disassociation of her own motion. She also mixed and matched her evidence which had legal consequences.
7. It was submitted that Ex 1 could be construed to support a proposition that the accused commenced teaching at PH on 28 January 1969. Thereafter, Ex 1 provided no assistance as to how long he stayed at PHPS, and as to whether or not he ever boarded in 1967 or 1968 at the home of AA. It was submitted that the fabric of AA's account of what happened to her was that it was at all times commensurate with the accused being a boarder at her home. It was put to AA in cross-examination that at no time was the accused a boarder at her home in 1967 or 1968. This went ultimately to consideration of proof beyond reasonable doubt, first, in respect of the relationship alleged concerning s 66EA, and secondly, the issue of when the accused may have been at the PHPS. It was submitted that the bedrock or contextual aspect of the relationship alleged between the accused and AA was commensurate with two particular index values. The first being that he was a boarder at the home of AA, and the second being that extant with that, he was a teacher at the PHPS. It was submitted that there was a real question as to whether the accused ever boarded at AA's home in 1968 or 1969.
8. The accused submitted that in respect of AA's two statements, the first made on 28 March 2018 and the second on 6 April 2018, there were a number of incidents of sexual misconduct raised in the second statement which were not raised in the first. This led to extensive cross-examination of the complainant AA about her description that after the first statement she had started to have continual flashbacks. The accused submitted that it was apparent that the flashbacks were a continuum or a compendium of recurrent memory episodes over a period of 50 years and comprised in part by a montage of memories. In particular, memories having a nexus with dreams and memories having a nexus with what is added to the account of sexual misconduct, by reason of the second statement referring to "discreet and further matters". It was submitted that the tendency of AA to mix and match incidents in her evidence in chief was a further example that memories had changed significantly ex post facto to the first statement being made. It was submitted that the evidence of disassociation, the evidence of flashbacks, the evidence of the relationship between the flashbacks and what happened after the first statement, meant that the evidence of AA fell short of the very high standard of proof required.
9. The accused submitted that the question of penile-vaginal intercourse between the accused and AA was difficult to prove based on the following evidence: "Q: When you gave your second statement, so I'm talking now about 6 April 2018, you were clear, were you not, you were clear that Mr O'Toole had had penile-vaginal intercourse with you, would that be fair? A: That's very hard to answer, sir. I felt that, I watched what was happening, but at the same time I disassociated from what was happening because I didn't want to - I didn't want to face it. I didn't want to feel it. I didn't want to know what was happening sir, because I didn't understand it."
10. Counsel then referred to evidence given by AA in her first statement to the effect that the accused never penetrated her vagina with his penis. Counsel submitted that this was categorical language that could not be separated from her other evidence.
11. The second statement, however, leant itself to an interpretation that there was a splicing of AA's accounts with reference to flashbacks which were not "necessarily grounded in the empirical constraints of space and time and the actuality of happenings, or the physicality of happenings."
12. The accused submitted that the evidence of AA as to penile-vaginal intercourse in the garage that arose from her second statement, raised an issue of reliability as to her evidence based as it was on flashbacks and partly on dreams. That she conceded that after her first statement she was assisted in remembering those matters partly as a result of the dreams, meant that her evidence about the incidents was deficient or at least unreliable.
13. Further, AA gave evidence that she did not remember what order the assaults took place in. This also went to the question of unreliability of her evidence of sexual misconduct. Counsel characterised this as a subjective construction of events, as opposed to something that could be acted upon on the criminal standards.
14. The accused also referred to the evidence given by AA that the events occurred between 1968 and 1969. Her evidence was based on her understanding that her father passed away in July of 1967 and the fact that she was a little girl at the time. When asked what the last event was, she had given evidence that it was rape which began in the garage and continued in the home on his bed. When asked what the last event was, she said it was difficult to say because it was continuous. AA had agreed that she had dreams about the sexual misconduct of which she had given evidence about. They did not assist her to place the actual events in a certain time. Counsel characterised this as a "collage of dream memories" or "an unconscious imprecision of arrangement which fell short of the high standard of proof required."
15. It was submitted that notwithstanding her acquired brain injury, AA had a firm grasp of dates, that she was in fifth class in 1968 and that the accused was boarding in her house at that time. It was submitted that there was no evidence that the accused was at her house in fifth class other than the evidence given by AA and Ex 1, which did not place him at PH until 1969.
16. The accused submitted that this question of boarding was highly relevant to the question of whether a sexual relationship existed pursuant to s 66EA, relating to Count 28 on the Indictment.
17. Counsel referred to the principle of Browne v Dunn (1893) 6 R 67 (HL) was met by his proposition to the witness, "the sexual misconduct which you have referred has not happened or transpired in the way that you have described". This approach was described as "exceedingly stingy".
18. In terms of the attack on AA's credit, counsel conceded that it may be that AA gave her evidence honestly and as her best account, however, that was a separate and distinct issue from whether or not her evidence was accepted in terms of the burden and standard of proof.
19. Counsel also referred to the fact that AA identified the accused's car as a white Mazda and not a Cortina, and further that she denied other persons being boarders in her home in 1968 and 1969. AA had confirmed that another boarder, a Mr Ramsay, did stay there but he was never there when the accused was. Mr Ramsay was also a teacher at the school, but she could not confirm that he was not there in 1968 and 1969.
20. Counsel acknowledged that there was no aspect of collusion in relation to AA and any other complainant. It was submitted that in all of the circumstances I "would discount AA as a person whose evidence could be deployed for a tendency purpose in respect of tendency events alleged and pertaining to other complainants."
21. Counsel did submit that the court would find a degree of collusion present amongst the remaining complainants so as to weaken the probative value of the evidence. Counsel clarified that he did not mean collusion in the more sinister sense, but rather, more simple sense of working together. The first relevant matter was that some of the complainants knew that others were complaining, for example, WW made his statement within two weeks of learning that his two younger sisters were bringing complaints. Also KW became aware that her sister CW had been a victim of sexual misconduct in 1997, which she later changed to 2000. That was when she was approached by her mother. Counsel then referred to the evidence concerning CW speaking to KW in Scotland in late December 2014, or early January 2015.
22. Counsel referred to the evidence that CW had spoken to her mother in 1997 about anything happening to her at BPS. That was before KW told her, her mother had asked her about it.
23. Counsel submitted that the court would take into account that in either 1997 or 2000, Mrs W had raised with KW, the issue of sexual misconduct by the accused at BPS. It was submitted that the concession made by KW in her evidence that, when she spoke to her mother, her mother had named the teacher from BUP as the accused, did not sit especially well with the evidence that CW first raised the matter with KW in late 2014 or January 2015.
24. The accused submitted that Mrs Y gave evidence about the conversation that occurred at Tuggerawong, in the same terms that LW gave evidence. It was submitted that there was something approaching a degree of some aspect of working together and that amounted to collusion.
25. Further, in respect of LW, the Officer in Charge had telephoned her a number of times and she was apprised of the fact that there were enquiries being made about her teacher at BUP. She gave evidence that at one point the officer told her he thought he had a case. That gave rise to a collegiate endeavour to proceed to bring the allegations and is a heavy blow to the probative value which may otherwise be required to apply tendency principles.
26. Counsel also referred to the evidence given by LW as to the incident in the toilet, being Count 20 on the Indictment. She had a recollection of the incident, but could not remember how she got up onto the toilet board and did not remember how she got down.
27. In respect of the records produced by the Department of Education, it was submitted that the effluxion of time had caused significant forensic disadvantage to the accused. Notwithstanding that the Officer in Charge did his best, the accused could have done nothing to obtain records that were any better than those produced. Whilst the records speak for themselves, they are incomplete and are greatly diminished from what would have been available had there been a search previous to more than a 50 year delay. Further, the departmental officer, Ms MacFarlane, was unable to explain the records.
28. Counsel further referred to the evidence of CW in respect of the allegation she made that because of the deleterious effect on the accused's motor vehicle from tanning hides, the accused had threatened to sue CW's father. That evidence drifted into family reminiscences, but ultimately came down to the fact that CW believed her father.
29. It was submitted that CW was an intelligent person who knew when to jettison a point when it was gone and that applied to that issue.
30. Counsel referred to the evidence given by CW that she had no memory of the accused's taking off his trousers or his underwear in the ante-room in respect of Counts 3 and 4. It was submitted that this was a deficiency in the evidence in relation to whether or not there was any penetration. It was submitted that having regard to the whole of the evidence concerning that incident, I would be left with a reasonable doubt in respect of penetration.
31. Counsel conceded that the defence was not able to close out opportunity in the circumstances of the evidence concerning CW, but it was very difficult, particularly after the passage of 50 years, to bring to bear more accurate or relevant evidence as to the time at BUP and whether the relief teachers at some point replaced the accused, and if so, for how long, as the records were very spartan. Further, CW could not give an accurate description of the accused.
32. Counsel referred to CW's evidence that at the time she made her police statement in July 2016, she was aware that three people were making complaints against the accused, namely, herself, LW and KW. It was submitted to be a matter of human nature and curiosity for witnesses to work together to do what they could do. Also, counsel referred to the evidence of some mistreatment or meanness on the part of the accused in respect of CW, which included calling her names. This evidence was inconsistent with that of NS, who gave evidence that made it clear that the accused called people by their first and second Christian names and she had not encountered him calling the students by nicknames. The submission was made that CW had become an advocate witness, as had KW, in relation to the evidence of "chanting" and the accused leading a chant of nicknames in the school ground towards CW.
33. Counsel referred to the evidence of LW and her conversation with Mrs W at Tuggerawong. LW gave evidence that she may have told Mrs W that she had been assaulted by the accused, that she was not sure. She agreed, however, that she asked the two women present whether they knew anything or had heard anything about sexual misconduct relating to the accused. The fact that there was three years between when the Officer in Charge first rang her up in 2014 and her making a statement, was also an important factor. It was submitted that it may be inferred from the evidence that the Officer in Charge was keeping LW up to date in relation to the investigation and that she was aware that he was awaiting to see until he had a good case against the accused. It was submitted that this evidence was sufficiently contaminated or collegiate in aspect as to lack the probative force to be employed as tendency, either inter-parties in respect of the three other BUP complainants, or between them and any other persons who had brought allegations. It was submitted that the fact that the Officer in Charge had rung her for about three years to give her an update led to a very pronounced cross‑pollination between the complainants.
34. When asked to nominate which year the events occurred to her, she agreed that it could be between 1964 and 1967, but she gave evidence that she was six or seven years of age, having been born on 5 February 1959. She was six or seven in 1965 and 1966, and it was a material matter that the accused was not there in 1965. It was however conceded that there was a period of opportunity between May 1966 through to February 1967 when she was seven. This gave the evidence a lack of detail by reason of the passage of time, which did not enable the accused to shut down.
35. It was submitted that there were not many places where the misconduct alleged could occur. There was the store room, the toilets, but in those toilets there was no cleaning equipment, and because of their nature, there was not very much to clean there.
36. In respect of cleaning of the toilets, and the evidence of LW, the aerial photos in Ex T demonstrated that there was no pressurised water insofar as water supply was concerned for that purpose, and any water used to clean the toilets must have come from the water tank at the school. Thus, the evidence of LW that the toilets were "hosed out" could not be accepted. This undermined the evidence of LW as to what occurred in the toilet. It was submitted that the account given by LW, which was in a context of cleaning the toilet, was unreliable.
37. Counsel submitted that the court would give additional weight to the statement made by CW to the Royal Commission, where in respect of penetration, she had changed her position between that statement and her evidence. Counsel also referred to the issue of voice identification by CW of the accused. This was not identification in the sense that the accused was never at the school, or there had been some terrible mistake. Rather, it was in the context where there was evidence that there were two other young male teachers at the school during the period up until the end of 1967.
38. Counsel rehearsed his submission that there was a relationship between LW, CW and KW which led to the transmission of knowledge as between the three complainants, which led to a significant weakening of the probative value of their evidence as the basis for a tendency use. Counsel submitted that the accused was before the court as a person who had no criminal convictions in New South Wales and was 75 years of age.
39. It was submitted that the court could not be left with a great deal of confidence that the raffia mats were stored in the ante-room at the school. NS was the best historian by her evidence there was a stationery cupboard in that room. According to her evidence, the correspondence students sat in that room at a desk and she could not recall the mats being stored there. The evidence of CF relating to the projector was also unreliable. Whilst there was no issue that from time to time the accused would accompany students to the toilet because of the issue of snakes, NS gave evidence that she never saw him hit any of the children or give them a smack.
40. Counsel referred to the High Court decision in S v The Queen (1989) 168 CLR 266 as authority for the approach to be taken in cases of latent ambiguity where a series or temporal order of matters cannot be differentiated. It was submitted that s 66EA clearly supersedes the kind of reasoning involved in S v The Queen, however, there was a residual aspect which may be taken into account in determining whether or not the court is satisfied beyond reasonable doubt in respect of any one of the allegations. As proof of two or more offences were required to satisfy the section, it was submitted that it was difficult to prove the offence where temporal order and questions of first and last are up for grabs in the evidence. It was submitted that where there was a failure of a witness to identify a temporal series or order in respect of the s 66EA charge, that would have very significant implications as to whether the court was satisfied beyond reasonable in relation to each of the acts alleged.
41. The accused also submitted that on the question of context, the evidence of KW was also deficient, giving rise to a reasonable doubt. It was submitted that her evidence related to events of sexual misconduct which existed aside from or without context and without some empirical matrix, which came before the events, or could be identified after the events. Nor did the events exist in a series or in a temporal order. In respect of the issue of the s 66EA charge (Count 6), an inference could not be drawn about the actuality of what was going on when the events of misconduct are alleged to have occurred. To the extent that both KW and AA were exceedingly light in terms of the actual order of things, leant itself to a finding that the Crown fell short beyond reasonable doubt on the proscribed relationship required pursuant to the section.
42. It was submitted that if KW deployed construction in respect of her evidence referrable to an inculpatory view of the accused's actions constituting the misconduct, the court would give very serious consideration to concluding that the matters are not proved beyond reasonable doubt. In relation to the allegations KW made of the events that occurred in the verandah of her home in the accused's bedroom, the evidence established that her construction was rather more complicated than she may have initially considered. That construction involved the idea of KW being anxious about her maths exam results and knowing that her results were a fizzer. It also required her to have a perception that JL had a better outcome. In cross-examination, that construction disintegrated and it was submitted that the evidence fell short of being reliable. Similarly, it was submitted that she had constructed evidence about the cleaning of the mat after sexual misconduct in the ante-room, and also about lollies being used as a treat following sexual misconduct.
43. It was submitted that the evidence of KW was a unilateral construction to justify allegations of sexual misconduct which were not reliable to the high standard required. There was no temporal order and no evidence in any way as to how long the events constituting the sexual misconduct went on for. The burden and standard of proof was therefore not discharged by the Crown. Further, KW had agreed that one of the reasons why she could not say whether the events were first or second in time, was her lack of memory from 55 years ago.
44. It was submitted that forensic disadvantage arises ipso facto by reason of the age of the matter. The passage of time and its effect on memory meant that the evidence was unreliable for a number of reasons. It also amounted to a forensic disadvantage to the accused because of the passage of time and because of an apparent lack of contextual indices against which the accounts can be tested.
45. KW's concession that she could not remember walking into the room, but she remembered being in the bedroom when the misconduct occurred, was another example of the unreliability of her evidence, given its lack of context.
46. Counsel also referred to the Officer in Charge giving evidence where he candidly gave evidence that in terms of contacting witnesses, he raised the fact that there were investigations going on relevant to things that occurred at BUP at times when other complainants were students. This meant that each of the complainants was aware that something has happened, or is alleged to have happened, and further, that it is attached to something of sufficient gravity to arise from a Royal Commission. It was submitted that CW was an important complainant in respect of the conduct of the investigation, and that as a result of her being unwell for a period of almost two years, the investigation was delayed. It was submitted that this was something that diminished the probative value of her evidence referrable to tendency use.
47. Counsel rehearsed that the collusion contended for was some working together between the complainants which diminished the use or efficacy of the evidence in relation to tendency inter-complainant. It was submitted that both in relation to KW and AA, the threshold of reliability was not discharged in respect of the standard of proof. In the case of KW, there was a degree of construction and contextualising which was not her actual memory. In the case of AA, there is the inter-penetration of matters which related to dreams and flashbacks rather than actual memory. Further, the records were incomplete and incapable of proper understanding as demonstrated by the evidence of Ms MacFarlane.
48. Counsel submitted in relation to CF, that she was born in December 1959 and turned six in 1965. She had given evidence that in respect of the projector incident, two boys had pulled down the blinds, one of whom could have been GH. On the preponderance of evidence, GH was not a student at the school. Because of the lack of particularity, it was submitted that the accused was not able to examine whether the alleged event took place early in 1966 or later in 1966. This was another example of forensic disadvantage to the accused. It was submitted that the timeframe was very vague in terms of the passage of time between the two incidents. Further, in respect of Count 22, the court would find that it was more probable that the projector screen was at the front of the classroom, in front of the blackboard, and the screen was not at the back of the classroom as deposed by CF. In respect of Count 22, it was submitted that the carnal knowledge count does not come up to proof. The complainant's evidence was that she felt a sharp pain, and although she rejected the sharp pain as not being caused by the hand, it is clear that the count is capable of bearing that inference. When that is put together with the imprecision of her memory, combined with the assertion that she did not see his penis, that she is sitting on his lap and that she is also facing away from him, it is submitted that doubt whether the event is digital or penile, was something which could be taken into account in favour of the accused.
49. The Crown made a concession that in relation to the admission roll of BPS, neither MH or GH's names appeared on the roll, and therefore they were not students at the school. Therefore, CF's recollection that GH was in the schoolroom was an erroneous recollection which reflected upon the reliability of her account.
50. Counsel also referred to the close knit community and the relationships between some of the complainants, namely that CW, KW and WW were siblings and cousins of CF, and NS was CF's sister and JM was an aunty. Thus, the complainants are well known to each other by reason of locality, time and relations. That band of unity between them was apparent in the Tuggerawong event, and it was submitted there is a relationship between the genesis of complaint and its development which would require the court to be cautious before applying the tendency use as pressed by the Crown.
51. It was submitted that even if WW was not aware of the details of the complaint made by CW and KW at the time he made his police statement, he was aware of the fact of their complaint and therefore the bringing of his complaint in those circumstances, which had not transpired for many, many decades, had some probative value. It was submitted that the quality of recollection contained in the statement, combined with the temporal proximity in relation to other complaints being made by his sisters, was of significance and went to the issue that the complaints fell short of the standard of reliability required in a criminal charge.
52. Further, the accused submitted that the fact that WW was unable to provide any evidence of conversation concerning the incidents meant that the court should be cautious in assessing his evidence and ultimately, because of its unreliability, it would be dangerous to convict on that evidence. He did not remember how the accused got to the classroom in the school where the alleged sexual misconduct took place, nor could he recall any conversation, however, he gave evidence that there would have been instructions given by the accused to him, but he could not recall word for word what was said. Further, it was submitted that WW's evidence concerning Vaseline use, the stain that it caused to his clothes, and the presumption he made that it was on his underpants, was not persuasive evidence. Because CW had called him and told him that both her and KW were making complaints, it was submitted that his complaint was something less than independent because it was triggered by his becoming aware, after 52 years, that both his sisters had complained. The degree of generality in which his evidence was given and the backing away from any particular detail, meant that the evidence was deficient to discharge the standard.

Directions of law

1. Section 133 of the Criminal Procedure Act 1986 provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any case must include the principles of law applied by the Judge in the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
2. The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved each of the offences beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charges beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.
3. The Crown case depends on the court accepting the reliability of the evidence of each of the complainants to prove the guilt of the accused beyond reasonable doubt. The complainants' evidence must be found to be both honest and reliable. Before the court can convict the accused of any count on the Indictment, the evidence of each of the complainants must be examined very carefully in order for the court to be satisfied that it can safely act upon that evidence to the high standard required in a criminal trial.
4. I give myself the following directions when considering all of the evidence. 1. Direction re complaint evidence In this trial the Crown relies upon evidence of what the complainants said to other people about the alleged assault, that such an assault did occur. The evidence the Crown relies upon falls into the categories below. They are: (i) The complaint made by CW to her husband, DA. CW gave evidence that she told her husband something had happened in the first half of 1994. She told him that she had been molested by a school teacher, but shared no intimate details with him. DA gave evidence that after he formed a relationship with CW in 1993, CW advised him that she had been molested by a school teacher who had been boarding with her parents. She did not tell him the name of the teacher, nor did she ever go into details about what occurred, and they subsequently married in 1994. His evidence was not challenged. (ii) The complaint made by LW to Mrs Y. LW gave evidence that on an occasion in the late 1990's she was at her parents' place at Tuggerawong when they were visited by Mrs and Mrs W and Mr and Mrs Y. Mrs Y gave evidence that LW spoke to her on that day and she admitted that she had been sexually abused at BPS, but did not go into detail with her. In cross-examination, Mrs Y was asked: "Q: Did you observe LW asking anyone whether they knew anything about the sexual misconduct going on? A: Yes they wanted to know whether BY's son knew anyway, so yeah, he was only in year one or two, you know, and he never mentioned anything." (iii) The complaint made by CF to DB. CF gave evidence that when they were engaged, she told her husband DB that she was sexually abused when she was six years old by a school teacher, but did not give him the name. DB gave evidence that when they were engaged and before they were married in 1980, CF told him she had been molested whilst attending school by a school teacher. She told him that he used to make her sit on his lap and do things, but never told him any more details. (iv) The complaint made by CF to Mr F-W. CF also told a friend, Mr F-W, on an occasion in the early 1990's when Mr F‑W and his wife visited CF and her husband. CF told him that she had been molested as a child at school. He asked her, "What do you mean by molested?" and she said, "Sexually assaulted." On a subsequent occasion, 20 years later on another visit, Mr F-W overheard CF telling his wife about the sexual assault and CF told him on that occasion she could not remember telling him about it on the earlier occasion. If I find that the complaints were made substantially to the effect that each witness gave evidence of, then I can use evidence of what was said in the complaint as some evidence that such an assault did occur. That is, I can use it as some evidence independent of the evidence given to me of that incident by each of the witnesses in the witness box. The Crown asserts this evidence has another purpose. The Crown contends that the fact that the complainants raised the allegations against the accused at the time and in the manner that they did, would lead me to accept the evidence given by the complainants in the witness box. In other words, it makes the evidence of the complainants more believable if they had not raised the allegations as they did. Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should ask myself is, "Did the complainants act in a way I would expect them to act if they had been assaulted as they said they were?" "Is what they did the sort of conduct that I would expect from a person who has been assaulted in that way?" If I think that the complainants have done what I would expect someone in their position to do, that may support the Crown case because I may find that there is a consistency between the complainants' conduct and the allegations that they make against the accused Ian O'Toole. On the other hand, if the complainants have not acted in the way I would have expected someone to act after being assaulted, as they described, then that may indicate that the allegations are false. But I bear in mind when considering this issue that there may be good reason why the complainants did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegation must be false. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion. 1. Direction - Evidence of Complaint used to re-establish the complainants' credit This direction concerns the evidence of CW, KW and CF relating to the complaint evidence referred to earlier. The Crown has led that evidence in order to meet the suggestion that each of the complainants has not told the truth in her evidence here in Court. However, the Crown argues that the complaint evidence, together with the circumstances in which the complaints were made, demonstrate that each of the complainants made her allegation of the accused's sexual misconduct by the accused. In other words, the Crown says that the evidence supports the credibility of each complainant as a witness, in that it indicates that if I accept the evidence, it may increase the weight which I give to her evidence as to the alleged sexual assaults with which the accused is charged. 1. Direction - re delay in, or absence of complaint This direction concerns the complaints made by CW, LW and CF as set out in the Complaint Evidence Direction. It also concerns the evidence that KW, WW and AA did not make any complaint about what they claim that the accused did to them. The delay in making a complaint about the alleged conduct of the accused, or the absence of a complaint, does not necessarily indicate that the allegation that the offences were committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. However, the delay in making a complaint and the absence of a complaint are matters that I may take into account in assessing the credibility of the complainants' evidence as to what they said the accused did. The accused has argued that the delay in making a complaint and the absence of complaint was inconsistent with the conduct of a truthful person who has been sexually assaulted and so I should regard this as indicating that the complainants' evidence is false. This is a matter which I should consider. 1. Direction - In relation to delay in complaint and forensic disadvantage to the accused There is a warning I must give myself relating to the issue of delay in any complaint being made by CW, LW and CF. It is most important that I appreciate fully the effects of delay in complaint on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. In this regard I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution, or in adducing his own evidence in his own case: 1. The vividness of recollection of some of the complainants is entirely confined to the alleged events per se, with a marked lack of evidentiary content. Vividness of recollection extends to recollection of words recalled or other things said at the time of the event. The features of language, conversation and requests or directions were lacking in the evidence of KW and WW and vague or inferred in the evidence of CF, AA and LW. 2. Records relating to the accused as a teacher are incomplete. 3. In the case of CF, the assertion that the events happened in 1966 relates in significant degree to the fact of her belief that in that year the school closed, as opposed to a memory of when the charged events occurred. 4. The evidence of AA, who had suffered an acquired brain injury in 2013. 5. The significant effluxion of time before any complaint was made to police. 6. The evidence of CW, who was the first to complain, after recognising the voice of the accused following enquiries she made in relation to the Kurrajong Radio Museum. The asserted voice identification must require significant caution. 7. The fact that when they came to make their statements, each of the complainants, CW, KW, WW, LW and CF, were aware that other persons had raised complaint or were intending to complain about sexual misconduct on the part of the accused. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both. The delay means that evidence relied on by the Crown cannot be fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that each of the complainants' memory for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. Each of the complainants inability to recall precise details of the circumstances surrounding the alleged incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict them. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of each of the complainants. Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and have been able to bring forward evidence to support him. I should also take into account that because of the delay, the accused has lost the opportunity to bring forward evidence from the PHPS. Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I can convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny, I must bear in mind the matters I have just been speaking about - the fact that the complainants' evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support his defence. 1. Direction - Maintain unlawful sexual relationship with child pursuant to s 66EA of the Crimes Act In Counts 6 and 28 the accused is charged with maintaining an unlawful sexual relationship with KW and AA, respectively, between the dates identified on each of those counts on the Indictment. Before I can find the accused guilty of either offence, the Crown must prove beyond reasonable doubt each of the following elements: 1 That Ian O'Toole, being an adult, 2 maintained an unlawful sexual relationship with each complainant, 3 who was a child. If I am not satisfied that the Crown has proved each of these elements beyond reasonable doubt, then I must find Ian O'Toole not guilty. The law says an adult is a person of or above the age of 18 years and that a child is a person who is under the age of 16 years. In this case, if I am satisfied in each case that the accused was a teacher of the school which each of the complainants attended, I will be satisfied that he was an adult and that each complainant was a child under 16 during the period specified on each count on the Indictment. The critical issue is whether the Crown has proved beyond reasonable doubt that Ian O'Toole maintained an unlawful sexual relationship with each complainant. A relationship is a way of describing the nature of the connection between two or more people. In the circumstances of this offending, in each case it concerns two people. I am considering whether there is a relationship between the accused and KW, and the accused and AA in the relevant periods. The Crown case on this aspect of the offence is that I would be satisfied that the evidence has established beyond reasonable doubt that in respect of each complainant, the accused was in a position of authority, being a teacher, and also was a boarder in the home of each of the complainants. The Crown relies on evidence of aspects of how both KW and AA were treated by the accused to establish this relationship in each case. In determining whether the relationship was an unlawful sexual relationship, I must also be satisfied beyond reasonable doubt that Ian O'Toole committed two or more unlawful sexual acts with or towards both KW, in relation to Count 6, and AA in relation to Count 28 during the periods identified in the Indictment for those counts. The Crown case is that the unlawful sexual acts in this case include the unlawful sexual acts identified in the alternative counts, namely, Counts 7-19 in the case of Count 6, and Counts 29 to 37, in the case of Count 28. Although the Crown relies on the unlawful sexual Acts referred to in the alternative counts, in determining whether the Crown has established beyond reasonable doubt that Ian O'Toole maintained an unlawful sexual relationship with KW and AA, I do not need to be satisfied that the Crown has proved that every unlawful sexual act alleged against Ian O'Toole occurred. All I need to be satisfied of beyond reasonable doubt is that Ian O'Toole committed two or more of the unlawful acts with or towards KW, in respect of Count 6, and AA in respect of Count 28. In the context of considering whether I am satisfied Ian O'Toole maintained an unlawful sexual relationship with KW and with AA, "maintained" has its ordinary every day meaning. That is, "carried on, kept up or continued". The Crown seeks to establish this by virtue of the evidence that, in the case of KW, IO boarded at the W family home and was KW's teacher at the BPS during the relevant period. The Crown seeks to establish this in Count 28 by virtue of the evidence that Ian O'Toole was a boarder at the home of AA during the relevant period. The Crown must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between Ian O'Toole and KW, and between Ian O'Toole and AA. An isolated incident is not enough. I must be satisfied beyond reasonable doubt that the evidence establishes some continuity or habituality of sexual conduct. The Crown relies on the evidence of both KW and AA to establish this element beyond reasonable doubt. If I am not satisfied of this beyond reasonable doubt, then I must find Ian O'Toole not guilty of Count 6 in relation to KW, and not guilty of Count 28 in relation to AA. If I am satisfied beyond reasonable doubt that the Crown has established that at least two of the unlawful sexual acts occurred, then because of the way the law defines an "unlawful sexual relationship", the Crown will have proved the existence of an unlawful sexual relationship between Ian O'Toole and KW, in respect of Count 6, and IO and AA in respect of Count 28. The consequence of that finding, if I come to it, is that I will not then need to return verdicts for the alternative counts in the Indictment. 1. Direction - Pursuant to s 165(1)(c) of the Evidence Act 1995 I direct myself that the evidence of AA may be unreliable because she has an acquired brain injury. This is a direction that the law requires me to give and I am to consider it along with all of the other directions I have given in this trial, particularly the direction that before I can convict the accused on any one or more of the Counts in the Indictment I need to be satisfied of the accused's guilt on that charge beyond reasonable doubt. I should scrutinise the evidence of the complainant AA with care and approach her evidence with considerable caution before I act upon it. I note that the accused sought a further direction pursuant to s 165(1)(b) of the Evidence Act concerning the evidence of CW as to her recognition of the voice of the accused when she first carried out an internet search on the Kurrajong Radio Museum where the accused worked as a volunteer. As ultimately identification of the accused was not in issue at the trial, I accept the Crown submission that the impact of this was merely confirmatory that the accused, who worked at the museum, was the same person who had been a teacher at BUP and therefore there was no requirement for a warning that that evidence required close scrutiny. 1. Direction - re Delay in prosecution There is a warning I must give myself relating to the issue of delay in prosecution. It is most important that I fully appreciate the effects of delay of over 50 years in prosecuting this matter on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. In this regard I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution, or in adducing evidence in his own case: 1. First, the effluxion of such a long period of time has caused some deterioration in the memory of witnesses as acknowledged by them in their evidence. 2. Records relating to the accused as a teacher employed by the Department of Education are incomplete. His personnel file was missing. 3. Records relating to students attending at PHPS were unavailable. 4. The complainant AA acquired a brain injury in 2013. 5. The death of potential witnesses namely, Mr and Mrs W and JL. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both. The delay means that evidence relied on by the Crown cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that each of the complainants would have a better memory for details. This would have enabled their evidence to be checked in relation to those details against independent sources so as to verify or disprove it. The complainants' inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances that may contradict them. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainants. Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and had been able to bring forward evidence to support his case. I should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from the Department of Education records. Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I can convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny, I must bear in mind the matters I have just been speaking about - the fact that the complainants' evidence has not been tested to the extent that it otherwise could have been, and the inability of the accused to bring forward evidence to challenge it, or to support his defence. 1. Direction - re Multiple counts on the Indictment This direction is given pursuant to R v Markuleski (2001) 52 NSWLR 82. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. If I were to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainants' evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. If I have a reasonable doubt about the complainants' credibility in relation to any one count, I might believe it difficult to see how the evidence of the complainant could be accepted in relation to the other counts. 1. Direction - Accusatory statements in the presence of the accused I have heard evidence from CW that she asked the accused in recorded conversations with him, both at the Kurrajong Radio Museum and over the phone, about alleged sexual misconduct towards her at BPS when he was a teacher there. The accused said he had no recollection of any such incidents. The accused said the same to police when the allegations were put to him in his ERISP interview, denying that sexual intercourse took place with any complainant and that some of the things alleged did not happen. What one person says to another is not normally relevant evidence. Here, the evidence was led because the Crown asserts that the lack of response by the accused to the statements made to him by CW is an admission by the accused of the conduct she alleges. Further, his failure to deny the matters raised by CW, and raised by the police when they put the allegations to the accused in his ERISP interview, amount to an admission that the allegations are true. It would be different had the accused denied the allegations made or had given some innocent explanation to rebut the allegations. The evidence is only relevant if I find that the accused's lack of response when confronted with the allegations amounted to an admission that they were true. In the present case, I need to first decide whether I accept that CW and the police made the allegations to the accused; whether the accused heard it; and whether he had an opportunity to respond. I also need to decide whether I accept the accused's response. If I do accept the evidence about each of those things, I then need to consider whether I accept that by his response the accused had acknowledged that what CW and police had said was, either in whole or in part, true. It is really a matter for me to apply my common sense and my experience of life and what I might expect a person in the position of the accused to do or say when faced with such an allegation, although I should also consider that people do not always act predictably in certain situations. Here, I am considering the conduct of the accused, and not the conduct of some hypothetical person in his position. I must also consider whether there is an alternative explanation for the accused's lack of response other than that he accepted the truth of what CW said. In this case it has been put that the accused denies that any of the allegations are true. If I accept this alternative explanation then this part of the evidence would not advance the Crown case at all and may be put completely to one side. However, if after considering all of the circumstances I have mentioned, I am satisfied that the accused did acknowledge, either in whole or in part, the truth of what CW and the police said, then this is something I can take into account along with all of the other evidence in the case in my assessment of whether the Crown has proved the guilt of the accused beyond reasonable doubt. 1. Direction - Differences in complainants' accounts I give myself this direction pursuant to s 293A of the Criminal Procedure Act 1986. If I find there are inconsistencies in the complainants' account that may be relevant to their truthfulness or reliability, I direct myself that experience shows: 1. People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. 2. Trauma may affect people differently, including affecting how they recall events. 3. It is common for there to be differences of accounts in a sexual offence, and 4. Both truthful and untruthful accounts of a sexual offence may contain differences. It is up to me as the tribunal of fact to decide whether or not any differences in the complainants' account are important in assessing the complainants' truthfulness and reliability. 1. Direction - re Complainants giving their evidence via closed circuit television I give myself this direction pursuant to s 306ZI of the Criminal Procedure Act 1986. AA was a vulnerable person as defined in s 306M of the Criminal Procedure Act. She gave her evidence by means of Audio Visual Link or Closed Circuit Television facilities from a remote location. I remind myself that it is standard procedure for the evidence of vulnerable persons to be given by those means and to have a support person present and I am not to draw any inference adverse to the accused or to give the evidence any greater or lesser weight because of the use of those facilities and that technology, or the presence of that person. I am mindful that the same direction is required by s 294B(7) of the Criminal Procedure Act 1986 in respect of the other complainants' evidence in respect of prescribed sexual offences, each of whom gave their evidence by AVL from a remote location. It is standard procedure for complainants' evidence to be given by those means, and I am not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because it is given in that way. 1. Direction - Tendency Evidence Before I can convict the accused in respect of the counts on the Indictment, I must be satisfied beyond reasonable doubt that that particular offence has been proved to have been committed. In addition to the evidence led by the Crown, specifically on the 37 Counts on the Indictment, the Crown has led evidence of other acts of alleged sexual misconduct by the accused. I shall, for the sake of convenience, refer to the other evidence as evidence of "other acts". Some of the evidence of "other acts" is the evidence of KW that the accused would sexually assault her by having her rub his penis, and the evidence of AA that the accused would sexually assault her as "a regular sort of occurrence". AA also gave evidence that it occurred in the bedroom occupied by the accused when he was a boarder at her home. The Crown seeks to establish the accused has the following tendencies in relation to all six complainants: 1. To have a sexual interest in young, school age children who are between six and 13 years old, and 2. To act on this sexual interest between May 1966 and January 1971 by engaging in sexual and indecent acts with young school age children whom he knew as pupils or as children of families in whose homes he boarded and in circumstances where he used his authority and standing as a teacher or boarder to create opportunities or exploit his circumstances to engage in such acts with those children." By proving that the accused had those tendencies the Crown argues that I will find it more likely that he committed the acts charged in the 37 Counts on the Indictment. Before I can use the evidence in the way the Crown asks me to use it, I must make two findings. The first finding is that I must be satisfied that one or more of those acts occurred. In making that finding, if I do not consider each of the acts in isolation, but consider all of the evidence, and ask myself whether I am satisfied that a particular act relied upon actually took place. If I cannot find that any of these acts is proved by the Crown, then I must put aside any suggestion that the accused had these tendencies. It is a matter for me as the finder of fact, but just because something happens on one occasion, doesn't mean it cannot amount to a tendency. If I am satisfied that any one or more of those "acts" occurred, then I go on to consider the second finding. I ask myself whether, from the act or acts that I have found proved, I can infer or conclude that the accused had these tendencies. If I cannot draw that inference or conclusion, then I must put aside any suggestion that the accused had these tendencies. So, if having found one or more of the tendencies attributed to the accused have been proved by the Crown, and I can, from the proved act or acts, infer or conclude that the accused had these tendencies, I may use that fact in determining whether the accused committed each of the offences charged. The evidence must not be used in any other way. It would be completely wrong to reason that, because the accused has committed one crime, or has been guilty of this conduct, he is therefore generally a person of bad character and for that reason must have committed the 37 offences on the Indictment. That is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charges on the Indictment. I cannot use it in any way prejudicial to the accused unless I accept the Crown's argument that it shows that the accused had any of the tendencies, and that therefore makes it more likely that the accused committed the offences charged against him. Further, I must not substitute this other evidence for the evidence of the specific allegations contained in the charges on the Indictment. The Crown is not charging a course of misconduct by the accused, but has charged particular allegations arising in what was a course of sexual misconduct. I am concerned with the particular and precise allegation in each of the charges on the Indictment. If I find that the accused had any of these tendencies, it may indicate that the particular allegations are true, but I am required to find that each specific charge is proved beyond reasonable doubt before I can find him guilty of each of the charges. 1. Further Direction - re Tendency Evidence With the exception of the complainant LW, the Crown relies upon tendency evidence in respect of each particular complainant in relation to the counts on the Indictment relating to that particular complainant and any other indecent or sexual acts committed upon that particular complainant by the accused which are not identified as counts. The tendency in relation to CW is: (i) To have a sexual attraction to CW who was aged six or seven, and (ii) To act on this sexual interest between May 1966 and December 1967 by engaging in sexual and indecent acts with CW. The tendency in relation to KW is: (i) To have a sexual attraction to KW who was aged, eight, nine or 10, and (ii) To act on this sexual interest between May 1966 and December 1967 by engaging in sexual and indecent acts with KW. The tendency in relation to CF is: (i) To have a sexual attraction to CF who was aged six, seven or eight, and; (ii) To act on this sexual interest between May 1966 and December 1967 by engaging in sexual and indecent acts with CF. The tendency in relation to WW is: (i) To have a sexual attraction to WW who was aged 13 and; (ii) To act on this sexual interest between May 1966 and December 1967 by engaging in sexual and indecent acts with WW. The tendency in relation to AA is: (i) To have a sexual attraction to AA who was aged nine, 10, 11 or 12 and; (ii) To act on this sexual interest between January 1968 and October 1970 by engaging in sexual and indecents acts with AA. As outlined in the tendency evidence direction above, if I find the tendency attributed to the accused in respect of each complainant as outlined above, I can use that fact in determining whether the accused committed each of the offences alleged. I cannot, however, use that evidence in any way prejudicial to the accused unless I accept the Crown's argument that it shows that the accused had the tendency referred to, and that therefore makes it more likely that the accused committed the offences charged against him. 1. Direction - re election of the accused not to give evidence The accused has not given any evidence in response to the Crown's case. There are a number of important directions of law which I must give myself in relation to that fact. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. I direct myself, as a matter of law, that the accused's decision not to give evidence cannot be used against him in any way at all during the course of my decision. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence or what might have been said by a witness if that witness had been called by the accused in the trial. 1. Direction as to accused's good character The Accused Ian O'Toole relies on evidence given by Detective Senior Constable Welsh that was not challenged by the Crown, to establish that he is a person of good character. The evidence was to the effect that Ian O'Toole is a person of good character as to: (1) He has no criminal convictions. (2) He has never been previously charged with any crime. The law provides that I am entitled to take evidence of an Accused's good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Ian O'Toole is a person of good character is relevant to the likelihood of him having committed the offences alleged. I can take into account Ian O'Toole's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for me. Further, I can use the fact that the Accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, either in giving evidence before me or in giving an account of the events in answer to questions asked by the Police. Whether I reason in that way is a matter for me to determine. None of this means, of course, that good character provides Ian O'Toole with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that Ian O'Toole is a person of good character is completely a matter for me, but I should take that fact into account in the way I have indicated to myself. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time.

Assessment of witnesses generally

1. My function as the tribunal of fact involves deciding what evidence I accept as proof and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of whether I accept evidence as established by a particular witnesses' account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in the witness' recall of events, or a witness' inability to accurately describe what it is he or she saw or heard.
2. In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, equally, it is open to me to accept part of the evidence and reject other parts of that witness' evidence. In making that assessment, I am not obliged to confine myself looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

Findings of fact

1. Exhibit A was a Statement of Agreed Facts pursuant to s 191of the Evidence Act 1995. It included the following: 1. That the accused's dated of birth is 15 November 1945. 2. That WW's date of birth is 29 August 1953. 3. That CW's date of birth is 21 September 1960. 4. That KW's date of birth is 2 September 1957. 5. That CF's date of birth is 19 December 1959. 6. That LW's date of birth is 5 February 1959. 7. That AA's date of birth is 29 October 1957.
2. I am satisfied on the basis of documents produced by the Department of Education that the accused was appointed and commenced at BPS on 24 May 1966 and was the single teacher at that school until his transfer to Mount Parry School on 30 January 1968. I further find that BPS closed in April 1968 when pupils were transferred to Medlow Public School (see Ex X). I find that the accused commenced his appointment at PHPS on 28 January 1969, where according to the leave records, he remained as a teacher until 1977.
3. Whilst the accused taught at BPS, I find that he boarded with the W family, whose farm was located adjacent to the school. It was a remote farming area located some 45-50 kilometres from Mville, New South Wales. I find that whilst he was boarding with the W family, the accused drove a white Cortina motor vehicle, and had an interest in radios.
4. I also find as a fact that the accused boarded with the family of AA when he was employed as a teacher at PHPS from January 1969. I am unable to make any finding on the evidence before me when he commenced boarding and when he ceased boarding with the family of AA.

Assessment of witnesses in the Crown case

1. My assessment of the witnesses who gave evidence at trial must acknowledge that they were giving evidence about events that occurred more than 50 years ago, with the attendant impact on memory and powers of recollection that must necessarily flow from the effluxion of such a long period of time.
2. CW was a precise historian who made appropriate concessions in cross‑examination. I reject the contention of the accused that she was a witness advocate. Rather, she gave her evidence in a straightforward fashion and was not prone to embellishment. An example of the accuracy of her recollection was her evidence, that was challenged, that the BUP students moved to Medlow Public School after the start of the school year. This was supported by Ex X which seemed to have been overlooked by counsel.
3. CF was a more labile witness who gave evidence somewhat emotionally, but was steadfast in her allegations against the accused in respect of Counts 21 to 23. Her recollection that GH closed the blind in the classroom, when he was not a student at the school, was not of sufficient importance to undermine her evidence or its probative value.
4. My assessment of KW was that she was a reserved person who was somewhat stoical in the face of a searching cross-examination. She acknowledged a construction of recollection as to contextual matters, but was also steadfast in her adherence to the evidence she gave as to the allegations of sexual misconduct by the accused. I reject the accused's submission that she too was a witness advocate. Rather, she was not prone to exaggeration at all, and made appropriate concessions. Her concession relating to construction of evidence of context, based on her presumptions or inference, did not undermine the cogency of her evidence relating to sexual misconduct or diminish its probative value.
5. WW impressed as a somewhat reticent complainant who gave his evidence in a matter of fact way. His evidence that he had no recollection of the conversations that took place during the alleged incidents of sexual misconduct had the ring of truth, as did his evidence that he would have been given instructions by the accused as to what to do when engaged in that misconduct.
6. LW was also a straightforward witness who gave a careful account of what she alleged occurred between herself and the accused. Her evidence of "hosing out" the toilets, in the apparent absence of pressurised water was of no great moment and did not diminish the probative value of her evidence.
7. The fact of AA's acquired brain injury in 2013 had a substantial impact on her presentation as a witness. She was clearly fixated on the accused, and on her allegations of sexual misconduct against him. Whilst she had a recall of events that she alleged occurred, she could not recall the order in which they occurred, or the exact timeframe. I have therefore taken particular care in assessing her evidence in relation to Count 28 and also the alternative counts, being Counts 29 to 37.
8. Each of the witnesses EH and NS gave their evidence in a straightforward manner. Each did their best to give accurate evidence, particularly in cross‑examination, to assist the court.
9. Both DA and DB, the husbands of CW and CF respectively, gave evidence in the nature of complaint evidence as outlined above in a straightforward manner. Neither were cross-examined or challenged in their evidence. Similarly, JFW also gave evidence to the best of his recollection as to the complaints made to him by CF, notwithstanding the effluxion of time.
10. BY also gave very straightforward evidence about the occasion when she was present at the home of LW's parents at Tuggerwong, when LW told her that she had been sexually abused at BPS.
11. I have also had regard to the recorded conversation between CW and the accused on 25 February 2017 (Ex J). On that occasion, CW asked the accused whether he remembered two specific incidents. The first she identified as taking place in the toilets. She said: "On one occasion I had my pants down, you had your penis out, you were um, you ejaculated over me, course I can remember, over me, not us, because I remember you saying to me, 'that's called spunk CW, and you should be proud that I can do that to you.' Do you remember that?" The accused said: "No, not at all."
12. The second incident was brought up by CW as follows: "CW: You took me into the store room of that school, and laid me down on the floor, and you were on top of me, and I remember, you know, you, I had my, the bottom parts and my shorts off, and, and undies off, and you were on top of me, I think you'd taken your pants off, no you had taken your pants off … and you were on top of me, and I remember you saying to me 'if I did this to someone like JL, she'd fall pregnant.' How can you not remember? Accused: No, not at all."
13. When asked how he could not remember and feel sorry for it, the accused responded: "No. Well, I don't, but I'd certainly feel sorry if I did. Yeah."
14. In a subsequent recorded telephone conversation on 8 April 2017 (Ex K), the accused said he could not remember using nicknames towards CW or her sister KW. When CW told the accused, in relation to the sexual abuse that took place in the toilets and store room, that she needed to be able to work through, he said: "Right. Yeah. Well, I don't recall, but yeah, if I did something like that, that's dreadful and I'm, I'm very sorry if, if that actually happened."
15. Later, CW said: "And you're sorry for what you did to me, though? You'rs sorry for, for anything you did to me? Accused: Well if, yeah, if that's so yeah. My word I am. Because, yeah, that's just not on."
16. CW asked the accused: "If you can't remember, does that mean you may have done it? Accused: I, I don't know. I, I really don't know. No, but I certainly can't remember it. CW: Are you sorry for sexually abusing me? Are you sorry for that? Accused: Yeah, if, if I did, I'm extremely sorry, yeah. And, and I should not have done it."
17. The following conversation also took place: "CW: I know what you did to me and I know how my sister reacted. Accused: Yeah. CW: And that means you've sexually abused both of us and you can't remember, and you still call my father, um, a wonderfully hard-working and honest man, which I know he was. I don't need anyone to tell me that. Accused: Yeah, he, he absolutely was. Yeah. Oh. Yeah, well, I'm just so sorry if that happened. CW: Well it did happen. Accused: Yeah. Accused: Well, as I said, I'm very sorry if it, it happened. Yeah."
18. Later, the accused said: "Yes, if that's what happened, I'm incredibly sorry. Incredibly sorry. Yeah."
19. The accused was interviewed by the Officer in Charge on 27 July 2017 and his ERISP interview became Ex R. The Officer in Charge informed the accused that he was investigating historical child sex offences that occurred in around 1966 and 1967 at BPS. When informed of those allegations, the accused told police that no sexual intercourse had taken place. When asked whether any conduct involved touching occurred, he was asked: Q50: Do you remember what you replied in relation to that? A: I just said, there was no sexual intercourse. Q52: Do you remember saying, when I, when I asked you that question, are you saying there was only touching. Do you remember saying 'yes, it was only touching'. A: No. Q53: Don't remember saying that? A: No."
20. The accused was reminded that he had a right of silence and that he did not have to say anything to the police. He acknowledged that. He agreed that in 1966 when he came out of National Service, he commenced at BPS in the second term of a four term year. He told police that he stayed with W family, and stayed in a bedroom on the verandah of their house. He told police that he wanted to hear a general outline of the allegations. When police put allegations of sexual misconduct towards CW to him, the accused said he had no comment. When asked whether he was saying that things happened in a different way, he said: "Um, well, some of the things in there, are uh, ah, just didn't happen." Q: Do you wish to say what didn't happen? A: No."
21. The accused told police that when he spoke to CW on 25 February at the radio museum, he could not recall any of these things happening. He was then asked: "Q: If someone accuses you of something, doing something that serious, why, why wouldn't you deny it, if, if it didn't happen? You understand these are very serious offences? A: Yeah. Uh, well, I just, just don't recall it."
22. The accused went on to tell police that he had not seen CW for 50 years and he thought the easiest thing was to just let her go and say all of those things because he did not know what he was dealing with.
23. When the Officer in Charge told the accused what the nature of the allegations KW was making against him, he described them as "pure fiction". He told police that he had never been to the shop at Taylors Arm and the allegation as to what occurred in the classroom was "fiction".
24. When the allegations of KW as to what occurred in his bedroom at the home were put to him, the accused said, "I don't recall that at all." Similarly, in relation to the allegation as to what occurred when swimming in the river, he said he had "no recall".
25. When the Officer in Charge put the allegation made by LW of sexual misconduct that took place in the toilet when she was about seven, the accused did not respond.
26. When the allegations of CF were put to the accused, of sexual misconduct in the classroom, in relation to Count 22 on the Indictment, the accused responded: "I must have been very good at creative, wri, teaching creative writing, because, it's just, there's good creative writing in there."
27. When the Officer in Charge put the allegation made by CF that he threatened that if she told anyone he would make her repeat a year at school, and was there anything he wished to say in relation to it, the accused answered, "No, no comment really, but that's just a fabrication."
28. The Officer in Charge further asked: "Are you saying that there was no touching or masturbation, or anything like that as well? Accused: Mmm, just no comment."
29. When asked by police: "What's your definition of can't recall? Is it meaning, it's not in memory, it may have happened but it's not in your memory? A: Memory, yeah. Q: Okay, um, so there's some things that the detective said that, um, may have been true but not to that detail? A: Mm, yes."
30. I am satisfied that the accused has experienced significant forensic disadvantage in being confronted with allegations of criminal offending more than 50 years after the events were said to have occurred. I have taken into account that disadvantage as outlined in the directions above, which include the following considerations: 1. The delay has meant that the accused has lost the opportunity of making enquiries and exploring the alleged circumstances close to the time of the alleged offences, which may have uncovered additional evidence, throwing doubt on the allegations made against him; 2. Had the trial taken place closer to 1970, the complainants might have had better recall of the incidents of sexual misconduct and the context in which they took place; 3. The effluxion of 50 years or more meant that some witnesses had no recall of some of the context in which the alleged incidents took place; 4. The records from the Department of Education were incomplete, including the personnel file of the accused, and the admission records relating to PHPS; 5. A number of potential witnesses had died, including Mr and Mrs W and JL.

Determination

1. Having regard to the whole of the evidence outlined above, and being mindful of the directions of law that I have given myself, and the effluxion of more than 50 years between the alleged incidents of sexual misconduct and the trial of the accused, I am satisfied that each of the elements of the offences in Counts 1, 2, 3 and 5, being offences pursuant to s 76 of the Crimes Act 1900, have been established beyond reasonable doubt and that on each occasion between 23 May 1966 and 31 December 1967, the accused assaulted CW and at the time of that assault, committed an act of indecency. I am satisfied that she told her husband DA in 1994 that she had been molested by a school teacher, but did not go into details as to what occurred. It is not uncommon for a victim of sexual misconduct to not report or complain of that sexual conduct for lengthy periods of time, until such time that they disclose it, often to a loved one or partner. In the case of CW, I accept the evidence of complaint, which was corroborated by the evidence given by her husband, as supporting her reliability of her evidence as to the allegations of sexual misconduct.
2. I am further satisfied that the elements of the offence of Count 4, the offence of carnal knowledge pursuant to s 67 of the Crimes Act 1900 have been established beyond reasonable doubt and that penile-vaginal penetration took place at that time.
3. Having considered the evidence in relation to each of the allegations brought by CW, and having found each offence proved beyond reasonable doubt, I find that the accused has the following tendencies: 1. To have a sexual interest in young, school age children who are between six and 13 years old, and 2. To act on this sexual interest between May 1966 and January 1971 by engaging in sexual acts and indecent acts with young school age children who he knew as pupils or as children of families in whose homes he boarded and in circumstances where he used his authority and standing as a teacher or boarder to create opportunities or exploit his circumstances to engage in such acts with those children. Having found those acts proved beyond reasonable doubt, I find that I may use the fact that the accused had those tendencies in respect of each of the other complainants.
4. Before turning to the other allegations and counts on the Indictment, I wish to make it clear that I find that the accused made no admissions to CW, either in her recorded conversation on 25 February 2017, or in the recorded telephone conversation on 8 April 2017 of sexual misconduct. Nor did the accused make any admission to the allegations brought by CW in his ERISP interview where he specifically denied sexual intercourse taking place, and said on a number of occasions that he did not recall the events or incidents alleged. Further, to the extent that it could be inferred that he accepted unlawful touching of CW, that was recanted during his ERISP interview. Further, he denied other allegations as they were described to him by the investigating police. I therefore proceed to consider the balance of counts on the Indictment, having put the responses of the accused to one side, and considering the totality of the evidence in the Crown case.
5. In considering the evidence in relation to Count 6 on the Indictment, I must have regard to the whole of the evidence regarding sexual misconduct directed to KW. Notwithstanding that she had spoken to her mother in 2000 and become aware that another student was making an allegation of sexual misconduct against the accused, I find that KW did not discuss the subject of sexual misconduct by the accused with CW until the occasion when CW visited her in Scotland between December 2014 and January 2015. I further find on that occasion CW told KW no details of the sexual misconduct she was alleging against the accused, nor did KW disclose to CW any detail of what had occurred to her. Notwithstanding that it took another two years until July 2016 for CW to make her statement, for reasons of her own ill health, and KW did not make her statement until January 2018. I find that there was no collusion in that process, namely, the making of their statements and the bringing of their evidence before the court, even to the extent of "working together" as advocated by the accused.
6. Notwithstanding their allegations had common links as found in my judgment on tendency evidence, the individual allegations brought by each complainant were exactly that, namely, individual and idiosyncratic as to their own circumstances. Nor do I find that any other complainant colluded with any complainant in the manner advocated for by the accused. The mere fact that a complainant knew that one or more other complainants were assisting police by making statements, reflects the reality of police investigation into such matters, and does not colour the evidence that otherwise honest witnesses gave to diminish its probative value, if accepted.
7. I find beyond reasonable doubt that the accused did maintain an unlawful sexual relationship with KW who was then under the age of 16 years, in which the accused engaged in two or more unlawful sexual acts. Those acts included masturbating the accused (Counts 7 and 9), the accused putting his penis between her legs and moving it back and forth in the area of her vagina (Count 8), having KW perform fellatio on him (Count 10), placing his hand on her vagina whilst swimming (Count 16). I am satisfied that each of those counts have been proved beyond reasonable doubt.
8. I am satisfied that the unlawful sexual relationship the accused had with KW was maintained over a substantial period of time whilst he boarded with the W family and taught at the BPS. There is therefore no need for me to consider separately the alternative counts in Counts 7 to 19.
9. Having found Count 6 established beyond reasonable doubt, it supports the tendency set out in [3] and [7] of the Crown's Tendency Evidence Notice, and I therefore take that into account in considering the counts against the other complainants.
10. With respect to Count 20, I accept the evidence given by LW in respect of the incident that occurred in the boys' toilets. I am satisfied that the elements of the offence of assault and commit act of indecency, pursuant to s 76 of the Crimes Act 1900 are established beyond reasonable doubt.
11. In respect of Count 21, I accept the evidence of CF and I am satisfied that the elements of the offence of assault female and commit act of indecency, pursuant to s 76 of the Crimes Act 1900, are established beyond reasonable doubt. I am satisfied that on that occasion that the accused placed his hand up CF's dress, inside her underwear, and rubbed her on the vagina.
12. In respect of Count 22, notwithstanding the evidence of CF that she felt a sharp pain in her vagina as she sat on the accused's lap, looking at photos projected on the wall, when the accused had unzipped his pants and pulled her underwear to one side, and notwithstanding that following the incident she smelled a strong smell and her underwear was wet, I find that there is a reasonable doubt in respect of whether the elements of an offence pursuant to s 67 of the Crimes Act 1900 of carnal knowledge was made out. I am satisfied, however, that an alternative statutory count is available pursuant to s 76 of the Crimes Act 1900, and the elements of that offence would be made out based on the inference to be derived from the evidence that the accused ejaculated into her underwear in the vicinity of her vagina. I therefore find that Count 22 is not made out, but the alternative statutory count pursuant to s 76 of the Crimes Act 1900 is established beyond reasonable doubt on the evidence.
13. In respect of Count 23, I accept CF's evidence in relation to that the incident that took place in the girls' toilet, when the accused took her hand to move it onto his penis and came into contact with her head. The offence of assault and commit an act of indecency is made out pursuant to s 76 of the Crimes Act 1900, and I am satisfied that each of the elements of that offence is proved beyond reasonable doubt.
14. In respects of Counts 24 to 27, I accept that WW was a witness of truth. He gave his evidence with a flat affect and in a straightforward fashion. The fact that he could not recall the actual conversations that occurred in respect of each offence did not diminish the probative value of his evidence. As outlined above, I find that he did not collude with CW or KW in providing his statement to the investigating police. No inference could be drawn rationally that he did so, on the basis only that that statement was provided two weeks after he was told that both sisters were providing statements. His evidence was reliable, and his credit was not impugned in cross-examination where he made appropriate concessions. I am satisfied that in respect of Counts 24, 25 and 26, the elements of the offence in each count, pursuant to s 81 of the Crimes Act 1900, have been established beyond reasonable doubt. In respect of Count 27, I am satisfied that the elements of the offence pursuant to s 81A of the Crimes Act 1900 have been established beyond reasonable doubt.
15. I now turn to the allegations brought against the accused by AA, and the offences in Counts 28 to 37 of the Indictment. AA suffered an acquired brain injury in 2013. She had made a complaint to the Royal Commission into Institutional Response to Child Sexual Abuse, which led to a police investigation in Sydney. Her first statement was taken by Detective Senior Constable Bartlett on 28 March 2018. In it, she alleged that the accused moved into her family home and lived there in 1968 and 1969 when she was in fifth and sixth grade at PHPS. She told police that she could not remember the exact months within that two year period when she was sexually and indecently assaulted, but that the accused stopped sexually and indecently assaulting her once she got her period, which was when she started high school in 1970. She had told police of two incidents that occurred whilst she was at school, one in the playground and one in a classroom (Counts 29 and 30 on the Indictment). She told police further that there were continuous sexual assaults in his bedroom at home throughout 1968 and 1969. She also told police of three incidents that occurred during that period of time in his bedroom, which involved digital penetration of her vagina and ejaculation onto her abdomen.
16. AA was cross-examined about the content of her statement in which she said that the accused "never penetrated my vagina with his penis, even though he would try many times through my underpants." In cross‑examination, AA conceded that one week after her first statement, on 6 April 2018, she made a further statement to the police. In that statement she said: "Since making this statement to Detective Bartlett I've had continual flashbacks of what the accused did to me as a child."
17. AA was extensively cross-examined about that statement, the fact of her evidence being based on flashbacks and her concession that her evidence was based primarily on her dreams of what the accused did to her.
18. AA in her evidence was prone to overstatement. The Crown conceded that she was clearly fixated on what she alleged the accused did to her and the effect of the sexual misconduct on her. This led to her generally embellishing her evidence and on numerous occasions giving evidence that was unresponsive to what she was being asked.
19. I have to take into account that the evidence established that the accused commenced teaching at PHPS in January 1969. I also take into account that the complainant AA was unable to place the incidents of sexual misconduct in a chronological or temporal order, other than stating that the incidents at school came first, and the last incidents, of which she gave no evidence, occurred in the accused's bedroom at her home. Further, there was a mixing and transposing of incidents and the context in which they occurred by comparison to the Crown opening of its case at trial, thereby giving rise to some doubt about her evidence.
20. The introduction of s 66EA of the Crimes Act 1900 in 1999, was a tool to assist the prosecution in cases of abuse where many largely indistinguishable incidents of abuse made it difficult for victims to recall specific occasions with sufficient particularity for individual charges. The introduction of the new s 66EA, the offence of maintain unlawful sexual relationship with a child under 16, now requires the establishment of two or more unlawful sexual acts with a child, but does not require the prosecution to specify the particulars of the unlawful sexual acts with the same degree of detail as would be required if they were charged as separate offences. However, the way in which the evidence was adduced here means that there is latent ambiguity in the identification of the incidents of sexual misconduct, as referred to by the majority in the High Court in S v The Queen, supra. Further, little or no evidence was adduced as to the matters particularised in Count 28 above as 2, 3, 4, 5, 8, 9 and 10 on the Indictment.
21. Notwithstanding AA's evidence that she did what the accused asked her to do in the episodes of misconduct because he was a teacher at her school, and therefore a "Sir", and someone to be obeyed, and that she thought she loved him in the absence of a male figure in her life following her father's tragic death in 1967, I am not satisfied that in the period specified in Count 28, namely, between 1 January 1968 and 29 October 1970, the accused maintained an unlawful sexual relationship with her. There is a reasonable possibility, having regard to the totality of the evidence, that he did not do so, which has not been negatived by the Crown, and I therefore find that there is a reasonable doubt in respect of Count 28 and the offence pursuant to s 66EA(1) of the Crimes Act 1900. There will be a verdict of not guilty on that count.
22. In respect of Counts 29 to 33, being alleged offences pursuant to s 76 of the Crimes Act 1900, having regard to the whole of the evidence, I am not satisfied beyond reasonable doubt that any of those offences are established. In respect of Counts 29 and 30, the incidents in the playground and classroom at school, there is a reasonable possibility that neither occurred in the way or at the time recounted by AA. In respect of Counts 31, 32 and 33, given that AA gave conflicting evidence as to the circumstances in each allegation, and transposed two of the alleged offences, I am again not satisfied beyond reasonable doubt, given a reasonable possibility that the offending did not occur in the way AA described each of those offences. There will therefore be verdicts of not guilty in respect of Counts 29 to 33.
23. I am mindful of the Markuleski direction that I have given myself, namely, that I am entitled to bring in verdicts of guilty on some counts, and not guilty on some other counts if there is a logical reason for that outcome. However, if I find the accused not guilty on any count, particularly if I had doubts about the honesty or reliability of a complainant's evidence, I have to consider how that conclusion affects my consideration of the remaining counts. I have therefore given close consideration to the evidence given by AA in respect of Counts 34, 35 and 36.
24. I find that Counts 34, 35 and 36 fall into a different category. AA gave consistent evidence as to the events that occurred in the garage on a Saturday at her home. I am satisfied that the elements of the offence in Count 34, the offence pursuant to s 76 of the Crimes Act 1900 are made out and that the accused did assault AA, and at the time of the assault committed an act of indecency on her when he bent her over the bench and pushed one hand around her anus.
25. I am further satisfied beyond reasonable doubt of the offence in Count 35, the offence of carnal knowledge pursuant to s 71 of the Crimes Act 1900, has been made out and each of the elements of the offence have been proved beyond reasonable doubt on this occasion when the accused penetrated AA's vagina with his penis.
26. I am also satisfied that the elements of the offence in Count 36 of carnal knowledge, pursuant to s 71 of the Crimes Act 1900, were established beyond reasonable doubt in that I accept that the evidence of AA that she was then made to lie on the floor of the garage and penile-vaginal penetration took place.
27. I wish to make it clear that in finding the offences in Counts 34, 35 and 36 established, those three offences arose out of one course of sexual misconduct which took place consecutively on the same day. My findings in relation to those three counts on the Indictment do not affect my earlier finding in relation to Count 28, that the Crown failed to establish that the accused maintained an unlawful sexual relationship with AA during the period specified.
28. Finally, I am not satisfied that the offence in Count 37 is established, and the Crown conceded that there was no evidence offered by AA in relation to that offence.
29. I therefore find, having regard to the whole of the evidence, and taking into account the various directions of law which I am required to do, the following verdicts: Count 1 - Offence of assault a female CW, a female then under the age of 16, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 2 - Offence of assault a female CW, a female then under the age of 16, and at the time of the assault, commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 3 - Offence of assault a female CW, a female then under the age of 16,and at the time of the assault, commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 4 - Offence of carnally know CW, a girl then under the age of 10 years, namely, the age of 6 or 7 years, an offence pursuant to s 67 of the Crimes Act 1900 - Guilty Count 5 - Offence of assault a female CW, a female then under the age of 16, and at the time of the assault committed an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 6 - Offence of maintain unlawful sexual relationship with KW, then a child under the age of 16 years, namely, 8, 9 or 10 years of age, pursuant to s 66EA(1) of the Crimes Act 1900 - Guilty Count 20 - Offence of assault a female LW, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 21 - Offence of assault a female CF, a female then under the age of 16 years, and at the time of the assault committed an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 22 - Offence of carnally know CF, a girl then under the age of 10 years, namely, the age of 7 or 8 years, pursuant to s 67 of the Crimes Act 1900 - Not Guilty, but Guilty of the alternative statutory count of assault a female CF, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900. Count 23 - Offence of assault a female CF, a female then under the age of 16 years, and at the time of assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 24 - Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 - Guilty Count 25 - Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 - Guilty Count 26 - Offence of assault WW, a male person, and commit an act of indecency upon him pursuant to s 81 of the Crimes Act 1900 - Guilty Count 27 - Offence of procure the commission of an act of indecency with WW, a male person, pursuant to s 81A of the Crimes Act 1900 - Guilty Count 28 - Maintain unlawful sexual relationship with AA, a child then under the age of 16 years, pursuant to s 66EA(1) of the Crimes Act 1900 - Not Guilty Count 29 - Assault a female AA, then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty Count 30 - Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty Count 31 - Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty Count 32 - Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty Count 33 - Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty Count 34 - Offence of assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Guilty Count 35 - Offence of carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900 - Guilty Count 36 - Offence of carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900 - Guilty Count 37 - Assault a female AA, a female then under the age of 16 years, and at the time of the assault commit an act of indecency pursuant to s 76 of the Crimes Act 1900 - Not Guilty

Orders

1. I make the following orders: 1. Ian Wayne O'Toole, you are convicted of the offences in Counts 1, 2, 3, 4, 5, 6, 20, 21, the alternative statutory count to Count 22, pursuant to s 76 of the Crimes Act 1900, Counts 23, 24, 25, 26, 27, 34, 35 and 36 on the Indictment.

Amendments 13 August 2020 - Suppression on accused name lifted Paragraphs 20, 52, 54, 55, 62, 63, 70, 75, 77, 79 84 and 107 names have been anonymised. 13 August 2020 - Suppression order on accused's name lifted Paragraphs 57, 108, 123, 134, 158, 163, 210, 212, 221 names anonymised. 17 August 2020 - Paragraphs 32, 42, 44, 92, 106 and 367 - names of places anonymised. 17 August 2020 - Paragraphs 50, 71, 362 - names anonymised DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2020